Andrew Lynch | The University of New South Wales (original) (raw)
Papers by Andrew Lynch
SSRN Electronic Journal, 2022
Institute of Judicial Administration Incorporated ("AIJA") is an incorporated association. Its ma... more Institute of Judicial Administration Incorporated ("AIJA") is an incorporated association. Its main functions are the conduct of professional skills courses and seminars for judicial officers and others involved in the administration of the justice system, research into various aspects of judicial administration and the collection and dissemination of information on judicial administration. Its members include judges, magistrates, legal practitioners, court administrators, academic lawyers and other individuals and organisations interested in improving the operation of the justice system. The AIJA Secretariat, which has been in operation since February 1987, is funded substantially on a composite government funding basis through the Meetings of Attorneys-General (MAG).
Australia has a raft of terror laws enacted in haste, write George Williams and Andrew Lynch IN 2... more Australia has a raft of terror laws enacted in haste, write George Williams and Andrew Lynch IN 2006, terrorism was never far from the headlines. Faheem Lodhi was jailed for twenty years for preparing for an attack, while Jack Thomas had his convictions quashed on appeal, but then found himself subject to a control order and sent back for retrial. While terrorist attacks occurred daily in Iraq and also in places such as Mumbai, there was no bombing on Australian soil. This has not just been a matter of good fortune. We ought also to be grateful for the continued effectiveness and vigilance of those charged with our protection. Our law enforcement and intelligence agencies bear responsibility for keeping the community safe. Another key actor is the federal government. The Howard government has approached the challenge with gusto. In part, that was vitally necessary given the lack of any national laws dealing with terrorism at the time the twin towers fell. Even so, few people are awa...
This article discusses the recent referrals by five of the Australian states so as to extend the ... more This article discusses the recent referrals by five of the Australian states so as to extend the coverage of the Commonwealth's Fair Work Act 2009 (Cth) as a national industrial relations system beyond the limits imposed by the latter's existing constitutional powers. In so doing it highlights the governance arrangements underpinning the referral and the continued opportunity for participation that the states, as well as the territories, enjoy in this area. The extent of the specific referrals is discussed, with differences between cooperating states noted. This analysis is situated in the context of interpretation of the constitutional power with respect to referrals in s 51(xxxvii) of the Constitution more generally and lingering ambiguities as to that power.
This is a case note of Fortescue Metals Group Ltd v Commonwealth. The note explains why the plain... more This is a case note of Fortescue Metals Group Ltd v Commonwealth. The note explains why the plaintiffs' arguments failed in this case, illustrating the extent to which constitutional questions around discrimination, equality and state autonomy in the Australian Federation remain narrowly conceived.
European Journal of Current Legal Issues, May 13, 2015
This article considers some of the central themes of Professor Alan Paterson's studies on the... more This article considers some of the central themes of Professor Alan Paterson's studies on the House of Lords and United Kingdom Supreme Court through a discussion of recent judicial reflections in Australia on the benefits and risks of collective decision-making on appellate courts. The author contrasts the quite markedly opposing views expressed by recent and current High Court of Australia judges on the topic of joint judgments and internal processes of decision-making. At the same time he places these alongside the evidence Paterson has amassed about judicial behaviour and attitudes on the same in the United Kingdom. The argument is made that these debates are familiar and tend to be cyclical. The extent to which they are capable of - or even require - resolution remains questionable.
SSRN Electronic Journal, 2007
Abstract History shows that governments seeking to protect the state will often do so by restrict... more Abstract History shows that governments seeking to protect the state will often do so by restricting the liberty of those persons who are perceived as a threat. At such times, there is a marked shift in the relationship between the judiciary and the executive. This traditionally ...
Federal Law Review, 2020
Judicial incapacity, while under-researched, presents unique challenges for supporting and respon... more Judicial incapacity, while under-researched, presents unique challenges for supporting and responding to issues of judicial performance. In this article, we argue for a reconceptualisation of this topic based on contemporary theories of socially-constructed disability and principles of anti-discrimination law. While assisting and supporting judicial officers who are attempting to work with a disability or ongoing health issue will always be complex, this reconceptualisation offers heads of jurisdiction, conduct commissions and parliamentarians, who retain the ultimate sanction of removal, the opportunity to craft a surer guide for handling cases of incapacity. This will not only better serve the individual concerned, affording them greater agency and dignity than has traditionally been the case, but also protect the principle of judicial independence.
Legal Education Review
Law as a discipline struggles as much as, or perhaps more than, any other discipline in its attem... more Law as a discipline struggles as much as, or perhaps more than, any other discipline in its attempts to reconcile its close historic connections to professional practice with its current location in a university environment. Should law schools focus on producing graduates who are “practice-ready” or make available a broad, contextual education for their students in line with the academic standards of the wider university? The overarching issue in debates about legal education in Australia has been: “what is the nature of a ‘university’ legal education?” The key issue is: should law schools be driven by market requirements or by more idealistic educational values?
Federal Law Review, 2015
The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a stor... more The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a story of the successful development of an executive-based institution for cooperative governance in the Australian federal system. By contrast, the Council of the Australian Federation (CAF), created in 2006 as a forum for interstate cooperation and policy development, has been far less effective. This article explores the reasons behind CAF's difficulties after a very short-lived initial impact. Integral to this account is the significance of Canadian experience of horizontal intergovernmental relations, which directly inspired the Australian Premiers to found CAF. The numerous indications of political congruence-some temporary, others systemic-between the Canadian and Australian settings obscured a deeper constitutional incongruence between the two jurisdictions and this is fundamental to appreciating CAF's failure as a transplant. CAF's ability to operate effectively as a significant institution was inevitably constrained by the parameters of the Australian federal system that its establishment was, in many ways, seeking to transcend.
Social Science Research Network, 2016
This paper provides basic information about the way the High Court of Australia and its individua... more This paper provides basic information about the way the High Court of Australia and its individual Justices decided cases in 2015, with an emphasis on constitutional law decisions as a subset of the total.
Federal Law Review, 2005
The author wishes to thank Professor George Williams for his advice along the course of this proj... more The author wishes to thank Professor George Williams for his advice along the course of this project and his comments on an earlier draft of this paper, the insightful and valuable comments of the two anonymous referees and the editors of the Federal Law Review. Any flaws are, as ever, my own.
Federal Law Review, 2009
Crime and Politics' in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the 'War on T... more Crime and Politics' in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the 'War on Terror' (2008) 297, 308. Additionally, we acknowledge the drawbacks clearly identified by Clive Walker in respect of the United Kingdom's proscription of the Irish Republican Army in his seminal study The Prevention of Terrorism in British Law (1986) 50-1. 13 Ben Golder and George Williams, 'What is "Terrorism"? Problems of Legal Definition' (2004) 27 University of New South Wales Law Journal 270. 14 Saul reports that, on available evidence in 2004, 86 nation states prosecuted terrorism as an ordinary crime, while 46 employed 'simple terrorism offences' and a further 48 had 'composite terrorism offences': Ben Saul, Defining Terrorism in International Law (2006) 264-9. Additionally, significant strides have been made in the last decade in producing a general definition of 'terrorism' in international law:
In this submission to the current parliamentary inquiry, Andrew Lynch, Ben Saul and George Willia... more In this submission to the current parliamentary inquiry, Andrew Lynch, Ben Saul and George Williams question the need for the new counter-terrorism laws, which are more extensive and invasive than measures adopted in the United States and Britain. They examine the provisions in detail, proposing changes to increase oversight and reduce potential infringements of civil liberties.
Sydney Law Review, 2015
In this article, we describe and consider the impetus for the reforms to federal judicial appoint... more In this article, we describe and consider the impetus for the reforms to federal judicial appointments that were initiated by Attorney-General Robert McClelland in 2008 and applied during the life of the Labor Government until 2013. We then proceed to evaluate those reforms by reference to the central idea of transparency. Looking first at the role of the express criteria in identifying a candidate and then at the way in which particular appointments were publicly justified by the Attorney-General, we assess how adequately all the factors leading to an individual’s selection were acknowledged under the reformed process. This takes us to a fairly familiar controversy — the relationship between ‘merit’ (whether expressed as a one-word concept or through elaborate criteria) and diversity. Our discussion of this relationship draws on the experience of judicial appointments reform in the United Kingdom over the last decade. McClelland was candid about his interest in promoting diversity,...
The galvanising purpose of Federation was the creation of the Commonwealth and the distribution o... more The galvanising purpose of Federation was the creation of the Commonwealth and the distribution of power between it and the former colonies, simultaneously elevated to Statehood. But beyond this simple fact, consensus about Australian federalism has traditionally been elusive and is, if anything, only increasingly so. While the contemporary political debate over federal reform proceeds from a shared sense that our existing arrangements have manifest shortcomings, there is far from unanimity as to which of its particular features are strengths, and which are deficiencies. The structure of this paper is as follows. In Part II, the range of understandings as to the character of the federal relationship between Australian governments is canvassed. Consideration is given to the views of the Constitution’s Framers and commentators, but most centrally to members of the High Court since these have brought about great change in federal arrangements. The significance of the Court’s marked pre...
SSRN Electronic Journal, 2017
This article reports the way in which the High Court as an institution and its individual judges ... more This article reports the way in which the High Court as an institution and its individual judges decided the matters that came before them in 2016. It is part of an ongoing annual study of High Court decision-making which we began in 2003. In this series we examine both the totality of the Court's decisions and the subset of constitutional matters in each calendar year. These statistical 'snapshots' are intended to complement more traditional analysis of the Court's decision-making, ensuring that this is informed by data rather than mere impression as to how the Court functions as a decision-making institution comprised of seven individuals. Of particular interest over time are the formation and decline of coalitions between the Justices, as well as the frequency with which they join in stating reasons with each other or voice disagreement from the majority in the form of dissent.
SSRN Electronic Journal, 2022
Institute of Judicial Administration Incorporated ("AIJA") is an incorporated association. Its ma... more Institute of Judicial Administration Incorporated ("AIJA") is an incorporated association. Its main functions are the conduct of professional skills courses and seminars for judicial officers and others involved in the administration of the justice system, research into various aspects of judicial administration and the collection and dissemination of information on judicial administration. Its members include judges, magistrates, legal practitioners, court administrators, academic lawyers and other individuals and organisations interested in improving the operation of the justice system. The AIJA Secretariat, which has been in operation since February 1987, is funded substantially on a composite government funding basis through the Meetings of Attorneys-General (MAG).
Australia has a raft of terror laws enacted in haste, write George Williams and Andrew Lynch IN 2... more Australia has a raft of terror laws enacted in haste, write George Williams and Andrew Lynch IN 2006, terrorism was never far from the headlines. Faheem Lodhi was jailed for twenty years for preparing for an attack, while Jack Thomas had his convictions quashed on appeal, but then found himself subject to a control order and sent back for retrial. While terrorist attacks occurred daily in Iraq and also in places such as Mumbai, there was no bombing on Australian soil. This has not just been a matter of good fortune. We ought also to be grateful for the continued effectiveness and vigilance of those charged with our protection. Our law enforcement and intelligence agencies bear responsibility for keeping the community safe. Another key actor is the federal government. The Howard government has approached the challenge with gusto. In part, that was vitally necessary given the lack of any national laws dealing with terrorism at the time the twin towers fell. Even so, few people are awa...
This article discusses the recent referrals by five of the Australian states so as to extend the ... more This article discusses the recent referrals by five of the Australian states so as to extend the coverage of the Commonwealth's Fair Work Act 2009 (Cth) as a national industrial relations system beyond the limits imposed by the latter's existing constitutional powers. In so doing it highlights the governance arrangements underpinning the referral and the continued opportunity for participation that the states, as well as the territories, enjoy in this area. The extent of the specific referrals is discussed, with differences between cooperating states noted. This analysis is situated in the context of interpretation of the constitutional power with respect to referrals in s 51(xxxvii) of the Constitution more generally and lingering ambiguities as to that power.
This is a case note of Fortescue Metals Group Ltd v Commonwealth. The note explains why the plain... more This is a case note of Fortescue Metals Group Ltd v Commonwealth. The note explains why the plaintiffs' arguments failed in this case, illustrating the extent to which constitutional questions around discrimination, equality and state autonomy in the Australian Federation remain narrowly conceived.
European Journal of Current Legal Issues, May 13, 2015
This article considers some of the central themes of Professor Alan Paterson's studies on the... more This article considers some of the central themes of Professor Alan Paterson's studies on the House of Lords and United Kingdom Supreme Court through a discussion of recent judicial reflections in Australia on the benefits and risks of collective decision-making on appellate courts. The author contrasts the quite markedly opposing views expressed by recent and current High Court of Australia judges on the topic of joint judgments and internal processes of decision-making. At the same time he places these alongside the evidence Paterson has amassed about judicial behaviour and attitudes on the same in the United Kingdom. The argument is made that these debates are familiar and tend to be cyclical. The extent to which they are capable of - or even require - resolution remains questionable.
SSRN Electronic Journal, 2007
Abstract History shows that governments seeking to protect the state will often do so by restrict... more Abstract History shows that governments seeking to protect the state will often do so by restricting the liberty of those persons who are perceived as a threat. At such times, there is a marked shift in the relationship between the judiciary and the executive. This traditionally ...
Federal Law Review, 2020
Judicial incapacity, while under-researched, presents unique challenges for supporting and respon... more Judicial incapacity, while under-researched, presents unique challenges for supporting and responding to issues of judicial performance. In this article, we argue for a reconceptualisation of this topic based on contemporary theories of socially-constructed disability and principles of anti-discrimination law. While assisting and supporting judicial officers who are attempting to work with a disability or ongoing health issue will always be complex, this reconceptualisation offers heads of jurisdiction, conduct commissions and parliamentarians, who retain the ultimate sanction of removal, the opportunity to craft a surer guide for handling cases of incapacity. This will not only better serve the individual concerned, affording them greater agency and dignity than has traditionally been the case, but also protect the principle of judicial independence.
Legal Education Review
Law as a discipline struggles as much as, or perhaps more than, any other discipline in its attem... more Law as a discipline struggles as much as, or perhaps more than, any other discipline in its attempts to reconcile its close historic connections to professional practice with its current location in a university environment. Should law schools focus on producing graduates who are “practice-ready” or make available a broad, contextual education for their students in line with the academic standards of the wider university? The overarching issue in debates about legal education in Australia has been: “what is the nature of a ‘university’ legal education?” The key issue is: should law schools be driven by market requirements or by more idealistic educational values?
Federal Law Review, 2015
The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a stor... more The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a story of the successful development of an executive-based institution for cooperative governance in the Australian federal system. By contrast, the Council of the Australian Federation (CAF), created in 2006 as a forum for interstate cooperation and policy development, has been far less effective. This article explores the reasons behind CAF's difficulties after a very short-lived initial impact. Integral to this account is the significance of Canadian experience of horizontal intergovernmental relations, which directly inspired the Australian Premiers to found CAF. The numerous indications of political congruence-some temporary, others systemic-between the Canadian and Australian settings obscured a deeper constitutional incongruence between the two jurisdictions and this is fundamental to appreciating CAF's failure as a transplant. CAF's ability to operate effectively as a significant institution was inevitably constrained by the parameters of the Australian federal system that its establishment was, in many ways, seeking to transcend.
Social Science Research Network, 2016
This paper provides basic information about the way the High Court of Australia and its individua... more This paper provides basic information about the way the High Court of Australia and its individual Justices decided cases in 2015, with an emphasis on constitutional law decisions as a subset of the total.
Federal Law Review, 2005
The author wishes to thank Professor George Williams for his advice along the course of this proj... more The author wishes to thank Professor George Williams for his advice along the course of this project and his comments on an earlier draft of this paper, the insightful and valuable comments of the two anonymous referees and the editors of the Federal Law Review. Any flaws are, as ever, my own.
Federal Law Review, 2009
Crime and Politics' in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the 'War on T... more Crime and Politics' in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the 'War on Terror' (2008) 297, 308. Additionally, we acknowledge the drawbacks clearly identified by Clive Walker in respect of the United Kingdom's proscription of the Irish Republican Army in his seminal study The Prevention of Terrorism in British Law (1986) 50-1. 13 Ben Golder and George Williams, 'What is "Terrorism"? Problems of Legal Definition' (2004) 27 University of New South Wales Law Journal 270. 14 Saul reports that, on available evidence in 2004, 86 nation states prosecuted terrorism as an ordinary crime, while 46 employed 'simple terrorism offences' and a further 48 had 'composite terrorism offences': Ben Saul, Defining Terrorism in International Law (2006) 264-9. Additionally, significant strides have been made in the last decade in producing a general definition of 'terrorism' in international law:
In this submission to the current parliamentary inquiry, Andrew Lynch, Ben Saul and George Willia... more In this submission to the current parliamentary inquiry, Andrew Lynch, Ben Saul and George Williams question the need for the new counter-terrorism laws, which are more extensive and invasive than measures adopted in the United States and Britain. They examine the provisions in detail, proposing changes to increase oversight and reduce potential infringements of civil liberties.
Sydney Law Review, 2015
In this article, we describe and consider the impetus for the reforms to federal judicial appoint... more In this article, we describe and consider the impetus for the reforms to federal judicial appointments that were initiated by Attorney-General Robert McClelland in 2008 and applied during the life of the Labor Government until 2013. We then proceed to evaluate those reforms by reference to the central idea of transparency. Looking first at the role of the express criteria in identifying a candidate and then at the way in which particular appointments were publicly justified by the Attorney-General, we assess how adequately all the factors leading to an individual’s selection were acknowledged under the reformed process. This takes us to a fairly familiar controversy — the relationship between ‘merit’ (whether expressed as a one-word concept or through elaborate criteria) and diversity. Our discussion of this relationship draws on the experience of judicial appointments reform in the United Kingdom over the last decade. McClelland was candid about his interest in promoting diversity,...
The galvanising purpose of Federation was the creation of the Commonwealth and the distribution o... more The galvanising purpose of Federation was the creation of the Commonwealth and the distribution of power between it and the former colonies, simultaneously elevated to Statehood. But beyond this simple fact, consensus about Australian federalism has traditionally been elusive and is, if anything, only increasingly so. While the contemporary political debate over federal reform proceeds from a shared sense that our existing arrangements have manifest shortcomings, there is far from unanimity as to which of its particular features are strengths, and which are deficiencies. The structure of this paper is as follows. In Part II, the range of understandings as to the character of the federal relationship between Australian governments is canvassed. Consideration is given to the views of the Constitution’s Framers and commentators, but most centrally to members of the High Court since these have brought about great change in federal arrangements. The significance of the Court’s marked pre...
SSRN Electronic Journal, 2017
This article reports the way in which the High Court as an institution and its individual judges ... more This article reports the way in which the High Court as an institution and its individual judges decided the matters that came before them in 2016. It is part of an ongoing annual study of High Court decision-making which we began in 2003. In this series we examine both the totality of the Court's decisions and the subset of constitutional matters in each calendar year. These statistical 'snapshots' are intended to complement more traditional analysis of the Court's decision-making, ensuring that this is informed by data rather than mere impression as to how the Court functions as a decision-making institution comprised of seven individuals. Of particular interest over time are the formation and decline of coalitions between the Justices, as well as the frequency with which they join in stating reasons with each other or voice disagreement from the majority in the form of dissent.
When judges disagree, those in the minority write a dissenting opinion. This book considers the g... more When judges disagree, those in the minority write a dissenting opinion. This book considers the great dissents in Australian law. Their worth may derive from numerous factors including their rhetorical force as a piece of legal reasoning or emotive power as a judicial lament for the ‘error’ into which the majority has fallen; the general importance of the issue at stake; as a challenge to the orthodoxy; and, sometimes, of the subsequent recognition of a dissenting opinion’s correctness and
its ultimate vindication. On some occasions, all these features may be strongly present; on others, only some. Through a diverse selection of memorable dissenting opinions, this book illuminates the topic of judicial disagreement more generally – not only through examples of instances when minority opinions have been distinctly valuable, but by drawing out a richer understanding of the attributes and circumstances which lead some dissents to become iconic, while so many lie forgotten.
When Tim Carmody was appointed Chief Justice of Queensland by Premier Campbell Newman in 2014, he... more When Tim Carmody was appointed Chief Justice of Queensland by Premier Campbell Newman in 2014, he had been Chief Magistrate for only nine months.
It proved to be the most controversial judicial appointment in Australia’s history.
Carmody’s elevation plunged the Supreme Court and the legal profession into a bitter conflict with the government and with Carmody himself. How did he come to be appointed to such a significant position? What can we learn from this saga about the fragile relationships between politics and the courts? The Tim Carmody Affair places the full story of Carmody’s damaging and divisive tenure in context, and identifies key reforms that could prevent this kind of controversy in the future.