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  Subjects -> LAW (Total: 1326 journals)
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LAW (761 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 22)
Acta Juridica     Full-text available via subscription   (Followers: 7)
Acta Politica     Hybrid Journal   (Followers: 13)
Acta Universitatis Danubius. Juridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 1)
Adelaide Law Review     Full-text available via subscription   (Followers: 19)
Administrative Law Review     Open Access   (Followers: 42)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 6)
African Journal of Legal Studies     Hybrid Journal   (Followers: 8)
African Journal on Conflict Resolution     Open Access   (Followers: 18)
Afrilex     Open Access   (Followers: 5)
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Al 'Adalah : Jurnal Hukum Islam     Open Access  
Al-Ahkam     Open Access   (Followers: 1)
Alaska Law Review     Open Access   (Followers: 8)
Albany Law Review     Free   (Followers: 5)
Alberta Law Review     Full-text available via subscription   (Followers: 13)
Alternative Law Journal     Hybrid Journal   (Followers: 6)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 4)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 56)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 18)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 11)
American Journal of Legal History     Full-text available via subscription   (Followers: 9)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 10)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 5)
Amsterdam Law Forum     Open Access   (Followers: 8)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access   (Followers: 1)
Annals of the Faculty of Law in Belgrade - Belgrade Law Review     Open Access  
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 3)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 3)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 14)
Arctic Review on Law and Politics     Open Access   (Followers: 2)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 5)
Arizona State Law Journal     Free   (Followers: 3)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 3)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 11)
ASAS : Jurnal Hukum dan Ekonomi Islam     Open Access  
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Law and Society     Hybrid Journal   (Followers: 6)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 5)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 7)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 8)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 10)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 19)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 14)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access   (Followers: 2)
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 6)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 24)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 5)
Berkeley Technology Law Journal     Free   (Followers: 11)
Bioethics Research Notes     Full-text available via subscription   (Followers: 13)
Boletín de la Asociación Internacional de Derecho Cooperativo     Open Access  
Bond Law Review     Open Access   (Followers: 17)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 6)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 10)
Boston College Law Review     Open Access   (Followers: 14)
Boston University Law Review     Free   (Followers: 10)
BRICS Law Journal     Open Access   (Followers: 1)
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 7)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 3)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
Business and Human Rights Journal     Full-text available via subscription   (Followers: 3)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos de Informação Jurídica     Open Access  
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cadernos Ibero-Americanos de Direito Sanitário     Open Access  
Cahiers, Droit, Sciences et Technologies     Open Access  
California Law Review     Open Access   (Followers: 19)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 160)
Campbell Law Review     Open Access   (Followers: 3)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Canadian Journal of Law & Jurisprudence     Full-text available via subscription   (Followers: 9)
Canadian Journal of Law and Society     Hybrid Journal   (Followers: 19)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 9)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
China : An International Journal     Full-text available via subscription   (Followers: 19)
China-EU Law Journal     Hybrid Journal   (Followers: 5)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 4)
Chinese Law & Government     Full-text available via subscription   (Followers: 7)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 8)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 15)
Columbia Law Review (Sidebar)     Open Access   (Followers: 16)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 4)
Comparative Law Review     Open Access   (Followers: 38)
Comparative Legal History     Full-text available via subscription   (Followers: 8)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 27)
Conflict Trends     Full-text available via subscription   (Followers: 12)
Cornell Law Review     Open Access   (Followers: 9)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 5)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 27)
Danube : The Journal of European Association Comenius - EACO     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 14)
Debater a Europa     Open Access  
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 6)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 3)
DePaul Law Review     Open Access   (Followers: 3)
Der Staat     Full-text available via subscription   (Followers: 14)
Derecho Animal. Forum of Animal Law Studies     Open Access  
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     Open Access  
Die Verwaltung     Full-text available via subscription   (Followers: 11)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Diké : Revista Jurídica     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Direito e Liberdade     Open Access  
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 5)
Duke Forum for Law & Social Change     Open Access   (Followers: 5)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 15)
Duke Law & Technology Review     Open Access   (Followers: 9)
Duke Law Journal     Open Access   (Followers: 24)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 2)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 17)
Education and the Law     Hybrid Journal   (Followers: 12)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 25)
Energy Law Journal     Full-text available via subscription   (Followers: 4)
Environmental Justice     Hybrid Journal   (Followers: 10)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 13)
ERA-Forum     Hybrid Journal   (Followers: 5)
Erasmus Law Review     Open Access  
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 3)
Ethnopolitics     Hybrid Journal   (Followers: 3)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
EU agrarian Law     Open Access   (Followers: 4)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 13)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 9)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 7)
European Journal of Law and Technology     Open Access   (Followers: 15)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 5)
European Law Journal     Hybrid Journal   (Followers: 158)
European Public Law     Full-text available via subscription   (Followers: 36)
European Review of Contract Law     Hybrid Journal   (Followers: 24)
European Review of Private Law     Full-text available via subscription   (Followers: 32)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 5)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 12)
Faulkner Law Review     Full-text available via subscription   (Followers: 1)
Federal Communication Law Journal     Full-text available via subscription   (Followers: 1)
Federal Law Review     Full-text available via subscription   (Followers: 21)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 13)
feminists@law     Open Access   (Followers: 4)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  
Florida Bar News     Free  
Florida Law Review     Open Access   (Followers: 4)

        1 2 3 4 | Last

Journal Cover Federal Law Review
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Published by RMIT Publishing Homepage  [400 journals]
  • Volume 43 Issue 1 - Direct discrimination without a comparator':
           Moving to a test of unfavourable treatment
    • Abstract: Campbell, Colin; Smith, Dale
      Traditionally, statutory provisions prohibiting direct discrimination have employed a test of less favourable treatment. This test is controversial since it requires the use of a comparator, which is widely regarded as giving rise to a range of serious problems. It is commonly assumed, both by academics and legislators, that reliance on a comparator, and the problems to which such reliance gives rise, can be avoided by employing a test of unfavourable treatment instead of a test of less favourable treatment. In this article, we subject this assumption to critical scrutiny. We acknowledge that, on what is probably the most common understanding of the test of unfavourable treatment, employing that test does avoid the need to rely on a comparator. However, we argue that this understanding renders the test of unfavourable treatment radically over-inclusive. We then consider alternative approaches to understanding the test of unfavourable treatment, and investigate whether these approaches avoid the need to rely on a comparator whilst also avoiding the over-inclusiveness problem. We argue that this depends, ultimately, on what the value is that underlies prohibitions on discrimination.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 1 - The reasonableness of proportionality in the
           Australian administrative law context
    • Abstract: Boughey, Janina
      Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 1 - Community store licensing regime: Potential of the new
           penalty regime for the promotion of greater compliance'
    • Abstract: Nehme, Marina
      The community store licensing regime was first introduced as part of the Northern Territory National Emergency Response Act 2007 (Cth) and subsequently expanded under the Stronger Futures in the Northern Territory Act 2012 (Cth). The legislation introduced a new penalty regime with a range of sanctions that may be imposed if community stores have not complied with their licence conditions.

      It is the penalty regime that is the focus of this paper, as a credible sanctioning strategy to deal with breaches of the licensing regime is not currently in place. Such a strategy is essential to ensure that the penalty regime leads to greater compliance with the spirit of the law - ensuring food security - and not just the letter of the law - ensuring that the terms of community store licence conditions are met. Consequently, the article considers the strengths and weaknesses of the new penalty regime and proposes a regulatory approach that may be used by the Secretary to deal with breaches of licence conditions.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 1 - Reinterpreting 'the mason court revolution': An
           historical institutionalist account of judge-driven constitutional
           transformation in Australia
    • Abstract: Roux, Theunis
      There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized 'Mason Court revolution' - the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes - why was the first transformation so successful and the second only partially achieved' This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 1 - Protecting the desperate: The regulation of payday
           lending
    • Abstract: Serpell, Andrew J
      Payday loans are small-amount, short-term, unsecured, high-cost credit contracts provided by non-mainstream credit providers. Payday loans are usually taken out to help the consumer pay for essential items, such as food, rent, electricity, petrol, broken-down appliances or car registration or repairs. These consumers take out payday loans because they cannot - or believe that they cannot - obtain a loan from a mainstream credit provider such as a bank. In recent years there has been a protracted debate in Australia - and in several overseas jurisdictions - about how to regulate the industry. Recent amendments to the National Consumer Credit Protection Act 2009 (Cth) - referred to in this article as the 2013 reforms - are designed to better protect payday loan consumers. While the 2013 reforms provide substantially improved protection for payday loan consumers, further changes to the law may be warranted. This article raises several law reform issues which should be considered as part of the 2015 review into small amount credit contracts, including whether the caps on the cost of credit are set at the right level, whether the required content and presentation of the consumer warnings needs to be altered, whether more needs to be done to protect consumers who are particularly disadvantaged or vulnerable and whether a general anti-avoidance provision should be included in the credit legislation.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 1 - Judges in vice-regal roles
    • Abstract: Ananian-Welsh, Rebecca; Williams, George
      The Australian federation is built upon an enduring respect for the independence of the judicial arm of government. This is reflected in the principle that the judiciary should be kept separate from the legislature and executive. A practice seemingly at odds with these values is the appointment of senior judges to vice-regal offices. Despite this, the practice has attracted scant academic attention, and has never been challenged in the courts. In this article we examine the conferral of vice-regal roles on serving federal, state and territory judges. We ask, first, whether such appointments ought to continue to be made and, secondly, whether they are constitutionally permissible.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 2 - The basis of the 'basis rule': The role of the basis
           rule in the admissibility of expert opinion
    • Abstract: Phan, Trang; Caruso, David
      The 'basis rule' is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 2 - Fertile ground for federalism': Internal security,
           the states and section 119 of the constitution
    • Abstract: Stephenson, Peta
      Section 119 of the Australian Constitution confers a duty on the Commonwealth to protect the states against invasion. It also directs the Commonwealth to protect the states against domestic violence when an application is made by a state government. This article contends that there are compelling reasons to construe this second limb of s 119 as a federal constraint on the power of the Commonwealth to call out the military domestically. This interpretation of s 119 is consistent with the plain meaning and constitutional context of the provision and it coheres well with the High Court's revival of interpretive federalism.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 2 - Meeting Australia's labour needs: The case for a new
           low-skill work visa
    • Abstract: Howe, Joanna; Reilly, Alexander
      This article examines whether Australia's regulatory settings for temporary migrant labour are working effectively and argues that a backdoor currently exists which permits the entry of low skilled migrant workers on visas which are not for a work purpose, namely the international student visa and the working holiday maker visa. We propose that an explicit visa pathway be created for low and semi-skilled workers so that the working conditions of these visa holders are more appropriately monitored and to enable Australia's temporary labour migration program to better meet skill shortages in the economy.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 2 - The proceduralisation of Australian corporate law
    • Abstract: Grantham, Ross
      The central hypothesis of the paper is that bit by bit and largely unnoticed Australian corporate law has undergone a profound change. Australian corporate law, and particularly the Corporations Act 2001 (Cth), has moved from an essentially private law, substantive rights model, to one that seeks to regulate the company and those involved in its affairs through the prescription of processes and procedures by which corporate decisions may be made and by which the procedural correctness of those decisions is assured. The paper will also seek to demonstrate, by an analysis of the changes in the patterns of corporate case law, that this proceduralising trend has effected a fundamental change in the nature of corporate law and the role of the courts and may now claim to be a, if not, the principal characteristic of Australian corporate law. The paper concludes by highlighting some of the wider implications of this trend and the risk it poses to the intellectual heart of corporate law.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 2 - Disqualification of judges and pre-judicial advice
    • Abstract: Appleby, Gabrielle; McDonald, Stephen
      This article explores the circumstances in which a judicial officer may be required to recuse himself or herself on the basis of an opinion provided in the course of practice as a legal practitioner, prior to appointment to judicial officer, particularly where that opinion was on a matter of law only (including the constitutional validity of legislation). We suggest that questions concerning disqualification of judicial officers in such circumstances might be better approached by considering broader concepts of fairness, in addition to asking whether the provision of the pre-judicial opinion gives rise to considerations of apprehended bias. We also explore possible developments of the law to avoid the undesirable situation where the disqualification of a particular judicial officer may depend upon whether one party to the litigation chooses to disclose the existence or the content of advice that it has received.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 2 - James Bryce and the Australian constitution
    • Abstract: Gageler, Stephen
      James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms - responsible government and judicial review - to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Constitutional incongruence: Explaining the failure of
           the council of the Australian federation
    • Abstract: Chordia, Shipra; Lynch, Andrew
      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 co-operative governance in the Australian federal system. By contrast, the Council of the Australian Federation (CAF), created in 2006 as a forum for interstate co-operation 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.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Public benevolent institutions for native title
           groups: An underappreciated model'
    • Abstract: Murray, Ian
      There has been limited research into the relevance of public benevolent institutions ('PBI's) to the management of native title benefits. Despite this omission, a new, tax-effective, structure was proposed in 2013, being the 'Indigenous Community Development Corporation' ('ICDC'). PBI characterisation is also becoming more relevant as native title determination numbers increase, such that there is a suitable and interested body, the prescribed body corporate ('PBC') that can pursue a variety of functions in fulfilling its statutory duties and in seeking to realise the economic, social and cultural objectives of Indigenous groups. This article asserts that a purpose of addressing Indigenous disadvantage is a PBI purpose and that it permits a broad range of activities in order to meet that end. Accordingly, PBI status should be available for many PBCs and other benefits management structure institutions. As a result, the proposed grounds for introducing the ICDC are significantly less compelling and it is argued that a more cautious approach is warranted, being one that better recognises ICDC limitations and that does not over-emphasise the potential benefits.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Regulating supply chains to protect road transport
           workers: An early assessment of the road safety remuneration tribunal
    • Abstract: Johnstone, Richard; Nossar, Igor; Rawling, Michael
      The 'Road Safety Remuneration Act 2012' (Cth) (the Act) explicitly enables the Road Safety Remuneration Tribunal to make orders that can impose binding requirements on all the participants in the road transport supply chain, including consignors and consignees at the apex of the chain, for the pay and safety of both employee and independent contractor drivers. The tribunal is also specifically empowered to make enforceable orders to reduce or remove remuneration related incentives and pressures that contribute to unsafe work practices in the road transport industry. Recently the tribunal handed down its first order. The article considers whether, and the degree to which, the tribunal has been willing to exercise its explicit power to impose enforceable obligations on consignors and consignees - such as large supermarket chains - at the apex of road transport supply chains. It examines the substance and extent of the obligations imposed by the tribunal, including whether the tribunal has exercised the full range of powers vested in it by the Act. We contend that the tribunal's first order primarily imposes obligations on direct work providers and drivers without making large, powerful consignors and consignees substantively responsible for driver pay and safety. We argue that the tribunal's first order could have more comprehensively fulfilled the objectives of the Act by more directly addressing the root causes of low pay and poor safety in the road transport industry.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Regulation governing the provision of credit
           assistance and financial advice in Australia: A consumer's perspective
    • Abstract: North, Gill
      Five years ago the global financial crisis threatened the world's financial system and its aftermath wreaked devastation across many parts of the globe. Mis-selling of home mortgages to consumers unable to repay their loans and global sales of financial products linked to residential lending were at the heart of the crisis. Financial reforms governing housing credit frameworks and the selling of complex financial products have ensued within domestic and international spheres. This article reviews the regulatory structures in Australia governing the provision of residential housing mortgages and credit assistance and the provision of financial advice. Its analysis focuses on customer suitability processes, client duties, and remuneration provisions because these legal features significantly influence, and can adversely impact, consumer outcomes. It suggests specific reforms to ensure adequate consumer protection and enhance the consistency and efficacy of the credit framework. It also calls for renewed debate on the remuneration structures of mortgage brokers.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Response to commentators
    • Abstract: Dixon, Rosalind
      Let me begin by offering my sincere thanks to Gabrielle Appleby, Brendan Lim and James Stellios for their extremely generous and insightful comments on 'The Functional Constitution', and to Anthony Connolly and the Federal Law Review for making this mini-symposium possible. One of the great delights of scholarship is the opportunity to exchange ideas with colleagues in this way. The process also invariably makes our ideas better: in this case, the three comments point to an important set of questions that clearly remain to be addressed if a functional approach to constitutional interpretation is ever to be fully implemented by the High Court.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Conceptions of judicial review: Commentary on Dixon
    • Abstract: Stellios, James
      It is an understandable reflex that, in the face of doctrinal uncertainty and instability, the High Court would retreat to the text of the Constitution. That has been the case in relation to two controversial doctrines recognised over the last 25 years. In Lange v Australian Broadcasting Corporation, a unanimous Court emphasised the need to ground the implied freedom of political communication in the text of the Constitution. This exceptional showing of unanimity followed a period of doctrinal instability and wide critique of the legitimacy of imposing this implied limitation on the political arms of government. Similarly, the Kable limitation largely began its life as an implication from the general scheme in Chapter III for the exercise of Commonwealth judicial power. Its revival as an effective and workable doctrine has coincided with a common reformulation that anchors it in the essential characteristics of State 'courts' which can be, and have been, vested with federal jurisdiction to exercise Commonwealth judicial power.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - The convergence of form and function: Commentary on
           Dixon
    • Abstract: Lim, Brendan
      In the very first decision reported in the Commonwealth Law Reports, Griffith CJ, Barton and O'Connor JJ mooted whether an appeal lay to the Court from a judgment given after the coming into force of the Constitution but before the coming into force of the Judiciary Act 1903 (Cth). The Constitution, from 1 January 1901, vested the judicial power of the Commonwealth in the High Court and made provision for the appellate and other jurisdiction of the Court. But only the Judiciary Act 1903 (Cth), from 25 August 1903, 'actually constituted' the apparatus and the machinery of the Court; the appellate jurisdiction 'could not, of course, be exercised' before then. The question presented, 'one of difficulty and importance', ultimately did not need to be resolved because leave to appeal would be refused on other grounds in any event.3 Nonetheless, the Court articulated the reasons that supported each of the competing views of the operation of ss 71 and 73 of the Constitution. There was said to be much force in the contention that the jurisdiction of [the lower courts] was, from the first, intended to be subject to the right of appeal to the High Court, and that that right, being a right conferred by the Constitution itself upon suitors, could not be lost or taken away by mere inaction of the Parliament.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - Functionalism in constitutional interpretation:
           Factual and participatory challenges: Commentary on Dixon
    • Abstract: Appleby, Gabrielle
      In 'The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term', Rosalind Dixon argues that a functional approach to constitutional interpretation offers the Australian High Court a 'promising middle path between the extremes of pure formalism and pragmatism'. A functional approach, she argues, would introduce greater transparency and predictability into the Court's constitutional jurisprudence.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 43 Issue 3 - The functional constitution: re-reading the 2014 high
           court constitutional term
    • Abstract: Dixon, Rosalind
      A 'functional' approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - The 'human rights (parliamentary scrutiny) act 2011'
           (cth) and the courts
    • Abstract: Meagher, Dan
      The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) ('the Act') has established a new model of pre-legislative rights scrutiny of proposed Commonwealth laws. This is undertaken by the political arms of government and involves: (1) the requirement that a statement of (human rights) compatibility must accompany proposed laws and certain legislative instruments when introduced into Parliament; and (2) the establishment of the Parliamentary Joint Committee on Human Rights ('PJCHR') which regularly reports to the Parliament on the compatibility of its proposed laws with human rights. This article looks at the relationship between the Act - and these two new mechanisms - and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - The experience of using the social security appeals
           tribunal: Providing individual justice across diversity
    • Abstract: Gaze, Beth; Quibell, Ruth; Fehlberg, Belinda
      The Social Security Appeals Tribunal ('SSAT') plays a significant role in the provision of administrative justice in Australia, deciding around 10 000 appeals each year. However there is little published information about its operation, especially as experienced by people who bring appeals. This article reports the results of a survey of SSAT users conducted in 2008. Participants were interviewed up to three times during the progress of their appeals. We found that while the majority of participants reported satisfaction with the SSAT and its processes, a small minority were very dissatisfied, not solely as a result of losing their appeals. We also found that the reasons for appealing were wide-ranging and included the desire for a respectful individual response or explanation that may not have been provided previously. Our analysis suggests that SSAT users value many features of the Tribunal, including multi-member panels, which require maintenance of current funding levels.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - Discriminatory taxation in light of 'Fortescue': Its
           implications for the development of northern Australia
    • Abstract: Gray, Anthony
      In the recent 'Fortescue' decision, the High Court made some interesting observations regarding interpretation of the word 'discrimination' in the context of the Federal Government's power with respect to taxation in s 51(2) of the Australian Constitution. Coincidentally, the Federal Government has commenced consideration of options for the development of northern regions of Australia. Of course, one option would be to introduce a variable taxation system to encourage businesses and individuals to be based, and/or invest, in northern Australia. This article considers possible constitutional issues associated with variable taxation schemes overtly favouring businesses and individuals based in the 'north', given the recent High Court decision.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - Reconciling use-based and registration-based rights
           within the trade mark system: What the problems with section 58a of the
           'Trade Marks Act' tell us
    • Abstract: Handler, Michael; Burrell, Robert
      Reconciling registration and use as mechanisms by which rights can be acquired in a trade mark is inherently difficult. The federal Australian registered trade mark system is built around a hybrid of a registration-based and a use-based model of protection. While it is perfectly possible to defend such a dual model, the two means of acquiring trade mark rights rest on very different logics. In the event of a conflict between a registered mark and a mark that has been used for some time the question of which should take precedence is not necessarily capable of being determined a priori. The relationship between registration and use is mediated by a number of provisions of the Trade Marks Act 1995 (Cth). In this article we focus on one such provision, s 58A, a relatively recent addition to the legal landscape. Through a close analysis of s 58A, focusing on court decisions and decisions of the Trade Marks Office that have applied this provision, we demonstrate that s 58A has the potential to operate in an entirely unsatisfactory manner. We then use problems with s 58A as a vehicle to explore the relationship between use-based and registration-based rights generally, suggesting a new conceptual framework that might serve to guide future discussion of how the relationship between registration and use ought to be mediated.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - State jurisdictional residue: What remains to a state
           court when its chapter iii functions are exhausted'
    • Abstract: Irving, Helen
      'Momcilovic v The Queen' (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a 'declaration of inconsistent interpretation' made under s 36 of the 'Charter of Human Rights and Responsibilities Act 2006' (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the 'Charter's' 'declaration' function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the 'Kable' doctrine, by its 'identity' as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls 'State jurisdictional residue.' In his Honour's words, 'there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction could not proceed to exercise the distinct non-judicial power conferred upon it by' the 'Charter'. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a 'residual' State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering 'Kable v Director of Public Prosecutions (NSW)' (1996) 189 CLR 51, particularly in light of the more recent judgment in 'Kirk v Industrial Court (NSW)' (2010) 239 CLR 531.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - Realising the public potential of corporate law:
           Twenty years of civil penalty enforcement in Australia
    • Abstract: Welsh, Michelle
      Traditionally, corporate law has been viewed as having characteristics that are commonly associated with private law. Largely, this view developed as a result of the 'law and economics' scholarship which dominated the corporate law debate, especially in the United States, in the last quarter of last century. While the traditional 'law and economics' approach supports the view that corporate law should be treated as a branch of private law and that the state should have no role in its enforcement, other scholars, particularly those that adopt a progressive approach, argue that corporate law has and should be recognised as having characteristics that are usually associated with public law. Arguably, an area of Australian corporate law that displays characteristics that are usually associated with public law is the statutory directors' duties and the civil penalty regime that supports them. This enforcement regime gives the state, through the corporate regulator, standing to take court based proceedings to enforce what are, in effect, contracts that established corporate governance structures. This article seeks to determine the appropriate role of a public regulator in these circumstances. The questions considered are: whose interests should the public regulator represent when it is tasked with the responsibility of enforcing the statutory directors' duties that largely codify fiduciary and common law duties' Given that the duties are owed by directors to their company, should the primary role of the public regulator be to represent the interests of the company and its shareholders who have suffered a loss as a result of the alleged contravention of the directors' duties or should the primary role of the public regulator be to act in the interests of the members of the larger community' In these situations what are the interests of the larger community' Drawing on regulatory theory the argument advanced in this paper is that despite the fact that the statutory directors' duties codify what are in effect private rights between directors and their companies, the primary role of a public regulator is not to utilise the enforcement mechanisms at its disposal in order to obtain compensation for companies who have suffered a loss. Rather, the regulator's primary role is to act in the interests of the larger community by utilising the enforcement mechanisms at its disposal strategically in order to encourage greater compliance.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - The use and enforcement of soft law by Australian
           public authorities
    • Abstract: Weeks, Greg
      Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many other jurisdictions. This article will not focus on the regulatory aspects of soft law, but will examine the capacity of individuals to obtain remedies where public authorities fail to adhere to the terms of their published soft law. The available judicial remedies apply in very limited circumstances, both in private law actions (in tort or equity) and public law (judicial review) actions. Ultimately, the most effective ways to remedy breaches of soft law appear also to be 'soft', such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - Time to get serious about privacy policies: The
           special case of genetic privacy
    • Abstract: Nicol, Dianne; Hagger, Meredith; Ries, Nola; Liddicoat, Johnathon
      Genetic information is widely recognised as being particularly sensitive personal information about an individual and his or her family. This article presents an analysis of the privacy policies of Australian companies that were offering direct-to-consumer genetic testing services in 2012-13. The results of this analysis indicate that many of these companies do not comply with the Privacy Act 1988 (Cth), and will need to significantly reassess their privacy policies now that significant new amendments to the Act have come into force. Whilst the Privacy Commissioner has increased powers under the new amendments, the extent to which these will mitigate the deficiencies of the current regime in relation to privacy practices of direct-to-consumer genetic testing companies remains unclear. Accordingly, it may be argued that a privacy code for the direct-to-consumer genetic testing industry would provide clearer standards. Alternatively it may be time to rethink whether a sui generis approach to protecting genetic information is warranted.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 1 - Commentary on 'state jurisdictional residue: What
           remains to a state court when its chapter iii functions are
           exhausted'': By professor Helen Irving
    • Abstract: Stellios, James
      Professor Irving's article raises questions that have not received extensive consideration by courts or commentators. There are important consequences of State courts being included within the federal judicature: consequences that have significant implications for the place of State power within the federal system. Chief Justice French's judgment in 'Momcilovic v The Queen' drew attention to some of these issues, and Professor Irving's exploration of French CJ's suggestions is timely.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - The scope of section 75(v) of the 'constitution': Why
           injunction but no certiorari'
    • Abstract: Gummow, William
      The course of judicial decisions given pre-federation in the United States and England where the remedy of certiorari or of injunction was granted or refused against public officers assists an understanding of the apparent oddity in the omission of certiorari and the inclusion of injunction in the remedies specified in s 75(v) of the Constitution. Further, the significance of the inclusion of the injunction has yet to be fully examined in the case law dealing with s 75(v).

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - Geoffrey Sawer and the art of the academic
           commentator: A preliminary biographical sketch
    • Abstract: Coper, Michael
      Geoffrey Sawer was the Foundation Professor of Law at The Australian National University, appointed in 1950 at the age of 39. He was a pioneer in the understanding of law in a broader context, especially at the intersection between law and politics, and his fluid and incisive writing has been a major influence on succeeding generations of academics, practitioners and judges. Drawing on Sawer's writings, oral history interviews and private papers, Michael Coper makes an affectionate biographical sketch of this outstanding scholar and warm and genial human being. In particular, he explores how Sawer's scholarship stands up today, when so much has changed in the legal and political landscape; what is enduring and what is transient in a life's work; and what lessons we can draw when we look at law and life through the lens of biography.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - The centralisation of judicial power within the
           Australian federal system
    • Abstract: Stellios, James
      This article considers the patterns of centralisation within the federal judicial system. While centralisation of legislative, executive and fiscal power within the federal system has been well documented, the architecture of judicial federalism has been the subject of less attention. The article, first, seeks to show that principles derived from Chapter III of the Constitution have, on the whole, exhibited broadly similar centralising characteristics and exerted centralising effects, and, secondly, offers explanations for this centralisation.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - Outside the text: Inside the use of extrinsic
           materials in statutory interpretation
    • Abstract: Dharmananda, Jacinta
      When s 15AB of the Acts Interpretation Act 1901 (Cth) was enacted over 30 years ago, its purpose was to establish clear and particular rules about when extrinsic materials could be used in the interpretation of Commonwealth legislation. Accordingly, s 15AB stipulates three threshold tests, at least one of which must be satisfied before extrinsic materials can be considered as an aid to interpretation. However, developments in the common law since that enactment have largely overtaken the utility and effect of s 15AB (and its State equivalents). In particular, the development of the 'contextual' approach to statutory interpretation has meant that the common law now permits recourse to extrinsic materials, including parliamentary ones, without the need to pass any gateway test. Consequently, the important emerging issue is, not when such materials can be considered, but how they may be used. This article, using recent High Court cases, examines some of the key threads that have emerged about the 'appropriate use' of parliamentary materials, particularly with respect to identifying the purpose of the statute and as against the weight of the statutory text.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - Betting on elections: History, law and policy
    • Abstract: Orr, Graeme
      Betting on elections has a long history, despite periods in which wagers were unenforceable and even criminalised. In recent years, significant online markets have emerged, driven by the bookmaking industry in those jurisdictions which license betting on politics. These markets treat election wagers as a form of sports betting. This article examines the provenance and regulation of election betting in the common law. It charts this from early case law holding wagers involving electors to be void (as tainting voting decisions) through criminal prohibitions, some of which are still on the statute books (since wagers could disguise electoral bribes) and onto contemporary regimes for licensing electoral bookmaking. Normative arguments about election betting and the law include the liberal harm principle, the precautionary principle and the concept of commodification. The article concludes that friendly wagers should be permitted, to allow partisans to intensify the ritual experience of elections. But bets involving politicians should be outlawed, and the industrialisation of election betting should not be encouraged given the risk of commodifying the values underlying electoral democracy.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - Animal welfare and the WTO: The legality and
           implications of live export restrictions under international trade law
    • Abstract: Chaudhri, Radhika
      In Australia, controversial incidents regarding the treatment of live animals exported from Australia spark regular debate on whether the live export trade should be banned or more tightly regulated. Government responses to public outcry often take the form of restrictions on the trade of the animals concerned, but the legality of unilateral measures of this kind is yet to be directly considered by the World Trade Organization's Appellate Body. This article examines the legality of imposing restrictions on live export under the international trade law regime set up by the General Agreement on Tariffs and Trade 1994 ('GATT'), and in particular, whether such measures could be justified under Article XX. In exploring this question, special attention is given to the Australian government's new regulatory framework, as introduced by the Export Control (Animals) Amendment Order 2012 (No 1), which imposes an exporter supply chain assurance obligation on Australian suppliers. In addition, in light of the continued calls from animal welfare groups to ban the trade entirely, the legality of a complete moratorium on live exports will also be considered. Although the exceptions in Articles XX(b) and XX(g) of the GATT appear to be relevant to live exports, ultimately any regulation might be best supported under the 'public morals' exception in Article XX(a). However, care will need to be taken in the design of any restriction to avoid breaching the strict chapeau requirements of Article XX.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 2 - Why these three': The significance of the
           selection of remedies in section 75(v) of the 'Australian constitution'
    • Abstract: Burton, Lisa
      Section 75(v) of the Australian Constitution gives the High Court original jurisdiction to hear 'all matters ... in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.' This is said to guarantee the Court's ability to ensure that officers of the Commonwealth act within the law. Yet the s 75(v) jurisdiction is clearly limited. The Court is not authorised to hear all matters in which it is alleged that an officer of the Commonwealth has acted unlawfully; it is only given jurisdiction to hear matters in which a (somewhat surprising) selection of remedies are sought. This is confusing in itself, and it has caused broader confusion about the purpose and scope of this important constitutional provision. This article examines the historical ambit of the judicial review remedies and evidence from the Constitutional Convention Debates in order to determine why s 75(v) only gives the High Court jurisdiction to hear matters in which mandamus, prohibition and injunction are sought, and the significance of this for judicial review under the Australian Constitution.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - Inconsistency between commonwealth and territory laws
    • Abstract: Twomey, Anne
      The rules concerning the inconsistency of Commonwealth and territory laws have been little explored and largely neglected. They rose to recent prominence in the challenge to the validity of the ACT's same-sex marriage laws. The ACT claimed that even if the Commonwealth's Marriage Act was intended to cover the field, the ACT's same-sex marriage law could still operate concurrently with it, because of the different application of inconsistency rules in the ACT. This article considers how inconsistency rules operate in the different territories, what was intended by the ACT inconsistency provision, how the High Court determined the issue, and whether a better explanation can be given for the outcome.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - Three law deans - and what they teach of deanship
    • Abstract: Kirby, Michael
      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - Enterprise bargaining as a tool to reduce regulatory
           layering: A content analysis study
    • Abstract: Sutherland, Carolyn
      This article assesses whether Australia's system of enterprise bargaining has helped to streamline workplace relations rules by replacing overlapping industrial instruments with a single enterprise agreement. It presents empirical findings from a content analysis study of enterprise agreements made in the higher education and fast food sectors between 1993 and 2011. These findings suggest that there has been a remarkable shift over time in the contribution of enterprise agreements to the problem of regulatory 'layering'. Whereas the majority of early agreements exacerbated the problem by inserting new arrangements on top of existing industrial instruments, more recent agreements have tended to replace multiple instruments with a single agreement. The empirical findings also point to various ways in which legislative reforms and funding incentives have contributed to this shift towards greater simplicity in the workplace relations system.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - Resolving the application of the 'Christie' discretion
           in the uniform evidence legislation
    • Abstract: Hemming, Andrew
      The application of s 137 of the uniform evidence legislation, which essentially restates the Christie discretion, has been thrown into confusion with the Supreme Courts of New South Wales and Victoria taking a restrictive and expansive interpretation respectively of the meaning of 'probative value' for the purpose of the weighting exercise between probative value and unfair prejudice. Definitive clarification of such an important and well known evidential principle, which could reasonably have been previously regarded as settled law, will most likely be postponed until a suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution of the application of s 137, by applying well-understood principles of statutory interpretation, to argue in favour of the Victorian expansive approach to the meaning of 'probative value' in the uniform evidence legislation.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - Laboratory federalism and the 'Kable' principle
    • Abstract: Lim, Brendan
      Federalism permits sub-national diversity and experimentation. The Kable principle limits sub-national diversity and experimentation in relation to state courts. But this apparent tension between 'laboratory' federalism and the Kable principle is somewhat illusory. Kable does not always hinder experimentation, but rather enables it by securing its necessary preconditions. By preventing state legislatures and governments from conscripting state courts to implement political designs, the Kable principle prevents state legislatures and governments from using state courts as a 'cloak' against political accountability. This preserves the capacity of sub-national communities to compare policies across multiple jurisdictions, to express their preferences through 'exit and voice', and thereby to render sub-national experimentation effective on its own terms.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - The honour of the dead - the moral right of integrity
           post-mortem
    • Abstract: McCutcheon, Jani
      Can the honour of the dead be prejudiced' There is much philosophical debate about whether the dead can, or should, enjoy legal rights. Australia, like many jurisdictions, has apparently bypassed that debate and confers post-mortem moral rights on authors, which endure for at least 70 years after an author's death. The Australian moral right of integrity protects authors from certain conduct in relation to their copyright works, which is prejudicial to their honour or reputation. This deliberate conferral of a posthumous right ostensibly acknowledges that a deceased author's honour can be harmed. This article examines questions surrounding the apparent conundrum of posthumous prejudice to an author's honour. How can prejudice to the honour of the dead be established in the absence of the author, particularly if honour is interpreted subjectively' Do insuperable evidentiary hurdles render the posthumous honour limb of the moral right of integrity illusory' The article concentrates on Australian law, but engages in relevant comparative treatments, particularly with French, Canadian and United Kingdom law. Judicial consideration of moral rights under the common law is scant, particularly in Australia, and rarer still in a post-mortem context. However, the issues explored in the article are important, will inevitably arise for consideration and merit a comprehensive examination.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 42 Issue 3 - Complementary protection in Australia two years on: An
           emerging human rights jurisprudence
    • Abstract: McAdam, Jane; Chong, Fiona
      Since 24 March 2012, asylum seekers whose claims are processed in Australia have been able to claim protection on broader grounds than those contained in the Refugee Convention. This is known as 'complementary protection'. Complementary protection provides protection to those who face a real risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment if removed from Australia. This article provides an in-depth analysis of complementary protection in its first two years of operation in Australia. It examines: (a) the kinds of factual scenarios giving rise to complementary protection; (b) case law developments in relation to the content of, and exceptions to, the complementary protection criteria; and (c) the extent to which Australia's approach reflects international practice.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 2 - Democracy, liberty and the prerogative: The
           displacement of inherent executive power by statute
    • Abstract: Saunders, Benjamin B
      This article analyses arguments that the prerogative should be readily displaced by statute, where a statute deals with a subject matter similar to a prerogative. It does so by examining the leading cases on displacement of the prerogative in the United Kingdom and the Australian states, and displacement of the Australian Commonwealth's inherent executive power. The cases do not adopt a single rule but the question of whether a statute will be taken to displace a prerogative is highly dependent on the facts and the provisions of the particular statute. This article defends the current approach to displacement, for three reasons. First, the courts do not allow governments to subvert or ignore statutes by using the prerogative. Secondly, the courts have almost always decided in favour of liberty and against the conferral of coercive powers on government. Thirdly, a single rule could not do justice to all the variables involved in displacement cases. Ordinary principles of statutory interpretation are sufficient to deal with questions of displacement.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 2 - Confusion of tongues: Constitutional recognition of
           languages and language rights in Australia
    • Abstract: Reilly, Alexander
      This article considers the YouMeUnity Report proposal for the inclusion of new language provisions in the Australian Constitution as part of a package of reforms for the constitutional recognition of Aboriginal and Torres Strait Islander people. The article outlines the important symbolic and substantive effects of recognising language rights in the Constitution. The article explains how the recognition of a national language and the recognition of minority languages are conceptually distinct - promoting a national language is aimed at promoting national unity and enhancing the political and economic participation of individuals in the state, whereas protecting minority languages is aimed at recognising linguistic diversity, enriching the cultural life of the State, maintaining connections with other nations, and recognising language choice as a basic human right. The article argues that there is a strong case for minority language recognition, and in particular, the recognition of Aboriginal and Torres Strait Islander languages, in the Australian Constitution, but warns against the recognition of English as the national language.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 2 - Pro-arbitration policy in the Australian courts - the
           end of 'Eisenwerk''
    • Abstract: Hayward, Benjamin
      International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 2 - In a fix: Fixed-term parliaments in the Australian
           states
    • Abstract: Congdon, Peter
      Constitutional systems of Westminster heritage are increasingly moving towards fixed-term parliaments to, amongst other things, prevent the Premier or Prime Minister opportunistically calling a 'snap election'. Amongst the Australian states, qualified fixed-term parliaments currently exist in New South Wales, South Australia and Victoria. Queensland, Tasmania and Western Australia have also deliberated over whether to establish similar fixed-term parliaments. However, manner and form provisions in those states' constitutions entrench the Parliament's duration, Governor's Office and dissolution power. In Western Australia and Queensland, unlike Tasmania, such provisions are doubly entrenched. This article considers whether these entrenching provisions present legal obstacles to constitutional amendments establishing fixed-term parliaments in those two states. This involves examining whether laws fixing parliamentary terms fall within section 6 of the Australia Acts 1986 (Cth) and (UK). The article concludes by examining recent amendments to the Electoral Act 1907 (WA) designed to enable fixed election dates in Western Australia without requiring a successful referendum.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 2 - Disclosing lawyers: Questioning law and process in the
           admission of Australian lawyers
    • Abstract: Bartlett, Francesca; Haller, Linda
      Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's 'suitability' for professional practise; also referred to as the 'character test' of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission. This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 2 - The nature of merits review: A bold vision realised in
           the administrative appeals tribunal
    • Abstract: Allars, Margaret
      This article examines the nature of merits review, focusing upon the Administrative Appeals Tribunal. Some forms of merits review are less than full merits review and some are hybrid merits review. It is contended that a proper appreciation of merits review may expose misperceptions concealed in some claims that judicial review resembles merits review.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Rethinking the fair work protection against
           discriminatory dismissal
    • Abstract: Riley, Joellen
      People who lose their jobs as a consequence of discriminatory treatment at work face an array of options for redress. They might bring proceedings for unfair dismissal before a statutory tribunal (the Fair Work Commission), or they may pursue a claim in the Federal Court of Australia. This article contemplates the possibility that the system for dealing with discriminatory dismissal could be rationalized so that aggrieved employees might have a single, accessible pathway through an administrative process to deal with such complaints. This would involve rethinking whether discrimination complaints ought to be treated as a matter of vindicating legal rights, or as a matter of arbitrating competing interests. Abandoning the language of rights may facilitate a pathway around the Boilermakers' doctrine (which mandates that only Chapter III courts can determine legal rights), and so enable the establishment of a more accessible and effective avenue for dealing with discrimination at work.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Considering Canadian approaches to equality in the
           context of constitutional recognition of aboriginal and Torres Strait
           Islander peoples
    • Abstract: Parrott, Louise
      In the context of proposals to amend the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, the Expert Panel established by the Australian Government recommended the insertion of a prohibition of racial discrimination. Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when considering the various options that are available. With this in mind, in this article I discuss the constitutional ideas regarding equality and non-discrimination that have already begun migrating from Canada to Australia and could continue to inform Australian consideration of the numerous issues that may arise. I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the Australian Constitution and the reform options that have already been identified, before considering what Canadian approaches could offer Australia, if anything. My view is that the utility of the transplantation of constitutional provisions depends on the starting point. Its usefulness may be less when the focus is a parochial issue. While it may be possible to draft a tighter prohibition, there could remain a risk that focusing on non-discrimination could overshadow the Aboriginal rights dimensions underlying many calls for recognition.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Water accounting information and confidentiality in
           Australia
    • Abstract: McKay, Clare; Gardner, Alex
      A key objective of Australia's recent national water reforms is to keep water licence and entitlement holders accountable for the amounts of water they extract, trade and use. Water metering and the recording and reporting of water extraction and trading data are processes designed to ensure this accountability, and are central to Australia's water accounting regimes. Yet much of the data necessary to ensure compliance with water licences and access entitlements is not publicly available in Australia. This absence of publicly accessible information is due to a lack of rigour and transparency in statutory water accounting regimes. There are also restrictions imposed by water legislation and the laws of privacy and confidentiality that prevent public access to water accounting data, except in aggregated form. Consequently, commercial and industrial water consumers in Australia are not kept accountable for their consumptive water use and water market objectives are unfulfilled, contrary to the express provisions of the Intergovernmental Agreement on a National Water Initiative ('NWI'). This article argues that statutory and policy frameworks for water accounting in most Australian jurisdictions fail to meet the NWI objectives for national water accounting. In response, it advocates legislative reforms that would facilitate the achievement of these objectives.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Constitutional interpretation, the high court, and the
           discipline of history
    • Abstract: Irving, Helen
      The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts 'do' history' What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered' This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading 'originalist' case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Heresy in the high court': Federalism as a
           constraint on commonwealth power
    • Abstract: Hume, David; Lynch, Andrew; Williams, George
      Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Can a theoretical consideration of Australia's
           anti-discrimination laws inform law reform'
    • Abstract: Hewitt, Anne
      Anti-discrimination law in Australia is at a crossroads. After four decades of proliferation of legislation to regulate discrimination, national attention has turned from increasing regulation to legislative consolidation and reform. This article contributes a theoretical analysis to the reform debate. Two liberal theoretical justifications for prohibiting discrimination, harm and redistributive justice, are considered. This investigation assists to determine when the state should intervene in order to restrict discrimination, and whether state and territory anti-discrimination regimes have a legitimate continuing role in Australia's legislative landscape.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 1 - Too soft or too severe': Enforceable undertakings
           and the regulatory dilemma facing the fair work ombudsman
    • Abstract: Hardy, Tess; Howe, John
      This article reports on the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the Fair Work Act 2009 (Cth), which regulates wages, working hours and other minimum employment conditions. Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. The authors provide a critical analysis of the FWO's use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings. The analysis is based on a review of all enforceable undertakings concluded in the period from 1 July 2008 to 30 June 2012, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings in the review period. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that are consistent with the key principles of responsive regulation. The number of enforceable undertakings accepted by the FWO, however, remains fairly limited. We set out a number of ways in which the regulator may maximise the utilisation of enforceable undertakings, and more fully realise the regulatory benefits of this particular compliance tool.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Higgins' argument for section 116 of the
           'constitution'
    • Abstract: Beck, Luke
      The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Redundancy in the Australian public service - some
           critical reflections
    • Abstract: Roles, Cameron
      This article critically examines the law concerning dismissal on grounds of redundancy as it applies to the Australian Public Service ('APS'). Such an examination is timely, given the newly elected Coalition government's stated intention to reduce the APS by 12 000 employees through natural attrition. The article argues that a reduction of 12 000 employees through natural attrition alone is unlikely, and that redundancies are almost inevitable. Against this backdrop, the article considers recent legislative developments concerning dismissal on grounds of redundancy. Its focus is the genuine redundancy exclusion contained in s 389 of the Fair Work Act 2009 (Cth) ('FW Act') and its application to APS employment. The genuine redundancy exclusion precludes unfair dismissal claims if the redundancy is genuine, the employer complies with any consultation obligations in a modern award or enterprise agreement and it would not have been reasonable in all the circumstances to redeploy the affected employee within the employer's enterprise or that of an associated entity. The article argues that, prior to the FW Act, redundancy obligations were predominantly dealt with in collective agreements, and did not require consultations or redeployment of redundant employees beyond the individual agency. However the FW Act fundamentally changed the law in this area. The article contends that a failure to comply with consultation obligations in an agency enterprise agreement will increase the prospects of a dismissal being found to be unfair. In the APS this is problematic, given the convoluted nature of many consultation clauses in enterprise agreements. The article also argues that the redeployment obligations in s 389(2) are extremely broad and, contrary to past practice under the Public Service Act 1999 (Cth) ('PS Act'), encompass redeployment across the APS. The obligation to redeploy across the APS creates tensions in the law between the provisions of the FW Act and the devolution of managerial powers under the PS Act. The article concludes by calling for reform of the law which would address these tensions. It is submitted that any reforms should first clarify whether, as a matter of policy, the Commonwealth wishes to permit redeployment across the APS, or confine it to the level of each individual agency. Options for reform are suggested which would achieve either policy outcome.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Native title tax reforms: Bull's eye or wide of the
           mark'
    • Abstract: Mu, Ian
      Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues. This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Asylum adjudication, mental health and credibility
           evaluation
    • Abstract: Hunter, Jill; Pearson, Linda; San Roque, Mehera; Steel, Zac
      This article examines the central role that credibility assessment plays in refugee determinations. It draws on the authors' own empirical study, Tales of the Unexpected, to display the complex ways in which applicants' poor mental health can affect their capacity to present a 'coherent and plausible' account of their experiences. The authors then explore the significant issues arising from the tendency revealed in the Tales study for decision makers to dismiss expert opinions expressed in reports tendered by applicants from psychologists specialising in cross-cultural mental health assessment. For example, consider the decision maker who observed that. [The] psychologist reported that the Applicant was suffering from post-traumatic stress disorder and depression and that this psychological state was likely to affect his ability to answer questions at an RRT hearing ... . [Nevertheless] [Mr S] did not display any difficulty in understanding or answering questions. ... He [appeared] alert, engaged, and is clearly an intelligent man. I do not accept that he had any difficulty in understanding proceedings or answering questions.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Is the net cast too wide' An assessment of whether
           the regulatory design of the 457 visa meets Australia's skill needs
    • Abstract: Howe, Joanna
      With increasing use of skilled temporary migration by employers and its significant influence upon Australia's permanent migration intake, the 457 visa has far-reaching implications - both for the domestic labour market and for the long-term composition of the Australian population. The scheme was introduced in 1996 to facilitate the temporary migration of skilled overseas workers to alleviate domestic skill shortages. Predicated upon a premise of business demand, the scheme allows employers to sponsor overseas workers whose occupations are on the Consolidated Sponsored Occupation List. Verification of whether the employer's attestation of a skill shortage is genuine is provided through employer-conducted labour market testing for certain occupations and the market salary rates requirement. This article questions whether these regulatory mechanisms are effective for ensuring the 457 visa program meets its objectives.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - The role of contextual meaning in judicial
           interpretation
    • Abstract: Crowe, Jonathan
      This article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Rights review in the high court and the cultural
           limits of judicial power
    • Abstract: Woods, Robert
      How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices' It has been suggested that the federal and 'rights' provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 41 Issue 3 - Digital citizenship and the right to identity in
           Australia
    • Abstract: Sullivan, Clare
      Australia has announced the need to review the distribution of responsibility among individuals, businesses and governments, as a consequence of the move to digital citizenship. Australia has formally framed the issues in these terms and has opened dialogue between government and citizens regarding responsibilities for the use and protection of digital identity. This article examines digital citizenship in Australia and considers the implications for individuals, government and the private sector of the requirement for an individual to use his/her digital identity for transactions. The features and functions of digital identity are examined, and the consequences for individuals, business and government of system failure are considered. The analysis shows that, while there are consequences for all, individuals are most affected. The author argues that the traditional approach of relying on privacy for protection is inadequate in these circumstances. Privacy, by its nature, cannot adequately protect the part of digital identity which is required for transactions. The argument presented is that, unlike privacy, the right to identity can protect the set of digital information required for transactions. Considering the new system is literally being imposed by government, the inherent vulnerabilities of the system, and the consequences of system failure for individuals, formal recognition of the right to identity is an essential element of accountable and responsible governance. Whilst in time the right to identity in this context may be recognised by the courts, the author argues that legislative recognition and protection of an individual's right to digital identity is needed now as a key component of the distribution of responsibility in this new digital era.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 3 - The race power - its replacement and interpretation
    • Abstract: Twomey, Anne
      The Expert Panel on the Constitutional Recognition of Indigenous Australians has recommended the repeal of the 'race power' in the Constitution and its replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. This article analyses that recommendation, the assumptions that underlie it and the way the new provision might be interpreted by the High Court. In doing so, it uses archival material to shed new light on the 1967 referendum and whether it was intended only to permit 'beneficial' laws. The article concludes that there is a disjunction between the intention of the Expert Panel and the likely effect of its proposed amendment.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 3 - Open justice: Concepts and judicial approaches
    • Abstract: Cunliffe, Emma
      Recent years have seen an increase in the number and scope of non-publication orders and other limits on open justice, an increase in the number of statutes that regulate or threaten open justice and the articulation of an Australian constitutional principle (of institutional integrity) that has the potential to protect some aspects of open justice. The purposes and values of open justice are, however, rarely examined in a comprehensive or theoretically-informed manner. This article provides a theory of open justice which accounts for its heterogeneous nature. Australian judicial approaches to the substance, limits and constitutional dimensions of open justice are analysed in light of the purposes and values of open justice, and a comparison with the much more coherent Canadian approach is supplied. The author concludes that threats to open justice are best managed by an analytical framework which systematically identifies both the benefits of open justice and the countervailing values that are at stake in a given case, and which seeks to provide maximum protection to all of these values on a case-by-case basis.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 3 - Government procurement as a vehicle for workplace
           relations reform: the case of the national code of practice for the
           construction industry
    • Abstract: Creighton, Breen
      The use of public procurement as a vehicle for achieving public policy objectives can conveniently be traced to the Fair Wages Resolution which was adopted by the British House of Commons in 1891. This technique was subsequently adopted in many jurisdictions, and finds clear expression in the International Labour Organisation ('ILO')'s Labour Clauses (Public Contracts) Convention 1949 (No 94) ('Convention No 94'). This article describes the British model and its international progeny, and then examines a controversial and unusual Australian mutation in the form of the National Code of Practice for the Construction Industry ('Code') and the various iterations of the associated Implementation Guidelines ('Guidelines') which have been adopted since 1998. It suggests that the Code and Guidelines, especially under the Howard Government, constitute a perversion of the traditional use of public procurement as a vehicle for the implementation of public policy in the industrial context. That is because they were directed to the curtailment of the rights of workers and their organisations rather than protecting employment standards and promoting collective bargaining. The article argues that the Code and Guidelines sit uneasily with accepted notions of the rule of law in a number of respects, and with certain aspects of Australia's obligations in international law. It also discusses the Fair Work Principles ('FW Principles') which have applied to all aspects of procurement by the Commonwealth since January 2010, and suggests that they embody an approach to public procurement and the promotion of social objectives which is rather more in keeping with international best practice than that reflected in the Construction Industry Code and Guidelines.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 3 - The Australian high court and social facts: A content
           analysis study
    • Abstract: Burns, Kylie
      Judicial reasons often include general statements about the nature and behaviour of people and institutions and the nature of the world and society. These statements might be called social facts ('SF') and are made as part of judicial development and general application of law. The presence of SF statements in judicial reasoning in Australian cases has been acknowledged by commentators and judges. However, there has been little empirical examination of this phenomenon. This article discusses a content analysis study of SF in negligence cases in the Australian High Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play a range of roles in judicial reasoning. This includes predicting social, economic and behavioural consequences of legal rules, as part of setting a context or background to judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally dominate judicial reasoning. However, they appear to have a significant role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some individual differences between judges emerged. Judges do not use SF in all cases in the same way. Judges referred to SF more in high significance cases, and cases with multiple separate judgments. Judges also referred to SF more in single and dissenting judgments than in joint and majority judgments. Most SF referred to by judges were not sourced or referenced in any way and reference to empirical research was very rare. Where a source or reference for a SF was given by a judge it was usually to a legal source. Most SF appeared to source from judicial 'common sense' with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 3 - Excluding indigenous Australians from 'the people': A
           reconsideration of sections 25 and 127 of the 'constitution'
    • Abstract: Arcioni, Elisa
      Until 1967, Indigenous Australians were excluded from being counted as amongst 'the people' in the Australian Constitution, by s 127. That section was deleted by referendum. However, s 25 remains in the Constitution, and allows for the reintroduction of such exclusion. This article is a detailed reconsideration of both sections in light of an understanding of 'the people' as a reference to the constitutional community represented by the Parliament. Exclusion of Indigenous Australians prior to 1967 is considered, highlighting the way in which s 127 operated. Then, the position post-1967 is addressed to show that the deletion of s 127 did not result in equality because s 25 continues to provide for racial exclusion. This article argues that this ongoing possibility of exclusion by s 25 affects the nature of the Australian constitutional community, by indicating that it can be racially discriminatory.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 2 - The appointment of ministers from outside of
           parliament
    • Abstract: Blackham, Alysia; Williams, George
      Members of the executive in Australia and other Westminster nations are traditionally appointed only from the ranks of parliamentarians, ostensibly to protect the principle of responsible government. However, there is a growing international trend in nations such as the United Kingdom for the appointment of ministers from outside of Parliament. This article examines the extent to which Australia's constitutional system can accommodate unelected members of a Commonwealth, State or Territory executive. This question is analysed from the perspective of the principle of responsible government and the text of Australia's various constitutional documents. The article also reviews existing practice in comparative jurisdictions and Australian law and practice in order to determine the form that such appointments might take.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 2 - A brief history of the judicial review of legislation
           under the Australian constitution
    • Abstract: Stubbs, Matthew
      Although lacking an express mandate, since Federation courts have declared legislation ultra vires if they find it contrary to the Australian Constitution. This article undertakes an historical examination in four parts, to determine whether this judicial review of legislation is legitimate. First, objections to the institution are identified. Second, the justifications for judicial review of legislation developed in the United States, and expressed in the seminal 1803 decision of Marbury v Madison, are examined. Having identified the twin justifications as the supremacy of the Constitution and the primacy of the judiciary in its interpretation, the third section analyses Australian Federation records to see if these justifications are supported, and whether they rebut the objections raised. Finally, the persistence of these justifications after Federation is demonstrated. It is concluded that evidence of the supremacy of the Constitution, and the primacy of the judiciary in its interpretation, is sufficient to justify judicial review of legislation under the Australian Constitution.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 2 - Investor-state arbitration: The roadmap from the
           multilateral agreement on investment to the Trans-Pacific partnership
           agreement
    • Abstract: Sappideen, Razeen; He, Ling Ling
      Capital exporting countries have attempted to protect the overseas investments of their multinational corporations (MNC) against host nation governments expropriating these investments, limiting the right to repatriate profits, or subjecting the withdrawal of their investments to heavy penalties. The aborted Multilateral Agreement on Investment (MAI) of the mid-1990s was an attempt at transferring these concerns to a settled legal framework between nations. Some limited expression of this is found in the provisions of the World Trade Organisation (WTO) Dispute Settlement Understanding, while more substantive assertions are found in the investor-state dispute settlement (ISDS) provisions of bilateral trade and investment agreements entered into between developed and developing economies. However, recent legal challenges and associated public relations campaigns by MNC directed at Public Law and Health measures have caused governments to reassess the situation. A classic example of this has been the challenge by tobacco companies against the plain cigarette packaging legislation introduced by the Canadian and Australian governments. The Australian Government's response to this through its statement of position in respect of future bilateral agreements and its Tobacco Plain Packaging Act 2011 (Cth)1 is equally path breaking. This article examines the dramatic turnaround in perspective of States in respect of Investor-State arbitration, and its impact on the Trans-Pacific Partnership Agreement (TPP) currently being negotiated.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 2 - Stepping stones - from corporate fault to directors'
           personal civil liability
    • Abstract: Herzberg, Abe; Anderson, Helen
      Several recent cases have seen the courts approving ASIC's employment of a 'stepping stone' approach that applies directors' statutory duty of care as well as their other statutory duties in a novel context. The first 'stepping stone' involves an action against a company for contravention of the Corporations Act 2001 (Cth). The establishment of corporate fault may then step stone to a finding that by exposing their company to the risk of criminal prosecution, civil liability or significant reputational damage, directors contravened one or more of their statutory duties in ss 180-2 of the Corporations Act, particularly their statutory duty of care, with the attendant civil penalty consequences. The effect of the 'stepping stone' approach is that directors may face a type of derivative civil liability for corporate fault. In this paper we analyse the stepping stone approach and assess the justification for imposing civil liability on directors for their company's misbehaviour. This paper also examines whether an extension of the stepping stone approach could make directors liable for their company's contraventions of non-Corporations Act laws as well as open the floodgates to make directors personally liable to shareholders, creditors, employees, or others affected by corporate fault.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 2 - Military justice and chapter III: The constitutional
           basis of courts martial
    • Abstract: Crowe, Jonathan; Ratnapala, Suri
      The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court's judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not 'the judicial power of the Commonwealth' within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is 'the judicial power of the Commonwealth', but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court's reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 2 - Towards harmonised company legislation - 'are we there
           yet''
    • Abstract: Barrett, RI
      The enactment of uniform companies legislation in 1961-2 was a significant achievement for a country in which, a century earlier, multiple incorporations of the one body was the norm and a court of one colony questioned the existence of corporate personality created by the law of another. After Federation, business interests increasingly sought uniform State laws. They opposed centralised regulation which, in any event, was beset by constitutional difficulties. Commonwealth legislation eventually became the preferred model as shortcomings of uniform and co-operative mechanisms were progressively exposed. Yet fully harmonised corporations legislation still does not exist. In this paper presented to the 2011 Hartnell Colloquium at the Centre for Commercial Law, Australian National University to mark the fiftieth anniversary of the Uniform Companies Acts, the author sketches the development of Australian companies legislation over the last 150 years.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 1 - Prosecution and punishment of people smugglers in
           Australia 2008-2011
    • Abstract: Schloenhardt, Andreas; Martin, Charles
      This article provides an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of 'typical' people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 1 - Justifications for initiating a constitutional
           amendment to establish an Australian republic: An empirical study
    • Abstract: Patmore, Glenn
      Under section 128 of the Australian Constitution federal parliamentarians have the power to initiate constitutional amendments. This paper examines the justifications of politicians and public figures for proposing a referendum to introduce an Australian republic. From interviews conducted between 2008 and 2011, three important justifications for proposing change emerged: promoting a new national identity; success in passing a referendum and in re-election; and timeliness. An examination of these justifications raised additional questions, including: what reasons did politicians and public figures think were significant' How did their justifications form and develop' What were the reasons that inspired political action' The reasons for initiation of a referendum for a republic, and recognition of indigenous people in the Australian Constitution are also compared. The paper adds to the literature on formal constitutional change, and also offers a critique of the field.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 1 - Proroguing the parliament of Australia: The effect on
           the senate and the conventions that constrain the prerogative power
    • Abstract: Olivier, Eliot
      Political controversies in New South Wales and Canada recently have focused public attention on the constitutional practice of proroguing parliament. They have also shone a light on two lingering areas of uncertainty that surround its operation under the Commonwealth Constitution. This article seeks to clarify these two muddy areas of the law concerning prorogation. The first is the effect of prorogation on the Senate and its committees. Since Federation, the Senate has purported to authorise its committees to continue to function notwithstanding a prorogation of the Parliament. However, it is argued that this practice is unsupported by the provisions of the Constitution and the Senate has no such power. Second, the article examines the operation of the conventions that constrain the Governor-General's power to prorogue. Prorogation generally is exercised on the advice of the Prime Minister. However, this article contends that where a Prime Minister seeks to prorogue Parliament to avoid a vote of no confidence, the Governor-General will have a discretion to reject the advice. It may also be open to the Governor-General to reject an advice to prorogue where the purpose is to avoid scrutiny of a fundamental constitutional illegality. In Australia, the uncertainties that surround prorogation, coupled with the now precarious political landscape in Canberra, create the very real possibility of a prorogation crisis at the Commonwealth level. This article provides a response to these uncertainties. In doing so it offers a solution to how a prorogation crisis can be resolved, whilst maintaining the fine balance of power in our constitutional system.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 1 - Attributes and attribution of state courts -
           federalism and the Kable principle
    • Abstract: Lim, Brendan
      'State courts' can be understood in at least two ways. Their 'attributes' are the characteristics that define them as 'courts'. Their 'attribution' is the extent to which they are regarded as emanations of a 'state' in its constitutional conception as a constituent unit of the federation. The principle first articulated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ensures the institutional integrity of state courts by protecting from legislative impairment their defining characteristics as 'courts'. It therefore understands state courts almost exclusively by their 'attributes'. This article examines the significance to the Kable principle of also understanding state courts by their 'attribution'. There are different conceptions of the proper attribution of state courts, coincident with different visions of how to accommodate simultaneous constitutional commitments to autonomous states and integrated courts. Those conceptions influence the content and application of the Kable principle in ways that are insufficiently appreciated. This insight permits a new perspective on the Kable principle as a doctrine of federalism, and its recent applications in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; and Wainohu v New South Wales (2011) 243 CLR 181. It also prompts an analysis of a contemporaneous evolution in the constitutional policy of the Commonwealth, whose Attorney-General typically intervened in Kable cases in support of the states, until recently seeking to extend to them certain Chapter III limitations.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 1 - A new coat of paint: Law and order and the
           refurbishment of 'Kable'
    • Abstract: Appleby, Gabrielle J; Williams, John M
      The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' anti-organised crime measures (International Finance Trust Co v New South Wales Crime Commission, South Australia v Totani, and Wainohu v New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 40 Issue 1 - Foreword
    • Abstract: Young, Katharine G; Zagor, Matthew; Dalla Pozza, Dominique; McLaughlin, Rob; Thai, Pauline
      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 3 - Informal votes at a constitutional referendum
    • Abstract: Handley, KR
      Section 128 of the Commonwealth Constitution provides that proposals for constitutional change at a referendum are carried if they are supported by double majorities 'of the electors voting.' It is not immediately clear whether informal votes are to be included in the total or denominator when determining whether the yes votes are a majority. The point could determine the result in a future referendum. Indeed if such 'votes' are to be included in the total 'voting' the referendum on 28 September 1946 to give the Commonwealth additional social security powers would have been lost.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 3 - The 'constitution' and the substantive principles of
           judicial review: The full scope of the entrenched minimum provision of
           judicial review
    • Abstract: Bateman, Will
      The High Court has held that the Constitution entrenches a 'minimum provision of judicial review'. In the context of privative clauses, the contours of that minimum provision are settled - the supervisory jurisdiction of the High Court and the State Supreme Courts to review for jurisdictional error cannot be excluded. In respect of privative clauses contained in Commonwealth legislation, conflict with s 75(v) of the Constitution provides the constitutional anchor for the minimum provision, while in State jurisdiction the textual anchor is found in the constitutional definition of a 'court', as that term is used in Ch III. In respect of other elements of judicial review, particularly the substantive principles of review, the position is radically unclear. One commentator has observed that, if the Constitution does contain principles prohibiting the exclusion of the substantive principles of judicial review, 'it is not obvious where they lie or what the justification for them might be.'

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 3 - Extended standing - enhanced accountability':
           Judicial review of commonwealth environmental decisions
    • Abstract: Edgar, Andrew
      The general test for standing in Australia requires an applicant to have a 'special interest' in the subject matter of the action. It is well known that under this test environmental groups face challenges in being granted standing. So what happens when legislation extends standing to allow these groups to bring judicial review proceedings' The cases and academic literature suggest that there may be a number of consequences. It may be that other aspects of the litigation process such as costs, non-justiciability, or powers to stay proceedings for being an abuse of process operate to curb inappropriate proceedings. It is also possible that standing-related issues are handled by the grounds of judicial review, such as procedural fairness or failure to consider a relevant matter. This could occur in two different ways. Judges may be wary of being drawn into what they regard as political disputes3 and take a restrained approach to the grounds of review that emphasises orthodox limitations. Or, they may see extended standing as a sign that legal accountability is to be enhanced and that a progressive approach to the grounds of review is warranted.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 3 - Federal constitutional influences on state judicial
           review
    • Abstract: Groves, Matthew
      Since the late 1990s it has become increasingly clear that the Commonwealth Constitution is the dominant influence upon judicial review of administrative action in Australia. The Constitution provides for a minimum entrenched provision of judicial review by recognising and protecting the supervisory jurisdiction of the High Court. This protection comes at a price because the separation of powers doctrine and the division and allocation of functions it fosters impose many limits upon the reach and content of judicial review of administrative action. This protective and restrictive effect of the separation of powers upon judicial review of administrative action arguably reflects a wider tension in the separation of powers, in which the powers and limits of each arm of government are balanced in a wider sense.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 3 - The income taxation of native title agreements
    • Abstract: Stewart, Miranda
      In this paper is the agreement between Argyle, Traditional Owners for the mine area and the Kimberley Land Council. This paper carries all the rules to make sure that we treat each other properly. It has taken many years and a lot of hard work to make this agreement. We are very proud to sign it. With this agreement as a start, we can make the future better for Traditional Owners and Argyle.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 3 - Changing the leader - the constitutional conventions
           concerning the resignation of prime ministers and premiers
    • Abstract: Twomey, Anne
      In recent times in Australia there have been a number of changes in the leader of the governing party at both Commonwealth and State level, leading to a change in the holder of the office of Prime Minister or Premier. These changes have occurred not as a consequence of retirement or the loss of an election, but because of the loss of support for the leader by the leader's parliamentary party. They include the South Australian change of Premier from Mike Rann to Jay Weatherill, the New South Wales changes of Premier from Morris Iemma to Nathan Rees to Kristina Keneally and the change in Prime Minister from Kevin Rudd to Julia Gillard. Earlier examples include the change from Bob Hawke to Paul Keating and from John Gorton to Billy McMahon. This article explores the connection between the loss of party support for a leader and the role of the Governor or Governor-General in the appointment and removal of the Premier or Prime Minister.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 2 - The 'Fatal Conundrum' of 'No-Consideration' clauses
           after Plaintiff M61 Christopher Tran
    • Abstract: Tran, Christopher
      In Plaintiff M61/2010E v Commonwealth ('Plaintiff M61'), the High Court held in a unanimous joint judgment that the plaintiff asylum seekers on Christmas Island were entitled to procedural fairness and to have their claims for refugee status determined according to law. This decision has significant ramifications for the government's asylum seeker policy, and it has already been the subject of academic commentary from an immigration perspective. The case also has broader doctrinal significance because it is only the second time that the full bench has considered what this article will call a 'no-consideration' clause. The Court held that the legislature can validly confer a power on a decision-maker and at the same time provide that the decision-maker has no duty to consider exercising it. However, on the facts before it, the Minister had decided to consider all requests for asylum and thus had moved beyond the protection of the no-consideration clause. Moreover, declaratory relief was appropriate even though the constitutional writs were unavailable. This handling of the no-consideration clause reveals a concern to safeguard judicial review from legislative intrusion. This article explores the use of 'no-consideration' clauses to restrict judicial review and the Court's approach to such clauses in Plaintiff M61.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 2 - 'Red bull gives you wiings': Patrolling the boundaries
           of drug foods
    • Abstract: Reynolds, Rocque
      Drug foods are part of every food culture, so Sidney Mintz has argued, and the energy drink, Red Bull, might be understood as one of our latest drug foods. Drug foods pose a challenge from a regulatory point of view for they bring into focus two of the great food debates - the impact of food regulation on food innovation and the role of food regulators in regard to public health. In so far as drug foods have traditionally formed a part of every diet, any attempt to ban or limit new or novel drug foods opens the food regulator to 'endless charges of hypocrisy and irrationality', 'paternalistic' behaviour and standing in the way of food innovation. On the other hand, if the food regulator does allow new drug foods to be manufactured and sold it is accused of failing in its duty to protect public health or of being 'amoral' in this regard.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 2 - Regulating for women on corporate boards: Polycentric
           governance in Australia
    • Abstract: Nagarajan, Vijaya
      With close to five million women in paid employment and constituting over 45 per cent of the total workforce and 57 per cent of the Australian public service, holding 28 per cent of the seats in Senate and 25 per cent of the seats in the House of Representatives, one could be forgiven for entertaining the thought that as a nation, we are beginning to acknowledge the importance of gender equality. However we are quickly reminded that this is far from the truth when it comes to corporate boards which are important sites of decision making that affect us all. In Australia, although women hold 27 per cent of senior positions in private companies, they only hold 10.9 per cent of the board positions in the top 200 listed companies on the Australian stock exchange. Addressing this issue has taken on utmost importance with many governments threatening to introduce legislation to make it happen. Perhaps unlike some of the enormous challenges of climate change and the Global Financial Crisis, this area is one where nation states see that they can make a difference.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 2 - An Australian in the palace of the king-emperor: James
           Scullin, George v and the appointment of the first Australian-born
           governor-general
    • Abstract: Waugh, John
      The nomination in 1930 of an Australian, Sir Isaac Isaacs, as Governor-General of the Commonwealth of Australia has become a minor landmark in the development of Australian independence. Opposed or supported at the time as a measure of the strength of Australia's links with Britain, the appointment has become, for lawyers and historians alike, a test-case for Australian autonomy and the countervailing cultural and legal force of the imperial connection. The central collision between Australian Prime Minister James Scullin (who nominated Isaacs) and King George V (who resisted strongly) added to the constitutional interest of the appointment but contributed to the long closure to researchers of key parts of the documentary record.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 2 - Subsidiarity: European lessons for Australia's federal
           balance
    • Abstract: Aroney, Nicholas
      The principle of subsidiarity was adopted as part of the law of the European Union as a response to perceptions of excessive centralisation and bureaucratisation within the European system of government. If subsidiarity is a solution to these problems in Europe, it might be asked: could it also be a solution to similar problems that arise in other federal systems, such as those of the United States and Australia' However, posing the question in this way is misleading because it is not at all clear that subsidiarity has been a solution in Europe, and in any case it cannot be assumed that a solution in one context will necessarily operate effectively in another. This article closely examines the nature and operation of the principle of subsidiarity in Europe and asks what lessons might be learned from it. To do this, the article begins by identifying the carefully defined operation of the principle in EU law and then closely examining the application of the principle, firstly as a political decision-making procedure that involves the Member State parliaments in the European policy-making process, and secondly as a juridical principle enforceable by the European Court of Justice. The possible adoption of the principle in other federations is then discussed, but limitations on its effectiveness in Europe, as well as the different institutional and political circumstances of the Australian federal system, are shown to undermine its likely usefulness, unless other more fundamental issues about the way in which the federal system is understood, organised and operated are addressed. The final part of the article suggests that these more fundamental issues are best understood and addressed in the light of a broader, more substantial, 'social' conception of subsidiarity: a conception not unrelated to the Roman Catholic social theory from which the idea of subsidiarity originally derived. A more substantial, social conception of subsidiarity, it is argued, can help us to understand why the application of the principle in Europe has had only limited effect and also why its application in other federal systems is unlikely to remedy problems of centralisation and bureaucratisation. This is because the European version of subsidiarity is focussed on the question of how the functionalist objectives of the EU can most appropriately be achieved, with only tangential consideration being given to the proper functions, purposes and responsibilities of the constituent Member States themselves. Focussing simply on the scope and reach of the competences of the central organs of government is not enough. Nor is it sufficient, as in Australia, to focus only upon the immunities that the constituent states ought to enjoy as self-governing political communities. Rather, the key task is to identify the proper functions and purposes (munera) of the various political (and social) communities and associations that make up the wider political community of which they are an integral part. The proper immunities that a particular community should enjoy cannot be identified apart from and identification of the appropriate munus of that community. Although an admittedly difficult and highly controversial task, unless the issue of the munera is addressed, 'subsidiarity' as a principle is not going to have much effect, for its fundamental lesson about the nature and integrity of the munus of each community - social and political - will not have been learned.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - The rise, fall and proposed rebirth of the Australian
           military court
    • Abstract: Burmester, Henry
      In October 2007 a new era in Australian military criminal justice began with the establishment of an Australian Military Court (AMC). The AMC had, however, a short life, being found in August 2009 by the High Court of Australia to be contrary to Chapter III of the Australian Constitution.1 In May 2010 it was announced that a new Military Court of Australia, established in conformity with Chapter III, was to be established to replace the interim system put in place following the High Court's invalidation of the first AMC. A Bill for a new military court was introduced to Parliament in 2010 but lapsed with the dissolution of Parliament for the 2010 election.2 No replacement Bill had been introduced as at the beginning of 2011. It is unclear when or whether a new military court will be established.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - The process of law reform: conditions for success
    • Abstract: Barnett, Laura
      Changing the law can be a tricky business. Seen from the perspective of non-governmental organisations, law reform can mean years of lobbying governments and politicians for change; seen from inside government, law reform may signify months or years of consultation, drafting bills, and holding one's breath for Parliament; seen from Parliament, law reform may mean a relatively simple examination and passage of a Bill or months of political haggling; from the perspective of the public, law reform may appear variously political, idealistic, long and drawn out or hasty. Law reform is all of these things.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - Carbon pricing options for a post-kyoto response to
           climate change in Australia
    • Abstract: Gumley, Wayne; Stoianoff, Natalie
      On 24 February 2011 the Australian Prime Minister Julia Gillard announced proposals for introduction of a 'carbon price mechanism' to commence as early as 1 July 2012.1 This announcement follows the establishment of a Multi-Party Climate Change Committee on 27 September 2010 with instructions to 'explore options for the implementation of a carbon price [and] help to build consensus on how Australia will tackle the challenge of climate change', starting from the position that 'a carbon price is a necessary economic reform required to reduce carbon pollution'.2 Earlier in 2010 a major review of the Australian taxation system by Dr Ken Henry was released, providing extensive insights into how the tax system should be restructured 'to deal with the ... environmental challenges of the 21st century', and its 'interrelationships [with] ... the proposed emissions trading system'.3 These developments are largely driven by the need for Australia to develop a credible climate change agenda once the Kyoto Protocol arrangements come to an end in 2012.4 Whilst Australia seems to be on track to meet its Kyoto commitments, setting acceptable greenhouse reduction targets and introducing effective greenhouse abatement strategies for the 'post-Kyoto' period will be a huge challenge.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - Entrenching 'cooperative federalism': Is it time to
           formalise coag's place in the Australian federation'
    • Abstract: Kildea, Paul; Lynch, Andrew
      Literature on the necessity for reform of Australia's federal division of government continues to blossom, reflecting the assessment of a leading expert in the area that the system is now at a 'cross-road' between delivering a vibrant and beneficial federalism to the Australian public or 'merely a mask for the effective centralisation of power'.1Although the solutions advanced by many commentators towards ensuring the first of these outcomes over the second are many and various, it is notable that none looks exclusively to constitutional amendment as the silver bullet of reform. The notorious difficulty of attaining a successful referendum result - particularly on federal issues which have traditionally been amongst the most contentious proposals - as well as the difficulty of encapsulating all that might be done in the way of federal reform within a single suite of proposed amendments, has ensured that sub-constitutional institutions and mechanisms have been looked to as a simpler, more effective way to achieve change.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - Does the corporations power extend to re-constituting
           corporations'
    • Abstract: Orr, Graeme; Johnston, Andrew
      This article examines the breadth of the corporations power in s 51(xx) of the Australian Constitution. The issue we address can be posed in a couple of ways. Once formed, to what degree does the national Parliament have power to 're-form' corporations' Or, to put it in a more neutral way, once incorporated, what power does the national Parliament have over a corporation's constitution' Addressing this issue requires us to explore the vision or model of the corporation which underlies the limit, recognised in the Incorporation Case of 1990, that the Commonwealth may only wield power over corporations already 'formed'.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - The high cost of judges: Reconsidering judicial
           pensions and retirement in an ageing population
    • Abstract: Opeskin, Brian
      In recent years there has been unprecedented concern about the impact of population change on Australian society. The concerns come from different quarters. Commentators have variously remarked that fertility is too low, immigration is too high, the population is ageing too rapidly, and that uneven spatial distribution is placing too great a burden on the infrastructure of already crowded cities. As further evidence of the growing interest in population dynamics, in 2010 the Australian Government created a new office of the Minister for Sustainable Population to help guide the development of policies to meet Australia's future population needs.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
  • Volume 39 Issue 1 - The notional legislator: The Australian securities and
           investments commission's role as a law-maker
    • Abstract: Bottomley, Stephen
      Socio-legal scholars have long recognised the importance of understanding the difference and the interaction between the 'law in the books' - the formal legal rules and doctrines made by parliaments and the courts, and the 'law in action' - the processes and practices by which those rules and doctrines are put into effect. Similarly, public lawyers and regulatory theorists have highlighted the importance of understanding the role of regulatory discretion in the enforcement of rules. The commonly understood message in these overlapping areas of research is that we cannot properly understand the law if we limit our attention to formal rules. A related point is that there is nothing necessarily improper about the exercise of regulatory discretion. Nor is there anything necessarily improper about the fact that the processes of rule enforcement can produce different outcomes than might be suggested by a simple reading of the rule itself.

      PubDate: Wed, 8 Nov 2017 12:13:58 GMT
       
 
 
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