bluuebunny/crossref_metadata_2025_split huggingface dataset:
An Australian in the Palace of the King– Emperor: James Scullin, George V and the Appointment of the First Australian-Born Governor-General
Authors: Waugh John 
Published: January 2018

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.For some, the story is a heroic one. This interpretation has its most vivid expression in the final volume of Manning Clark’s History of Australia. In a chapter entitled ‘An Australian in the Palace of the King–Emperor’, Clark takes Scullin’s meeting with the King in November 1930 as his theme and describes how ‘Jimmy Scullin has not grovelled to the English governing classes … Jimmy Scullin has spoken for the Australia that was coming to be.’ In more measured ways, John Robertson's biography of Scullin and Ross McMullin’s history of the Australian Labor Party both make Scullin almost a lone champion fighting British resistance to Isaacs.
Informal Votes at a Constitutional Referendum
Authors: Handley K R 
Published: January 2018

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.In a paper to the 2002 Conference of the Samuel Griffith Society I expressed the view that informal votes must be included in the denominator, or total, to determine whether ‘the majority of the electors voting approve the proposed law’. Further research has caused me to change my opinion.
A New Coat of Paint: Law and Order and the Refurbishment of Kable
Authors: Appleby Gabrielle J , Williams John M 
Published: January 2018

AbstractThe 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.
Towards Harmonised Company Legislation — ‘Are We There Yet’?
Authors: Barrett R I 
Published: January 2018

AbstractThe 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.
Military Justice and Chapter III: The Constitutional Basis of Courts Martial
Authors: Crowe Jonathan , Ratnapala Suri 
Published: January 2018

AbstractThe 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.
A Brief History of the Judicial Review of Legislation under the Australian Constitution
Authors: Stubbs Matthew 
Published: January 2018

AbstractAlthough 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.
Excluding Indigenous Australians from ‘The People’: A Reconsideration of Sections 25 and 127 of the Constitution
Authors: Arcioni Elisa 
Published: January 2018

AbstractUntil 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.
The Australian High Court and Social Facts: A Content Analysis Study
Authors: Burns Kylie 
Published: January 2018

AbstractJudicial 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.
Open Justice: Concepts and Judicial Approaches
Authors: Cunliffe Emma 
Published: January 2018

AbstractRecent 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.
Too Soft Or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman
Authors: Hardy Tess , Howe John 
Published: January 2018

AbstractThis 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.
Constitutional Interpretation, the High Court, and the Discipline of History
Authors: Irving Helen 
Published: January 2018

AbstractThe 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.
Confusion of Tongues: Constitutional Recognition of Languages and Language Rights in Australia
Authors: Reilly Alexander 
Published: January 2018

AbstractThis 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.
Democracy, Liberty and the Prerogative: The Displacement of Inherent Executive Power by Statute
Authors: Saunders Benjamin B 
Published: January 2018

AbstractThis 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.
The Role of Contextual Meaning in Judicial Interpretation
Authors: Crowe Jonathan 
Published: January 2018

AbstractThis article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.
Native Title Tax Reforms: Bull's Eye or Wide of the Mark?
Authors: Murray Ian 
Published: January 2018

AbstractTwenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues.This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.
Nondepressive Psychosocial Factors and CKD Outcomes in Black Americans
Authors: Lunyera Joseph , Davenport Clemontina A. , Bhavsar Nrupen A. , Sims Mario , Scialla Julia , Pendergast Jane , Hall Rasheeda , Tyson Crystal C. , Russell Jennifer St. Clair , Wang Wei , Correa Adolfo , Boulware L. Ebony , Diamantidis Clarissa J. 
Published: January 2018

Background and objectives
Established risk factors for CKD do not fully account for risk of CKD in black Americans. We studied the association of nondepressive psychosocial factors with risk of CKD in the Jackson Heart Study.

Design, setting, participants, & measurements
We used principal component analysis to identify underlying constructs from 12 psychosocial baseline variables (perceived daily, lifetime, and burden of lifetime discrimination; stress; anger in; anger out; hostility; pessimism; John Henryism; spirituality; perceived social status; and social support). Using multivariable models adjusted for demographics and comorbidity, we examined the association of psychosocial variables with baseline CKD prevalence, eGFR decline, and incident CKD during follow-up.

Results
Of 3390 (64%) Jackson Heart Study participants with the required data, 656 (19%) had prevalent CKD. Those with CKD (versus no CKD) had lower perceived daily (mean [SD] score =7.6 [8.5] versus 9.7 [9.0]) and lifetime discrimination (2.5 [2.0] versus 3.1 [2.2]), lower perceived stress (4.2 [4.0] versus 5.2 [4.4]), higher hostility (12.1 [5.2] versus 11.5 [4.8]), higher John Henryism (30.0 [4.8] versus 29.7 [4.4]), and higher pessimism (2.3 [2.2] versus 2.0 [2.1]; all P<0.05). Principal component analysis identified three factors from the 12 psychosocial variables: factor 1, life stressors (perceived discrimination, stress); factor 2, moods (anger, hostility); and, factor 3, coping strategies (John Henryism, spirituality, social status, social support). After adjustments, factor 1 (life stressors) was negatively associated with prevalent CKD at baseline among women only: odds ratio, 0.76 (95% confidence interval, 0.65 to 0.89). After a median follow-up of 8 years, identified psychosocial factors were not significantly associated with eGFR decline (life stressors: β=0.08; 95% confidence interval, −0.02 to 0.17; moods: β=0.03; 95% confidence interval, −0.06 to 0.13; coping: β=−0.02; 95% confidence interval, −0.12 to 0.08) or incident CKD (life stressors: odds ratio, 1.07; 95% confidence interval, 0.88 to 1.29; moods: odds ratio, 1.02; 95% confidence interval, 0.84 to 1.24; coping: odds ratio, 0.91; 95% confidence interval, 0.75 to 1.11).

Conclusions
Greater life stressors were associated with lower prevalence of CKD at baseline in the Jackson Heart Study. However, psychosocial factors were not associated with risk of CKD over a median follow-up of 8 years.

Podcast
This article contains a podcast at https://www.asn-online.org/media/podcast/CJASN/2018_01_03_CJASNPodcast_18_2_L.mp3