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LAW (703 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 20)
Acta Juridica     Full-text available via subscription   (Followers: 9)
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: 20)
Administrative Law Review     Open Access   (Followers: 39)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 7)
African Journal of Legal Studies     Hybrid Journal   (Followers: 6)
African Journal on Conflict Resolution     Open Access   (Followers: 15)
Afrilex     Open Access   (Followers: 4)
Air and Space Law     Full-text available via subscription   (Followers: 19)
Akron Law Review     Open Access   (Followers: 4)
Alaska Law Review     Open Access   (Followers: 10)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 15)
Alternative Law Journal     Hybrid Journal   (Followers: 3)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 16)
Amazon's Research and Environmental Law     Open Access   (Followers: 2)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 55)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 16)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 12)
American Journal of Legal History     Full-text available via subscription   (Followers: 5)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 8)
American University Law Review     Open Access   (Followers: 16)
American University National Security Law Brief     Open Access   (Followers: 9)
Amicus Curiae     Open Access   (Followers: 5)
Amsterdam Law Forum     Open Access   (Followers: 9)
Annales Canonici     Open Access  
Annual Survey of South African Law     Full-text available via subscription   (Followers: 5)
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 2)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 13)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 4)
Arizona State Law Journal     Free   (Followers: 2)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 2)
Art + Law     Full-text available via subscription   (Followers: 11)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 10)
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 5)
Asian Pacific American Law Journal     Open Access   (Followers: 2)
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: 17)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 18)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access  
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 7)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 23)
Beijing Law Review     Open Access   (Followers: 7)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 11)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 7)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 10)
Boston College Law Review     Open Access   (Followers: 18)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access  
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 8)
British Journal of American Legal Studies     Open Access  
Brooklyn Law Review     Open Access   (Followers: 2)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
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: 20)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 142)
Campbell Law Review     Open Access   (Followers: 5)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Časopis zdravotnického práva a bioetiky     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 10)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 16)
China-EU Law Journal     Hybrid Journal   (Followers: 4)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 3)
Chinese Law & Government     Full-text available via subscription   (Followers: 6)
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: 9)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 15)
Columbia Law Review (Sidebar)     Open Access   (Followers: 15)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 41)
Comparative Legal History     Full-text available via subscription   (Followers: 5)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 22)
Conflict Trends     Full-text available via subscription   (Followers: 8)
Cornell Law Review     Open Access   (Followers: 7)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 2)
Cuadernos de Historia del Derecho     Open Access   (Followers: 6)
Cuestiones Juridicas     Open Access   (Followers: 1)
Current Legal Problems     Hybrid Journal   (Followers: 26)
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  
Deakin Law Review     Full-text available via subscription   (Followers: 14)
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: 8)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 2)
DePaul Law Review     Open Access   (Followers: 2)
Der Staat     Full-text available via subscription   (Followers: 13)
Derecho PUCP     Open Access   (Followers: 3)
Derecho y Ciencias Sociales     Open Access   (Followers: 1)
Die Verwaltung     Full-text available via subscription   (Followers: 10)
Dikaion     Open Access   (Followers: 1)
Dike     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: 6)
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: 6)
Duke Forum for Law & Social Change     Open Access   (Followers: 8)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 15)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 1)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 21)
Education and the Law     Hybrid Journal   (Followers: 11)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 23)
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: 23)
Environmental Policy and Law     Hybrid Journal   (Followers: 16)
ERA-Forum     Hybrid Journal   (Followers: 5)
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 4)
Ethnopolitics     Hybrid Journal   (Followers: 4)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 4)
EU agrarian Law     Open Access   (Followers: 3)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 16)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 8)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 4)
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: 135)
European Public Law     Full-text available via subscription   (Followers: 33)
European Review of Contract Law     Hybrid Journal   (Followers: 21)
European Review of Private Law     Full-text available via subscription   (Followers: 29)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 3)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 9)
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: 22)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 16)
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)
Florida State University Law Review     Open Access   (Followers: 4)
Fordham Environmental Law Review     Open Access   (Followers: 4)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 18)
Fordham Law Review     Open Access   (Followers: 13)
FORO. Revista de Ciencias Jurídicas y Sociales, Nueva Época     Open Access   (Followers: 2)
Fundamina : A Journal of Legal History     Open Access   (Followers: 7)
Geoforum     Hybrid Journal   (Followers: 23)
George Washington Law Review     Free   (Followers: 8)
Georgia Law Review     Open Access   (Followers: 2)
Georgia State University Law Review     Open Access   (Followers: 2)
Global Journal of Comparative Law     Hybrid Journal   (Followers: 2)
Global Labour Journal     Open Access   (Followers: 7)
Golden Gate University Environmental Law Journal     Open Access   (Followers: 3)

        1 2 3 4 | Last

Journal Cover Federal Law Review
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Published by RMIT Publishing Homepage  [403 journals]
  • 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: Tue, 26 Nov 2013 10:09:32 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: Tue, 26 Nov 2013 10:09:32 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: Tue, 26 Nov 2013 10:09:32 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: Tue, 26 Nov 2013 10:09:32 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: Tue, 26 Nov 2013 10:09:32 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: Tue, 26 Nov 2013 10:09:32 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: Mon, 5 Aug 2013 09:45:48 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: Mon, 5 Aug 2013 09:45:48 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: Mon, 5 Aug 2013 09:45:48 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: Mon, 5 Aug 2013 09:45:48 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: Mon, 5 Aug 2013 09:45:48 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: Mon, 5 Aug 2013 09:45:48 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: Mon, 5 Aug 2013 09:45:48 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, 16 Jan 2013 08:59:43 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, 16 Jan 2013 08:59:43 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, 16 Jan 2013 08:59:43 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, 16 Jan 2013 08:59:43 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, 16 Jan 2013 08:59:43 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: Mon, 15 Oct 2012 14:52:21 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: Mon, 15 Oct 2012 14:52:21 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: Mon, 15 Oct 2012 14:52:21 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: Mon, 15 Oct 2012 14:52:21 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: Mon, 15 Oct 2012 14:52:21 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: Mon, 15 Oct 2012 14:52:21 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: Mon, 20 Aug 2012 09:33:28 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: Mon, 20 Aug 2012 09:33:28 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: Mon, 20 Aug 2012 09:33:28 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: Mon, 20 Aug 2012 09:33:28 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: Mon, 20 Aug 2012 09:33:28 GMT
       
  • Volume 40 Issue 1 - Foreword
    • Abstract: Young, Katharine G; Zagor, Matthew; Pozza, Dominique Dalla; McLaughlin, Rob; Thai, Pauline
      PubDate: Mon, 20 Aug 2012 09:33:28 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: Tue, 15 May 2012 09:34:18 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: Tue, 15 May 2012 09:34:18 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: Tue, 15 May 2012 09:34:18 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: Tue, 15 May 2012 09:34:18 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: Tue, 15 May 2012 09:34:18 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: Tue, 15 May 2012 09:34:18 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: Tue, 15 May 2012 09:34:18 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: Fri, 11 May 2012 16:11:54 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: Fri, 11 May 2012 16:11:54 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: Fri, 11 May 2012 16:11:54 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: Fri, 11 May 2012 16:11:54 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: Fri, 11 May 2012 16:11:54 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: Fri, 11 May 2012 16:11:54 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: Fri, 11 May 2012 16:11:32 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: Fri, 11 May 2012 16:11:32 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: Fri, 11 May 2012 16:11:32 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: Fri, 11 May 2012 16:11:32 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: Fri, 11 May 2012 16:11:32 GMT
       
 
 
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