Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the development of the institution has been ad hoc and fragmented. What has followed, however, has been the transformation of the institution to apply to new contexts, to the extent that it is questionable in some instances as to whether ‘ombudsman’ remains the appropriate descriptor for the institution. This article explains and critiques these developments, observes that the conditions which have created such change are set to continue and argues that care must be taken to protect citizen trust in the ombudsman brand.

This article examines the conduct of empirical legal research and its relationship to law reform. Through a detailed analysis of the largest survey of State and federal judges conducted in Australia it explores some of the limits to empirical investigation, particularly the tendency to rely primarily on judicial perspectives as the basis for law reform. Focusing upon empirical legal research on the subject of expert evidence the article initially examines research methodologies, then extends the analysis to consider the correspondence between the collection, interpretation and presentation of empirical data and recommendations for legal change. This involves an assessment of a broad range of methodological and theoretical issues with implications extending well beyond the particular survey. Last, the empirical research on expert evidence will be evaluated using the principal reform proposal suggested by the investigators. This exercise will provide an indication of methodological problems which beset the survey and demonstrate practical limitations with the particular approach to expertise.

In 1995 I wrote a short piece entitled ‘The Forgotten “Trust”: The People and the State’. Its premise was the simple proposition that the most fundamental of fiduciary relationships in our society is that which exists between the State (and its officers and agencies) and the community (the people). I do not intend here to revisit the justifications for that proposition. My primary concern when I wrote was with two quite different legal manifestations of that proposition. The first was its use in informing and justifying the imposition of legally enforceable standards of conduct on public officers and agencies. The second was how trust and fiduciary ideas have been, and could be, invoked to circumscribe and channel the exercise of public power for the benefit or protection of the public or a section of it. It is the second – and much more problematic – of these that I wish to revisit in this article. I do so not simply to satisfy Leslie Zines that I have reconsidered a ‘heresy’ into which he believed I was misguidedly lured.

Australia will, I believe, ratify the convention and afterwards this Parliament will pass the necessary legislation to show other countries that we join in universal condemnation of the horror [of genocide].

The well known writings and other contributions of Professor Zines on the High Court's interpretation of Australia’s Constitution and public law generally have justly earned him the admiration and deep respect of eminent jurists both within Australia and abroad. His interests extended to courts in other western liberal democracies.

In a book based on a series of lectures delivered at the University of Cambridge under the auspices of the Smuts Memorial Fund, Professor Leslie Zines ventured into a comparative study of, inter alia, the role of the courts in the United Kingdom, Canada, Australia and New Zealand. He noted that Canada, Australia and New Zealand share the common feature of the perplexing difficulty of pin-pointing an exact date when these countries obtained their independence from Britain. In other countries which were former British colonies, the date of independence could largely be identified by the date when the Union Jack was lowered and a new national flag was unfurled.

Australian case law on infringement of registered trade marks has placed an increasing emphasis on the reputation of the owner of the registered trade mark in determining whether infringement has occurred. Consideration of the trade mark owner’s reputation has been included in determining whether the sign used by the defendant is deceptively similar to the registered trade mark and, more recently, in determining whether the defendant has used its allegedly infringing sign ‘as a trade mark’. Neither development is consistent with either the law relating to registered trade marks or the underlying policy reasons for the system of registration. This article discusses the case law which has introduced the tendency of the courts to consider the reputation associated with an owner of a registered trade mark in determining infringement proceedings, the reasons why such an approach is not consistent with the legislation nor with the rationale underlying our registered trade mark system.

The last decade of the nineteenth century saw a number of Conventions held for the purpose of creating the rules under which the Australian colonies would federate in “one indissoluble federal Commonwealth”. The endeavour was designed to be an anchor to the past, creating rules that bind until a super-majority of the living change them. These rules were incorporated into a written document, which declares itself to be the paramount law within the Commonwealth of Australia.

The imprecise contours of the… principles [of implication of due process] prevent their easy application. To apply them too sweepingly requires the dilution of due process requirements to accommodate the protection afforded the property interest holder to the inescapable and practical needs of government. To apply them too narrowly requires the sacrifice without due process of many highly valued expectations to accommodate their holders to the only marginally significant needs of government.

In current times, most executive action affecting individuals involves the exercise of powers conferred by or under statute. Administrative lawyers are familiar with the use of judicial review in order to enforce limits placed on such powers by the empowering legislation. Indeed, the development of the modern principles of administrative law over the latter half of the 20th century has largely taken place in a statutory setting. As recent history demonstrates, however, there are circumstances in which an executive government may seek to rely on non-statutory sources of power. The exercise of non-statutory powers will often raise distinct issues in the context of judicial review. The review of non-statutory powers may involve questions concerning the extent to which governmental actions are justiciable, that is, suitable to be examined by the courts. Further, the application of many of the traditional grounds of judicial review can be problematic without the touchstones of validity that are usually provided by statute.

Legal safeguards for individuals of employment or income will be one part of a government’s reaction to fluctuation and change in industries. Mr Arup examines present federal asssurances of security of employment and income and capacities to implement further assurances in line with overall economic rationality. He concludes that there are limitations both in present assurances and capacities which require changes in the law.

The primary problem in attempting a resume of recent developments concerning tribunals in Australia is one of classification and proliferation. What constitutes a “tribunal” is a much debated and fuzzy conceptual issue. Even if one settles on an acceptable definition, the problem remains of the vast variety of bodies throughout Australia that would require survey. Although this paper addresses some recent legislative proposals concerning particular tribunals, both at State and Commonwealth levels, it concentrates on conceptual developments about certain kinds of tribunals. It is concerned with the underlying pressures and intentions that are driving such proposals. It also takes into account the legal environment, namely specific judicial and executive decisions, which are shaping them.

I begin this paper with a disclaimer: it does not pretend to be a definitive study of freedom of information in Australia. Rather, it presents the experience of an official who has been concerned with the development of the Commonwealth freedom of information legislation from the time it first appeared on the political agenda in Australia; who has taken part in hundreds of hours of discussion and debate on the topic by officials; who has shared in much of the academic consideration of the subject; who has drafted a score of Cabinet submissions on the subject for consideration by Ministers; who has worked closely with three Attorneys-General on the matter; who has both formally and informally canvassed a wide range of issues with members of a Senate Committee, and who has spent long hours with one of our best parliamentary counsel in the business of translating concepts into legislation which, it is hoped, is reasonably workable.

Certainty generally is illusion, Holmes once said, and repose is not the destiny of man. Mr Coper vividly illustrates this in relation to the High Court’s exposition of the meaning of “duty of excise” under section 90 of the Constitution, and argues that the Court’s failure to achieve certainty in this area has not been due to a Barwick-led departure from a so-called settled formula, as alleged by some critics, but has rather been the consequence of the inherent limitations of any legalistic approach. Mr Coper then looks to the purposes of section 90 for guidance, but finds a surprising degree of ambiguity surrounding them. The High Court has also referred to the purposes of section 90, but in attempting to achieve certainty without entirely losing sight of those perceived purposes, it has, Mr Coper argues, compromised both objectives. The author concludes by considering how the Court might escape from the present impasse.

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Australia’s second chief justice has generally received a bad press. Perhaps this is due in part to the circumstances of his departure, which did nothing to enhance the prestige of the office. But it may be worthwhile to revisit the decade of his stewardship, for it marks the commencement of a centralist approach to the interpretation of our Constitution. It may also be fruitful to examine the extent to which the justices under his leadership collaborated in preparing their judgments, for that question has a contemporary relevance.

Judges often describe their courts as an arm of government. The very arrangement of the Constitution provides some justification for this claim, and it furthermore guarantees a role to the High Court in the review of administrative action. The discharge of this role manifests another dimension of the governmental role of the courts: what they do by way of review has a direct and sometimes profound effect on the business of politics and the administration of government. This is perceived by the judges, who are often at pains to distinguish their role from that of the executive. It is also understood by the politicians, who often criticise the judges for overstepping the mark. All this is not of course solely or even primarily a consequence of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), but in some respects the Act has thrown into sharper relief the tension between judges and politicians which flows from the exercise of judicial review.

Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM) curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing so, it provided a mysterious qualification: some evidence may lack probative value not because it is unreliable, but because it is ‘simply unconvincing’. The majority illustrated unconvincingness with the example of an unreliable eyewitness identification. Courts and legal scholars criticised the majority judgment for its harmful implications and for its apparent incoherence. From a review of almost 4 years of post-IMM jurisprudence and deeper exploration into one particular case, we find that ‘simply unconvincing’ has accentuated the confusion and inconsistency in Australian evidence jurisprudence.