MacKinnon

'The Initial Test of Constitutional Validity: Identifying the Legislative Objectives of Canada's New Prostitution Laws' by Debra M. Haak in (2017) 50(3) University of British Columbia Law Review 657-696 comments 

The criminal law applicable to the commercial exchange of sex in Canada has shifted dramatically. Prior to 2013, buying and selling sexual acts was not illegal, but certain activities related to the conduct of prostitution were subject to criminal sanction. In 2013, the Supreme Court of Canada declared three offences applicable to adult prostitution inconsistent with the Charter and therefore void. The Supreme Court suspended the declaration of invalidity for a period of one year, returning the question of how to deal with prostitution to Parliament. In 2014, Parliament enacted the Protection of Communities and Exploited Persons Act. It is now a criminal offence to obtain sexual services for compensation in Canada. The constitutionality of the PCEPA has been questioned. Identifying the legislative objectives of the PCEPA will be a key step in assessing whether the criminal sanctions created by it accord with the principles of fundamental justice and may be demonstrably justified in a free and democratic society. In a recent article, Hamish Stewart suggested that the PCEPA may be unconstitutional on the basis that it has incompatible purposes of denouncing and deterring sex work while also seeking to improve sex workers’ safety. This paper examines how courts identify legislative objectives and identifies the legislative objectives of the PCEPA as reflected in the legislative record. The overall objective of the PCEPA is denouncing and deterring prostitution. This paper concludes that it is not an objective of the PCEPA or the criminal prohibitions created by it to make sex work safer for sex workers.

Constitutional Change, Judicial Transparency and Indigenous Recognition

'The Constitutional Duty to Give Reasons for Judicial Decisions' by Luke Beck (2017) 40(3) University of New South Wales Law Journal comments

There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error.

This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.

Beck argues

The obligation of judicial officers to provide reasons for their decisions has been described by Sir Anthony Mason, a former Chief Justice of the High Court, as an element of the broader 'culture of justification’ that exists in modern democracies. While there is an increasing international scholarly literature examining the duty to give reasons for judicial decisions, the Australian scholarly literature is far less developed. This article contributes to that developing literature by arguing that in Australia there is an absolute constitutional duty to provide reasons for judicial decisions and by examining whether the general practice of the New South Wales Court of Appeal and the High Court complies with that duty when deciding applications f or leave or special leave to appeal.

There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is th at it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error. This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.

The article is structured as follows. Part II examines the existing authorities concerning the duty to give reasons for judicial decisions. Relying on the underlying principles of the authorities considered in Part II, Part III develops the argument that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. Part IV furthers the analysis in Part III by explaining what amounts to adequate reasons in order to comply with the constitutional duty to provide reasons for judicial decisions.

In Part V, the article examines the consequences of a failure to comply with the constitutional duty to provide reasons for judicial decision. Part V argues that a failure to comply with the duty is not simply an error of law, as existing authorities hold, but is in fact a jurisdictional error. The jurisdictional error arises because a failure to comply with the duty impairs the institutional integrity of the court and, possibly also, because a failure to comply amounts to a denial of procedural fairness. Part VI examines the content of the duty to give reasons in respect of applications for leave or special leave to appeal. Part VI explains the scope of the constitutional duty in the context of leave and special leave to appeal applications and undertakes an empirical analysis of decisions of the High Court and the New South Wales Court of Appeal to see whether practice is consistent with principle. Part VI also discusses the implications of the High Court’s regular failure to comply with the constitutional duty. Part VII offers some concluding comments.

The Final Report of the Referendum Council meanwhile has called for constitutional recognition of Australia's First Nations peoples.

The report states

The Council recommends: 

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. It will be for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and outcome, will be necessary for the success of a referendum. 

In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples is that which has been described as providing, in the Constitution, for a Voice to Parliament. 

In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and in contemporary Australian society. 

The Council recommends this option, understanding that finalizing a proposal will involve further consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention. 

The Council further recommends: 

That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians. 

A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament, as an expression of national unity and reconciliation. 

In addition, the Council reports that there are two matters of great importance to Aboriginal and Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres Strait Islander peoples to pursue with government. The Council is not in a position to make a specific recommendation on this because it does not fall within our terms of reference. However, we draw attention to this proposal and note that various state governments are engaged in agreement-making.

Exceptions

'The Jargon of Exception—On Schmitt, Agamben and the Absence of Political Society' by Jef Huysmans in (2008) 2(2) International Political Sociology 165–183 comments

The idiom of exception is again central to the politics of insecurity in Europe, the United States, and Australia. Its resurgence applies to a range of developments. Among the most visible are the “return of the camps” (for example, Andrijasevic Forthcoming; Cultures et Conflits 1996; Guild 2003; Le Cour Grandmaison, Lhuilier, and Valluy 2007; Neal 2006), counter-terrorism legislation and policy (for example, EU Network of Independent Experts in Fundamental Rights (CFR-CDF) 2003; Steyn 2003; Talbot 2002; The Center for Constitutional Rights 2002; van Munster 2004), increased focus on border controls (for example, Lynn Doty 2007; Salter 2007), and military interventions legitimated by humanitarian ethics and/or international law (for example, Reisman 1990, 1999). This article focuses on conceptions of exceptionalism, that is, the concepts of the political that are invested in the idiom of exception. It draws out how exceptionalist readings of sociopolitical developments frame political problems and solutions in a particular way, excluding the political significance of societal practice.

Fleur Johns observed in her analysis of Guantanamo Bay that events taking on the affect of exceptionalism soak up critical energies with considerable effect in liberal societies. “[I]t is the exception that rings liberal alarm bells” (Johns 2005). The liberal critique of current policy developments tends to define stakes and solutions in terms of exceptionalism, that is, a conflict between rule of law and executive, arbitrary government and/or the direct exercise of governing power over biologically, in contrast to politically, defined life. Johns is uneasy about such a development but does not develop why we should take exception to exceptionalism.

This article introduces one of the main reasons for sending out a distress signal about the rise in the idiom of exception. When exceptionalism soaks up critical energies in liberal societies, it risks suppressing a political reading of the societal. By reading the concept of exception through two of the most “popular” political theorists of the exception, Schmitt and Agamben, the article shows that structuring politics around exceptionalist readings of political power tends to politically neutralize the societal as a realm of multi-faceted, historically structured political mediations and mobilizations. Or, in other words, deploying the exception as a diagram of the political marginalizes the societal as a political realm. In doing so, it eliminates one of the constituting categories of modern politics (Balibar 1997; Dyzenhaus 1997), hence producing an impoverished and ultimately illusionary understanding of the processes of political contestation and domination (Neal 2006; Neocleous 2006).

Huysmans concludes

Working through Schmitt’s and Agamben’s conceptions of politics two related but different idioms of exception emerged. The Schmittian idiom works largely within a legal-constitutional framing of politics and arranges political stakes and dynamics through a specter of dictatorship. Its main characteristics are (1) a dialectic between law and politics, (2) a sovereign guarding the dialectic by deciding on legal transgressions as well as on conditions in which the institutionalized normative processes have become inoperable and demand a decision on a new constitutional order, (3) the structuration of a politics of fear by making enemy/friend distinctions the organizing principle of politics, and (4) the erasure of the “people” as a political multiplicity by a conception of nationalist politics that amalgamates the people into a unity produced by the leadership.

The other idiom, that Agamben unpacks, works with the total collapse of the dialectic between anomie and law and a biopolitical conception that organizes political stakes and dynamics through a specter of life. Its main characteristics are that (1) the exception has become the rule as there is no relation between law and anomie, law and politics—both exist in completely separate spheres, (2) life is no longer mediated by objective forms such as law and becomes naked biological being, (3) biopolitical power renders and acts directly upon naked life with no legal or other mediation—the concentration camps are the matrix of modern politics, (4) naked, anomic life displaces societal categories of life, such as class, legally mediated interests, and property relations, turning biopolitics into a struggle between the direct enactment of power upon this life and the anomic excesses of life that “resist” the sovereign biopolitical governance.

When Fleur Johns observes how exceptionalism soaks up critical energies with considerable effectiveness in liberal societies, she seems to lament the loss of something else, of some other form of critical energies (Johns 2005:629). This main thrust of this article has been to show that the idioms of exception indeed produce a categorical absence. They delete from the political the category that is a placeholder for various histories and sites of politically oriented societal practice as structured by objectified mediations. Paraphrasing Adorno, the idiom of exception has been called a jargon precisely because it marginalizes, and in the more radical cases, erases the societal as a realm of multi-faceted, historically structured political mediations and mobilizations. The article has deliberately introduced conceptions of the societal—such as liberal pluralism, Marxist class analysis, Foucaultian analysis of technologies of governance, etc.—only in very general terms, to keep the focus on the more “formal” thrust of the analysis, that is, identifying a “blind spot” and its consequences for how one interprets certain practices such as balancing liberty and security, democracy, and camps.

The main reason here for pointing out this absence has not been the sociological argument that Schmittean and Agambean concepts miss crucial elements of how current governmental practice work (Bigo 2007). Or, that they grant “little purchase on how these exceptions are in fact made, how they come to seem legitimate, and how they manage to destroy the liberties they are supposed to secure (…) [on] how those limits in turn generate identities, agencies, and institutions that work through practices of self-limitation, and transgression” (Walker 2006:78–79). The more central reason has been that reading the current political and security predicaments as a question of exceptionalism risks to reproduce a “jargon” that produces concepts of the political that at best marginalize and at worst eliminate from view the category that in modern political thought and history has been an essential component of democratic political practice.

NBN Governance

The first report of the Parliamentary Joint Committee on the National Broadband Network notes governance concerns and features the following recommendations.

R 1  that the  Government direct and enable nbn to complete as much as possible of the remaining fixed line network using FTTC at a minimum (or FTTP), and require nbn to produce a costed plan and timetable under which that would be achieved.

R 2 in light of recent results and developments, that the Australian Government commission an independent audit and assessment of the long-term assumptions underpinning nbn's financial projections and business case as set out in the Corporate Plan 2018-21.

R 3  that the  Government direct nbn to establish a regional and remote reference group to support the rollout of the NBN in rural and remote Australia. The reference group would include consumer advocate groups and departmental representation from the Department of Communications and the Arts and the Department of Infrastructure and Regional Development. Business decisions that fundamentally change the nbn experience for the end user in regional and remote communities should be referred to the reference group for consideration and analysis as to whether the decision will result in nbn not meeting its responsibilities as outlined in the Statement of Expectations.

R 4 that the Government ensure by appropriate regulation that end users are informed of, or can easily access and are directed to, clear information about the maximum attainable layer 2 speed of their NBN infrastructure/service on a per premise basis.

R 5 that nbn develop and implement a framework that ensures best-practice installation as part of an 'active handover' model, with reference to the approach of Chorus NZ, so that each premise is assured of network capability at the point it is ready-for-service, and repeat visits and remedial costs are avoided.

R 6   that nbn review and provide advice to the committee on how it:

• takes into consideration the added complexity and time requirements of installations to Service Class 0 and Service Class 10 premises, or equivalent areas, when calculating its progress towards completion goals; and 

• prioritises connections to areas that currently have no access to internet.

R 7  that the Australian Government require nbn to identify and disclose all areas that are currently designated to be served by a satellite connection that previously were set to receive the NBN by FTTN or fixed wireless, and explain why the change has occurred.

R 8 that the Australian Government require nbn to develop a plan that would provide access to nbn's fixed wireless towers for the provision of mobile telephony.

R 9 that the Australian Government ask nbn to consider providing the capacity for separate business and residential Sky Muster plans to be made available at the same location when business grade plans are introduced in 2018.

R 10 that the  Government set a benchmark for reasonable data allowance on Sky Muster plans, by reference to average data use across the fixed line network.

R 11  that the  Government ask nbn to establish a rural and regional reference group (see recommendation 3) and that nbn consult on Sky Muster services and changes to policy and rollout plans.

R 12   that the regulation of broadband wholesale services be overhauled to establish clear rights and protections for suppliers and end users of NBN broadband services. This framework should include: service connection and fault repair timeframes; minimum network performance and reliability; and compensation arrangements when these standards are not met. The committee requests that the Department brief the committee on progress in developing these protections by December 2017.

R 13  that nbn and RSPs develop business grade products specifically designed for the small business market which provide service guarantees and remedies. The committee requests that nbn and the Communications Alliance report back to the committee on progress in developing these products by December 2017.

R 14  that the Telecommunications Consumer Protection Code be amended to require that customers lodging a complaint with their retail service provider are specifically made aware of external dispute resolution options including the Telcommunications Industry Ombudsman at the time they initially lodge the complaint.

R 15  that the Telecommunications Industry Ombudsman be empowered to compel any relevant parties to a complaint to meet together or otherwise cooperate in order to facilitate the resolution of that complaint within a set reasonable timeframe.

R 16 that the  Government direct nbn to clearly identify the complaint handling process for consumers, including: complaint resolution processes and timeframes, and internal and external complaint escalation processes. This information must be provided by nbn in a way that meets Australian Government accessibility guidelines.

R 17  that the  Communications and Media Authority develop and introduce an updated Telecommunications Consumer Protections Code that specifically addresses issues raised in relation to customer experiences with NBN services. This should include mandatory, enforceable standards to regulate the marketing of broadband speeds, in line with the recent principles and industry guidance released by the Australian Competition and Consumer Commission. The updated instrument must ensure that end users have rights and accessible procedures to enforce those rights.

R 18 that the ACMA consider introducing an updated statutory determination, applicable to all NBN technology types, to require retail service providers to inform customers of any critical service issues and line impairments to ensure the customer has understood these issues, prior to a service commencing.

R 19  that nbn publish prominently on its website, monthly information relating to its end user satisfaction metrics, including:

• its overall net promoter score as measured each month; 

• the overall net promoter score for each technology type as measured each month; 

• relevant disaggregated information about end user satisfaction metrics in relation to each RSP; and 

• any relevant disaggregated information about end user satisfaction metrics in specific geographic areas, such as: 

• data broken down by state and territory; and 

• data relating to each fixed-line area in the rollout footprint, as areas are designated Ready for Service.

R 20 that the scope, function, and operation of the Telecommunications Industry Ombudsman (TIO) be expanded so that, among other improvements determined through the current review process, the TIO should keep data according to technology type, and should record and report multiple issues as separate items, especially where nbn and an RSP are both involved.

R 21 that the Department of Communications and the Arts publish the data it receives from nbn as part of its monthly reporting regime, including data relating to:

• network fault restoration; 

• service fault restoration; 

• connection performance, such as right first time activations; and 

• activities undertaken in accordance with service level agreement.

R 22 that nbn review and provide advice to the committee on its processes and conduct with regard to the engagement, training, coordination and dispute resolution with subcontractors, in accordance with global best-practice.

R 23  that the  Government ensure that digital inclusion is measured and reported. It has been suggested that the Productivity Commission assess and report on income and wealth inequality in Australia, and it may be worth including the measurement and reporting of digital inequality, as the two areas are likely to be increasingly related.