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Canberra Law Review Canberra Law Review Volume 15 Number 1 Canberra Law School University of Canberra 2018 Canberra Law Review (2018) 15(1) ii Canberra Law Review The Canberra Law Review is a peer-reviewed law journal published each year by the School of Law and Justice at the University of Canberra. It brings together academics, other scholars, legal practitioners, and students within and outside the University. We welcome innovative, cross-disciplinary and creative scholarly articles and commentaries on any area of law and justice. Inquiries about the Canberra Law Review should be directed ISSN: 1320-6702 (Print) ISSN: 1839-2660 (Online) Canberra Law Review (2018) 15(1) iii TABLE OF CONTENTS The Editors 1 Introduction to this number of Canberra Law Review Bruce Baer Arnold and Drew Gough 4 ‘Turing’s People: Personhood, Artificial Intelligence and Popular Culture’ Benjamin Djung 34 ‘The Statutory Role of Good Faith in Franchising’ Georgia Driels 55 ‘The Limitation Criterion and its Application to the Australian Citizenship Amendment (Allegiance to Australia) Act 2015’ Bede Harris 73 ‘Separation of Powers at State Level – Going the Whole Hog Instead of Making the Dog Bark Many Times’ Son Tan Nguyen 90 ‘Integration of Judicial Decisions in Multiple Proceedings before the WTO and RTAS: the Potential Relevance of Article 32 of the VCLT’ Elizabeth Shi and Freeman Zhong 127 ‘Job Security and the Theoretical Basis of the Employment Relationship’ Canberra Law Review (2018) 15(1) iv SUBMISSIONS The editors of the Canberra Law Review seek submissions on any aspect of law. We welcome articles relating to theory and practice, and traditional, innovative and cross-disciplinary approaches to law, justice, policy and society. Guidelines: • Scholarly articles should be 5,000-14,000 words, case notes 1,500-3,000 words and book reviews 1,000-1,500 words (including references). • Submissions should conform to 4th edition of the Australian Guide to Legal Citation (AGLC4) and be 12 pt Times New Roman. • Scholarly articles should be accompanied by an abstract of no more than 250 words. Scholarly articles are blind peer-reviewed by two reviewers. Submissions should not have been previously published in another journal. Submissions should be emailed as MS Office .docx or .doc documents to [email protected]. Canberra Law Review (2018) 15(1) 1 INTRODUCTION THE EDITORS With this issue of the Canberra Law Review we say goodbye to the 3rd edition of the Australian Guide to Legal Citation (AGLC3) and look forward to AGLC4. The issue offers a range of perspectives on historic and emerging Australian law at the level of principle and practice, consistent with the Canberra Law School’s embrace of the past and of the future. In ‘Turing’s People: Personhood, Artificial Intelligence and Popular Culture’ Arnold and Gough explore the nature of legal personhood – and consequent rights, powers, disabilities and duties – through a lens of how law is depicted in popular culture. The lens focuses on an emerging class of legal persons, or entities that we may in time come to regard as persons alongside corporations and states. In a bow to theorists such as Judith Butler the article asks what does the performance of personhood by robots and unembodied intelligence – broadly the AI that is preoccupying regulators and investors alike – tell us about ‘the legal person’ and about cinema as a space in which non-specialists understand law about themselves and the entities (corporations, states, robots) that they create. The article is a reminder that many of law’s subjects view themselves and their relationships through lense ‘The Statutory Role of Good Faith in Franchising’ by Djung explores a significant development in regulation of franchising within Australia, an area of recurrent concern for regulators such as the Australian Competition & Consumer Commission, courts and businesses alike. Djung argues that the recent incorporation of a statutory obligation of good faith in the Franchising Code of Conduct provides a fresh opportunity to grasp the common law meaning of good faith – a protean precept with no precise definition. The change to the Franchising Code is also significant because it gives rise to an opportunity to explore the effect that a statutory obligation of good faith might have, when compared to previous approaches under the common law. Djung’s exporation encompasses some common aspects of the franchisor-franchisee relationship, including the pre-contractual negotiations of the parties, the performance of franchise agreements, their termination and the conduct of mediation to resolve a franchise-related dispute. Georgia Driels discusses the Limitation Criterion in relation to the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). She contends that the ad-hoc approach used to assess the Bill – concerned with – was both unsuitable and failed to reconcile national security with the protection of human rights. The article offers a contribution to a better understanding of law about the liberal democratic state’s ‘war on terror’, exploring whether the limitation criterion (a variant of propertionality and much discussed structure in public law) can provide a coherent and well- reasoned principle for assessing the appropriateness of an infringement of the right to nationality. Driels suggests that the Act, as enacted in December 2015, Canberra Law Review (2018) 15(1) 2 is an arbitrary infringement of the right to citizenship, not strictly justifiable per the application of the limitation criterion A characteristically incisive piece by Bede Harris considers constitutional law. His ‘Separation of Powers at State Level – Going the Whole Hog Instead of Making the Dog Bark Many Times’ notes the orthodoxy that the doctrine of separation of powers does not apply at State level. Harris argues that the changes wrought by the decision in Kable v Director of Public Prosecutions (NSW) – and subsequent cases applying its rule – had the effect of importing aspects of separation of powers into State law. He offers a persuasive analysis that the changes wrought by Kable have so attenuated the orthodox position that the time has come to abandon it. Further, his article argues that the idea that separation of judicial power is not a feature of State Constitutions is at odds with the rule of law and democracy. Fidelity to these values, as applied in decisions on separation of judicial power by the courts in the United Kingdom and elsewhere in the Commonwealth, provides an alternative basis upon which to find that separation of judicial power applies to the States. The article will be of value to scholars engaging with questions about legitimacy, authority and process that are apparent in current debate about restraints on state/Commonweath power. It will be welcomed by readers of Harris’ A New Constitution For Australia (Cavendish, 2002). ‘Integration of Judicial Decisions in Multiple Proceedings before the WTO and RTAS: the Potential Relevance of Article 32 of the VCLT’ by Son Tan Nguyen engages with questions about the Vienna Convention on the Law of Treaties. Nguyen notes exponential growth in the number of Regional Trade Agreements, often featuring legalized dispute settlement mechanisms operating independently of the World Trade Organization dispute settlement. Parallel substantive commitments and legalised mechanisms may potentially result in conflicts of jurisdiction where a single dispute is submitted simultaneously or consecutively to both fora. If such conflicts arise, there is currently no legal rule that can satisfactorily determine which forum should have jurisdiction and multiple proceedings accordingly appear unavoidable. The article seeks to offer a new way to make sense of the jurisdictional tension between the WTO and the regional agreements. It argues that, absent effective rules to determine jurisdictional priority, Article 32 of the Vienna Convention may provide a practical and useful technique to minimise inconsistent interpretations and other negative consequences of multiple proceedings. Elizabeth Shi and Freeman Zhong in ‘Job Security and the Theoretical Basis of the Employment Relationship’ draw on insights from the law and legal theory of contract, property, equity and other areas of private law. They note that the employment relationship in Australia is still founded on the contract of employment, despite extensive statutory regulation under the Fair Work Act 2009 (Cth),. The Australian employment regime thus privileges the terms of the contract and the ‘bargain’ struck by employer and employee. Shi and Zhong offer a critique, arguing this approach is inadequate. The assumption that contractual obligations are voluntarily incurred cannot be maintained in light of vast differences in bargaining power between employer and employee in most cases. the articl;e suggests that to provide a general law basis for job security, the general law should develop principles based on a recognition of Canberra Law Review (2018) 15(1) 3 the vulnerability of employees. Such principles would be broadly analogous to property rights and, in particular, Joseph Singer’s theory of the ‘reliance interest’ in property Canberra Law Review (2018) 15(1) 4 TURING’S PEOPLE: PERSONHOOD, ARTIFICIAL INTELLIGENCE AND POPULAR CULTURE BRUCE BAER ARNOLD AND DREW GOUGH1 ABSTRACT What is legal personhood? Many people understand personhood – and by extension law – through depictions in popular culture. The contemporary feature film for example provides a lens through which
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