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.

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.

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.

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 relationship of the King to the persons who actually perform the work of government has changed profoundly over the last 250 years. The purpose of this article is to analyse those changes and to analyse how the common law reacted (or failed to react) to them.

For this purpose I propose first to consider the structure of English government in about 1750. Although the structure was already evolving into a more modern form, in 1750 it was still a relatively simple governmental structure based upon a sovereign Monarch and upon public officers, many of them in regional areas.

At that time the common law clearly distinguished between the Monarch and his officers. Although the extent and importance of the various legal powers and immunities of the Monarch are now often overstated, the Monarch did possess special powers and immunities which reflected or, at least, were derived from his sovereignty.

The Australian Superannuation Industry is generally seen as very strong and successful by global standards. However, three decades of legislative reform in the Australian superannuation industry have created a paradox: ongoing reforms but continuing dissatisfaction with areas of governance and outcomes. These include high levels of administrative and investment fees, and systematic problems around a culture of conflicted investment advice.

In seeking to further elaborate and then resolve this paradox, this article draws upon an extensive research project conducted by the authors within the Australian superannuation industry, including three voluntary and anonymous surveys of superannuation trustees/licensees. This research has revealed that fund members are vulnerable to significant and expanding private-interest rents generated by the financial services sector. This may be explained by regulatory capture mechanisms variously described as statutory, agency, corrosive and intellectual capture.

The article examines ways to better achieve public interest outcomes, and at a time when public sector integrity remains an area of particular attention, how more can be done to blunt the force of private interest rent seeking.

Over the last three years the Commonwealth has enacted four statutes with the aim of overcoming some of the deficiencies which exist at common law in the reviewing of administrative action. These are the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Appeals Tribunal Amendment Act 1977 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). This article examines in detail the Administrative Decisions (Judicial Review) Act 1977 (Cth) in order to determine whether the common law rights and remedies have been improved.

Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that have a role to play in safeguarding electoral democracy against government attempts to undermine the fairness of the electoral process. This article explores the extent to which the Australian Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting electoral democracy. It demonstrates that independence, impartiality and a supportive legislative framework help the AEC to be effective in performing these roles, but that inadequate powers, lack of budgetary autonomy and answerability to political actors operate as constraints. More generally, the analysis presented shows the value of expanding our understanding of the role of fourth branch institutions so that we take account of their activities in both fostering and safeguarding key democratic values.

This article considers the impact of the doctrine of legal personality as enunciated in the classic corporate law case, Salomon v Salomon & Co Ltd, on our theories concerning the role of the membership within a corporation, in particular the role of the membership within a university corporation.

Universities live on the edge of corporate law. Although it has been one hundred years since the judgment in Salomon's case, the ground rules of university governance were established well before that judgment. Furthermore, Salomon's case involved a one-man company organised under the Companies Act 1862 (UK) and universities are not typically organised under business incorporation statutes. Nevertheless, Salomon's case has had a dramatic effect on the way we view the constitutional structure of all corporations, including university corporations.

In this article, I address the question whether religious vilification laws are contrary to the implied freedom of political communication affirmed in the High Court's decision in Lange v Australian Broadcasting Corporation. I will focus on three key issues. First, can the implied freedom extend, in principle, to religious speech, meaning speech that is motivated by religious belief as well as speech that simply deals with religion or religious topics? Secondly, do religious vilification laws place a relevant burden upon communication about political or governmental matters? Thirdly, are religious vilification laws reasonably appropriate and adapted to achieving some legitimate objective in a manner which is compatible with the constitutionally prescribed system of representative government? The latter two questions derive directly from the test formulated by the High Court in Lange for determining whether a law is contrary to the implied freedom of political communication.

The Workplace Relations Act 1996 (Cth) (‘the Act’) pt VIB establishes a framework for the registration and enforcement of certified agreements, which are collective industrial instruments that regulate the employment relationship for a significant proportion of the workforce. The Act provides for agreements between unions of employees and employers and agreements between employers and employees directly. A certified agreement comes into effect only after it is approved by the employer and a ‘valid majority’ of its employees and is registered by the Australian Industrial Relations Commission (‘the Commission’). The significance of registration of a certified agreement lies in the imposition of legally enforceable rights and obligations upon the parties bound by the agreement. One of the most significant obligations imposed on the parties bound by a registered certified agreement is the obligation not to engage in industrial action for the duration of the agreement, which is ordinarily no longer than three years.

In 1971, Blackburn J., delivering a swingeing judgment in the Supreme Court of the Northern Territory, held that the members of three Arnhem I and clans had no legally recognizable rights in their ancestral lands, and thereby decided what was thought to be the first case brought by Australian aboriginals seeking legal recognition of their customary land rights.

British settlements were first established in Australia in 1788. Ever since it is a notorious fact that aboriginals have been consistently deprived of their land by settlers, miners and governments. The surprising thing therefore, to lawyers unfamiliar with the history of Australian race relations, is that aboriginal rights in land do not appear to have been asserted in the courts by aboriginal plaintiffs before the present proceedings began. The absence of reported cases dealing specifically with the rights of Australian aboriginals in their lands is all the more exceptional in the light of the wide range of decisions on indigenous claims in other murisdictions.

The Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) provides for judicial review based on decisions ‘to which this Act applies’. Persons aggrieved by ‘a decision to which this Act applies’, conduct engaged in for the purpose of making a decision to which this Act applies, or a failure to make a decision to which this Act applies are able to apply to the Federal Court for an order for review. ‘[D]ecision to which this Act applies’ is defined as a ‘decision of an administrative character, made … under an enactment’. Other similar statutory schemes providing for judicial review also rely on showing that there was or will be a decision made ‘under an enactment’. The High Court decision in Griffith University v Tang is the most recent to consider the meaning of this phrase.

[I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should turn to constitution making.

This is the song that never ends
It goes on and on my friend
Someone started singing it not knowing what it was
And they'll go on forever now because
It is the song that never ends …

Choice of law in tort may seem to be a tune we cannot get out of our heads at the moment, but it must be remembered that it presents a set of problems which have vexed legal minds — practical, academic and judicial — for centuries. Recent years have seen the issue of conflicts between the tort regimes of the Australian states and territories prove particularly difficult to address. This article will first canvas some of the reasons for the difficulty in formulating a rule in this area. These reasons are many and varied. First, the proper or central function of the law of tort itself has long been the subject of dispute. Then, the very nature of a right in tort has not lent itself to any obvious choice of law approach. The rapid evolution in this century of new kinds of torts has exacerbated the matter.

The concept of equality has been a familiar tenet of democratic theory since antiquity, but it has always been a skewed notion. In Athens, the birthplace of democracy (demokratia: the power of the people), women and slaves were excluded from ‘the people’ so far as life in the polis was concerned. Aristotle believed that this exclusion was justified because women and slaves were inferior in phusei (by their natures). The idea that ‘justifiable’ discrimination may be invoked selectively to derogate from equality continues to be the case today. What is justifiable is determined by those with power, just as it always has been. Equality between human beings, therefore, is a contingent and permeable notion; absolute equality belongs only in the world of the quantifiable and the mathematical. While women and Others have been ‘let in’ to public life, the heritage of the past continues to lie like a dead weight on equal participation.

The competition principles set out in the Trade Practices Act 1974 (Cth) are based on an economic model of perfectly competitive markets responding to the market and producing only the goods and services required in the market. However, effective competition together with good market information may create a disincentive to markets innovating (market failure) because new developments may be rapidly copied without the recovery of the innovation's development costs (a free ride). According to this model, a patent under the Patents Act 1990 (Cth) compensates for the disincentive to innovate and justifies a limited period of exclusive rights during which the innovator may exclude others in order to recover the development costs (confounding the free riders) and contribute to beneficial innovation by investing in new developments (with the added benefit of disclosure of the innovation). Patents are therefore generally assumed to produce overall economic benefit while at the same time having minimal social costs. The social costs are higher prices, restricted outputs, subsidised foreign inventors and the administrative costs of the patenting scheme.

Over the last 25 years, governments of all persuasions in western democracies have increasingly resorted to contract as a means of carrying out governmental tasks and achieving policy outcomes. The use of contract by government is not a new phenomenon but, in more recent times, the increasing use of contract in areas that were traditionally the province of direct government action has been a marked feature of public administration. This movement has spawned a vast literature covering many disciplines and has generated new theories about public administration. One of the difficult issues to resolve in connection with this phenomenon is the sometimes awkward mixture of a private institution – contract – to achieve public purposes.

This paper is one of a group of papers on the theme of the interaction between the government's executive power and legislation. This paper is about contract and the executive power. Combining these together, it is appropriate to discuss the interaction between legislation and the use by government of the executive power to make contracts.