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.

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 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.

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.

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism’—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal’s federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal’s federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.

This paper examines the recent expansion of the powers of the Family Court of Australia with regard to children. The nature of the change was underlined in Marion's case, in which a majority of the High Court confmned that the Family Court had jurisdiction to hear an application relating to the performance of a hysterectomy on a severely retarded girl. No matrimonial dispute was involved. The fact that the Court may deal with children's cases in the absence of such a dispute has implications for State Children's Courts (which apply child welfare legislation) and for State Supreme Courts (in the exercise of the parens patriae jurisdiction). It is these implications which are the principal concern of this paper. Before they are explored, however, it is necessary to consider the Family Court's constitutional and legislative foundations.

This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.

Is fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal decentralisation, agreed to as part of a peace agreement signed in 2001 following a decade-long civil war in Bougainville, provided the opportunity for national consolidation. However, tensions surrounding the implementation of arrangements for budgetary support of Bougainville are forcing further fracturing. A definitive answer to the question of whether fiscal decentralisation helped or hindered nation-building will be provided by the referendum, due by mid-2020, when the people of Bougainville will have the option to vote for independence from Papua New Guinea.

This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action.

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.

Although some fifteen years have passed since Australia ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and so incurred an obligation to respect, protect, promote and ensure each individual's “right to adequate housing”, in Australia the right remains little more than a rhetorical tool used by welfare activists. Despite the increased political and legal profIle of human rights in Australia with the establishment of such bodies as the Commonwealth's Human Rights and Equal Opportunity Commission (HREOC), the “right to .adequate housing”, like many other economic rights, has been largely ignored. In an attempt to highlight the gap between Australia's international commibnent and its domestic response, the first part of this paper examines the Eontent and implications of the right to adequate housing and Australia's obligation under Article 11 of the ICESCR. The second part focuses on the Federal Goyernment's response, discussing in particular the absence of any legal provision· for the right's protection and the lack of comprehensive administrative policies aimed at the right's progressive realisation. For the purposes of this latter discussion, a case study of federal policies concerning the homeless, a group most apparently lacking in “adequate housing”, demonstrates the extent to which administrative policies continue to embrace notions of “worthiness” rather than “universal dignity”, making realisation of a “right to adequate housing” impossible.

In Ghaidan v Mendoza, the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights. The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant ‘as his or her wife or husband’, should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case. Section 2(2) was interpreted as applying to a person living with a tenant ‘as if they were his or her wife or husband’, despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.

Not so long ago, Australian electoral law was described as being in a Cinderella state, a neglected but promising field of inquiry. Some years down the track, it is clear that Australian electoral law is beginning to shed its Cinderella-status with scholars paying increasing attention to the legal regulation of elections.

In this burgeoning field, political finance laws assume critical importance. Indeed, it has been said that such laws probably pose ‘perhaps the central issue facing electoral law’. Arguably for this reason, this aspect of Australian electoral law, more so than any other, has been the subject of sustained scholarship. It is even showing signs of maturing into a distinct area of electoral law.

The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court's judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not ‘the judicial power of the Commonwealth’ within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is ‘the judicial power of the Commonwealth’, but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court's reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.

Mr Murray-Jones is concerned to re-examin,e the rules which have developed with respect to the interpretation of s. 109 of the Constitution. He looks first at the “cover-the-field” test enunciated by Isaacs J. and its subsequent application by the High Court. He moves on to discuss a second test propounded by Dixon J. which would strike down State laws which altered, detracted or impaired the operation of a Commonwealth law. These tests are, of themselves, insufficient to meet the difficulties and a number of subsidiary tests for direct inconsistency, some of doubtful validity, are critically scrutinized. The position seems clear when the conclusion can be reached that the Commonwealth intended to provide a single, nation-wide code to regulate a particular area. When criminal proceedings for an offence which contravenes both State and Commonwealth law are considered, complications with respect to differing offences and penalties can frequently arise and the author concludes that the difficulties still require satisfactory resolution. One suggestion is that the CourtS' should more clearly articulate the various factors }vhich they take into account when reaching th,eir decisions.

My comment on Professor Sawer’s paper is confined to three matters: the executive power of the Commonwealth to conclude treaties on behalf of Australia; the relevance of the subject matter of a treaty to the scope of Commonwealth legislative power to implement the provisions of the treaty; and the concept of federalism inherent in the High Court’s decision in the Franklin Dam case.

For a time, the discipline of Australian military forces provided an interesting study in the application of Imperial legislation. That feature of the system has fallen away at least since the enactment of the Defence Force Discipline Act 1982 (Cth) ('Discipline Act’). Since then, attention has been directed to the consequences of a tension between the necessary (or at least universally accepted) nature of military discipline and the values embedded in Chapter III of the Constitution.

Beginning a discussion of the Constitution and military justice in 2005, Mr Tracey observed:

That conclusion was reached in the 1560 case of Stradling v Morgan, and may be taken to correctly state the law at that time. In its context, it is clear that the phrase ‘foreign circumstances’ was intended to refer not to the state of international relations, but rather to the use of extrinsic material in statutory interpretation.

Despite this early acceptance by the English courts of the use of extrinsic material in statutory interpretation, strident restrictions on the use of extrinsic material were later to be introduced into the common law. In discussing the principle that, ‘Parliament speaks only through an Act of Parliament,’ Dicey stressed the point that, ‘the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment.’