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.

Nothing is more certain to cause explosions of fear and loathing among some lawyers than the mention of the word “retrospectivity”. Few topics can be better guaranteed to produce conflict without resolution, heat without light. The term “retrospectivity” is used in the loosest possible way to refer to just about any change that affects a client's interests, and while debate may seem to resemble philosophical disputation, terms like “human rights”, “justice”, “democracy” and “the rule of law” are used for effect rather than argument. But despite the lack of rigour with which the public debate is conducted, the issues do reflect and exemplify genuine philosophical and theoretical problems.

Administrative law folklore in Australia concentrated for so long on the amusing British cases that portrayed courts as unpredictable and interventionist. Colourful examples included Roberts v Hopwood, which saw the proposal of the Poplar Borough Council to pay equal wages to men and women overturned as an eccentric and feminist exercise in socialistic philanthropy; Prescott v Birmingham Corporation, which displayed the same judicial aversion to a Council proposal to provide free bus transport to elderly pensioners; and Padfield v Minister of Agriculture, which disparaged a naively expressed but politically understandable Ministerial decision not to conduct an enquiry into inefficiencies in a milk marketing scheme.

The Australian reality, it was often overlooked, was usually more predictable and less interventionist. A predominant theme was the pertinence of judicial restraint in penetrating the exercise of a broad administrative discretion. Accordingly, some of the foundation cases of Australian administrative law reached conclusions which, by contemporary standards, seem astonishing.

Australian law regulating the use and disclosure of official information is in a far from satisfactory state. It suffers from both obscurity and untoward complexity … [and i]t is ill-suited both to contemporary conditions of government and to prevailing constitutional and democratic norms … Notwithstanding the progressive introduction of Freedom of Information regimes in Australia, we have by no means reached — or sought to reach the position where … the free use and disclosure of information is the norm and secrecy the exception … While the balance is now changing, and desirably so, secrecy endures as the primary obligation and openness the exception …

Geoffrey Sawer was the Foundation Professor of Law at The Australian National University, appointed in 1950 at the age of 39. He was a pioneer in the understanding of law in a broader context, especially at the intersection between law and politics, and his fluid and incisive writing has been a major influence on succeeding generations of academics, practitioners and judges. Drawing on Sawer's writings, oral history interviews and private papers, Michael Coper makes an affectionate biographical sketch of this outstanding scholar and warm and genial human being. In particular, he explores how Sawer's scholarship stands up today, when so much has changed in the legal and political landscape; what is enduring and what is transient in a life's work; and what lessons we can draw when we look at law and life through the lens of biography.

In Australia, a technocratic minimalist approach to constitutional interpretation leaves little space for what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big picture’ of what a constitution is, and why it matters, is systematically reduced to a ‘strict and complete legalism’ that shows little interest in the social and cultural functions of a constitution in the modern world. The ‘dual citizenship’ cases (2017–18), concerning s 44 of the Australian Constitution, provide an exceptional case study. The High Court of Australia’s narrow positivism shielded it from criticism, but at a high cost to Australia’s democratic and social fabric. This article argues that, at a time when the rule of law and the public sphere is under threat as never before, we can and should expect more of our peak legal institutions. A constitutional court without a broader commitment to constitutionalism imperils the legitimacy of the whole constitutional order and of the public sphere.

In October 2007 a new era in Australian military criminal justice began with the establishment of an Australian Military Court (AMC). The AMC had, however, a short life, being found in August 2009 by the High Court of Australia to be contrary to Chapter III of the Australian Constitution. In May 2010 it was announced that a new Military Court of Australia, established in conformity with Chapter III, was to be established to replace the interim system put in place following the High Court’s invalidation of the first AMC. A Bill for a new military court was introduced to Parliament in 2010 but lapsed with the dissolution of Parliament for the 2010 election. No replacement Bill had been introduced as at the beginning of 2011. It is unclear when or whether a new military court will be established.

This article examines the reasons behind the establishment of the AMC and then considers the High Court decision in Lane v Morrison that unanimously held the AMC to be invalid. It then considers the implications for a replacement Chapter III compliant military court.

Plenary executive power seems repugnant to the rule of law. It is often said that such power cannot exist: that all executive power must have legal limits. Yet, it remains unclear which principle or principles of Australian constitutional law would prevent the federal Parliament from conferring plenary executive power. The High Court has suggested that a federal statute purporting to confer an entirely open-ended discretion on a Minister would simply not be a ‘law’, or else lack the requisite connection to a head of power found in ss 51 or 52 of the Australian Constitution. This article examines the latter claim. It explains the nature of the limitations imposed by ss 51 and 52 and the role of the High Court in ensuring that those limitations are complied with. It concludes that the scope of executive power that Parliament may confer is constrained by ss 51 and 52, but not to the extent that has been suggested by the High Court.

On 24 February 2011 the Australian Prime Minister Julia Gillard announced proposals for introduction of a ‘carbon price mechanism’ to commence as early as 1 July 2012. This announcement follows the establishment of a Multi-Party Climate Change Committee on 27 September 2010 with instructions to ‘explore options for the implementation of a carbon price [and] help to build consensus on how Australia will tackle the challenge of climate change’, starting from the position that ‘a carbon price is a necessary economic reform required to reduce carbon pollution’. Earlier in 2010 a major review of the Australian taxation system by Dr Ken Henry was released, providing extensive insights into how the tax system should be restructured ‘to deal with the … environmental challenges of the 21st century’, and its ‘interrelationships [with] … the proposed emissions trading system’. These developments are largely driven by the need for Australia to develop a credible climate change agenda once the Kyoto Protocol arrangements come to an end in 2012.

The two investigative techniques introduced by the Environment Protection (Impact of Proposals) Act 1974 are the environmental impact statement and the public inquiry. The policy underlying the use of environmental impact statements was not fully achieved until administrative procedures were created under the Act in 1975. It is probably too early to assess the effectiveness of these procedures. This article is limited therefore to considering their legal nature and possible effect. Two principles emerge from this exercise: the procedures are almost entirely discretionary in nature and the policy of reducing judicial involvement to a minimum is likely to succeed. Protection of the environment is thus a matter for political decision.

Constitutional commentators have long been troubled by the question as to whether the notion of the rule of law operates, on the one hand, as a conduit for the expression of the supreme legislative authority of Parliament, or, on the other (at least to some degree) independently of, and thereby potentially in conflict with, parliamentary supremacy. As an alternative to both of these suggestions it might be held that according to the circumstances, the notion of the rule of law is capable of portraying both of these characteristics. Curiously, relatively little has been written on this specific issue in relation to Australia. The attention directed towards the vexed questions of the nature and extent of the federal division of powers in Australia (admittedly, themselves issues not unrelated to the present concern) has marginalised interest in the nature of legislative authority in Australia. “The one legal doctrine”, it has been recently proclaimed, “that Australian and other Commonwealth lawyers are never taught to question (or perhaps are taught never to question) is A V Dicey's theory of parliamentary omnipotence”.

The inquiry by the Senate Standing Committee on Constitutional and Legal Affairs into “the law and administration of divorce, custody and family matters, with particular regard to oppressive costs, delays, indigates and other injustices” is to be welcomed. This article will discuss as prospects for reforming the law affecting the grounds for divorce, with particular reference to the guidance that might be gained from the Divorce Reform Act 1969 (Eng.). This Act provides support for a member of proposals to amend the Matrimonial Causes Act 1959-1966 (th) which could be implemented imrnediately. The proposed amendents raise none of the controversial issues of principle which dominated the debates on the 1959 Act in Australia and the 1969 Act in England, and their enactment would not prejudice the outcome of the Committes deliberations on the ultimate shape of Australian divorce law. Their beneficial effect on divorce practice, however, would be subnual and would help to pave the way for more fundamental reforms.

I have had an interest in inquisitorial procedures and a lack of conviction to the often claimed superiority of adversarial procedures as long as I have have any interest in the law. Until recently however I found it difficult to engage other Australian lawyers in discussions which questioned whether the adversarias system is necessarily the best. It seems that my experience reflected the strength of the “Anglo-American legal culture”.

The decision of the Court of Appeal of New South Wales in Government Insurance Office of New South Wales v Glasscock demonstrates both th traditional view that a trial should be adversarial and a more open approach to the question. One submission of counsel for the appellant was that the trial hal miscarried because of the extent of judicial intervention, which was summed u by saying that the adversarial basis of the trial had been lost as a result of the judge's intervention.

This article examines the claim that the adoption of structured proportionality analysis is not well suited to the Australian constitutional context and argues that this claim is mistaken. Structured proportionality analysis is sometimes associated with a strong commitment to fundamental constitutional rights which is, it is conceded, foreign to Australia. However, structured proportionality can also be understood merely as a method of analysis which changes the High Court’s previous approach only slightly. This argument clears the way for the adoption of proportionality in Australia. However, it is also argued that the positive case for its adoption is inconclusive. Proportionality promises an increase in transparency by isolating the balancing element of the analysis. However, it is unclear how much difference this somewhat minor adjustment will make in practice and those advantages must, in any event, be measured against the cost of distraction and confusion created by doctrinal innovation. Finally, the article addresses ‘calibrated scrutiny’, Gageler J’s preferred form of analysis. It is argued that this approach offers some advantages. However, it need not be seen as an alternative to the proportionality method. On the contrary, the two approaches could be reconciled and a form of proportionality used as a manner for better development of the law.

In order to advance the ‘unity of the system’ of international law, it is necessary to resolve conflicts of norms and to endeavour to ensure that where tension exists, reconciliation is achieved. The commitment of states to engage in international criminal cooperation has the potential to conflict with many different human rights obligations, such as the prohibition against torture. The recent controversy relating to European states aiding the United States to affect extraordinary renditions is an example of the way in which a state's commitment to international criminal cooperation and a state's commitment to fundamental human rights may potentially conflict.

The enactment of uniform companies legislation in 1961-2 was a significant achievement for a country in which, a century earlier, multiple incorporations of the one body was the norm and a court of one colony questioned the existence of corporate personality created by the law of another. After Federation, business interests increasingly sought uniform State laws. They opposed centralised regulation which, in any event, was beset by constitutional difficulties. Commonwealth legislation eventually became the preferred model as shortcomings of uniform and co-operative mechanisms were progressively exposed. Yet fully harmonised corporations legislation still does not exist. In this paper presented to the 2011 Hartnell Colloquium at the Centre for Commercial Law, Australian National University to mark the fiftieth anniversary of the Uniform Companies Acts, the author sketches the development of Australian companies legislation over the last 150 years.

The High Court's judgment in Minister for Immigration and Ethnic Affairs v Teoh is perhaps the most controversial judgment handed down by the Court this year, for both legal and political reasons. On the political side it has added further fuel to the fire about the significance of the ratification of treaties and the roles of the Executive and the Parliament in the process of ratification and implementation of treaties. On the legal side, it has developed the law on “legitimate expectations” and provided interesting obiter dicta on sleeping issues such as the use of treaties and international law in the interpretation of statutes and the development of the common law. It has also left open questions about the status of treaties which form schedules to legislation but which are not directly implemented by that legislation. This note will address the legal, rather than the political, aspects of the Teoh case, starting with the development of the law on “legitimate expectations”, and then considering issues concerning the use of unincorporated treaties to develop and affect the law in other ways.