Federal Law Review, Ahead of Print. This article explores the significance of the Kenya National Human Rights Commission (‘KNCHR’) and the National Gender and Equality Commission (‘NGEC’), as independent ‘fourth branch’ institutions protecting democracy (‘IPDs’) in Kenya, in promoting and protecting human rights, democracy and addressing poverty and economic inequality. It provides a conceptual background for the establishment of the two Commissions and evaluates their functions and effectiveness compared to civil society organisations with similar roles. It then examines the unique role of th ..read more

Federal Law Review, Ahead of Print. Ghana’s Constitution has long emphasized the importance of equality, democracy, human rights and development. These principles are entrenched in a separation of powers framework that includes independent constitutional bodies that operate semi-autonomously from the tripartite executive, legislative and judicial branches. As part of a symposium on so-called ‘fourth branch’ institutions that provide redress for poverty and inequality, this article explores two institutions: the Commission on Human Rights and Administrative Justice and the National Development ..read more

Federal Law Review, Ahead of Print. The growth of the ‘gig economy’ has prompted debate about the regulation of arrangements to obtain work and income through digital labour platforms. For platform workers who are classified as freelancers or independent contractors, rather than as employees, one possibility is to invoke general laws on the fairness of contractual terms to challenge the inclusion of harsh or one-sided provisions in the contracts of adhesion typically drafted and imposed by digital platforms. To test the potential application of one such regime, in pt 2-3 of the Australian Cons ..read more

Federal Law Review, Ahead of Print. Facilitating access to effective and meaningful collective bargaining is at the heart of the most recent set of reforms to the Fair Work Act 2009 (Cth) (‘FW Act’) enacted in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) 2022 (Act). In the shadow of these reforms, this article explores who can engage in collective bargaining in Australia and under what conditions. While there are a range of issues impeding the effectiveness of the collective bargaining system under the FW Act, this article focuses on the question of bargaining access under bot ..read more

Federal Law Review, Ahead of Print. For the purposes of assessing tax, section 170 of the Income Tax Assessment Act 1936 (Cth) permits the Commissioner to determine that the taxpayer has committed fraud or evasion. The taxpayer then bears the onus of showing that they have not. There is no requirement that the Commissioner show that such determination is correct, nor to support it with evidence. The Commissioner may, if they wish, do nothing more than put the taxpayer to proof by tendering their assessment as evidence. This article sets out in detail how the reversal of the onus of proof in ca ..read more

Federal Law Review, Ahead of Print. Smart contracts are designed to be self-executing and self-enforcing. They are written as computer code that can automatically monitor, execute and enforce the performance of the agreed terms. The code of smart contracts exists across a distributed, decentralized blockchain network, controlling the execution and making transactions trackable and irreversible. This article examines the extent to which the Australian Consumer Law unfair contract term provisions can respond to the use of smart contracts. The article finds that the Australian Consumer Law unfair ..read more

Federal Law Review, Ahead of Print. The article examines the role of transnational peer review in shaping financial market regulation in Australia in pursuit of financial stability. Transnational regulatory networks have become an important source of standards and enforcement practices in financial regulation. In the aftermath of the financial crises of the 2000s, global initiatives to strengthen financial supervision have reinforced peer review mechanisms to monitor the national implementation of transnational standards. Through such peer review, regulatory networks can influence domestic rul ..read more

Federal Law Review, Ahead of Print. We contend that, contrary to mainstream understanding, the Australian Constitution provides a meaningful framework for ensuring economic justice, by virtue of its conferral upon the Commonwealth Parliament of particular legislative powers, namely the income justice and taxation powers. We draw on Rawlsian political theory, together with constitutional theory including recent work on constitutional directive principles, to explain how a constitution, and specifically the Australian Constitution, can impose requirements upon the political order independently o ..read more

Federal Law Review, Ahead of Print. The Scottish Poverty and Inequality Commission is a relatively new fourth branch institution with responsibility for addressing both poverty and inequality in Scotland. Nonetheless, it has made important, if modest and incremental, inroads to achieving these objectives, by encouraging the collection and use by government of relevant data in policy-formation; and the expansion and acceleration in the roll-out of important substantive policies focused on alleviating child poverty. The question this raises is what underpins this institutional success. The artic ..read more

Federal Law Review, Ahead of Print. The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how ..read more