The traditional function of the judicial process in adjudicating upon the existence of rights and obligations between defined persons or classes of persons will continue to be discharged by the judiciary. There are risks involved in an extension of the role of judges beyond that traditional function. Mr Justice Brennan argues that these risks must in appropriate cases be accepted, otherwise the judiciary itself may become irrelevant to the community which it serves.

[C]o-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. ... Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Common-wealth can constitutionally do, the subject matter is beyond the reach of the legislature.

Co-operative federalism is the process by which the Commonwealth and the States organise for their overlapping constitutional powers to be exercised concurrently in order to achieve national outcomes through consensual processes. Beginning with Re Wakim, the controversial cross-vesting case, from which the opening statement above by Justice McHugh was taken, the High Court has applied a restrictive approach to interpreting constitutional and statutory provisions when cooperative arrangements have been challenged.

Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

This 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.

Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court's use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court's willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court's use of foreign decisions and to address the normative question of how the High Court should use foreign law.

Recent 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.

Betting on elections has a long history, despite periods in which wagers were unenforceable and even criminalised. In recent years, significant online markets have emerged, driven by the bookmaking industry in those jurisdictions which license betting on politics. These markets treat election wagers as a form of sports betting. This article examines the provenance and regulation of election betting in the common law. It charts this from early case law holding wagers involving electors to be void (as tainting voting decisions) through criminal prohibitions, some of which are still on the statute books (since wagers could disguise electoral bribes) and onto contemporary regimes for licensing electoral bookmaking.

Normative arguments about election betting and the law include the liberal harm principle, the precautionary principle and the concept of commodification. The article concludes that friendly wagers should be permitted, to allow partisans to intensify the ritual experience of elections. But bets involving politicians should be outlawed, and the industrialisation of election betting should not be encouraged given the risk of commodifying the values underlying electoral democracy.

In the past fifty years the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of “judicial power”, there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine.

The principle that the legislature can enact laws which bind the executive is a familiar one. The prerogative can be abrogated or abolished by legislation and the decisions of the executive made subject to administrative review.

More interesting, however, is the relationship within the federation between the legislature of one polity and the executive of another. To what extent can the laws of one polity bind the executive of another, or abrogate or abolish its prerogatives?

The High Court, over the last century, has had a very difficult time in answering these questions. Fundamental though they be to our governmental system, there has never been a clear and consistent principle established to provide ready answers to them. After the centenary of federation, one would think we would understand how the polities within that federation are intended to interact, but we do not.

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

In the recent decision in New South Wales v Commonwealth (hereafter referred to as the Corporations case), the High Court's interpretation of s 51(xx) of the Constitution frustrated the Commonwealth Government's attempt to create a single national system for the regulation of companies and securities by denying the Commonwealth Parliament the ability to legislate for the incorporation of companies. Corporate existence, and the privilege of limited liability which arises from it, flows from registration under applicable companies legislation. The Commonwealth's ability to displace State companies legislation and bring all or most corporations within its scheme would therefore be significantly enhanced by the ability to legislate with respect to the incorporation of companies. The Corporations Act 1989 (Cth) was, for reasons mentioned below, a complex piece of legislation. However, any effort by the Commonwealth to extend its control of corporate regulation without the ability to control incorporation would be likely to generate a system whereby companies came into being by registration under a State Act, but were then bound to conduct their affairs in accordance with Commonwealth legislation - a system which might almost have been constructed by opponents of federalism in order to demonstrate its absurdity.

Federalism permits sub-national diversity and experimentation. The Kable principle limits sub-national diversity and experimentation in relation to state courts. But this apparent tension between ‘laboratory’ federalism and the Kable principle is somewhat illusory. Kable does not always hinder experimentation, but rather enables it by securing its necessary preconditions. By preventing state legislatures and governments from conscripting state courts to implement political designs, the Kable principle prevents state legislatures and governments from using state courts as a ‘cloak’ against political accountability. This preserves the capacity of sub-national communities to compare policies across multiple jurisdictions, to express their preferences through ‘exit and voice’, and thereby to render sub-national experimentation effective on its own terms.

Section 92 of the Australian Constitution contains a terse statement that “trade, commerce, and intercourse among the States ... shall be absolutely free”. The High Court's troubled search since Federation to give that statement a clear and certain interpretation is well known and requires no reiteration here. Michael Coper has identified 32 different phases in the history of the interpretation of s 92 between 1909 and 1980. When the latest phase was ushered in with the High Court's 1988 decision in Cole v Whitfield, it was accompanied by predictions by some commentators that it would be the last Professor Lane, for instance, said that “The decision descended as a deus ex machina, providing an uncomplicated solution for those who write and advise on the kind of freedom of interstate trade and commerce that is now guaranteed by s 92 of the Constitution”. The more pessimistic might wonder whether the Cole v Whitfield interpretation will in fact prove more durable than any of its predecessors.

Kenya's form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the complexity of devolution's relationship to national politics, as well as the broad variation in how devolution has unfolded in the 47 counties since 2013, this article argues in favour of a situation-specific assessment of devolution in Kenya. This analysis departs from the emerging scholarly consensus of devolution in Kenya represented in two predominant approaches. One approach contends that devolution in Kenya has simply devolved corruption and patronage from the national to the county level. Another approach argues that devolution has so far been relatively successful because it has introduced a new political system at the county level that has a robust system of checks and balances but that has empowered a new dynamic in Kenya's politics at the sub-national level. This article argues the first approach paints the emerging devolution experience with a broad brush that is not reflected in every county or even on every issue. This article has more in common with the second view. However, we argue for a more situation-specific, case by case analysis of devolution to show variations in how devolution has or has not facilitated the delivery of services and opportunities that were prior to 2013 likely to be unavailable particularly in the most economically disadvantaged counties.

Australian freedom of information (FOI) specialists, on first encounter with New Zealand's Official Information Act 1982, tend to scratch their heads about this quaint and quixotic variant of access legislation. Viewed from a trans-Tasman perspective, the Official Information Act appears riddled with extremely flexible provisions which would offer hard-bitten bureaucrats easy escape routes to avoid providing requested information. An initial glance at the history of the Official Information Act merely confirms this observation. When it was launched, the Official Information Act was seen by many New Zealanders as a poor compromise between an Official Secrets Act and freedom of information legislation. Indeed, Sir Robert Muldoon referred to it as a “nine day wonder”. The final passage of the Australian FOT Act was accompanied by an initial belief in the creation of a nascent regime of openness, whereas the introduction of the Official Information Act was depicted by the Public Service Association as “Not a freedom of information law...nor a secrecy law...but an uneasy compromise between the two”.

Recently, attention has been drawn to the proliferation in Australia of statutory authorities, which appear to be, to some extent, independent of government control. The Australian Constitution requires responsible government, and this article attempts to determine the extent to which the Constitution permits the establishment of statutory authorities outside the traditional organisational structure of ministerial departments of state, and to what extent such authorities may be independent of ministerial and parliamentary control. On the assumption that responsible government requires some measure of accountability of all parts of the executive government of the Commonwealth, the article examines the extent to which statutory authorities are accountable in accordance with the provisions of the Constitution, and also whether any other areas of law, especially administrative law, may provide some measure of accountability of statutory authorities.

It may be true that morality cannot be legislated, but behaviour can be regulated. The law may not change the heart, but it can restrain the heartless.

The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a story of the successful development of an executive-based institution for cooperative governance in the Australian federal system. By contrast, the Council of the Australian Federation (CAF), created in 2006 as a forum for interstate co-operation and policy development, has been far less effective. This article explores the reasons behind CAF's difficulties after a very short-lived initial impact. Integral to this account is the significance of Canadian experience of horizontal intergovernmental relations, which directly inspired the Australian Premiers to found CAF. The numerous indications of political congruence – some temporary, others systemic – between the Canadian and Australian settings obscured a deeper constitutional incongruence between the two jurisdictions and this is fundamental to appreciating CAF's failure as a transplant. CAF's ability to operate effectively as a significant institution was inevitably constrained by the parameters of the Australian federal system that its establishment was, in many ways, seeking to transcend.