Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long-standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and, over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share.

It is often said that the great innovation of America's eighteenth century constitution-makers was not their acceptance of the ideal of constitutionalism but their insistence that legal constraints on government be subject to alteration, breaking free front the hold of divine law and natural right theories. To be sure, the notion of constitutionalism necessarily entails that there be some distinction between how ordinary legal change is effected and how a constitution is changed. A constitution binds and guides ordinary law-making by virtue of itself not being subject to those processes.

The Commonwealth has since federation formed and controlled many corporations, both statutory and those created under companies legislation. In this article we explore the constitutional basis for the Commonwealth forming and controlling a Corporations Law company. This is a topic which has received little attention but it is becoming increasingly clear that a proper understanding of the Commonwealth's constitutional position, when it forms and controls companies, is necessary because of the increased emphasis on commercialisation and entrepreneurialism and the sometimes drawn-out process of privatisation of Commonwealth bodies.

It is generally assumed in this article that the Commonwealth will make use of a company for some commercial purpose, but we acknowledge this is not always the case. It is possible, and quite common, for the Commonwealth to use a company for the implementation of a policy or for some other governmental purpose not directly related to commercial activity. The use of the company form by the Commonwealth in any situation raises important questions about government responsibility and accountability. While we do not address these questions directly in this paper, our underlying concern nevertheless is that the use of a company by the Commonwealth for ordinary commercial purposes has the potential to erode the notion of governmental responsibility.

The ability of ministers to exercise de facto control over statutory corporations presents a significant governance problem for the Australian public sector. Parliaments have attempted to define the degree of autonomy granted to the statutory corporation by regulating the flow of communication between ministers and boards. Reporting requirements are one legal technique. Another is the use of legislative provisions which grant the minister formal powers of direction over the corporation and which impose upon its directors obligations to disclose corporate information to the minister. These provisions vary widely in their language; and their meaning is often a source of concern for corporate office holders and third parties dealing with the corporation. Statutory powers of direction raise fundamental questions of institutional design: how closely ought statutory corporations be controlled by the Executive? And in what manner ought the Executive be accountable to Parliament for its activities?

This is the song that never ends
It goes on and on my friend
Someone started singing it not knowing what it was
And they'll go on forever now because
It is the song that never ends …

Choice of law in tort may seem to be a tune we cannot get out of our heads at the moment, but it must be remembered that it presents a set of problems which have vexed legal minds — practical, academic and judicial — for centuries. Recent years have seen the issue of conflicts between the tort regimes of the Australian states and territories prove particularly difficult to address. This article will first canvas some of the reasons for the difficulty in formulating a rule in this area. These reasons are many and varied. First, the proper or central function of the law of tort itself has long been the subject of dispute. Then, the very nature of a right in tort has not lent itself to any obvious choice of law approach. The rapid evolution in this century of new kinds of torts has exacerbated the matter.

Australia in the 1990s, like most other industrialised countries, is characterised by its high level of technological development, the increased automation of transactions between businesses and their customers and the reversal of pre-existing trends towards large government. These factors have combined to create an environment in which the issue of privacy and, in particular, the need for a private sector regime to protect privacy has begun to feature on the political agenda.

The need to regulate personal information became a matter of concern for the first time in Australia in the context of the controversy generated by an unsuccessful attempt to introduce a national identity card, the Australia Card. The main concern at that time focussed on the need to regulate the activities of the government; the Privacy Act 1988 (Cth), which was enacted in conjunction with initiatives to extend the use of the tax file number as a de facto identifier, covered only the activities of the Commonwealth public sector.