This paper examines the relationship between so-called “merits review” of administrative decision-making, and “judicial review” of administrative action as that term is used in the title of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), for instance. In particular, it assesses and, in some respects, challenges the widely held view that there is a qualitative difference between merits review and judicial review. The main thrust of my argument will be that the differences between judicial review and merits review are not as stark as they are often portrayed. More provocatively, I will suggest that merits review can plausibly be described as judicial review in disguise.

Section I considers the constitutional underpinnings of merits review, and concludes that from a functional point of view, the exclusion of merits review from the judicial power of the Commonwealth is hard to justify. Section II examines various suggested distinctions between judicial review and merits review. Its main conclusion is that merits review is characterised by the power to exercise afresh the decisionmaking power invested in the original decision-maker.

This article examines the recent introduction of state-based regulation to address the increasingly prominent problem of exploitation of vulnerable workers by labour hire providers around Australia. Mounting evidence of underpayments and other breaches of workplace laws has emerged from a range of state and federal inquiries into the labour hire sector in recent years. The article draws parallels between these abuses and the exploitative activities of ‘gangmasters’ in industrial-era Britain. It then closely analyses and compares the labour hire licensing schemes introduced in Victoria, Queensland and South Australia, which aim to combat noncompliance by introducing barriers to entry and eliminate ‘rogue’ operators from the labour hire market. The article assesses the effectiveness of similar licensing and registration schemes in several overseas jurisdictions, especially the gangmasters licensing scheme operating in the United Kingdom since 2004. The article concludes that the licensing schemes introduced under the three state laws are a timely and, most likely, effective new approach to tackling the problem of noncompliance with workplace and other laws. Alternative responses to exploitation at the federal level are also considered, including the 2017 Vulnerable Workers legislation introduced largely in response to systemic underpayments in the 7-Eleven franchise network. Finally, the article observes that federal reform of the labour hire sector may emerge in the near future, given the Labor Opposition’s policy commitment to introduce a national labour hire licensing scheme. In the meantime, the state labour hire licensing schemes examined in this article represent an important step forward in regulation to combat worker exploitation by contemporary Australian ‘gangmasters’.

One notable outcome of the 2004 federal election is that no Indigenous Australian was elected to federal Parliament. Since July 2005, when Aden Ridgeway’s term as Senator expired, there have been no Indigenous Australians among the 226 members of the national Parliament. This article explores briefly why this is the case, and then moves to consider the viability of Australia adopting a quota system whereby ‘dedicated’ or ‘reserved’ seats of Parliament would be created for Indigenous Australians.

Dr Galligan examines the origin of judicial review under the Australian Constitution through an catalysis of the Conventions and Conferences preceding its drafting. A political scientist, he disputes the claim that there is no basis for judicial review in the Australian federal system and argues that the intention of the founders, influenced by Inglis Clark, was to create a powerful American-style court primarily to interpret the Constitution in the resolution of federal disputes. As a case study of the founders' intentions he considers the debates and “solution” of the question of control of Australia's inland river system.

My long-standing interest in our federal system of administrative law traces back to 1968. I then suggested to the Attorney-General (now Sir Nigel Bowen, Chief Justice of the Federal Court) that he establish the Commonwealth Administrative Review Committee (of which I became a member). Through the work of that Committee and later committees and the efforts of Mr Ellicott QC, who subsequently became Attorney-General, the system as we know it today came into being.

The federal system incorporates features of the review structures of the United Kingdom and the United States. As you know, the four elements in the federal system are:

1. (1) the Administrative Review Council (‘the ARC’);

2. (2) review by the ombudsman;

3. (3) judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’); and

4. (4) review on the merits by the Administrative Appeals Tribunal (‘the AAT’).

The central purpose of this article is to test the assumption that constitutional cases generally produce a heightened level of disagreement amongst the members of the High Court. In addition to extra-judicial statements indicating that is so, there are a number of theoretical and pragmatic reasons why we would expect greater individuality in the delivery of constitutional judgments than might be observed in other areas. However, there has not been an empirical study of the Court’s behaviour in these cases which is of sufficient longitudinal scope so as to verify this suspicion, no matter how compelling the arguments or anecdotal impressions.

This study attempts to overcome that deficiency. In order to do so, it adopts the following structure. In Part II, the hypothesis under examination will be stated with consideration of the reasons currently given for its acceptance. In Part III, the methodology employed to test the hypothesis will be set out. In Part IV, results of the study will be presented with accompanying analysis. In the concluding Part, the findings of the study will be summed up and possible directions for future research will be suggested.

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.

This article examines the claim that the adoption of structured proportionality analysis is not well suited to the Australian constitutional context and argues that this claim is mistaken. Structured proportionality analysis is sometimes associated with a strong commitment to fundamental constitutional rights which is, it is conceded, foreign to Australia. However, structured proportionality can also be understood merely as a method of analysis which changes the High Court’s previous approach only slightly. This argument clears the way for the adoption of proportionality in Australia. However, it is also argued that the positive case for its adoption is inconclusive. Proportionality promises an increase in transparency by isolating the balancing element of the analysis. However, it is unclear how much difference this somewhat minor adjustment will make in practice and those advantages must, in any event, be measured against the cost of distraction and confusion created by doctrinal innovation. Finally, the article addresses ‘calibrated scrutiny’, Gageler J’s preferred form of analysis. It is argued that this approach offers some advantages. However, it need not be seen as an alternative to the proportionality method. On the contrary, the two approaches could be reconciled and a form of proportionality used as a manner for better development of the law.

Probably the most basic contemporary controversy over the interpretation of the Australian Constitution is that between the methodologies of originalism (or intentionalism) and progressivism. According to the first, the fundamental task of the Courts (and especially the High Court) usually is regarded as being to interpret the Constitution so as to give effect to the intentions of those who framed it at the great Conventions of the 1890s, commonly referred to as 'the Founding Fathers' or (as here) 'the Founders'. Progressivists, on the other hand, believe that a search for historical intention is at best incidental in the process of constitutional interpretation, and that the Court should construe the Constitution so as to bring it into accord with modern needs and exigencies. Between the two sides in this fiercely contested debate stretches a vast chasm both of theoretical approach and rhetoric. A third approach, literalism, despite a hallowed history in Australian constitutional law and its routine deployment in virtually all important cases concerning federal legislative power, today largely is overshadowed in the minds of constitutional lawyers by the fascinations of its two rivals.

The legal distinction between work performed by an employee under a contract of service and work performed by an independent contractor under a contract for services is a central preoccupation in the field of labour law. This preoccupation has been traditionally focused on which workers fall within the common law definition of ‘employee’ (workers with a contract of service), which workers do not fall within the definition but should and what legal consequences follow from the inclusion of a worker within the labour law regulatory framework. Primarily the focus has been on ensuring that the labour law net encompasses those workers who are considered to be in need of the protections offered by labour law and debates over who those workers are. However, until recently, little attention has focused on the regulation of those workers who fall outside the definition of employee, where the worker's status as an independent contractor is uncontested.

In a recent work dealing with Dr Evatt, the politician, he is described in the title as an “enigma”. Perhaps there is some enigmatic quality in Evatt, the High Court judge and constitutional lawyer. In the ten years he was on the High Court (1930-1940) a number of dominant themes can be detected in his judgments on constitutional law which at first sight seem to be not fully consistent with each other. In many cases they show a concern to prevent the undermining of State executive and legislative authority and a tendency to restrict Commonwealth power. In other cases, his judgments propound a rather broad interpretation of Commonwealth powers.

This article argues against the disenfranchisement of prisoners and explores the terrain of possible political and legal reform in this area. After a brief introduction defending the importance of the franchise, the article falls into several parts. First, there is an examination of the definition of the franchise by Australian electoral law, in the context of international norms. The second part explores arguments for and against prisoner enfranchisement, and draws on overseas jurisprudence, and historical and political theory. The practical effect of the disenfranchisement is then assessed statistically, and also in terms of realpolitik. Finally, the possibility of using anti-discrimination law to challenge these laws is considered.

In numerous histories of Aboriginal peoples in Tasmania written up to the 1970s, the image of Truganini, in western clothes seeing out her days, is the visible presence of extinction. “Her last years were comfortable, it seems, but there was a shadow over them—her fear of the body-snatchers and mutilation after death... ‘Don't let them cut me up’ she begged the doctor as she lay dying. 'Bury me behind the mountains.' The histories end with romantic philosophical musings over the inevitable demise of Tasmanian Aborigines. “The Tasmanians were hurried and harried from the face of this earth by the poison of European contact and the sword of destruction. Unable to merge with the European colonists, unable to withstand them, they perished.” The histories present a natural and irrefutable closure. There are no Tasmanian Aborigines.

The advent of native title law has brought with it a new interrogation of the history of Aboriginal people in Australia. The claims process has produced new ethnographic, anthropological and historical interest in indigenous history and culture.

In this article, we focus on one of the most important statutory protections for Australian consumers in financial hardship: the right to seek a variation of a credit contract contained in s 72 of the National Credit Code. We provide a comprehensive history of this right, which has been part of Australian consumer credit law since the 1970s. Over the years, it has evolved from a very limited right to seek an extension of time to pay a debt on grounds of illness and unemployment, to a broader provision that requires credit providers to comply with a prescribed process before they can commence enforcement action against a consumer who has sought a variation to their payment arrangements. We also undertake an analysis of the evolution of this right to demonstrate that despite improved understandings of the causes of financial hardship, it continues to envisage a middle-class subject with a strong awareness of their rights, and excludes some particularly vulnerable consumers. This right is also representative of a regulatory approach that envisages a limited role for consumer credit law, and does not sufficiently address the imbalance of bargaining power between the consumer and the credit provider. We argue for the imposition of an obligation to provide a minimum range of hardship assistance directly upon credit providers, as a means of addressing this imbalance and ensuring more meaningful protection for consumers in financial hardship.

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.

The Copyright Law Review Committee (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the “digital revolution”, permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission.

Pursuant to s 5(1) of the Disability Discrimination Act 1992 (Cth) (“the Act“), an alleged discriminator will have discriminated against a person with a disability if they treat the disabled person less favourably, because of their disability, than they treat or would have treated someone without the disability, ‘in circumstances that are the same or are not materially different'.

A matter crucial to the assessment of whether there has been illegal discrimination for the purposes of the Act, therefore, is what constitutes the circumstances of the aggrieved person's case. In order for there to be a contravention of the Act not only must the alleged discriminator have treated the disabled person less favourably than they would have treated someone without a disability, but the alleged discriminator must have treated the disabled person less favourably than they would have treated someone without a disability who was in the same circumstances as the person with the disability.

Taxation law — Principles of interpretation of tax Acts — Form and substance — Partnerships — Change in ownership — Disposals other than in the ordinary course of business — Election by partnership to value trading stock at cost price — Dividend stripping — Income Tax Assessment Act 1936 (Cth) — Ss. 36, 36A

Amid considerable public controversy, the Australian Labor Party combined with the Government of Prime Minister John Howard to pass military call-out legislation through both houses of the Commonwealth Parliament on 7 September 2000. Less than three months after it was first announced and introduced in the House of Representatives on 28 June, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) came into force on 12 September, when it received royal assent by the Governor-General.

Under the amended Defence Act 1903 (Cth) (the Act), the Federal Government now has the power to call out the armed forces on domestic soil against perceived threats to ‘Commonwealth interests', with or without the agreement of a state government. Once deployed, military officers can order troops to open fire on civilians, as long as they determine that it is reasonably necessary to prevent death or serious injury. Soldiers will have greater powers than the police in some circumstances, including the right to shoot to kill someone escaping detention, search premises without warrants, detain people without formally arresting them, seal off areas and issue general orders to civilians.

This article examines historical aspects of the convention that Australian judges are precluded from engaging in political activities. That convention is an element of the strict separation of judicial functions and the independence of the judiciary. Apart from the deliberative component which may be carried out in private and the very limited role for closed hearings, the judicial process is essentially acted out in public. However, upon appointment to the bench, a judge is expected to limit involvement in other forms of public life and to conduct his or her private life so as to avoid, as far as is reasonably practicable, involvement in activities which might (or might be seen to) compromise the judge's or a court's independent status or the impartial disposition of specific cases or issues. The less involved a judge is in non-judicial activities the less likely it is that the judge will be confronted with determination of a case or an issue in which he or she has some interest.