Darren O’Donovan | La Trobe University (original) (raw)
Papers by Darren O’Donovan
The Internationalisation of Legal Education
International Journal of Discrimination and the Law, 2016
Recent legal and policy developments concerning Europe’s Traveller/Roma have brought into sharp f... more Recent legal and policy developments concerning Europe’s Traveller/Roma have brought into sharp focus the structural inequalities facing traditionally nomadic minorities. Despite such interventions however, European human rights norms have struggled to address an equality challenge that exists at the interface of indirect discrimination, socio-economic rights and multiculturalism. To illustrate the policy and legislative dynamics underpinning Traveller/Roma exclusion, this article critically analyses the difficulties of accessing culturally appropriate housing for the Irish Travelling Community. It highlights how Irish litigation on behalf of Travellers has tested the boundaries of Article 8 of the European Convention on Human Rights, particularly the extent to which a minimum core of accommodation provision may be secured. The article argues that the recent European Court on Human Rights case of Winterstein v. France provides fresh impetus for the protection of Traveller/Roma cultu...
Fundamental Rights and Legal Consequences of Criminal Conviction, 2019
[Extract] In this chapter, we focus upon the post-sentence consequences that have flowed from the... more [Extract] In this chapter, we focus upon the post-sentence consequences that have flowed from the growth of preventive and data-driven policing in Australia. The existence of a past conviction can result in entry into a complex web of supervisory mechanisms, including the deprivation of liberty and incarceration, according to opaque procedures of risk assessment. As discussed throughout, Australia’s ‘jurisprudence of risk’ extends from predictive policing of those with an existing criminal record to extensive schemes of preventive detention and supervision. The ‘risk-based’ consequences of conviction also extend to the immigration system, where upon completion of their sentence, offenders also face possible preventive deportation. We argue that the use of opaque risk-centred criteria threatens to displace the principle of proportionality, resulting in a diminution of fundamental rights. The chapter offers an analytical framework for understanding how these systems have taken root and expanded, and how they might be reformed
The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights p... more The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights protection 'must move from an era of legislation to an era of implementation', represents a fundamental challenge to the norm-laden, fragmented UN human rights treaty system. The past decade has seen much academic work questioning its effectiveness. The question whether international monitoring bodies can cross conceptual, political and cultural barricades to ensure outcomes for individuals is at the core of a new focus upon implementation. Despite the ever-expanding corpus of human rights instruments, an allegation can be made that ‘without (an) understanding of the connection of law and behaviour, an explanation for the very function of the international legal system is missing’. The ability of the UN human rights petition processes to deliver outcomes for individuals is a particularly challenging subset of the implementation problem. In this chapter, we discuss the relationship between Australia and the Human Rights Committee (HRC), the monitoring body under the International Covenant on Civil and Political Rights. This relationship provides a stark example of what may be termed normative dissension between an international body and a nation state, illustrating the dynamics of ‘decoupling’, where a state effectively separates its international legal commitments from practical implementation. Focusing in particular on the reaction of the Australian government to the Fardon v Australia and Tillman v Australia communications, we examine the discourses which Australia has adopted to insulate itself from the decisions of international institutions. Much of the scholarship about implementation has focused upon developing countries, and developed arguments about incapacity as a ground for non-implementation. The material traversed in this chapter demonstrates that even rich, developed, liberal democracies can pursue a policy of deliberate and persistent non-compliance. Ultimately, access to international justice in this context is meaningless if the parties to international human rights instruments fail to comply. In examining the patterns which mark the denial of justice, we hope to identify where the pressure points for greater compliance may lie.
These are the slides from my paper on the theme of 'how technology has changed public law" at th... more These are the slides from my paper on the theme of 'how technology has changed public law" at the annual Public Law teachers workshop at UNSW in 2020.
In the aftermath of global financial crisis, the importance of effective regulatory interventions... more In the aftermath of global financial crisis, the importance of effective regulatory interventions by government has come into sharp relief. The failure of public administration and political oversight that underwrote the collapse of the Irish economy in 2008 has provoked widespread reflection on the need for increased administrative review in the country. This has extended beyond the specific financial sphere, to broader public law reform targeting executive power by building an improved parliamentary culture, greater independent oversight and concentrating democratic participation. In this article, we critique the Irish regulatory state through the prism of the pressures, conflicts and reforms to the Office of the Ombudsman over the past decade. The Office of Ombudsman has been a distinctive nodal point in the interest conflicts and oppositionalities that marked the past decade in Irish constitutional and political order.3 In response to the crash, political leaders have promised 'root and branch reform', with the incoming government appointing Ireland's first Minister of State for Public Sector Expenditure and Reform. The Minister, Brendan Howlin TD has stated that the aim is for " a new maturity in our approach to government's relationship with the citizen " , and to " contribute to opening up the 'black box' of government to a much greater degree than heretofore. " 4 This represents an acknowledgement of Ireland's deep governance crisis, which underwrote experiences of liberalised financial regulation and a political culture whose failure to correct property bubbles reflected the predominance of 'retail politics'.5 The Office of the Ombudsman is at
This chapter will focus upon conceptually mapping the place of socio-legal methodology within leg... more This chapter will focus upon conceptually mapping the place of socio-legal methodology within legal research. Questions to be addressed include: what are the underlying theories regarding the nature of law and legal argument underpinning this form of scholarship? How do we understand the position of law in relation to the general social sciences? Having located this methodological school, I will then proceed to consider what reasons students or researchers might have for engaging in socio-legal research. This will be achieved by discussing five major strands of socio-legal research and how they seek to make distinctive contributions to knowledge. It will be shown that socio-legal scholarship has challenged doctrinal legal research culture by questioning the assumed centrality of law and legal institutions to many social problems. It has sought to present a more complex understanding of 'how legal rules, doctrines, legal decisions, institutionalised cultural and legal practices work together to create the reality of law in action'. 1 As a result, the proponents of the methodology have successfully challenged legal scholars to display greater policy imagination, by acknowledging law's status as just one form of regulation, and cautioning against overly doctrinal understandings of the discipline.
This is a revised draft version of an article published in International Journal of Discriminatio... more This is a revised draft version of an article published in International Journal of Discrimination and the Law, January 2016.
This is a revised draft version of the introductory chapter to Donson and O'Donovan's Law and Pub... more This is a revised draft version of the introductory chapter to Donson and O'Donovan's Law and Public Administration in Ireland (Clarus Press 2015)
The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights p... more The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights protection 'must move from an era of legislation to an era of implementation', represents a fundamental challenge to the norm-laden, fragmented UN human rights treaty system. The past decade has seen much academic work questioning its effectiveness. The question whether international monitoring bodies can cross conceptual, political and cultural barricades to ensure outcomes for individuals is at the core of a new focus upon implementation. Despite the ever-expanding corpus of human rights instruments, an allegation can be made that ‘without (an) understanding of the connection of law and behaviour, an explanation for the very function of the international legal system is missing’.
The ability of the UN human rights petition processes to deliver outcomes for individuals is a particularly challenging subset of the implementation problem. In this chapter, we discuss the relationship between Australia and the Human Rights Committee (HRC), the monitoring body under the International Covenant on Civil and Political Rights. This relationship provides a stark example of what may be termed normative dissension between an international body and a nation state, illustrating the dynamics of ‘decoupling’, where a state effectively separates its international legal commitments from practical implementation. Focusing in particular on the reaction of the Australian government to the Fardon v Australia and Tillman v Australia communications, we examine the discourses which Australia has adopted to insulate itself from the decisions of international institutions. Much of the scholarship about implementation has focused upon developing countries, and developed arguments about incapacity as a ground for non-implementation. The material traversed in this chapter demonstrates that even rich, developed, liberal democracies can pursue a policy of deliberate and persistent non-compliance. Ultimately, access to international justice in this context is meaningless if the parties to international human rights instruments fail to comply. In examining the patterns which mark the denial of justice, we hope to identify where the pressure points for greater compliance may lie.
Higher education is increasingly viewed, particularly in the United States, as a market approachi... more Higher education is increasingly viewed, particularly in the United States, as a market approaching systemic failure. Legal Education has been singled out as a subset of this overall trend, emblematic of a growing disconnect between investment and outcomes. Internationalisation adds another layer of complexity and volatility to designing effective interventions that connect students with globalised opportunity. Crucially, however, it also provides a chance for a rigorous re-evaluation of the purposes and modalities of legal education, and greater reflection on sustainable growth rather than the reinforcing of bubble logic. In this chapter, I want to use the concept of market failure – and, in particular the theory of information asymmetry – as a lens for analysing law faculties’ responses to internationalisation in the both education and legal services.
Alongside the unprecedented political and economic crises which hit Ireland with the collapse of ... more Alongside the unprecedented political and economic crises which hit Ireland with the collapse of its economy in 2008, were legal confrontations which tested the boundaries of its Constitution. Ireland's dualist constitutional heritage was confronted by unique challenges, borne of unprecedented forms of international legal agreement: 'Troika' conditionality, the intergovernmental European Stability Mechanism and the Treaty on Stability, Coordination and Governance in the Eurozone. For Ireland, whose Constitution is undergirded by a long established republican conception of national sovereignty, these instruments were to highlight the simplifications of traditional understandings, the unanticipated nature of many new international structures and above all, the need to renew existing understandings of constitutional sovereignty to meet the realities of 'pooled sovereignty'. This culminated in the landmark case of Thomas Pringle v Government of Ireland, where the Irish Supreme Court was forced to reflect upon the Irish Constitution's conception of sovereignty and the possibility of its alienation. In reflecting on Irish experiences of the past decade, this article argues that even in circumstances of sovereign insolvency, national constitutional orders can retain an interrogative ability to reconnect international institutions with an attentiveness to rule of law protections and democratic legitimation.
Drafts by Darren O’Donovan
Submission on Recommendations to the Robodebt Royal Commission, 2023
This submission addresses potential recommendations to prevent a future robodebt type failure of ... more This submission addresses potential recommendations to prevent a future robodebt type failure of public administration. I note that the Commission enjoys a broad mandate to propose reforms under its terms of reference. In my view, it is important to address the imbalance of power and lack of access to justice within the social security system specifically.
Submission to the Tune Review of the NDIS Act, 2019
This is a draft version of my submission to the Tune Review into the NDIS Act and rules, it conta... more This is a draft version of my submission to the Tune Review into the NDIS Act and rules, it contains typos etc due to time pressures.
Ireland’s Oireachtas inquiry mechanisms are generally regarded as having been hamstrung by the de... more Ireland’s Oireachtas inquiry mechanisms are generally regarded as having been hamstrung by the decision of the Supreme Court in Ardagh v Maguire. This perception of a “legal straightjacket” has been heightened by the public’s reluctance to entrust politicians with investigative powers, as embodied in the loss of the thirtieth amendment vote. In this article, however, we argue that a marginalised or weak parliamentary inquiry mechanism is not an inevitable consequence of the Ardagh decision. We analyse the manner in which the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 has produced a self-imposed restrictive inquiry structure oversensitive to possible litigation. Reflecting on the operation of the Banking Inquiry, we trace how inquiry design is unduly shaped by the “chilling effects” of litigation rather than a distinct vision of the institution. We argue that the Banking Inquiry experience stands as an object lesson as to the importance of developing clear terms of reference which match the qualities of parliamentary investigation to an appropriate subject matter. Overall, this article highlights that, for the Irish constitutional order, greater engagement is needed with the full range of variables which shape the creation, operation and effectiveness of parliamentary review.
The Internationalisation of Legal Education
International Journal of Discrimination and the Law, 2016
Recent legal and policy developments concerning Europe’s Traveller/Roma have brought into sharp f... more Recent legal and policy developments concerning Europe’s Traveller/Roma have brought into sharp focus the structural inequalities facing traditionally nomadic minorities. Despite such interventions however, European human rights norms have struggled to address an equality challenge that exists at the interface of indirect discrimination, socio-economic rights and multiculturalism. To illustrate the policy and legislative dynamics underpinning Traveller/Roma exclusion, this article critically analyses the difficulties of accessing culturally appropriate housing for the Irish Travelling Community. It highlights how Irish litigation on behalf of Travellers has tested the boundaries of Article 8 of the European Convention on Human Rights, particularly the extent to which a minimum core of accommodation provision may be secured. The article argues that the recent European Court on Human Rights case of Winterstein v. France provides fresh impetus for the protection of Traveller/Roma cultu...
Fundamental Rights and Legal Consequences of Criminal Conviction, 2019
[Extract] In this chapter, we focus upon the post-sentence consequences that have flowed from the... more [Extract] In this chapter, we focus upon the post-sentence consequences that have flowed from the growth of preventive and data-driven policing in Australia. The existence of a past conviction can result in entry into a complex web of supervisory mechanisms, including the deprivation of liberty and incarceration, according to opaque procedures of risk assessment. As discussed throughout, Australia’s ‘jurisprudence of risk’ extends from predictive policing of those with an existing criminal record to extensive schemes of preventive detention and supervision. The ‘risk-based’ consequences of conviction also extend to the immigration system, where upon completion of their sentence, offenders also face possible preventive deportation. We argue that the use of opaque risk-centred criteria threatens to displace the principle of proportionality, resulting in a diminution of fundamental rights. The chapter offers an analytical framework for understanding how these systems have taken root and expanded, and how they might be reformed
The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights p... more The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights protection 'must move from an era of legislation to an era of implementation', represents a fundamental challenge to the norm-laden, fragmented UN human rights treaty system. The past decade has seen much academic work questioning its effectiveness. The question whether international monitoring bodies can cross conceptual, political and cultural barricades to ensure outcomes for individuals is at the core of a new focus upon implementation. Despite the ever-expanding corpus of human rights instruments, an allegation can be made that ‘without (an) understanding of the connection of law and behaviour, an explanation for the very function of the international legal system is missing’. The ability of the UN human rights petition processes to deliver outcomes for individuals is a particularly challenging subset of the implementation problem. In this chapter, we discuss the relationship between Australia and the Human Rights Committee (HRC), the monitoring body under the International Covenant on Civil and Political Rights. This relationship provides a stark example of what may be termed normative dissension between an international body and a nation state, illustrating the dynamics of ‘decoupling’, where a state effectively separates its international legal commitments from practical implementation. Focusing in particular on the reaction of the Australian government to the Fardon v Australia and Tillman v Australia communications, we examine the discourses which Australia has adopted to insulate itself from the decisions of international institutions. Much of the scholarship about implementation has focused upon developing countries, and developed arguments about incapacity as a ground for non-implementation. The material traversed in this chapter demonstrates that even rich, developed, liberal democracies can pursue a policy of deliberate and persistent non-compliance. Ultimately, access to international justice in this context is meaningless if the parties to international human rights instruments fail to comply. In examining the patterns which mark the denial of justice, we hope to identify where the pressure points for greater compliance may lie.
These are the slides from my paper on the theme of 'how technology has changed public law" at th... more These are the slides from my paper on the theme of 'how technology has changed public law" at the annual Public Law teachers workshop at UNSW in 2020.
In the aftermath of global financial crisis, the importance of effective regulatory interventions... more In the aftermath of global financial crisis, the importance of effective regulatory interventions by government has come into sharp relief. The failure of public administration and political oversight that underwrote the collapse of the Irish economy in 2008 has provoked widespread reflection on the need for increased administrative review in the country. This has extended beyond the specific financial sphere, to broader public law reform targeting executive power by building an improved parliamentary culture, greater independent oversight and concentrating democratic participation. In this article, we critique the Irish regulatory state through the prism of the pressures, conflicts and reforms to the Office of the Ombudsman over the past decade. The Office of Ombudsman has been a distinctive nodal point in the interest conflicts and oppositionalities that marked the past decade in Irish constitutional and political order.3 In response to the crash, political leaders have promised 'root and branch reform', with the incoming government appointing Ireland's first Minister of State for Public Sector Expenditure and Reform. The Minister, Brendan Howlin TD has stated that the aim is for " a new maturity in our approach to government's relationship with the citizen " , and to " contribute to opening up the 'black box' of government to a much greater degree than heretofore. " 4 This represents an acknowledgement of Ireland's deep governance crisis, which underwrote experiences of liberalised financial regulation and a political culture whose failure to correct property bubbles reflected the predominance of 'retail politics'.5 The Office of the Ombudsman is at
This chapter will focus upon conceptually mapping the place of socio-legal methodology within leg... more This chapter will focus upon conceptually mapping the place of socio-legal methodology within legal research. Questions to be addressed include: what are the underlying theories regarding the nature of law and legal argument underpinning this form of scholarship? How do we understand the position of law in relation to the general social sciences? Having located this methodological school, I will then proceed to consider what reasons students or researchers might have for engaging in socio-legal research. This will be achieved by discussing five major strands of socio-legal research and how they seek to make distinctive contributions to knowledge. It will be shown that socio-legal scholarship has challenged doctrinal legal research culture by questioning the assumed centrality of law and legal institutions to many social problems. It has sought to present a more complex understanding of 'how legal rules, doctrines, legal decisions, institutionalised cultural and legal practices work together to create the reality of law in action'. 1 As a result, the proponents of the methodology have successfully challenged legal scholars to display greater policy imagination, by acknowledging law's status as just one form of regulation, and cautioning against overly doctrinal understandings of the discipline.
This is a revised draft version of an article published in International Journal of Discriminatio... more This is a revised draft version of an article published in International Journal of Discrimination and the Law, January 2016.
This is a revised draft version of the introductory chapter to Donson and O'Donovan's Law and Pub... more This is a revised draft version of the introductory chapter to Donson and O'Donovan's Law and Public Administration in Ireland (Clarus Press 2015)
The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights p... more The injunction of the then U.N. Secretary General Kofi Annan that the UN system of human rights protection 'must move from an era of legislation to an era of implementation', represents a fundamental challenge to the norm-laden, fragmented UN human rights treaty system. The past decade has seen much academic work questioning its effectiveness. The question whether international monitoring bodies can cross conceptual, political and cultural barricades to ensure outcomes for individuals is at the core of a new focus upon implementation. Despite the ever-expanding corpus of human rights instruments, an allegation can be made that ‘without (an) understanding of the connection of law and behaviour, an explanation for the very function of the international legal system is missing’.
The ability of the UN human rights petition processes to deliver outcomes for individuals is a particularly challenging subset of the implementation problem. In this chapter, we discuss the relationship between Australia and the Human Rights Committee (HRC), the monitoring body under the International Covenant on Civil and Political Rights. This relationship provides a stark example of what may be termed normative dissension between an international body and a nation state, illustrating the dynamics of ‘decoupling’, where a state effectively separates its international legal commitments from practical implementation. Focusing in particular on the reaction of the Australian government to the Fardon v Australia and Tillman v Australia communications, we examine the discourses which Australia has adopted to insulate itself from the decisions of international institutions. Much of the scholarship about implementation has focused upon developing countries, and developed arguments about incapacity as a ground for non-implementation. The material traversed in this chapter demonstrates that even rich, developed, liberal democracies can pursue a policy of deliberate and persistent non-compliance. Ultimately, access to international justice in this context is meaningless if the parties to international human rights instruments fail to comply. In examining the patterns which mark the denial of justice, we hope to identify where the pressure points for greater compliance may lie.
Higher education is increasingly viewed, particularly in the United States, as a market approachi... more Higher education is increasingly viewed, particularly in the United States, as a market approaching systemic failure. Legal Education has been singled out as a subset of this overall trend, emblematic of a growing disconnect between investment and outcomes. Internationalisation adds another layer of complexity and volatility to designing effective interventions that connect students with globalised opportunity. Crucially, however, it also provides a chance for a rigorous re-evaluation of the purposes and modalities of legal education, and greater reflection on sustainable growth rather than the reinforcing of bubble logic. In this chapter, I want to use the concept of market failure – and, in particular the theory of information asymmetry – as a lens for analysing law faculties’ responses to internationalisation in the both education and legal services.
Alongside the unprecedented political and economic crises which hit Ireland with the collapse of ... more Alongside the unprecedented political and economic crises which hit Ireland with the collapse of its economy in 2008, were legal confrontations which tested the boundaries of its Constitution. Ireland's dualist constitutional heritage was confronted by unique challenges, borne of unprecedented forms of international legal agreement: 'Troika' conditionality, the intergovernmental European Stability Mechanism and the Treaty on Stability, Coordination and Governance in the Eurozone. For Ireland, whose Constitution is undergirded by a long established republican conception of national sovereignty, these instruments were to highlight the simplifications of traditional understandings, the unanticipated nature of many new international structures and above all, the need to renew existing understandings of constitutional sovereignty to meet the realities of 'pooled sovereignty'. This culminated in the landmark case of Thomas Pringle v Government of Ireland, where the Irish Supreme Court was forced to reflect upon the Irish Constitution's conception of sovereignty and the possibility of its alienation. In reflecting on Irish experiences of the past decade, this article argues that even in circumstances of sovereign insolvency, national constitutional orders can retain an interrogative ability to reconnect international institutions with an attentiveness to rule of law protections and democratic legitimation.
Submission on Recommendations to the Robodebt Royal Commission, 2023
This submission addresses potential recommendations to prevent a future robodebt type failure of ... more This submission addresses potential recommendations to prevent a future robodebt type failure of public administration. I note that the Commission enjoys a broad mandate to propose reforms under its terms of reference. In my view, it is important to address the imbalance of power and lack of access to justice within the social security system specifically.
Submission to the Tune Review of the NDIS Act, 2019
This is a draft version of my submission to the Tune Review into the NDIS Act and rules, it conta... more This is a draft version of my submission to the Tune Review into the NDIS Act and rules, it contains typos etc due to time pressures.
Ireland’s Oireachtas inquiry mechanisms are generally regarded as having been hamstrung by the de... more Ireland’s Oireachtas inquiry mechanisms are generally regarded as having been hamstrung by the decision of the Supreme Court in Ardagh v Maguire. This perception of a “legal straightjacket” has been heightened by the public’s reluctance to entrust politicians with investigative powers, as embodied in the loss of the thirtieth amendment vote. In this article, however, we argue that a marginalised or weak parliamentary inquiry mechanism is not an inevitable consequence of the Ardagh decision. We analyse the manner in which the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 has produced a self-imposed restrictive inquiry structure oversensitive to possible litigation. Reflecting on the operation of the Banking Inquiry, we trace how inquiry design is unduly shaped by the “chilling effects” of litigation rather than a distinct vision of the institution. We argue that the Banking Inquiry experience stands as an object lesson as to the importance of developing clear terms of reference which match the qualities of parliamentary investigation to an appropriate subject matter. Overall, this article highlights that, for the Irish constitutional order, greater engagement is needed with the full range of variables which shape the creation, operation and effectiveness of parliamentary review.