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.

Section 75(v) of the Australian Constitution gives the High Court original jurisdiction to hear ‘all matters … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.’ This is said to guarantee the Court's ability to ensure that officers of the Commonwealth act within the law. Yet the s 75(v) jurisdiction is clearly limited. The Court is not authorised to hear all matters in which it is alleged that an officer of the Commonwealth has acted unlawfully; it is only given jurisdiction to hear matters in which a (somewhat surprising) selection of remedies are sought. This is confusing in itself, and it has caused broader confusion about the purpose and scope of this important constitutional provision. This article examines the historical ambit of the judicial review remedies and evidence from the Constitutional Convention Debates in order to determine why s 75(v) only gives the High Court jurisdiction to hear matters in which mandamus, prohibition and injunction are sought, and the significance of this for judicial review under the Australian Constitution.

In recent years, the Australian Securities and Investments Commission has placed considerable emphasis on the stepping stone approach as a device to establish officers’ liability in respect of corporate contraventions of the law. The approach represents a novel interpretation of the general duties of officers under the Corporations Act 2001 (Cth) (‘CA’). Despite the seriousness of the consequences for an officer that may follow from a finding of liability, the content and boundaries of the approach remain undefined. Critically, the courts’ heightened receptiveness to the approach and the judicial expansion of its scope departs from earlier judicial statements of caution sounded against using the general statutory duties as a mechanism to secure corporate compliance with the law. At a more fundamental level, it is doubtful whether the approach represents a legitimate interpretation of the general statutory duties, to the extent that it subverts several existing routes to officers’ liability and remedies under the CA. It is incumbent on the legislature to correct these inconsistencies by recalibrating the role envisaged for officers under the CA in line with contemporary expectations.

Judges fulfil a fundamental constitutional role in democratic systems. Most research on judges, though, focuses on the public and constitutional significance of the judicial role, not the needs of individual judges. This article applies a labour law lens to help reconceive the judicial role in a way that balances the individual and collective needs of judges with the institutional and constitutional needs of the third arm of government, drawing on comparative analysis of Australia and the United Kingdom, and examples from common law countries. I argue that, while some progress has been made towards using labour law to structure and inform judicial roles, labour law offers new insights into how judges and judicial work might be supported. This may both assist judges in their individual capacity and support the judiciary as an institution. It therefore has significance for judges as individuals and the judiciary’s fundamental constitutional role.

Unions engaged in enterprise bargaining under the Fair Work Act 2009 (Cth) (‘FW Act’) frequently exhibit considerable creativity in the forms of industrial action they take in order to pressurise employers to make concessions in bargaining. Examples of such conduct can include sending emails with the Caps Lock function turned on, wearing union campaign clothing or insignia whilst at work, and communicating with clients and customers of the target employer about the employees’ industrial campaign.

This creativity is pushing the definition of ‘industrial action’ in s 19 of the FW Act to its outer limits. This is important due to the fact that many aspects of the bargaining regime established under the FW Act turn upon whether particular conduct falls within the statutory definition. These include provisions concerning the lawfulness or otherwise of industrial action; access to orders to stop or prevent unprotected industrial action; payment of wages for periods when employees are engaging in industrial action; and employers’ capacity to stand down employees without pay where they cannot usefully be employed because of industrial action which does not involve the employer or its employees.

This article traces the current definition back to its origins in the system of conciliation and arbitration that operated in Australia throughout most of the 20th century. That system treated all industrial action as unlawful at statute and/or common law. The definition has not been significantly changed since the replacement of that system by one based on enterprise based bargaining, accompanied by limited recognition of the capacity lawfully to take industrial action in the course of such bargaining. Reviewing the current definition and its practical operation in its social, historical, and international context, the article concludes that the definition is not ‘fit for as purpose, and proposes that it should be revised in order better to accord with the purposes of the legislation and with the bargaining regime it establishes.

The Expert Panel on the Constitutional Recognition of Indigenous Australians has recommended the repeal of the ‘race power’ in the Constitution and its replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. This article analyses that recommendation, the assumptions that underlie it and the way the new provision might be interpreted by the High Court. In doing so, it uses archival material to shed new light on the 1967 referendum and whether it was intended only to permit ‘beneficial’ laws. The article concludes that there is a disjunction between the intention of the Expert Panel and the likely effect of its proposed amendment.

The role of student-edited law reviews and whether or not they have a future has been the subject of controversy for many decades.

When Justice Michael Kirby published a defence of law reviews a few years ago, he said: ‘To justify a new journal, the publisher must offer something that current journals do not provide. As well, law schools, proliferating in such number, need to differentiate their products.’

From 1935 when Melbourne University Law School commenced to publish Res Judicatae, which became the Melbourne University Law Review in 1957, until today when there are almost 30 university law reviews, the Federal Law Review is the only one that identified a specialist field from the outset. In 1964 it became the seventh university law review following Melbourne, Queensland, Western Australia, Sydney, Tasmania and Adelaide. Sir Kenneth Bailey, then Solicitor-General of the Commonwealth in a Foreword to the first issue of the review emphasised the distinctive contribution that the focus of attention on federal matters would make to Australian legal literature.

This article considers the regulatory problems of online tracking behaviour, lack of consent to data collection, and the security of data collected with or without consent. Since the mid-1990s the United States Federal Trade Commission has been using its power under the United States consumer protection regime to regulate these problems. The Australian Competition and Consumer Commission (ACCC), on the other hand, has yet to bring civil or criminal proceedings for online privacy or data security breaches, which indicates a reluctance to employ the Australian Consumer Law (‘ACL’) in this field. Recent legislative action instead points to a greater application of the specifically targeted laws under the Privacy Act 1988 (Cth) (‘Privacy Act’), and the powers of the Office of the Australian Information Commissioner (OAIC), to protect consumer privacy and data security. This article contends that while specific legislation setting out, and publicly enforcing, businesses’ legal obligations with respect to online privacy and data protection is an appropriate regulatory response, the ACL's broad, general protections and public and/or private enforcement mechanisms also have a role to play in protecting consumer privacy and data security.

The principle of subsidiarity offers a criterion for the rational allocation of roles within federations between federal and state governments. The principle states that ‘functions should be performed by the lowest level of government competent to do so effectively’. However, embedded in the principle is a hierarchy: there are ‘higher’ and there are ‘lower’ levels of government. This hierarchy suggests a point of view from which assessments of optimal allocation are to be made. The deeper question, therefore, is this: ‘who will decide for whom?’ The reform of a federal system turns not only on what principles are used, but on questions of process: who will decide what those principles require, and how will they go about doing it? A problem of path dependency lies at the heart of Australia's federal malaise. It is this problem that we need to be grappling with when considering the optimal design of the system. To do so, we need to consider not only the principles but also the processes by which the federal system is to be reformed. This paper draws on the comparative experience of Switzerland, Germany and Austria to provide guidance about how Australia's federal system might best be reformed.

If we want to know how to change institutions, we must be attuned to the fact that there is frequently a mismatch between the initial aims of institution-builders and the contemporary value we attach to them.

The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’—to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.

In recent years, the High Court has given increased attention to the nature and extent of constitutional limitations on Commonwealth legislative powers, both those limitations contained in express provisions and those implied from the text or structure of the Constitution. The issue inevitably arises as to the extent to which these limitations restrict the Commonwealth Parliament in the exercise of its power to make laws for the government of its territories under s 122 of the Constitution. Section 122 of the Constitution provides as follows:

• The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Procedure is at the heart of administrative law, just as it is at the heart of public administration. The development of administrative law is rooted historically in questions of the availability of remedies, and the related question of standing. Delivering the Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 in the House of Representatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform - indeed, it could be said to be medieval - and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.

One of the primary consequences of the difficulties experienced by companies and by regulators in the decade of the 1980s has been a greater focus on corporate governance. The precise meaning and content of this expression is far from clear. It seems to be a term used to describe a number of related phenomena that are influencing the way in which companies are being managed, governed and regulated. The mode of governance of companies is being influenced by the growth in institutional investment, an increased focus on the role of the board of directors, increased levels of disclosure of financial information, as well as by the chal1ging and developing roles of regulatory bodies such as the Australian Stock Exchange (ASX), the Australian Securities Commission(ASC), and the Australian Competition and Consumer Commission (ACCC).

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘the Act’) has established a new model of pre-legislative rights scrutiny of proposed Commonwealth laws. This is undertaken by the political arms of government and involves: (1) the requirement that a statement of (human rights) compatibility must accompany proposed laws and certain legislative instruments when introduced into Parliament; and (2) the establishment of the Parliamentary Joint Committee on Human Rights (‘PJCHR’) which regularly reports to the Parliament on the compatibility of its proposed laws with human rights.

This article looks at the relationship between the Act – and these two new mechanisms – and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

This essay links corporate regulation with developments in economic and corporate theory. The issue employed for this purpose is one that dates back more than one hundred years: whether companies should be regulated by the national government or by state governments. With the enactment of the Corporations Act 1989 (Cth) and the decision of the High Court in New South Wales v Commonwealth much attention has focused on the constitutional power of the federal government to regulate both the incorporation of companies and the trading activities of companies. A fundamental question however is whether it is better to regulate companies at the national level rather than the state level.

It is a great pleasure to contribute to a festschrift devoted to celebrating the 80th anniversary of our friend and colleague, Emeritus Professor Leslie Zines. His contribution to the study of Australian constitutional law is too well known to require any reinforcement from us. It spans a period of five decades. His principal book The High Court and the Constitution has been and continues to be at the forefront of constitutional scholarship since it was first published. That book and his other writings represent the distilled essence of much of his valuable and incisive understanding of the way the High Court interprets and should interpret, the Constitution – something which has held a life-long fascination for him. In his publications as in his many years of teaching, he displays not only a mastery of the technical and analytical aspects of public law, but a social and functional awareness that goes well beyond deriving the meaning and application of many provisions of the Constitution by the mere contemplation of the language used or by the canons of construction.

The ‘modern approach’ to interpretation requires that effect be given to the ordinary meaning of a statutory text in its wider context and with reference to its purpose. This article interrogates the interpretive approach used by the High Court in fundamental rights cases to assess its compatibility with this ‘modern approach’. It asks, specifically, whether the strict text-based approach used in these cases (which involves the application of the principle of legality) is sufficient to determine the meaning of ambiguous statutory texts. The argument made is that the coherent application of the ‘modern approach’ requires that this interpretive approach be justified.