Australian electoral legislation provides both a regulatory and punitive scheme designed to overcome electoral corruption and malpractice. Much of this legislation has been based on British models. The article commences by detailing the existing British legislation and its merits. Extended consideration is then given to the sections of Australian electoral legislation dealing with the conduct of candidates for election and their supporters. The former British legislation which has been imitated in various Australian jurisdictions is identified and the effectiveness of the present Australian electoral legislation is compared with that presently in force in the United Kingdom. As well, the principal electoral offences and controls on electoral expenditure in each of the States and the Commonwealth are considered at length. The analysis in this regard is complemented by a schedule to the article comparing the existence of, and penalties for, 48 electoral offences under various electoral statutes in Australia and the United Kingdom. Dr Finn concludes the article by arguing for reform in a number of specified areas of Australian electoral legislation.

Through an examination of the relevant authorities, including American and Australian cases, Mr Lindell comments on the justiciability of, and nature of the duty imposed on the legislature by, sections 24 and 29 of the Commonwealth Constitution. The main conclusion is that if the House of Representatives did not conform with the constitutional requirements concerning the number of members to be chosen from each State and electoral redistribution, the House may no longer legally exist. The High Court would naturally be reluctant to reach such a conclusion without first providing the opportunity for defects to be rectified and Mr Lindell suggests that measures could be adopted by the Court which would enforce compliance with the relevant provisions without invalidating previous actions of the Parliament. Mr Lindell also deals with the related issues of locus standi and jurisdiction, concluding than an action could lie in the High Court to enforce compliance with the relevant constitutional and other provisions concerning the composition of the House of Representatives.

The Commonwealth of Australia is 75 years old. Professor Zines, in this Article, looks at the record of judicial review of the Constitution over the past quarter century. He examines those areas (a) that have, during that time, illustrated, or provided the basis for, the development of general principles; (b) that seem to have particular political or social significance; or (c) that help in understanding the role and technique of the High Court.

The nomination in 1930 of an Australian, Sir Isaac Isaacs, as Governor-General of the Commonwealth of Australia has become a minor landmark in the development of Australian independence. Opposed or supported at the time as a measure of the strength of Australia’s links with Britain, the appointment has become, for lawyers and historians alike, a test-case for Australian autonomy and the countervailing cultural and legal force of the imperial connection. The central collision between Australian Prime Minister James Scullin (who nominated Isaacs) and King George V (who resisted strongly) added to the constitutional interest of the appointment but contributed to the long closure to researchers of key parts of the documentary record.

For some, the story is a heroic one. This interpretation has its most vivid expression in the final volume of Manning Clark’s History of Australia. In a chapter entitled ‘An Australian in the Palace of the King–Emperor’, Clark takes Scullin’s meeting with the King in November 1930 as his theme and describes how ‘Jimmy Scullin has not grovelled to the English governing classes … Jimmy Scullin has spoken for the Australia that was coming to be.’ In more measured ways, John Robertson's biography of Scullin and Ross McMullin’s history of the Australian Labor Party both make Scullin almost a lone champion fighting British resistance to Isaacs.

The concept of discrimination has been assuming a greater role in various aspects of constitutional interpretation. It has been prominent for many decades in the area of implied federal restrictions on Commonwealth power to bind the States, which received some revitalisation in the Queensland Electricity Commission v Commonwealth. It has, more recently, become the central core of the operation of s 92 of the Constitution (Cole v Whitfield). It has been given new life and prominence in the application of s 117 of the Constitution in Street v Queensland Bar Association. Four judges in Philip Morris Ltd v Commissioner of Business Franchises (Dawson, Toohey, Gaudron and McHugh JJ) suggested that there were something to be said for the view - earlier supported by Fullagar and Murphy JJ - that the test for an excise duty should be whether a tax discriminated against goods manufactured in the State in which the tax is levied. This, however, must await a complete judicial review of the operation of s 90.

The refusal of the High Court in Cooney v. Ku-ring-gai Municipal Council to follow Attorney-General (ex rei. Lumley) v. T. S. Gill & Son Ply Ltd should be received enthusiastically by public lawyers and others who consider that individuals should be restrained from breaking the law if their activities operate to the disadvantage of members of the public living in the vicinity. The long reign of Attorney-General v. Gill has ended. In Gill’s case in 1927 the Full Court of the Supreme Court of Victoria declined to grant the Victorian Attorney-General an injunction to restrain the defendant from continuing with the erection of a factory on land situated in a residential area contrary to a by-law of the City of Prahran. The Attorney-General had sought the injunction on the relation of Lumley, a ratepayer of the municipality, who alleged he was injuriously affected by the defendant’s acts which, according to the allegation, also amounted to an invasion of the rights of the ratepayers generally and of the public. The municipality had made no attempt to enforce its own by-law although an offence against the by-law could be punished by fines and continuing penalties.

The history of Australian federalism is one of the steady accretion of power to the central institutions of government, in particular the Commonwealth Parliament. The continuing shift from the States to the Commonwealth of effective power to regulate so many aspects of Australia’s economic and social life has, in general, been accepted and encouraged by the justices of the High Court – at least since the critical Engineers’ decision.

This acceptance and encouragement has been most conspicuous on those occasions when the High Court has endorsed the Commonwealth’s adventurous exploration of its legislative powers; when, for example, the Court decided that the defence and taxation powers would allow the Commonwealth to assume an effective monopoly over income taxation, that the overseas trade and commerce power would allow the Commonwealth to discourage sand mining in Queensland, or that the external affairs power would allow the Commonwealth to proscribe acts of racial discrimination inside Australia.

Notwithstanding the inclusion of “Admiralty and maritime jurisdiction” within the constitutional grant of federal judicial power, current Admiralty jurisdiction in Australia is based solely on a nineteenth century Imperial statute, the Colonial Courts of Admiralty Act 1890. That this has remained the case for so long is regrettable, and reflects in part a traditional deference to Imperial control over international shipping (although lately there have been indications of greater legislative assertiveness over maritime matters generally), and in part a reluctance to interfere with the present allocation of jurisdiction among State courts.

A concerted effort is now under way to lay the foundation for the creation of a modern indigenous Admiralty jurisdiction, and with this in mind, the author sets out to examine the nature and extent of the current colonial jurisdiction, its interrelationship with the federal jurisdiction under section 76(iii) of the Constitution, and the desirability of abandoning the rigid nineteenth century base of the former to realise the full twentieth century promise of the latter.

The announcement by the former Attorney-General, Mr. T. E. F. Hughes, at a meeting of Attorneys-General on July 9, 1970 that the Commonwealth Government was investigating the possibility of introducing a system of family courts into Australia and that a senior officer of his Department would visit overseas countries to study the operation of such courts has raised a number of questions as to the possible form that they would be likely to take. Since then, the officer concemed has made his investigation and returned, and there has been a change in the occupancy of the office of Attorney-General. Apart from that slender factual background there can be only speculation. From speculation one turns to a consideration of the legal and constitutional framework within which the Commonwealth's power to manoeuvre is to be found. It is the existence of that framework and the limitations it brings with it that distinguishes Australia's position from that of most overseas countries. That circumstance alone will of necessity influence any action the Commonwealth may be minded to take in the direction of family courts.

While transparent and efficient public sector procurement systems facilitate innumerable opportunities for stakeholders, the scale and scope of the global procurement market has rendered it increasingly vulnerable to corruption. The Organisation for Economic Co-operation and Development estimates that annually US$2 trillion of public funds is lost to corruption, yet governments have failed to respond with robust measures to deter such practice. Through comparing the debarment frameworks and policy goals across five jurisdictions, this article argues that Australia should consider adopting a discretionary debarment regime. By excluding bidders who have engaged in ‘corporate integrity offences’ from procurement contracts, debarment policies offer a potentially important mechanism in the fight against corruption. Debarment would not only protect the government from current threats, but it may also deter potential wrongdoers, encourage contractors to rehabilitate themselves, incapacitate actual offenders and facilitate development of a culture of compliance through the competitive advantage gains enjoyed by law-abiding firms.

It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the Australian Constitution have been interpreted narrowly by the High Court of Australia. However, there has been limited examination of theoretical assumptions or perspectives which may have consciously or unconsciously informed this interpretation. This article argues the High Court has adopted liberal assumptions about the nature of religion and its relationship to the state in the Section 116 cases. These liberal assumptions are a sharp distinction between ‘private’ religious and ‘public’ non-religious exercise, that religious freedom is subject to state determinations of what is required for neutrality between religions, and religious freedom is subject to state determinations of what is required for social order. The article proceeds to consider the implications of these assumptions for Section 116 cases in terms of a narrowing of religious freedom and a broadening of state power, and suggests awareness of these issues may produce a more nuanced approach to Section 116 in the future.

This article begins the process of evaluating the adequacy of the procedural and substantive requirements that Australian communications regulators (and hence industry bodies) must satisfy before co-regulatory codes of practice can be registered. It considers if the procedural requirements relating to consumer and public consultation, included in the statutory frameworks that authorise and govern co-regulation in the media, online and telecommunications sectors, ensure co-regulatory rule-making is sufficiently responsive to the interests of consumers and citizens. Drawing on publicly available information about seven industry bodies that have drafted codes of practice and round table discussions with industry, consumers and regulators, the article highlights that the current engagement practices of industry bodies often fall short of the ‘democratic credentials’ of responsiveness. It suggests that the code registration criteria relating to consumer and public consultation must be overhauled if these weaknesses are to be rectified.

This article addresses a gap in the scholarly literature on the legal regulation of temporary labour migration by tracing the legislative history and regulation of work visas for short stay specialists and occupational trainees. By reason of their acute temporariness, both short stay workers and occupational trainees could be regarded as having a migration status that makes them vulnerable in their work relations. In addition, this vulnerability means they may accept terms and conditions that undercut domestic labour standards. Although the detailed legislative tracing of both visas reveals various attempts to re-regulate both visas in favour of greater scrutiny of employer requests for overseas labour, tightening access requirements and increasing enforcement and monitoring capacity, these have been largely incapable of preventing instances of egregious exploitation. These case studies on two little-known visas mirror the growing concerns around the integrity of Australia’s temporary labour migration program more generally and point to the myriad tensions, challenges and complexities inherent in the regulation of temporary labour migration programs around the globe.

Aspects of an entrenched constitution that were essential parts of founding compromises, and justified as necessary when a constitution was first adopted, may become less justifiable over time. Is this the case with respect to the structure of the United States Senate? The US Senate is hardwired in the Constitution to consist of an equal number of Senators from each state—the smallest of which currently has about 585,000 residents, and the largest of which has about 39.29 million. As this essay explains, over time, as population inequalities among states have grown larger, so too has the disproportionate voting power of smaller-population states in the national Senate. As a result of the ‘one-person, one-vote’ decisions of the 1960s that applied to both houses of state legislatures, each state legislature now is arguably more representative of its state population than the US Congress is of the US population. The ‘democratic deficit’ of the Senate, compared to state legislative bodies, also affects presidential (as compared to gubernatorial) elections. When founding compromises deeply entrenched in a constitution develop harder-to-justify consequences, should constitutional interpretation change responsively? Possible implications of the ‘democratic’ difference between the national and the state legislatures for US federalism doctrine are explored, especially with respect to the ‘pre-emption’ doctrine. Finally, the essay briefly considers the possibilities of federalism for addressing longer term issues of representation, polarisation and sustaining a single nation.

In every freedom on information (FOI) law there is a tension in the opposition between, on the one hand, the expression of a “right” to information accompanied by objects provisions which promote a generous interpretation of this right, and, on the other, the depth and breadth of the grounds for exemption which government is permitted to claim as reasons to resist disclosure of a document.

Dispute between applicants and agencies at the external review stage most often concerns a question (or a number of questions) about whether a document is exempt. The external review body must adjudicate in a manner typical of any application of the law. The body will take a view of the facts, isolate the relevant legal principle or rule (being the relevant exemption provisions), apply that principle or rule to the facts and then decide whether or not the document is exempt. Of course, the process is not so straight-forward as this suggests.