bluuebunny/crossref_metadata_2025 huggingface dataset:
Constitutional Law and the Limits of Discretion in Family Property Law
Authors: Parkinson Patrick
Published: January 2019

The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown.

Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making.

The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.
Barking and Biting: The Equal Opportunity Commission as an Enforcement Agency
Authors: Allen Dominique
Published: January 2019

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.
History and Memory in Constitutional Adjudication
Authors: Barak-Erez Daphne
Published: January 2019

This article considers the different ways in which judicial decisions use and narrate history. It distinguishes between several forms of judicial recourse to history, including the difference between decisions which refer to general history and decisions that refer to the history of legal documents; and the difference between decisions on factual controversies that have historical significance and decisions that take judicial notice of history. At the same time, this article recognises that the division between these categories is not clear-cut. An analysis of constitutional case law sheds light on the ways in which courts harness historical events in order to justify their normative choices. More specifically, while some judicial decisions cite history in order to justify continuity with the past, others regard history as a cautionary tale that calls for a change of direction. In between, some decisions opt for a middle route, supporting continuity with historical decisions but offering new interpretations of their lessons. This article concludes by examining decisions that try to ‘learn’ from history, illuminating the enduring challenge in drawing different and even conflicting lessons from the very same historical event.
Statutory Misinterpretation: Rash Holding in Brash Holdings
Authors: Fishman Paulina
Published: January 2019

The modern approach to statutory construction guides the judiciary, the legal profession, litigants, and academics in interpreting the myriad legislative provisions in Australian law. Yet what if critical sections have been construed in ways that are irreconcilable with the basic rules of modern statutory interpretation? One of the most important commercial statutes in the country is the Corporations Act 2001 (Cth). This article exposes one instance of misinterpretation in respect of that statute, contained in a decision of a unanimous Full Court of the Supreme Court of Victoria, and makes proposals for resolving such quandaries.
Accountability in Regulatory Reform: Australia's Superannuation Industry Paradox
Authors: Taylor Sue , Asher Anthony , Tarr Julie Anne
Published: January 2019

The Australian Superannuation Industry is generally seen as very strong and successful by global standards. However, three decades of legislative reform in the Australian superannuation industry have created a paradox: ongoing reforms but continuing dissatisfaction with areas of governance and outcomes. These include high levels of administrative and investment fees, and systematic problems around a culture of conflicted investment advice.

In seeking to further elaborate and then resolve this paradox, this article draws upon an extensive research project conducted by the authors within the Australian superannuation industry, including three voluntary and anonymous surveys of superannuation trustees/licensees. This research has revealed that fund members are vulnerable to significant and expanding private-interest rents generated by the financial services sector. This may be explained by regulatory capture mechanisms variously described as statutory, agency, corrosive and intellectual capture.

The article examines ways to better achieve public interest outcomes, and at a time when public sector integrity remains an area of particular attention, how more can be done to blunt the force of private interest rent seeking.
The Perils and Pitfalls of Formal Equality in Australian Family Law Reform
Authors: Fehlberg Belinda , Sarmas Lisa , Morgan Jenny
Published: January 2019

In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.
The ‘Modern Approach’ to Statutory Interpretation and the Principle of Legality: An Issue of Coherence?
Authors: Meagher Dan
Published: January 2019

The ‘modern approach’ to interpretation requires that effect be given to the ordinary meaning of a statutory text in its wider context and with reference to its purpose. This article interrogates the interpretive approach used by the High Court in fundamental rights cases to assess its compatibility with this ‘modern approach’. It asks, specifically, whether the strict text-based approach used in these cases (which involves the application of the principle of legality) is sufficient to determine the meaning of ambiguous statutory texts. The argument made is that the coherent application of the ‘modern approach’ requires that this interpretive approach be justified.
Law Reform in Australia
Authors: Mason A. F.
Published: January 2019

There was a time when Australia, in common with New Zealand, provided a lead to the world in formulating new and constructive legislative measures; the statutes relating to the system of Torrens title, testators family maintenance and industrial arbitration were the expression of a legislative spirit which was anxious to grasp difficult problems and solve them with an imaginative and practical approach. It may be said that this legislation was primarily social in character and that it was the distinctive contribution of the democratic and egalitarian society which had emerged in this part of the world towards the end of the nineteenth century. The substantial accuracy of this observation may be admitted, except in its application to the Torrens title legislation, but the comment should not be allowed to obscure the very considerable legislative activity which took place contemporaneously and which was of domestic significance.
Administrative Law in the Commonwealth: Some Proposals for Reform
Authors: Whitmore Harry
Published: January 2019

It is at last being recognized that there is need to reform the antiquated and costly apparatus of administrative law that we inherited frum England. Despite murmurs of dissatisfaction extending over many decades all that has been achieved so far by legislation amounts to little more than a tinkering with the machinery of adjudication in marginal areas. The problem is an old one. The public interest demands that administration, including the provision of multifarious services that are crucial to the community, be carried out as efficiently as possible. Equally the public interest demands that individual rights and expectations should not be overridden by an uncaring bureaucracy.
Some Problems of Commonwealth Immunity and Exclusive Legislative Powers
Authors: Howard Colin
Published: January 2019

There is a well-known obscurity in the law relating to Commonwealth immunity from State legislative power. It is that whereas the High Court has laid down in clear terms that the Commonwealth is not subject to State legislative power at all, it has at the same time said that the Commonwealth may be “affected by” State laws but has not explained what is meant by “affected by”.

There is also a less well-known obscurity in the law relating to State taxation of Common\vealth public servants. The High Court has held that general State tax laws apply to Commonwealth public servants in the same way as to other subjects of the State, unless the Commonwealth enacts legislation exempting the payments which it makes to its public servants by way of salary or pension from State taxation. The obscurity is that a Commonwealth law prescribing salaries for its own public servants appears to be an exercise of exclusive legislative power; that a law exempting such salaries from State taxation appears to be incidental to that power, and therefore itself an exercise of exclusive power; but that if this is so, the State tax law also, in its application to Commonwealth salaries, appears to be an exercise of Commonwealth exclusive power and therefore invalid in the first place.
The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?
Authors: Hookey John
Published: January 2019

In 1971, Blackburn J., delivering a swingeing judgment in the Supreme Court of the Northern Territory, held that the members of three Arnhem I and clans had no legally recognizable rights in their ancestral lands, and thereby decided what was thought to be the first case brought by Australian aboriginals seeking legal recognition of their customary land rights.

British settlements were first established in Australia in 1788. Ever since it is a notorious fact that aboriginals have been consistently deprived of their land by settlers, miners and governments. The surprising thing therefore, to lawyers unfamiliar with the history of Australian race relations, is that aboriginal rights in land do not appear to have been asserted in the courts by aboriginal plaintiffs before the present proceedings began. The absence of reported cases dealing specifically with the rights of Australian aboriginals in their lands is all the more exceptional in the light of the wide range of decisions on indigenous claims in other murisdictions.
Kenneth Bailey Memorial Lecture the Seabed in Law
Authors: Windeyer Victor
Published: January 2019

Sir Victor examines the basic problems being encountered in the development of the international law of the seabed. An historical analysis reveals that the definitions used to effect the current allocation of rights in the seabed are not based on irresistible logical extensions of the concept of territorial sovereignty. On the contrary, legal definitions such as the definition of “continental shelf” represent and facilitate the political reality of competitive nationalism. Sir Victor then considers the constitutional relationship of the States and the Commonwealth in regard to the seabed. He argues that, historically, the States have no claim to sovereignty over their adjacent territorial seas as the colonies never exercised dominium there. The territorial seas remained in British Imperial jurisdiction until federation, when the Commonwealth acquired sovereignty over them as an attribute of nationhood.
Benign Discrimination and the Right to Equality
Authors: Evans Gareth
Published: January 2019

Governments have been increasingly preoccupied with the task of reconciling claims to preferential treatment with the principle of equality. The social and philosophical issues raised by this apparent paradox are considered, and the compatibility of benign discrimination with the concept of equality demonstrated by developing a complex normative notion of equality. An analysis is then undertaken of the various attempts made by lawyers, in nearly one hundred existing bills of rights, to give formal expression to these principles. Ultimately the problem of benign discrimination falls for resolution by the courts, and the jurisprudence developed in this respect by the Supreme Courts of Canada and the United States is critically discussed and compared. Having exhaustively developed an appreciation of world experience regarding the interaction of bills of rights equality clauses and benign discrimination, consideration is given to the formulation of the Australian Human Rights Bill—a bill of which Gareth Evans was one of the principal draftsmen.
Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case
Authors: Priestley L. J.
Published: January 2019

Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M’Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.
Electoral Corruption and Malpractice
Authors: Finn P. D.
Published: January 2019

Australian electoral legislation provides both a regulatory and punitive scheme designed to overcome electoral corruption and malpractice. Much of this legislation has been based on British models. The article commences by detailing the existing British legislation and its merits. Extended consideration is then given to the sections of Australian electoral legislation dealing with the conduct of candidates for election and their supporters. The former British legislation which has been imitated in various Australian jurisdictions is identified and the effectiveness of the present Australian electoral legislation is compared with that presently in force in the United Kingdom. As well, the principal electoral offences and controls on electoral expenditure in each of the States and the Commonwealth are considered at length. The analysis in this regard is complemented by a schedule to the article comparing the existence of, and penalties for, 48 electoral offences under various electoral statutes in Australia and the United Kingdom. Dr Finn concludes the article by arguing for reform in a number of specified areas of Australian electoral legislation.
International Privileges and Immunities in Australia—The Legislative Framework
Authors: O'Keefe Patrick J.
Published: January 2019

In recent years the Commonwealth Government has passed legislation implementing international conventions on diplomatic and consular relations. Australia now has a legislative framework regulating the grant of privileges and immunities to diplomatic missions, consular posts, international organizations and the personnel of all of them. In this article Mr O'Keefe describes this legislation, explains how it operates and examines the relationship between the various Acts.
The Structure and Nature of Australian Environmental Law
Authors: Whalan Douglas J.
Published: January 2019

Constitutional authority over resources and environmental questions resides principally in the States in Australia, but there are many powers which the Federal Government can develop, either alone or together with the States, in working out national policies in these areas. Although the constitutional issues are important, resolution of land use problems is fundamentally a matter of competition for power and authority within the political system.

Professor Whalan suggests four stages in the development of environmental law: (a) totally resource-oriented statutes with possible overlaps and clashes between separate uses; (b) integration of the separate codes and the introduction into those codes of environmentally oriented protective provisions; (c) the enactment of statutes directed towards a specific environmental problem or problems; and (d) the development of overview bodies with advisory and supervisory functions to which the protective responsibilities may be added.

In these statutory moves towards macro-environmental law in Australia, the Courts have been given a very limited role and it is argued that much of the law is not normative in character but procedural, administrative and discretionary. In very many cases, ultimate control is political rather than judicial.
Federal Drug-Control Laws: Present and Future
Authors: Brown Roger
Published: January 2019

Drug use is a matter of substantial public interest in Australia, and penalties for drug offences were greatly increased in all States in 1976. This article examines the degree to which the Commonwealth can intervene in the field of drug-control law, a field presently governed mainly by State criminal law. Current Federal involvement is mostly confined to Customs legislation, passed under the interstate and overseas trade and commerce power in section 51(i) of the Constitution. This placitum has been expansively interpreted by the High Court in the customs context, but the trade and commerce power has some limitations, and those who have proposed comprehensive national drug legislation suggest that it could be supported by the Commonwealth's power over external affairs. These possibilities are considered, and the author concludes that comprehensive legislation would survive constitutional challenge in the High Court. Some suggestions are also made as to penalties for drug use and dealing.
Limits on the Use of Judges
Authors: Brennan F. G.
Published: January 2019

The traditional function of the judicial process in adjudicating upon the existence of rights and obligations between defined persons or classes of persons will continue to be discharged by the judiciary. There are risks involved in an extension of the role of judges beyond that traditional function. Mr Justice Brennan argues that these risks must in appropriate cases be accepted, otherwise the judiciary itself may become irrelevant to the community which it serves.
Benign Racial Discrimination: Equality and Aborigines
Authors: Partlett David
Published: January 2019

Mr Partlett is concerned to review the theoretical and practical place of government programs which positively discriminate in favour of groups on racial lines. He reviews the justification of this benign discrimination in relation to the notion of equality. He finds that the justification of benign discrimination depends upon its social realities. With reference to recent United States constitutional law developments he concludes that programs of benign discrimination must be closely justified to ensure that they do not trespass on certain fundamental rights and freedoms of the individual.

Australian government initiatives are then reviewed together with an appraisal of their legal standing under the various pieces of anti-discrimination legislation in Australia.

The author attempts to synthesise out of this discussion a strategy under which benign programs may be encouraged for the promotion of equality for aborigines, while at the same time the individual human rights of others are protected.
Structural Problems for a Guaranteed Minimum Income and a Job Guarantee Scheme
Authors: Arup Christopher
Published: January 2019

Economic and technological developments suggest that the Commonwealth will again be pressed to consider the enactment of a scheme to guarantee universally either a minimum income or a job opportunity. In this article, Mr Arup examines the debate over the efficacy of the two guarantees, concentrating upon their structural problems and operational difficulties as these result from doubts about constitutional power. He concludes that support for either guarantee lies in a combination of heads of constitutional power.
Courts, Tribunals and Government Policy
Authors: Pearce Dennis
Published: January 2019

The inclusion in legislation of a discretionary power to be exercised by a member of the bureaucracy is nowadays commonplace. Such a discretion is usually open-ended and the basis on which it is to be exercised is spelled out in only the most general terms. To enable the discretionary power to be exercised consistently and in accordance with the intentions of the government, it is customary to find a policy being adopted relating to the manner of exercise of the discretion. This article is concerned with the attitude adopted by courts and tribunals when reviewing governmental action based on a policy relating to a discretion. It will be seen that the courts have moderated an original approach that disapproved of the reliance by decision-makers on policy rulings. Tribunals, on the other hand, and the Administrative Appeals Tribunal in particular, will be shown to have rejected constraints that may have been thought to have been placed upon them by governmental policy statements.
Gronow V. Gronow
Authors: McLennan Lyn
Published: January 2019

Custody — Parents equally suitable custodians — Is there a presumption that a young girl should be left in the custody of her mother — Position and role of appellate court in custody proceedings — Family Law Act 1975 (Cth) — Ss. 43(c), 64(1)(a), (2)
Police Powers of Criminal Investigation: Principle or Pragmatism
Authors: Carney Terry , Epstein Judd
Published: January 2019

This article will examine the divergence between law and practice in criminal investigation by police and consider the degree to which it may contribute to an imbalance between the interests of the individual and the public interest in the efficient detection and investigation of crime. It will be argued that the imprecision of the existing law and the failure by the legislature to accord new, tightlydefined, specific-purpose powers to the police have made a major contribution to the pressure on police to misuse existing (and often more intrusive) powers or to exercise de facto powers not authorised by law. It is contended that this pressure often arises from a desire by police to find a more practical means of attaining agreed community objectives than that provided by the artificial standards of the existing law. A strong case can therefore be advanced in favour of refurbishing police powers to accord (more closely) with present conditions, while at the same time strengthening the safeguards cast around those powers. This article will argue that case.
Product Market Definition in Competition Law
Authors: Walker G. de Q.
Published: January 2019

Although some concept of a “market” is inherent in all systems of competition law, the Trade Practices Act 1974 (Cth) is striking in that it expressly makes liability under most of its substantive sections (sections 45, 46, 47, 49 and 50, but not section 48) depend in one way or another on the identification of a market or markets in which competition has been injured by the impugned conduct. This is because at the time when the Trade Practices Act 1974 came to be drafted, the concepts of market definition and market control had evolved to a high level in other jurisdictions, particularly in the United States.

Now, however, after five years’ experience with market definition under the 1974 Act, the Australian doctrine should have its own contribution to make. It should be rewarding, therefore, to attempt to state the principles that have so far emerged, in light also of cases and writings in the major overseas antitrust systems, those of the European Common Market and the United States. Since market definition often determines the outcome of suits or applications under the Trade Practices Act, these principles have practical as well as conceptual importance.
A New Constitutional Settlement for Australia
Authors: Curtis L. J.
Published: January 2019

In his 1974 Hamlyn Lectures, Lord Scarman urged:

[a] new constitutional settlement that makes use of judicial power … to use the rule of law in resolving the conflicts that will arise between the citizen and the state in the newly developed fields of administrativelegal activity upon which the quality of life in the society of the twentieth century already depends.

The theme was taken up in Australia by Mr Justice Brennan in 1979:

But first, let me define what a constitutional resettlement of power may involve. It would not be merely an improvement in the procedures of judicial review. It would interpose the courts (or the judiciary, for I use the terms interchangeably) to control the exercise of some administrative powers, with jurisdiction to set right decisions affecting the interests of citizens which the courts think are wrong decisions, or not the preferable decisions in the circumstances of particular cases. The courts would have the power to substitute their own decisions for the decisions of the administrators.
Attorney-General for Victoria; Ex Rel. Black v. the Commonwealth
Authors: Bennett David C.
Published: January 2019

Constitutional law — Law for establishing any religion — Grant of Financial Assistance to States — Validity of Commonwealth legislation providing financial assistance to non-government schools — Constitution ss. 96, 116
Methods of Alteration of State Constitutions in the United States and Australia
Authors: Lumb R D
Published: January 2019

An Australian lawyer seeking to identify the basic differences between the Australian and American constitutional systems is immediately struck by certain features of the latter system. The differences in that system flow from the break between the American colonies and England embodied in the Declaration of Independence of 1776 and are reflected in the changes to the individual State Constitutions which were made after the Revolution.

The major changes which were made to those Constitutions over a period of time were basic and fundamental: the replacement of the gründnorm of British parliamentary supremacy with the principle that sovereignty is derived from the people and, as a concomitant, the establishment of a Bill of Rights; the replacement of a British appointed Governor by a locally elected Governor; the incorporation of the doctrine of separation of powers pursuant to which the Governor as chief executive officer was not to be a member of the legislature and had no power to dissolve it. Finally, basic changes were made to the methods of constitutional alteration.
The 1981 Airlines Agreement
Authors: Burmester H
Published: January 2019

The passage of the Airlines Agreement Act 1981 (Cth), along with other supporting legislation, represents the culmination of the most detailed public debate on airline regulation in Australia for almost 30 years. During this period, Australia has had an airline system characterised by the presence of essentially only two main carriers on the trunk routes. This system has been maintained by deliberate government protection of the two carriers in accordance with the terms of a series of airlines agreements. This protection is to continue. The 1981 Agreement is, however, significantly different from the earlier airlines agreements. The objective of the new Agreement is to maintain the previous two-airline policy “but with the objective of increasing the level of competition within the industry in a rational and orderly manner”.

The public debate that took place prior to passage of the legislation is not likely to cease. There is to be an inquiry to “undertake an objective assessment of the advantages and disadvantages of deregulating the domestic aviation environment”.
Protecting Business Reputation in Australia — Section 52 of the Trade Practices Act and Passing Off
Authors: Sharpe Anna
Published: January 2019

The common law relating to the tort of passing off is the traditional means by which conduct threatening business reputation may be halted. During the past five years, the Federal Court of Australia has been called upon on many occasions to apply s 52 Trade Practices Act 1974 (Cth) to prevent such conduct. As yet, there has been no clear judicial statement as to the interrelationship and overlap between the two causes of action.

This Article discusses the scope of the two causes of action in the context of an allegation of actual or threatened erosion of goodwill. The types of cases in which such allegation is usually made is then examined and suggestions given as to which cause of action should be relied on.
Freedom of Information in Australia
Authors: Curtis L J
Published: January 2019

I begin this paper with a disclaimer: it does not pretend to be a definitive study of freedom of information in Australia. Rather, it presents the experience of an official who has been concerned with the development of the Commonwealth freedom of information legislation from the time it first appeared on the political agenda in Australia; who has taken part in hundreds of hours of discussion and debate on the topic by officials; who has shared in much of the academic consideration of the subject; who has drafted a score of Cabinet submissions on the subject for consideration by Ministers; who has worked closely with three Attorneys-General on the matter; who has both formally and informally canvassed a wide range of issues with members of a Senate Committee, and who has spent long hours with one of our best parliamentary counsel in the business of translating concepts into legislation which, it is hoped, is reasonably workable.
The Constitutionality of the Unilateral Secession of an Australian State
Authors: Craven Gregory
Published: January 2019

The possibility that an Australian State might one day seek to unilaterally secede from the Commonwealth has always held an ambiguous position in the political and constitutional folklore of Australia. On the one hand, such a notion conjures up visions of rampant political idiosyncrasy so ludicrous as to provoke little more than amused disbelief. On the other, even to pose the conceptual question of the disintegration of the painstakingly constructed and laboriously maintained Australian federal structure is to raise an issue almost too distasteful to contemplate. The status of secession as both a political and constitutional topic has thus essentially been that of a joke, but of a joke which, when fully considered, might be regarded as being in thoroughly bad taste.
A Torrent of Words: A Bibliography and Chronology on the Franklin Dam Case
Authors: Thomson James A
Published: January 2019

Most High Court decisions which touch upon the Australian Constitution are posthumously examined in academic literature. Some, though too few, have been subjected to more lengthy and detailed analysis. The Franklin Dam case is not an exception. Within eighteen months, it has consumed a substantial number of pages of commentary. Prominent are discussions concerning specific constitutional powers — corporations, race, external affairs and nationhood — and prohibitions — ss 51(xxxi) and 100 and implied restrictions. General premises and themes which underlie the processes of constitutional adjudication have attracted rather less attention. There has been some enunciation of interpretative principles and discussion of the political dimensions of judicial review. Further elaboration would be invaluable. Perhaps, commentators are waiting for the dust to settle before advancing to these, and other, more nebulous aspects of constitutional decision-making. When they do so, the dimensions of Australian constitutional law scholarship could be irretrievably enhanced.
Case in Re Moore and Others; Ex Parte New South Wales Public Service Professional Officers’ Association and Another
Authors: Latham Ian
Published: January 2019

Industrial Law (Cth) – Restraint of State industrial commission jurisdiction – Validity of restraining order – Necessity to specify what matter is removed from State jurisdiction – Requirement of interstate industrial dispute for valid restraining order – Relationship between matter and parties – Validity of empowering Commonwealth provision – Conciliation and Arbitration Act 1904 (Cth) s 66
The Role of a Constitutional Court in a Federation a Comparison of the Australian and the United States Experience
Authors: Mason Anthony
Published: January 2019

The Australian National University, the Sir Robert Menzies Memorial Trust and the University of Virginia Law School have established an annual Menzies Lecture Series. The Lectures are held in honour of Sir Robert Menzies and mark his contribution to the law and public life. The Lectures are given in alternate years at the Law Schools of the University of Virginia and the Australian National University. The Lectures will be published in the “Federal Law Review”. The first Menzies Lecturer was The Honourable Sir Anthony Mason of the High Court of Australia who visited the University of Virginia in October 1985. The following article is based on Sir Anthony’s lecture.
Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence
Authors: Lindell G J
Published: January 2019

The enactment of legislation to sever the remaining constitutional links between the United Kingdom and Australia makes it desirable to address the question as to why Australia's Federal Constitution should be regarded as an instrument of higher law and thus legally binding. The answer which one gives to that question may be significantly different to the answer which a lawyer is likely to have given when the Commonwealth of Australia Constitution Act 1900 (UK) was enacted.

A possible answer to the question was suggested by Sir Owen Dixon in a well known lecture delivered by him:

The framers of our own federal Commonwealth Constitution (who were for the most part lawyers) found the American instrument of government an incomparable model. They could not escape from its fascination. Its contemplation damped the smouldering fires of their originality. But, although they copied it in many respects with great fidelity, in one respect the Constitution of our Commonwealth was bound to depart altogether from its prototype. It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions. In the interpretations of our Constitution this distinction has many important consequences. We treat our organs of government simply as institutions established by law, and we interpret their powers simply as authorities belonging to them by law. American doctrine treats them as agents for the people who are the source of power and their powers as authorities committed to them by a principal. From this arises the theory that powers may not be delegated; that the agent selected by the principal to exercise a function of government may not transfer any part of his authority to some other person or body, a theory which finds no place in our system.
Equal Employment Opportunity and Protective Legislation: Directions for Reform
Authors: Gunningham Neil
Published: January 2019

Opening the Federal Government’s National Conference on Legislative and Award Restrictions to Women’s Employment in October 1986, the Prime Minister, Mr Hawke, reaffirmed the government’s commitment to equal employment opportunity, based on the belief that merit should be the major principle in determining employment and promotion. Yet he recognised that at present there are many obstacles to the achievement of that goal. One particular obstacle which limits women’s opportunities to participate fully in the workforce is the existence of a range of Federal and State legislative, regulatory and award provisions, which exclude women from certain occupations or industrial processes, prevent their advancement and contribute to a concentration of women at the bottom end of the labour market.

Occupational health and safety legislation in particular, is littered with discriminatory provisions. They relate to such matters as the handling of heavy weights, shiftwork, the provision of special amenities and facilities, lead processing, industrial processes, underground mining, and apprenticeship.
Dismissals and the Federal Conciliation and Arbitration System
Authors: McDonagh Maeve
Published: January 2019

One area in which the rights of Australian workers have lagged behind their counterparts in other western democracies is that of protection against unfair dismissal. The common law action for breach of the contract of employment has, of course, been open to employees in common law countries including Australia but recognition of the inadequacy of this procedure has led to the introduction of statutory protection against dismissal in a number of common law jurisdictions including the United Kingdom. While some of the Australian States have sought to legislate in this area the protection available at federal level has, at least until recently, been inadequate.

This paper will explore the background to the federal dismissals jurisdiction in Australia and the recent developments which have extended the protection against unfair dismissal available within the Australian Conciliation and Arbitration system. At federal level, a dual system of redress for unfair dismissal has developed.
Jurisdiction, Liability and “Double Function” Legislation
Authors: Aitken Lee
Published: January 2019

As Barrett's case1long ago demonstrated, a provision in a Commonwealth Act may perform the “double function” of conferring both a jurisdiction upon a court to grant a remedy, and a “substantive statutory right or duty” upon a litigant by means of “providing that in certain circumstances a person may take proceedings in a particular court to obtain a specified remedy”. The difficulty is in divining when the Parliamentary Counsel has intended that this double function be performed. Under s 76(ii) of the Constitution, Parliament may confer jurisdiction upon a federal court in “any matter arising under any laws made by the Parliament” (emphasis added). How is one to tell if “Parliament has been too sparing in the exercise of its powers and has made only a bare grant of jurisdiction without enacting a substantive law to which the exercise of jurisdiction is referable”?
Operational Strategies for Improving Australian Tax Legislation
Authors: Grbich Yuri
Published: January 2019

Policy formation has displaced the diffused and incremental operation of the common law as our primary means of social regulation … In the process, the nature of legislation itself has undergone a major change. It no longer consists of rules that displace or supplement the common law: contemporary legislatures … enact a wide range of … provisions that bear little resemblance to our traditional concept of law. For these functions we have no adequate theory, no general account of how such statutes should be designed ....
Protection of Aboriginal Sacred Sites in the Northern Territory — A Legal Experiment
Authors: Renwick James
Published: January 2019

The Australian legal system in the last fifteen to twenty years has increasingly recognised and accommodated traditional Aboriginal rights, customs, practices and beliefs. The Commonwealth Parliament has been particularly active in this area, as illustrated by its enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), (the “Land Rights Act”), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). While there is no general treaty or “makarrata” between the Commonwealth or any State or Territory on the one hand and Australian Aboriginals either generally, or at a tribal or regional level on the other, this has been seriously considered by the Commonwealth and is regularly called for by Aboriginal leaders, see, for example the Barunga Statement of 12 June 1988.

The Australian legal system does not currently recognise that any antecedent native title is held by Aboriginals, as sovereignty over the Australian continent is considered to have been gained by settlement over terra nullius rather than by conquest, see for example Milirrpum v Nabalco Ply Ltd; there are indications however that the current members of the High Court may be prepared to review those fundamental legal assumptions provided a suitable legal vehicle can be found.
Standing: The Role and Evolution of the Test
Authors: Allars Margaret
Published: January 2019

Procedure is at the heart of administrative law, just as it is at the heart of public administration. The development of administrative law is rooted historically in questions of the availability of remedies, and the related question of standing. Delivering the Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 in the House of Representatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform - indeed, it could be said to be medieval - and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.
Reflections on the Current Operation of the ADJR Act
Authors: Gummow W M C
Published: January 2019

There are five recent decisions of the High Court of Australia, four of which were given in matters which had arisen under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”), and all of which have a significance for the operation of the Act, as well as for public law generally. They are Park Oh Ho v Minister for Immigration and Ethnic Affairs, Chan fee Kin v Minister for Immigration and Ethnic Affairs, Attorney-General (NSW) v Quin, Haoucher v Minister for Immigration and Ethnic Affairs and Australian Broadcasting Tribunal v Bond. The primary concern of this paper is to consider some aspects of their significance for the operation of the Act.
The ADJR Act: Comments on Its Workings in the Field of Broadcasting
Authors: Hall Julia
Published: January 2019

I was asked to address the impact of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the field of broadcasting. That is not the title of this paper, as I frankly doubt that the availability of review under the ADJR Act has made that much difference in this area.

This is not to say, of course, that there have not been important challenges to administrative decisions in this field, with significant consequences, both for those of us working in the area and for administrative law in general. I remain to be convinced, however, that similar challenges would not have occurred, or that there would have been that many less applications for review, if parties to proceedings before the Australian Broadcasting Tribunal (“ABT”) had been left to their remedies under the general law.
The ADJR Act and Personnel Management
Authors: Williams Neil
Published: January 2019

This paper considers the impact of the Administrative Decisions (Judicial Review) Act 1977 (eth) (“the Act”) in the area of personnel management in the Australian Public Service (the“APS”). It is written from the perspective of a lawyer, rather than that of a public administrator.

The paper is in four parts, dealing with: the place of personnel management in the “new administrative law”; developments in the area of review of personnel decisions since the Act came into force; the reasons for these developments, and the extent to which they may be attributed to different aspects of the Act; and assessment of the changes that have occurred.
“Underground Empire”: Intelligence Agencies and The Rule of Law
Authors: de Q Walker Geoffrey
Published: January 2019

Three very different books published in close succession combine to highlight and dramatise the unresolved issues presented by the need that all governments feel to engage in security and intelligence activities within with an borders.

For most of the twentieth century, this Earth has been the arena for a titanic infrontation between democracy and tyranny, between free debate and the great, between the rule of law and the tendency of people to disappear from the feets. The votaries of democracy, freedom and the rule of law have not always been possessed of absolute virtue and have at times been forced, or have chosen, adopt some of the methods of their adversaries. One of these is the practice of ercising surveillance over persons or activities that are judged to constitute a reat to national security. These threats are normally classified in three legories: terrorism, espionage and subversion.
Section 90 — Ninety Years On
Authors: Dixon Nicolee J
Published: January 2019

Section 90 of the Commonwealth Constitution provides, inter alia, that:

on the imposition of Wlifonn duties of customs the power of the Parliament to impose duties of customs and of excise and to grant bounties on the production or export of goods shall become exclusive.

With the possible exception of s 92, no constitutional provision has created as much division in the High Court as has s 90. The difficulty surrounding the interpretation of s 92 was alleviated by the unanimous decision in Cole v Whitfield, from which emerged a clear principle to assist the Court in future decisions. The problems besetting the Court in the interpretation of s 90 have yet to be resolved.