The duty to observe the requirements of procedural fairness is well settled in Australian administrative law. So too is the variable content of that duty and the possibility that it may be limited or excluded by legislation expressed in suitably clear terms. One key aspect of fairness that is not yet clear is its purpose. Why do courts require those who exercise public or official power to act fairly? The question cannot be fully answered by reliance on legislative intent or reference to the common law because recourse to one or both of these possible sources of the duty to act fairly does not necessarily answer why that duty is drawn from the common law or implied as part of statutory interpretation. This article examines recent steps by courts and commentators that suggest an exploration of the purpose of fairness may be beginning to occur.

This article considers the different ways in which judicial decisions use and narrate history. It distinguishes between several forms of judicial recourse to history, including the difference between decisions which refer to general history and decisions that refer to the history of legal documents; and the difference between decisions on factual controversies that have historical significance and decisions that take judicial notice of history. At the same time, this article recognises that the division between these categories is not clear-cut. An analysis of constitutional case law sheds light on the ways in which courts harness historical events in order to justify their normative choices. More specifically, while some judicial decisions cite history in order to justify continuity with the past, others regard history as a cautionary tale that calls for a change of direction. In between, some decisions opt for a middle route, supporting continuity with historical decisions but offering new interpretations of their lessons. This article concludes by examining decisions that try to ‘learn’ from history, illuminating the enduring challenge in drawing different and even conflicting lessons from the very same historical event.

The High Court's tentative moves toward adopting structured proportionality as a method of constitutional review have been hampered by concerns about the separation of powers. This article argues that the manner in which a court undertakes proportionality analysis is crucial to the question of whether it is acting within the domain of judicial power. In this regard, the concept of judicial deference plays a vital but thus far under-theorised role. Deference refers not to judicial submission or surrender to the legislature, which would abdicate judicial power to a non-judicial body. Rather, it refers to a court giving weight to the judgment or opinion of government in circumstances of normative or empirical uncertainty. Courts afford deference in this way for two reasons: the desirability of respecting decisions made by democratically legitimate decision-makers, and the practical advantages that inhere in relying on the institutional competence and expertise of the other branches of government. An increased understanding of these rationales for deference in the context of constitutional review would diminish concerns about the High Court straying outside the domain of judicial power. Proportionality and deference exist in a symbiotic relationship and should be addressed together by a coherent judicial theory; many of the concerns raised by the High Court about the former would diminish were it also to embrace the latter.

Recently, the High Court of Australia has again concerned itself with the need for the common law to conform to the Constitution and with the manner in which, and extent to which, such conformity is ensured. In the 1990s, the Court considered the effect of the Constitution's guarantee of freedom of speech on defamation law and reached at length, in Lange v Australian Broadcasting Corporation, a common position on the influence of the Constitution on the common law which enjoys the support of the whole Court. The consensus thus reached has now been applied in John Pfeiffer v Rogerson to the area of choice-of-law in tort.

Choice of law is another area in which, during the Court's fin de siécle period in the late 1980s and 1990s, there was considerable disagreement among members of the Court. The well-known succession of cases started with Breavington v Godleman in 1988. Some members of the Court held that the applicable choice-of-law doctrine in intra-national cases was mandated by the terms of the Constitution and to be found by applying a command allegedly inherent in s 118 (possibly with the aid of other constitutional provisions).

In most Australian jurisdictions there are limitations on the time within which proceedings for judicial review of governmental acts (or for particular remedies) are to be commenced. Some such limitations are imposed by statute, some by rules of court. In some cases the relevant court of supervisory jurisdiction is authorised to extend the time. But in other cases there is no discretion to extend the time.

This article examines the justifications which have been offered for imposition by legislation of limits on the time within which applications for judicial review are to be made. It surveys Australian legislation on the subject and examines the legal effects of such legislation. The article also considers reasons why it may be thought desirable to give courts authority to extend prescribed time limits and the associated question of whether exercise of that authority should be regulated by legislative standards. The article also examines the factors which the Federal Court has considered relevant in the exercise of its discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act‘), a section which is substantially reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).

Constitutional law — Australian Security Intelligence Organization — Executive power in relation to collection of information in the interests of security — Constitutional law — Constitution s. 116 — No religious test shall be required as a qualification for any office or public trust under the Commonwealth

The growth of the ‘gig economy’ has prompted debate about the regulation of arrangements to obtain work and income through digital labour platforms. For platform workers who are classified as freelancers or independent contractors, rather than as employees, one possibility is to invoke general laws on the fairness of contractual terms to challenge the inclusion of harsh or one-sided provisions in the contracts of adhesion typically drafted and imposed by digital platforms. To test the potential application of one such regime, in pt 2-3 of the Australian Consumer Law (‘ACL’), we systematically analyse the terms and conditions used by various platforms intermediating work performed in Australia, within and across different industry sectors. Our analysis uncovers many examples of terms that are designated in s 25 of the ACL as potentially unfair or that have been identified as potentially problematic by the Australian Competition and Consumer Commission (‘ACCC’). We also examine the practical difficulties confronting a worker seeking to challenge the fairness of their contract terms, against the background of recent reforms to enhance the efficacy of this regime.

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.

The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback.

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.

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 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first recognition at law of the traditional ownership of land in Australia by Aborigines. It provides means whereby Aborigines claiming to have a traditional land claim to certain types of land in the Northern Territory can demonstrate that ownership to the Aboriginal Land Commissioner. If he finds that there are traditional Aboriginal owners of the land he reports that finding to the Commonwealth Minister for Aboriginal Affairs and may recommend a grant of it to a Land Trust. Sometimes problems in ascertaining which, if any, Aboriginals are the traditional Aboriginal owners of the land claimed arise from the difficulty inherent in expressing the land tenure system of one culture in the language of another. The author illustrates this with examples from one land claim hearing and argues that the use of interpreters is desirable to enable the claimants to put their case clearly and for the Commissioner to understand more fully the intricacies of Aboriginal land tenure systems.

In this article Mr Justice Kirby outlines a number of important legal themes in the career of the former Prime Minister. Several issues were identified by him soon after Mr Whitlam entered Parliament and persisted with in Opposition and Government. Some of them led to important legislative reforms. The abolition of appeals to the Privy Council was achieved in part. The establishment of a new Federal Court, long predicted, has now been achieved. Major reform of family law and the establishment of a special Family Court was pioneered with the support of Mr Whitlam. The expansion of Commonwealth interests in commercial and business law coincided with facultative decisions of the High Court. The achievement of a single corporation law and of national compensation eluded the Whitlam Government but may yet be secured. The identification of the need for a new administrative law is instanced as the most original of Mr Whitlam's law reform preoccupations. The new body of Commonwealth administrative law was initiated during his Administration. This paper is a history not an evaluation. But it identifies a number of themes important for continuing law reform in Australia and illustrates Mr Whitlam's persistence, and in some cases successful action, towards achieving reform of the law.

Members of the executive in Australia and other Westminster nations are traditionally appointed only from the ranks of parliamentarians, ostensibly to protect the principle of responsible government. However, there is a growing international trend in nations such as the United Kingdom for the appointment of ministers from outside of Parliament. This article examines the extent to which Australia's constitutional system can accommodate unelected members of a Commonwealth, State or Territory executive. This question is analysed from the perspective of the principle of responsible government and the text of Australia's various constitutional documents. The article also reviews existing practice in comparative jurisdictions and Australian law and practice in order to determine the form that such appointments might take.

There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized ‘Mason Court revolution’ – the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes – why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.

This article reviews the equity crowdfunding law and practice in Australia. It argues that a light regulatory approach for issuers and investors is required to ensure that crowd-sourced equity funding (CSEF) is attractive enough to both investors and issuers. At the same time, it argues that regulation focused on preventing and detecting fraud is essential for CSEF to be successful. The article therefore recommends that caps on the amount each investor can invest are not desirable and, instead, suggests other means of safeguarding against fraud, like the use of whistleblower programs, investor education and reliable dispute resolution mechanisms, in addition to what the legislation provides.

This article considers the phenomenon of contractually-imposed restraints on political communication. Such restraints often incidentally arise from broad limits on out-of-hours conduct imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds of settlement. It is argued that the implied freedom of political communication has work to do in relation to at least some categories of such restraints. The various objections to that view are examined and it is argued those objections are not compelling. The article analyses the question of how the implied freedom would operate in respect of contracts that impermissibly burden freedom of political communication, and suggests that this may be achieved by developing the common law of contract to accomodate a doctrine similar to the doctrine governing unreasonable restraints of trade.