PUBLIC LAW CONFERENCE

The Frontiers of Public Law

11-13 July 2018 Melbourne Law School

PROGRAMME

Wednesday 11 July

4.00 p.m. – 5.30 p.m. Registration and Tea and Coffee • First Floor Foyer

5.30 p.m. – 5.40 p.m. Dean’s Welcome • Derham Lecture Theatre (GM15), First Floor

Professor Pip Nicholson (Dean, Melbourne Law School)

5.40 p.m. – 7.00 p.m. Opening Plenary: Frontiers of Executive Power • Derham Lecture Theatre (GM15), First Floor

Chair: Professor Carolyn Evans (Deputy Vice-Chancellor and Deputy Provost, )

Speakers:

Lord Mance (Deputy President, United Kingdom Supreme Court) The Frontiers of Executive and Judicial Power: Differences in Common Law Constitutional Traditions

Hon Mr Kenneth Hayne (Commissioner, Financial Services Royal Commission; formerly a Justice of the High Court of ) Keeping Pace with Changes in the Use of Executive Power

7.00 p.m. – 9.00 p.m. Welcome buffet dinner • First Floor Foyer

1

Thursday 12 July

8.00 a.m. – 9.10 a.m. Parallel Sessions: Doctoral Scholars

Public Law: Intersections Privacy, Information and the Public-Private Divide LT 102 (First Floor) LT 108 (First Floor) Chair: Associate Professor Chair: Professor Mark Aronson Farrah Ahmed (Melbourne) (UNSW)

Harry Hobbs (UNSW) Making Jelena Gligorijević (Cambridge) Public Law’s Boundaries Privacy on the Frontiers of Permeable: Exploring the Public Law Relationship between Public Law, Indigenous Law and Mariyam Kamil (Oxford) Legitimacy Horizontal Application of Privacy: The Indian Experience Elizabeth O’Loughlin (Manchester) Constitutional Oliver Butler (Oxford) The Adjudication of Land Injustices Distinctiveness of Public in Kenya: at the Frontiers of Authorities in the Regulation of Public Law Information

Anna Dziedzic (Melbourne) Constitutional Adjudication by Foreign Judges and the Boundaries of the Judicial Role in Pacific Constitutional Systems

9.00 a.m. – 9.15 a.m. Morning Coffee • First Floor Foyer

9.15 a.m. – 10.30 a.m. Welcome • Derham Lecture Theatre (GM15), First Floor

Welcome to Country: Uncle Ron Jones ( Elder)

Opening Remarks: Associate Professor Jason N E Varuhas (Conference Convenor)

Keynote Plenary: Global Public Law • Derham Lecture Theatre (GM15), First Floor

Chair: Associate Professor Jason N E Varuhas (Melbourne)

Speakers:

Professor Benedict Kingsbury (NYU) The Frontiers of Global Administrative Law

Laureate Professor Emeritus Cheryl Saunders (Melbourne) Global Constitutionalism – Between Myth and Reality

10.30 a.m. – 10.45 a.m. Tea and Coffee • First Floor Foyer

2

10.45 a.m. – 12.15 p.m. Parallel Sessions

Public Law and Private Law Frontiers of Executive Power I Boundaries of Judicial Review Derham LT (First Floor) G08 (Ground Floor) LT 102 (First Floor) Chair: Hon Matthew Palmer Chair: Professor Rosalind Chair: Hon Grant Huscroft (New Zealand High Court) Dixon (UNSW) (Ontario Court of Appeal)

Carol Harlow (LSE) Public and Anne Twomey () Hon Martin Hinton (Supreme Private Law: A Porous Peering into the Black Box of Court of South Australia) and Boundary Executive Power - Cabinet Fiona J McDonald (Solicitor- Manuals, Secrecy and the General’s Office (South Jason N E Varuhas (Melbourne) Identification of Convention Australia)) Testing the The Socialisation of Private Boundaries: The Evolution of Law: Balancing Private Right Fiona Roughley (ANU) Law, Australian Legislative Attempts and Public Good Politics and the Commonwealth to Shield Administrative Attorney-General Decisions from Judicial Steve Hedley (University Scrutiny College Cork) Public Law, Margit Cohn (Hebrew Private Law, and the University of Jerusalem) Janina Boughey (UNSW) Inconvenient Truth A Theory of the Executive Justiciability: Its Purpose, Branch: Tension and Legality Scope and Continued Utility

Margaret Allars SC (Sydney) Public and Private Boundaries of Administrative Law

12.15 p.m. – 1.15 p.m. Plenary Session: Public Contracts • Derham Lecture Theatre (GM15), First Floor

Chair: Professor Michael Crommelin (Melbourne)

Speakers:

Professor Anne Davies (Dean, Oxford Law Faculty) The ‘Contracting State’ and the Public/Private Divide

Professor Janet McLean (Auckland) For a Law of Public Contract Per Se

1.15 p.m. – 2.15 p.m. Lunch • First Floor Foyer

2.15 p.m. – 3.45 p.m. Parallel Sessions

Adjudicating and Interpreting The Frontier between Domestic Law and Public Administration Constitutional Norms and International Law Derham LT (First Floor) G08 (Ground Floor) LT 102 (First Floor) Chair: Professor Anne Davies Chair: Professor Benedict Chair: Professor Carol Harlow (Oxford) Kingsbury (NYU) (LSE)

Hon Grant Huscroft (Ontario Hilary Charlesworth Shona Stark (Cambridge) Court of Appeal) Blurred (Melbourne) Assessing Elusive Boundaries: Non- Lines? Rights Litigation and Comparative International Fettering, Consistency of Policy Democratic Deliberation Law: The Case of Australia and Legitimate Expectations

3

Lulu Weis (Melbourne) Hannah Woolaver (Cape Town) Richard Martin (LSE) Beyond Legislative Baselines Clarifying the Frontier between Lawyers: How do the Police Domestic and International Interpret and Apply the Human Hon John Hunter (British Public Law when States Rights Act 1998? Columbia Court of Appeal) Withdraw from Treaties Autonomy, Proportionality and Joe Tomlinson (Sheffield) Deference in Constitutional Aishani Gupta (Toronto) Designing Digital Adjudication: The Case of ICANN and Global Administrative Tribunals: A Physician-Assisted Death Administrative Law: New Analytical Framework for Perspectives of Public and A New Frontier Private

3.45 p.m. – 4.00 p.m. Tea and Coffee • First Floor Foyer

4.00 p.m. – 5.30 p.m. Parallel Sessions

Modes of Protecting the Frontiers of Executive Power II The Frontier Between Courts Interests of Indigenous Peoples and Parliament Derham LT (First Floor) G08 (Ground Floor) LT 102 (First Floor) Chair: Professor Janet McLean Chair: Professor Anne Twomey Chair: Associate Professor (Auckland) (Sydney) Margit Cohn (Hebrew University of Jerusalem) Andrew Geddis and Jacinta Fu Hualing (Hong Kong) Ruru (Otago) Places as Dialogue with Autocrats: Rosalind Dixon (UNSW) Persons: Creating a New Security and Freedom in Post- Responsive Judicial Review and Framework for Māori-Crown Transition Hong Kong Unresponsive Legislatures Relations Kathryn Kovacs (Rutgers) Eoin Carolan (UCD) Remedial Nicole Roughan (Auckland) Fomenting Authoritarianism Creativity in Common Law Public and Private Distortions Through Rules About Courts: Transgressing the and State-Indigenous Fiduciary Rulemaking Frontiers of Public Law? Relationships Charles Fombad (Pretoria) Scott Stephenson (Melbourne) Benjamin Berger (Osgoode Taming Executive Against Interpretation as an Hall) Indigeneity, Juridical Authoritarianism in Africa: Alternative to Invalidation Motion, and the Renaissance of Some Reflections on Current Sovereignty in Freedom of Trends in Horizontal and Religion Vertical Accountability

6.45 p.m. – 7.45 p.m. Drinks • JCR Cafe,

7.45 p.m. Conference Dinner (Dress: Smart Casual) • Great Hall, Ormond College

4

Friday 13 July

8.00 a.m. – 9.10 a.m. Parallel Sessions: Doctoral Scholars

Frontiers of Judicial Review Public Law and Private Law LT 102 LT 108 Chair: Dr Shona Wilson Stark Chair: Associate Professor (Cambridge) Jason N E Varuhas (Melbourne)

Katrina Malone (Cambridge) Joanne Murray (McGill) The The Shrinking Boundaries of Court’s Inherent Jurisdiction Public Law in Australia: Over Trusts: An Entry Point to Judicial Review vs Habeas Understanding the Legitimacy Corpus of Judicial Review?

Santanu Sabhapandit (Monash) Caroline Kelly (Melbourne) Constitutionalism and Judicial Public Law and Labour Law: Review in India: A Perspective The Emergence and Development of Public Law Nick Petrie (Cambridge) Principles in the Termination of Declarations of Inconsistency: Employment Frontiers and Futures Jeffrey Gordon (Columbia) Comparative Judicial Federalism at the Intersection of Public and Private Law

9.00 a.m. – 9.15 a.m. Morning Coffee • First Floor Foyer

9.15 a.m. – 11.00 a.m. Parallel Sessions

Frontiers of Federalism Frontiers of Constitutional and Accountability Mechanisms: Administrative Law Between the Administration and Courts Derham LT (First Floor) G08 (Ground Floor) LT 102 (First Floor) Chair: Hon Debbie Mortimer Chair: Sir Jack Beatson Chair: Professor David Feldman (Federal Court of Australia) (English Court of Appeal) (Cambridge)

Nicholas Aroney (Queensland) Cora Hoexter (Wits) Judicial Michael Asimow (Stanford) and The Frontiers of Australian Review and the Frontiers of Yoav Dotan (Hebrew Federalism South African Administrative University of Jerusalem) Law Between the Agency and the Laurence Claus (San Diego) Court: Ex Ante Legality Review Deciding Distribution Tarun Khaitan (Melbourne) Constitutional Directive: At the Jennifer Raso (UNSW) William Partlett (Melbourne) Intersection of Constitutional Frontiers of Administrative Cooperative Federalism and Morality, Constitutional Governance: Reconciling Criminal Law Politics and Constitutional Law Norms at the Front Lines of Social Assistance Agencies Christina Lienen (University College London) The Ellen Rock (ANU) Locating the Boundaries of Public Law Courts within the Australian Reasoning: Common Law Government Accountability Network

5

Constitutional Rights as the New Frontier?

Mikolaj Barczentewicz (Surrey) Bringing Rigour to Fundamental Rights and Principles Reasoning

11.00 a.m. – 11.15 a.m. Tea and Coffee • First Floor Foyer

11.15 a.m. – 12.15 p.m. Parallel Sessions

Criminal Law and Public Law Public Law and National Legislative Power Security Derham LT (First Floor) G08 (Ground Floor) LT 102 (First Floor) Chair: Dr Shona Wilson Stark Chair: Sir William Young (New Chair: Professor Cora Hoexter (Cambridge) Zealand Supreme Court) (Wits)

David Feldman (Cambridge) Laura A Dickinson (George Ryan Goss (ANU) What Do Changing Boundaries: Crime, Washington) National Security Australians Talk About When Punishment and Public Law Policy-making in the Shadow of They Talk About Parliamentary International Law Sovereignty? Hon Chris Maxwell (President, Court of Appeal) Paul Scott (Glasgow) Public Eddie Clark (Victoria Administrative Law and Law at the Frontier: the Law of University of Wellington) Criminal Law Passports and Their Use as a Parliamentary Adjudication: Tool of National Security Pushing the Boundaries of the Legislative Function

12.15 p.m. – 1.15 p.m. Lunch • First Floor Foyer

1.15 p.m. – 2.30 p.m. Plenary Session: Public Law and Indigenous Peoples • Derham Lecture Theatre (GM15), First Floor

Chair: Professor Adrienne Stone (Melbourne)

Speakers:

Jill Gallagher (Victorian Treaty Advancement Commissioner) The Treaty Process in Victoria

Professor Kirsty Gover (Melbourne) From the Heart: Indigenous Public Law in Australia

Justice Matthew Palmer (New Zealand High Court) Indigenous Rights, Judges and Judicial Review

2.30 p.m. – 2.45 p.m. Tea and Coffee • First Floor Foyer

6

2.45 p.m. – 4.15 p.m. Parallel Sessions

Public Law: Different Models Representation and Collective Theorising the Administrative Decision-making State Derham LT (First Floor) G08 (Ground Floor) LT 102 (First Floor) Chair: Professor Cheryl Chair: Professor Kirsty Gover Chair: Associate Professor Saunders (Melbourne) (Melbourne) Nicole Roughan (Auckland)

Sir Jack Beatson (English Court Hon Debbie Mortimer (Federal Kate Glover (Western of Appeal) UK Public Law Court of Australia) Coming to University, Ontario) The After Brexit Terms with Communal Constitutional Status of the Decision-Making by Aboriginal Administrative State Farrah Ahmed (Melbourne) The and/or Torres Strait Islander Delegation Theory of Judicial Peoples in a Public Law Swati Jhaveri (NUS) Executive Review Context Constitutionalism: Recognising the Constitutional Authority of Sarah Nason (Prifysgol Bangor) Mary Liston (UBC) the Executive Egalitarian Public Law: The Representing Jurisdiction: Welsh Crucible Experiment Decolonizing Elections Law in Jacob Weinrib (Queen’s, a Multijural State Ontario) The Morality of Administration Matthew Stubbs (Adelaide) and Adam Webster (Oxford) Ensuring the Fidelity of Elected Representatives to the People: A Comparative Common Law Study

4.15 p.m. – 5.15 p.m. Closing Plenary: Themes and Reflections • Derham Lecture Theatre (GM15), First Floor

Chair: Associate Professor Jason N E Varuhas (Melbourne)

Speakers:

Dame Ellen France (New Zealand Supreme Court)

Professor Benedict Kingsbury (NYU)

Kristen Walker QC (Solicitor-General of Victoria)

Professor Emeritus Mark Aronson (UNSW)

********************

7