Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's ‘suitability’ for professional practise; also referred to as the ‘character test’ of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission.

This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that.

To be trite is to be worn out by constant use or repetition, or to be hackneyed or commonplace. The word “trite” is derived from the Latin word terere meaning essentially “to rub”. Thus, the word has physical associations, as if a trite remark actually erases its own origins because they are of no use anymore. Obviously the more used something is, the more trite it becomes, or so one would expect. There is even a built-in pejorative connotation, as to overuse a phrase, or resort to trite propositions can, in some cases, “rub” the listener the wrong way.

Since the very humble beginnings of the common law courts, judges have identified law that is trite. In the 15th century, Chief Justice Brian, in a case known only as T Pasch's case, said, in words that have since rung down the centuries:

Corporate regulation is front-page news in Australia. In recent years we have witnessed the unedifying debate between the Federal and State governments about how the responsibility for, and benefits of regulating companies and securities law should be allocated. Federal Parliamentary committees have conducted inquiries into the law relating to directors' duties, insider trading, and (currently) minority shareholders' rights. The chairman of the National Companies and Securities Commission and the Australian Securities Commission, Mr Tony Hartnell, has gained frequent publicity and support for his concern to “deal with the excesses of the past”.

As this brief survey indicates, the renewed concern about corporate regulation has tended to focus on the task of defining and controlling the conduct of some company personnel (directors, managers, and their advisers) in order to protect the interests of other corporate players (particularly shareholders and creditors). This focus is not surprising, but where does it leave the corporation?

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

Indonesia’s politics has changed dramatically during Jokowi’s administration. Numbers of scholars argued this situation turns to a ‘new model of authoritarianism’ or declining democracy. The situation is generally referred to as the strengthening of authoritarian politics. Meanwhile, in such situation, the role of the judiciary is the key to balancing power in authoritarian politics. However, in reality, efforts to encourage constitutional struggle through the judiciary will easily reverse the situation to lose its independence. The court could play a significant role in authoritarian politics. This phenomenon has been called the ‘judicialisation of authoritarian politics’. This article dissects how the process of authoritarian political institutionalisation through law and the courts has occurred in the two decades after Suharto’s reforms. Then it examines how civil society changes and the democracy movement have made it possible to advance constitutional rights in the context of Indonesia’s cartel politics and the judicialisation of authoritarian politics. The legal argument for such judicial practice is that authoritarianism has been increasingly institutionalised, facilitating oligarchy networks in a cartelised political system, so that law and the judiciary merely work to strengthen the chain of impunity.

The rigidity of the 2008 Constitution of the Republic of the Union of Myanmar is rightly notorious, as this rigidity was proven at least three times through failed attempts at reform. Despite these failed attempts, the military disputed the results of the election held in November 2020, and conflict ostensibly over that issue led to a military coup on 1 February 2021. This coup purported to have been undertaken constitutionally as an ‘emergency’ but was the object of popular rejection. In this article, we focus on the struggle over constitutionalism that had its origins in earlier attempts to achieve democracy. In our focus on the current nature and implication of ‘constitutional struggle’ in Myanmar, we make use of analysis based on factual data collected by the second author, located in Mandalay, one of the epicentres of struggle against the military and their actions following the coup. Our argument is that this ‘praetorian constitutionalism’ in Myanmar absent a pre-agreed pact between the military and the civilian defies the basic logic of democratic or liberal constitutionalism and hence is unconstitutional in both spirit and text. This explains how a constitution drafted in order to protect the position and privileges of the military was ultimately in effect rejected by that same military. The article will argue that the praetorian constitutionalism of Myanmar during 2010–21 contains a necessarily built-in struggle between the civilian and the soldier that remains unresolved.

An essential feature of any democratic system is the holding of regular elections that lead to the creation of the government of a nation. It is often said that such elections should be ‘free and fair’. Some obviously fail this test. For example, observers, including representatives of the European Union (‘EU’) and the Commonwealth, found that in recent elections in Zimbabwe the number of polling stations was reduced in strong opposition areas, the body supervising the election was unqualified and the ruling party (Zanu-PF) used violence, intimidation, bribery and vote-rigging to secure re-election. Of course, elections need not be so blatantly violent or corrupt to fail the ‘free and fair’ standard. International observers and opposition parties have, for instance, criticised the recent Russian elections because the state run television station promoted the ruling party while criticising and defaming the challengers.

Legal and political battles about health policy in the immediate post-war years have cast a long shadow in Australia. The ‘civil conscription’ sub-provision in s 51(xxiiiA) (health and welfare power) of the Australian Constitution is still cited as a major barrier to developing health policy. But long after the High Court moved on from a very restrictive interpretation of Commonwealth powers, policymakers appear to be cautious about testing whether the Commonwealth has power to make laws about medical services to pursue a bold agenda about access, quality, and efficiency of medical care. In this article we will first describe the origin and phrasing of s 51(xxiiiA), the main head of power, then trace the development of the interpretation of the civil conscription sub-provision, and finally discuss whether politically realistic policy options are likely to founder on the shoals of High Court interpretation. We argue that the civil conscription limitation in s 51 (xxiiiA) in the Constitution looms larger as a policy constraint on regulation of health care by the Commonwealth government in the minds of decision-makers, and as a weapon in the hands of stakeholders, than contemporary analysis of it warrants.

The many problems relating to Commonwealth power to make laws for a Territory have arisen because the power itself was a constitutional afterthought. The late Professor Ross Anderson described the Commonwealth of Australia as ‘the child of as hard-headed a mariage de convenance as was ever arranged in the salons of France ’. The marriage was, however, between the self-governing colonies which later became the States. Those who arranged the marriage were concerned primarily with the health and prosperity of the parties to, and the issue of, the union. Whether they were in favour of granting large powers to the Commonwealth or were staunch believers in ‘State Rights’ or whether they were for or against Federation, the chief issue was whether and to what extent each of the colonies should voluntarily reduce its own governmental power by giving some of it to a new self-governing colony which would in area and population embrace all the existing colonies.

The ‘free trade’ provision in Australia’s Constitution, section 92, remains partially uncharted territory, both as to its practical operation and its doctrinal underpinnings. Section 92 is presently understood as a non-discrimination norm. While interpretation has cleaved the norm into two distinct strands, this article addresses only one of those, that concerning protectionist discrimination against interstate trade or commerce. Although there are many outstanding issues regarding this norm’s operation in particular settings – for instance its operation upon the Commonwealth and its ramifications for export controls – I will not be exploring those frontiers here. Rather, my interest is in the established core of the protectionist discrimination principle and the soundness of its doctrinal underpinnings. I will focus in this article upon a crucial missing piece in our contemporary picture of section 92’s make up, specifically, the relationship between legislative purpose and practical effect in the identification of protectionist discrimination.

The case of Langer v The Commonwealth, is important, for it reveals much about the understanding of “democracy” in Australia, including fundamental conflicts as to what is essential, and what is peripheral to our constitutional system of “representative democracy”. The Langer case raises questions about what amounts to a democratic “choice” in an election. Is “choice” merely a matter of being able to select from candidates offered, or does it involve the representation of the will of the people? Is it democratic to compel a voter to lie by requiring the voter to give preferences to candidates he or she rejects, or must voters have a right to vote in an informal manner if they do not wish to express a preference for certain candidates? Is the choice to vote informally a genuine political choice, and is advocacy of such a choice protected by the constitutional guarantee of freedom of political communication? Should it be a criminal offence to advocate activity which is not only legal, but would result in a formal vote?

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.

For some time, universities have appreciated the commercial significance of ownership of patents and inventions produced during employment and address this both in contracts and university statutes. However, one cannot say the same about copyright. Until relatively recently, there were few contractual or internal university statutory provisions for copyright ownership so statute and common law principles governed the position. This absence of contractual provisions, combined with the general lack of institutional concern for testing and enforcing copyright ownership rights, resulted in uncertainty as to where ownership rights reside. In recent years, this uncertainty has become a major concern for institutions which are now anxious to know the extent to which they can enforce copyright ownership rights. Universities generally have begun to take a more active interest in the economic benefits of exploiting intellectual property in academic works and, in particular, in exploiting copyright. There are many factors responsible for this change in attitude.

The Uluru Statement from the Heart offers an opportunity to reorder the Australian constitutional hierarchy as it relates to First Nations. The proposal for a First Nations Voice provides a tailored, structural response to the experiences of Aboriginal and Torres Strait Islander people under the Australian state. For the First Nations Voice to meet this potential, it will require more than careful design of the Voice as a new constitutional institution; it will require existing constitutional institutions within the legislature and executive to learn to ‘listen’. This article draws on the political and democratic listening literature to examine how political listening might be practised at the interface between the First Nations Voice and existing constitutional institutions. We suggest five principles to guide this cross-institutional relationship together with ways these principles might be incorporated into governance structures.

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’.

Administrative law forms an important part of public law. Public law also includes and is subject to the prescriptions of constitutional law. In shaping the principles of public law within the limits that necessarily apply to the judicial process, the courts, notably the High Court, have a large responsibility. There is the responsibility to ensure that the principles so shaped protect and enhance the form of democratic government for which the Constitution provides, as well as the rights and freedoms recognised by the common law, the common law being the foundation of the Australian Constitution. Professor Allars has succeeded in painting a broad picture of what that has entailed in the area of administrative law, so far as I was concerned.

Justice Gummow is unquestionably right in reminding us that judicial review has roots in the Constitution itself. Whether he is also right in saying that there has been a failure to realise this by some who teach administrative law not comparatively, but through English spectacles, I am unable to judge.

In March 2007, the Human Rights and Equal Opportunity Commission ('HREOC’) concluded that ‘it's about time for a new approach’ to the problems faced by men and women in respect of work and family responsibilities in Australia. Based on two years of consultation, HREOC issued its final report, It's About Time: Women, Men, Work and Family, noting that many Australians struggle to combine work and family and that workers with family responsibilities experience significant discrimination and inequality. HREOC concluded that the federal government could do more to address the difficulties faced by workers trying to satisfy both their work and family responsibilities and put forward a wide array of recommendations to this effect. Its central recommendation was the enactment of new federal legislation to promote cultural change through greater protection and support for workers with family responsibilities. The Family Responsibilities and Carers’ Rights Act would serve to bolster the prohibition of discrimination on the basis of carers’ responsibilities and provide employees with a right to request flexible working arrangements.

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 High Court currently applies two different tests to determine the validity of laws that effectively burden the implied freedom of political communication (‘IFPC’) under the Constitution—a test of ‘structured proportionality’ and one of ‘calibrated scrutiny’. Both tests have potential advantages, and disadvantages, but there is also a case that, over time, the Court should again adopt a single approach to assessing the validity of laws burdening the IFPC. The article therefore explores what it might mean to create a true hybrid between the two current approaches—that is, a test of ‘calibrated proportionality’. Such an approach, it suggests, should be understood as having three key dimensions: first, explaining how and when certain context-specific ‘calibrating’ factors could usefully inform a test of ‘necessity’ and ‘adequacy in the balance’ under a test of structured proportionality; second, showing how attention to constitutional values can help calibrate the intensity of the Court’s application of the tests; and third, suggesting a well-identified continuum for calibrating the intensity of judicial review, based on four broad categories of case.