The common law has had considerable difficulty in identifying a principle or principles by which to explain the role of the courts in reviewing administrative action. In this article it is argued that that principle is necessarily a constitutional principle and that the starting point for its analysis in Australian law is the Commonwealth Constitution. It is then argued that the Commonwealth Constitution, and in particular the separation of judicial power within it, necessarily limits the extent of permissible judicial review. In particular, the separation of judicial power justifies and requires the distinction between jurisdictional and non-jurisdictional errors and the distinction between invalidity and merit review in Australian administrative law. This constitutional basis for judicial review, combined with the discipline of a written Constitution, also explains why recent developments in English and New Zealand common law in relation to judicial review are not appropriate or applicable to Australia.

Australia's Copyright Act 1968 (Cth) (‘the Act’) makes several exceptions to the exclusive rights of copyright owners. The effect of these exceptions is to confer an immunity from legal liability for acts which would otherwise constitute an infringement of copyright. Some of the statutory exceptions relate specifically to the use of copyright material by agents of government. Other exceptions are of more general application, though they may be relied upon by agents of government in circumstances not covered by the more specific exceptions.

This article examines not merely the statutory exceptions which relate to and bear upon the acts of agents and organs of government. It examines also the protections against liability for infringement of copyright which are afforded by the laws of parliamentary privilege, legislation concerning printing and publication of parliamentary papers, and freedom of information legislation. Some constitutional issues are also considered.

This article shall examine a discrete, though somewhat overlooked, aspect of the relationship between the Commonwealth Parliament and the federal, or ‘Chapter III’, courts which emerges in the scenario where Parliament purports to amend the law that the courts are required to apply in pending cases. This is of particular significance where the Commonwealth is a party to the proceedings, given the obvious advantage to the Commonwealth, as litigant, provided by its power to legislate, and potentially to do so strategically to effect a desirable outcome. This raises the spectre of a significant separation of powers issue. This article will explore the extent to which this principle entrenched as law in the Australian Constitution has been able to limit Parliament's power to protect the independence of the federal courts to interpret and apply the law in an individual adjudication; that is, to protect their ‘decisional independence.’ Its success or otherwise is one measure of the extent to which the separation of powers, as a legal rule, is capable of protecting the independent adjudication of legal disputes by the courts from the vicissitudes of political power and influence.

In 1998 Australia's public employment service was replaced with a national network of public, private and community agencies—the Job Network—which compete for contracts to deliver services to unemployed people. This development represents the encroachment of competition policy and market ideology into one of the most fundamental areas of government responsibility—the welfare of citizens. The broader ramifications of the contracting out of employment services in terms of quality, efficiency, social costs and accountability are only beginning to be explored. This article examines the impact these changes have had upon one important feature of the social security system—the accessibility and effectiveness of external merits review.

The non-justiciability of certain executive decisions is based upon a number of notions including that of ‘polycentricity’, the unsuitability of certain types of power for review, deference to executive judgment, and the question of the judicially enforceable limits to power. In this article, it is argued that the concept is redundant. It is sufficient to consider whether a ground of review, invoked with an appropriate regard for the legalities merits distinction, is available. There is no further question of ‘justiciability’.

It is questionable whether it has ever really made sense to talk of ‘justiciability’ as a discrete notion, rather than justiciability upon this or that ground. Historically, it is trite to observe that questions of the existence and limits of the prerogative powers have been justiciable since at least the upheavals of the 17th century, even while courts would steadfastly refuse to examine the manner in which those powers were exercised. Thus, even prior to the decision in Council of Civil Service Unions v Minister for the Civil Service (‘CCSU’), non-justiciability in relation to prerogative powers meant simply the non availability of grounds of review other than the simplest form of ultra vires. CCSU itself established the potential availability of review of such powers for denial of procedural fairness, leaving open the question of whether the various abuse of power grounds might also be available. In short, the issue appears to be whether a decision is justiciable upon this or that ground of review, rather than the blanket availability or non availability of review. Once this point is grasped the inchoate concept of ‘justiciability’ becomes problematic at best. One need simply ask whether one or more grounds of review can be made out.

The issue of simplification of taxation law has been an important part of the fiscal agenda in Australia since the establishment of the Tax Law Improvement Project (TLIP) back in December 1993. The TLIP, which aimed to simplify income tax legislation embodied in the Income Tax Assessment Act 1936 (Cth) through the use of shorter and clearer sentences and the use of plain English, was conceived in response to widespread criticism that the income tax legislation was difficult to read and understand.

It has been contended that this inherent difficulty in understanding income tax legislation due to the length and complexity of the legislation led to increased costs, both for the taxpayer in the form of increased tax compliance costs, and for the Federal Government in the form of increased tax administration costs. The TLIP's role was to rewrite the primary income tax legislation which culminated in the development of the Income Tax Assessment Act 1997 (Cth).

Recently, the High Court of Australia has again concerned itself with the need for the common law to conform to the Constitution and with the manner in which, and extent to which, such conformity is ensured. In the 1990s, the Court considered the effect of the Constitution's guarantee of freedom of speech on defamation law and reached at length, in Lange v Australian Broadcasting Corporation, a common position on the influence of the Constitution on the common law which enjoys the support of the whole Court. The consensus thus reached has now been applied in John Pfeiffer v Rogerson to the area of choice-of-law in tort.

Choice of law is another area in which, during the Court's fin de siécle period in the late 1980s and 1990s, there was considerable disagreement among members of the Court. The well-known succession of cases started with Breavington v Godleman in 1988. Some members of the Court held that the applicable choice-of-law doctrine in intra-national cases was mandated by the terms of the Constitution and to be found by applying a command allegedly inherent in s 118 (possibly with the aid of other constitutional provisions).

At the National Australasian Convention held in Sydney in 1891, Andrew Inglis Clark observed:

Inglis Clark was quoting Edward Augustus Freeman, Regius Professor of Modern History at Oxford University, whose History of Federal Government in Greece and Italy, first published in 1863, was the ‘classic nineteenth century exposition’ of the city-state leagues of ancient Greece, and is still cited today by specialists in the field.

Freeman, who succeeded William Stubbs to the Regius Chair, profoundly shaped nineteenth century conceptions of federalism, although studies of Australian federalism have tended to neglect his influence. While Freeman's reputation suffered in later years, his earlier career was celebrated and revered.

The competition principles set out in the Trade Practices Act 1974 (Cth) are based on an economic model of perfectly competitive markets responding to the market and producing only the goods and services required in the market. However, effective competition together with good market information may create a disincentive to markets innovating (market failure) because new developments may be rapidly copied without the recovery of the innovation's development costs (a free ride). According to this model, a patent under the Patents Act 1990 (Cth) compensates for the disincentive to innovate and justifies a limited period of exclusive rights during which the innovator may exclude others in order to recover the development costs (confounding the free riders) and contribute to beneficial innovation by investing in new developments (with the added benefit of disclosure of the innovation). Patents are therefore generally assumed to produce overall economic benefit while at the same time having minimal social costs. The social costs are higher prices, restricted outputs, subsidised foreign inventors and the administrative costs of the patenting scheme.

In March 2002 the class action regime introduced by the Commonwealth Parliament, through the addition of a new Part IVA to the Federal Court of Australia Act 1976 (Cth), celebrated its tenth ‘birthday'. During this time, a number of important issues, concerning the interpretation and application of Part IVA, have emerged.

Upon reading the Migration Legislation Amendment Bill (No 6) 2001 (Cth) to the House of Representatives for a second time, the Minister for Immigration and Multicultural Affairs ('the Minister’) stated that,

The Migration Legislation Amendment Act (No 6) 2001 (Cth) (the ‘No 6 Act’) became law on 1 October 2001. It was one of a number of amending statutes (passed by both Houses of Parliament in late September 2001) that were intended to fundamentally alter procedural and substantive areas of immigration and refugee law in Australia. This paper discusses aspects of the No 6 Act which amended the Migration Act 1958 (Cth) (the ‘Migration Act’) by inserting a new Subdivision AL into Part 2, Division 3.

For more than fifty years, Australian governments used a variety of legal powers to harass revolutionary organisations, and in particular the Communist Party of Australia (the CPA). After an historical review of these policies, this article examines Commonwealth's attempt between 1921–29 and 1932–37, to use its power under the Customs Act to prohibit the importation of seditious literature.

Between 1920 and 1950, the Commonwealth passed a number of Acts and made several Regulations to deal with the threats apparently posed by the CPA and other revolutionary bodies. Amendments to the Crimes Act 1914 (Cth) in 1920 made the uttering and publication of seditious words a Commonwealth offence. (These activities were already offences under state law.) Proclamations under the Customs Act 1901 (Cth) had the effect of prohibiting the importation of revolutionary literature. In 1926 and 1932, the Crimes Act was further amended. Bodies that advocated violent revolution became unlawful associations, and criminal sanctions were attached to a variety of acts by and on behalf of unlawful associations.

The role of the judiciary in public law cases is a topic of debate in every age. The present age is no different. On topics as diverse as implied constitutional rights, native title, refugee determination and public sector tort liability, there has been a vigorous public debate between the critics and the defenders of judicial power. We live in an age, as the Tampa litigation reminds us, in which the national public policy agenda is increasingly structured by legal claims.

Many commentators would take the judicial role a step further by giving judges a more explicit role in applying human rights standards when evaluating the validity of executive (and, possibly, legislative) action. A constitutional or statutory Bill of Rights would be the most direct way of conferring that function on the judiciary. Less direct is the option, with steadily growing support, of judges taking account of international human rights instruments in discharging their adjudicative function. Whatever level of support those options attract, it seems probable that human rights principles will play an increasing role in judicial review of executive action. The principles are stamped already on many aspects of public law.

Imagine a Westminster common law jurisdiction without a bill of rights. As things stand at present, all important social policy decisions in this jurisdiction, including decisions about how rights are to be balanced against one another and against overall community welfare claims, rest with the elected legislature and executive. Not everyone in this jurisdiction is happy with this arrangement, however. There are some politicians who are not averse to joining the world-wide trend by adopting some sort of bill of rights. A handful of them in fact, mostly from the main left of centre political party, are positively keen on the idea. They see the post-Second World War Americanisation of constitutional law, with its emphasis on formalising the role and place of human rights in a legal instrument the judges oversee, as an unambiguously good thing. They would like an entrenched, justiciable model.