Imagine this scenario. A court composed of an even number of judges is deciding the constitutionality of national legislation critical to the efficient administration of justice in a federal state. In argument, the chief law officers of all representative governments ask that the legislation be upheld as it was reached through a lengthy negotiated compromise of all the parties. By virtue of an equal split of opinion between the six judges hearing the case, a legislative 'sleight of hand' is triggered and the scheme is found to be constitutional. Twelve months on, the same court agrees to reconsider its previous decision. Things are generally unchanged, the same arguments are presented. The matter, however, is heard by a differently-composed, odd-numbered bench. If ever the combined desire of all governments was that a court should heed the ancient maxim 'stare decisis et non quieta movere–stand by the thing decided and do not disturb the calm'–it would be now. Instead, a majority finds that the same scheme is unconstitutional; it therefore collapses.

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.

International humanitarian law is a subject of universal importance and relevance. Since 1974, the problems of restatement and development have engaged the attention of the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts.

In this article, Professor J. G. Starke, Q.C. surveys developments in international humanitarian law over the last quarter century and examines in detail Australia's contribution to those developments. The process by which the idea of “laws of war” has come to be superseded by the concept of international humanitarian law is outlined, while reference is also made to the principal sources of international humanitarian law. Australia's interest in international humanitarian law since World War II is discussed, as is the background to the present continuing Geneva Conference and proceedings at its first three sessions in 1974, 1975 and 1976. The contribution of Australia to the work of the Geneva Conference is thoroughly examined. In particular, the stance of the Australian government on various issues before the Conference is set forth in detail. The article also assesses Australia's contribution to the development of international humanitarian law.

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.

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.

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 use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?

This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading ‘originalist’ case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.

In a recent article in this Review Mr Murray-Jones considered the state of the law of inconsistency. Mr Rumble takes issue with some of Mr Murray-Jones' propositions and, in particular, with his interpretation of some of the leading High Court judgments.

Some of the most troubling statements about inconsistency that have emanated from the High Court have been related to the problem of persons who commit both Commonwealth and State offences. This article considers how the provisions of the Crimes Act, the Acts Interpretation Act, the Judiciary Act and the Commonwealth Prisoners Act interact in such circumstances.

The article also offers an analysis of the nature of inconsistency. The basic proposition of the analysis is that, no matter how many different guidelines are developed to indicate the presence of inconsistency, ultimately there is only one category of inconsistency.

I begin by reminding you that in 1964 Sir Anthony was appointed Commonwealth Solicitor-General and that he continued in that office until 1969. This is a matter of some importance in charting his legacy in administrative law.

The Solicitor-General Act 1916 (Cth) (the 1916 Act) provided in s 2 for the appointment by the Governor-General of a person to be the Solicitor-General of the Commonwealth and to have such duties and functions as prescribed by or under any statute or as were delegated to him by the Attorney-General. The 1916 Act was repealed by the Law Officers Act 1964 (Cth) (the 1964 Act). This provided for the reconstitution of the office of Solicitor-General as the second Law Officer of the Commonwealth and made detailed provisions with respect to that office.

This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.

In an examination of the Commonwealth Government's power to enact social welfare legislation, Professor Sackville explores the tendency toward federal control of this field since 1901 and the judicial reaction to it. His conclusion is that although certain of the restrictions imposed upon Commonwealth freedom of action by the High Court have been removed by constitutional amendment, the trend towards a wider concept of Commonwealth involvement in community welfare schemes may well exceed the present limits upon Commonwealth legislative competence; and he looks to the Constitutional Convention now in progress as the possible prelude to an era in which extension of these limits might more readily take place.

Professor Nettheim's answer to this question involves a rigorous examination of legislation and judgments from the eighteenth century on. The reluctance of courts and legislatures to protect servicemen from their employer, the Crown, in the matters of remuneration and termination of service is criticized. The right-lessness of servicemen is presented as being not only inequitable, but also incompatible with the image of military service as a career, and with the related need to attract qualified personnel.

In its joint judgment in the Standard Hours Inquiry, 1947 the Full Court of the Commonwealth Court of Conciliation and Arbitration observed:

The issue, as the history of the case indicates, comes to this Court as a number of industrial disputes (over 100 applications are before the Court) between many registered organizations of workers and their employers who are respondents. Some of these disputes are of long standing; others of them were created when it was known that the Court proposed to make a general investigation into standard hours. It is a commonplace of Australian industrial law that the limit of the constitutional power of the Court is to settle these disputes each within its ambit, and the ultimate judgment will in fact settle these particular disputes, and do no more. But we know, as a matter of practical fact, that it will in the long run lead to uniform standard hours throughout Australia. The responsibility of this onerous task does not properly belong to this Court. It is bound only to settle the dispute. It is something additional that State legislatures and State industrial tribunals make its decisions in these disputes the bases of industrial determinations.

The article analyses legal materials concerning the legal personality of the Commonwealth of Australia under domestic law. It argues that the Commonwealth as legal person has an existence, as a unit of the legal system, which is conceptually distinct from the Commonwealth of Australia as a nation, and the Commonwealth as federal government of that nation. Current idioms (eg ‘polity’ and ‘body politic’) have a tendency to confuse these distinctions. The article suggests, as a more appropriate way to denote the Commonwealth as legal person, the term ‘constitutional person’.

Corporations are undergoing a subtle transformation. Usually regarded as investment vehicles for shareholders, corporations are now assuming an additional identity–as entities which share responsibility for upholding human rights. This new identity does not sit comfortably with conventional wisdom on corporate governance. Traditional corporate governance theory, based on nineteenth century notions of trust, posits that ‘the company’ is a legal entity embodying the members from time to time. Directors, as trustees of corporate assets, owe duties to foster the interests of the shareholders by maximising their investments. Under this view, directors do not owe wider obligations to society.

This traditional understanding, however, is beginning to yield to more recent legal and social pressures. Legal developments in regulatory practice, in combination with an upsurge in social movement activism, is now forcing corporations to accept that they are more than mere economic entities. They are also private ‘governments’–social and political entities with the ability to exercise general powers over themselves and, more importantly, over others.

Since 2010, a national scheme regulates the registration, accreditation and discipline of health professionals in Australia (the ‘National Law’). This research examines disciplinary cases from tribunals nationwide to address the question: Has the national regulation of health professionals produced consistency in outcomes in serious cases of professional misconduct? All publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions (nurses and midwives, doctors, psychologists, pharmacists and dentists) were analysed for the period from 1 July 2010 to 30 June 2017. Each case was coded by reference to a typology of misconduct, practitioner characteristics and outcome, allowing for comparisons to be drawn both as between the professions and as between jurisdictions. Major disparities were identified in outcomes across the professions, with doctors being subject to less severe outcomes than other professions, in particular in comparison with nurses, even when the same main head of misconduct was in issue. Marked disparities were also identified between outcomes in different states and territories, suggesting that the National Law is not being applied in a uniform manner. This article examines these disparities and explores possible contributing factors.

An objective of all industrial legislation in Australia is that employees victimised because of their participation in the industrial relations system should be able to obtain legal redress. Thus it is sought to give remedies for conduct which Isaacs J. pithily described as amounting to a demand by an employer to an employee of “give up your claim or give up your billet”. Dr O'Donovan exhaustively analyses how the legislation of the Commonwealth and each of the States protects employees from victimisation on account of their union or industrial activities. Differences between the protection and redress given by each piece of legislation are detailed, while the Commonwealth provisions and cases concerning them are highlighted. The article concludes by suggesting matters for reform in this important area of industrial law.