RegNet Research Paper Series Vol. 3 No. 5

Author/s (editor/s):

Kate Ogg
Ian Marsh
Howard Bamsey
Jeroen van der Heijden
Mark Kosters

Publication year:


Publication type:

Working paper

RegNet Research Paper No. 2014/77

A Sometimes Dangerous Convergence: Refugee Law, Human Rights Law and the Meaning of ‘Effective Protection’

Kate Ogg, Regulatory Institutions Network & College of Law, Australian National University (ANU)

In late 2011 the High Court of Australia and the European Court of Justice made rulings on the conditions under which asylum seekers can be transferred to a third country. The High Court of Australia held that asylum seekers cannot be transferred unless they will be protected from persecution and be entitled to all of the rights outlined in the Refugee Convention. However, four months later the European Court of Justice set the threshold much lower. It ruled that a transfer could occur unless the asylum seeker would be subject to persecution or inhuman or degrading treatment. These sharply contrasting decisions raise wider issues for refugee protection especially in light of the desire for a harmonious interpretation of the Refugee Convention. Such a result is also surprising given the proliferation of human rights instruments and jurisprudence in the European Union, compared to Australia’s lack of a national human rights framework. This article will use these cases to demonstrate that, while some courts have drawn on principles of human rights law to progressively interpret the Refugee Convention, the nature of protection in the Refugee Convention is both distinct from and beyond the preservation of fundamental human rights. Accordingly, reference to principles of human rights law in transfer decisions can have the counter-productive effect of lowering the threshold for ‘effective protection’. This raises the need for critical examination of the boundaries of human rights and refugee law and consideration of the extent to which they should remain distinct bodies of law.

RegNet Research Paper No. 2014/78

The Limits of New Public Management: A Case Study of Indigenous Affairs

Ian Marsh, Regulatory Institutions Network (RegNet) ANU and University of Tasmania

Indigenous policy presents in acute form a case study of challenges to present public administration practice. Successive governments have promised to reduce extreme disadvantage and to do this in conjunction with affected citizens. But failures persist. So how equipped is the Australian public service to meet such challenges? This chapter suggests there is a long way to go. Moreover, the central obstacles to their realisation lie in structural features that are keystones of new public management. At the heart of this chapter is a simple claim: there is an imperative need to reframe governance. This composite concept recognises the essential interdependence between the formal apparatus of the state and its publics. The parties are engaged in a dynamic exchange: the opposite of directed, deferential, passive or paternalistic linkage. In achieving positive and sustainable outcomes, engagement has a primary not a secondary role. Compounding this challenge is the overlap of policy responsibilities between federal and state government. Whilst present rhetoric gestures to the inter-governmental, systemic and contextual character of policy challenges, practice falls far short of stated ambitions. Indigenous policy presents in acute form a case study of challenges to present public administration practice.

RegNet Research Paper No. 2014/79

Australia and Climate Change Negotiations: At the Table, or on the Menu?

Howard Bamsey, Regulatory Institutions Network (RegNet), ANU and Kath Rowley, Climate Change Authority, Australian Government

The climate change negotiations are changing the global economy in ways that matter to Australia. New norms, standards, rules, and even laws will require Australia to change. These developments create challenges and opportunities for Australian businesses and individuals.

Australia’s national circumstances - especially its relatively high current dependence on industries that emit large quantities of greenhouse gases - are distinctive, so Australia must work harder than others to advance its interests. Failure to pay proper, high-level attention to the negotiations would seriously endanger the national interest. By actively engaging in negotiations in a strategic and creative way, Australia can help ensure that the next global agreement provides a smooth adjustment for the global and the Australian economy. This would minimise potential adverse impacts on Australia, and secure access to the new economic and other opportunities that action on climate change brings.

RegNet Research Paper No. 2014/80

From Mechanism to Virtue: Evaluating Nudge-Theory

Jeroen van der Heijden, Regulatory Institutions Network (RegNet), ANU and Mark Kosters, Office of Best Practice Regulation and Deregulation Policy Division, Australian Government

Ever since Thaler and Sunstein published their influential Nudge, the book and the theory it presents have received great praise and opposition. Nudge-theory, and more particularly, nudging may be considered an additional strategy providing some novel instruments to the already rich governance toolbox. But what is its value? The current debates on Nudge-theory are often highly normative or ideologically driven and pay limited attention to more practical aspects of the theory: Whether and how is nudging evaluable as a theory and a practice? Whether there is solid evidence available of nudge success over other governance interventions? What is to be considered a nudge success at all? What data and evaluative techniques may assist in evaluating nudging beyond individual cases? The current article seeks to explore these questions.

All previous papers published in the RegNet Research Paper Series are available for download on the RegNet SSRN page.

Cite the publication as

RegNet Research Paper Series Vol. 4, No. 8, 2016. School of Regulation and Global Governance (RegNet)

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