When s 15AB of the Acts Interpretation Act 1901 (Cth) was enacted over 30 years ago, its purpose was to establish clear and particular rules about when extrinsic materials could be used in the interpretation of Commonwealth legislation. Accordingly, s 15AB stipulates three threshold tests, at least one of which must be satisfied before extrinsic materials can be considered as an aid to interpretation. However, developments in the common law since that enactment have largely overtaken the utility and effect of s 15AB (and its State equivalents). In particular, the development of the ‘contextual’ approach to statutory interpretation has meant that the common law now permits recourse to extrinsic materials, including parliamentary ones, without the need to pass any gateway test. Consequently, the important emerging issue is, not when such materials can be considered, but how they may be used. This article, using recent High Court cases, examines some of the key threads that have emerged about the ‘appropriate use’ of parliamentary materials, particularly with respect to identifying the purpose of the statute and as against the weight of the statutory text.

A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold and the public interest defence. Both are targeted at narrowing the tort and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort nor abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.

National responsible lending regimes have operated in Australia since 2009, with the stated aims to encourage prudent lending, curtail undesirable market practices, and impose sanctions for irresponsible lending and leasing. This article outlines a study of the supervision of the responsible lending rules by the Australian Securities and Investments Commission (ASIC) from 2014 to mid-2017. The study finds that the Commission proactively engaged with lenders, encouraged tighter lending standards, and sought or imposed severe penalties for egregious conduct. Further, the Commission strategically targeted credit products commonly acknowledged as the riskiest or most material from a borrower's perspective, such as small amount credit contracts, interest only home loans, and car loans. Despite these positive findings, however, many households are heavily indebted and large segments of the community and the nation are highly susceptible to future harm. In this environment, we question the timeliness and sufficiency of the Commission's interventions and responses, and predict further litigation that tests the boundaries of the responsible lending rules. Moving forward, we call for more systematic supervision of responsible lending risks, practices and exposures and propose modest reforms that require lenders to better inform and engage with consumers about the risks of elevated levels of debt.

The Australian Civil Space Industry is poised at a crucial moment in its history. Careful strategic decisions need to be made regarding whether Australia will continue to take a back seat in the space race or whether it will join the growing space technology industry, providing major opportunities for Australian innovators. This cannot occur if the current legal and regulatory frameworks do not facilitate research activities and investment. The Australian Government is currently reviewing the Space Activities Act 1998 (Cth) and the Space Activities Regulations 2001 (Cth). This article will consider the unique role played by the Woomera Prohibited Area in the development and testing of launch technology and undertake an assessment of whether the Woomera Range (and by extension Australia) may once again play an important role in the research, development and testing of space technology. The article will place the legal restrictions regarding access to and use of the Woomera Range within the context of the proposed revision of the Australian legislation regulating civil space activities.

It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission as authority. In that case, the High Court of Australia indicated that Australia's strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference – deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.

As Australia's population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the states and territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law.

This article challenges the effectiveness of state and territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of state and territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.

One of Aesop's fables tells the story of a war between the Birds and the Beasts, and the problems which this posed for the Bat. Whilst sharing characteristics in common with each set of protagonists, the Bat nevertheless did not belong to either side. Unfortunately this subtlety was not noticed by the warring parties'who each dismissed the Bat as an enemy. This image of the Bat's difficult position captures what I am attempting to do in this article. I examine the debate (“war” is too strong a word for it) between the two dominant justificatory theories of corporate governance and regulation in Australian corporate jurisprudence—the concession theory and the contract-based theories. I argue that although this debate has offered some important insights, ultimately it has proved to be either too simplistic (offering one-dimensional pictures of corporate life) or too restrictive (limiting our conception of how corporate governance and regulation might be improved). I sketch out an alternative justificatory theory which I call “corporate constitutionalism”.

The rule of law is fundamental to our society. Certainty about what the law is, is important to the rule of law.

Those whose activities may be affected both by Commonwealth laws and by State laws need certainty about whether the Commonwealth law overrides, or is subject to, State law. Those who administer Commonwealth law or State law need certainty about the relationship between the two. To participate in law-making on an informed basis, law-makers need certainty about what will be the legal effect of legislation which they enact.

Tribunals and specialised courts with inquisitorial powers are now fairly common in Australia and appellate courts have begun to insist that in certain circumstances the powers be used. By “inquisitorial powers” is meant powers which enable the adjudicator to take the initiative in eliciting evidence and formulating legal arguments, and to control the way in which a case is presented. The Australian Committee on Administrative Discretions believed that it would be appropriate for their proposed administrative review tribunal to make use of an “investigative or inquisitorial process in most cases”. There have even been calls for the use of some inquisitorial procedures in ordinary courts of law. A radical change in the ordinary courts seems at present to be impracticable. On the other hand the Administrative Appeals Tribunal is still in a position to set its own pattern of development. It has been given almost carte blanche as to procedure and some wide inquisitorial powers. For the last six years it has been experimenting with the use of these powers, and some of its pre-trial procedures have already aroused interest. The Federal Court in its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is given power to exert far greater control over the conduct of proceedings than is normal in an adversary system.

Sir Victor examines the basic problems being encountered in the development of the international law of the seabed. An historical analysis reveals that the definitions used to effect the current allocation of rights in the seabed are not based on irresistible logical extensions of the concept of territorial sovereignty. On the contrary, legal definitions such as the definition of “continental shelf” represent and facilitate the political reality of competitive nationalism. Sir Victor then considers the constitutional relationship of the States and the Commonwealth in regard to the seabed. He argues that, historically, the States have no claim to sovereignty over their adjacent territorial seas as the colonies never exercised dominium there. The territorial seas remained in British Imperial jurisdiction until federation, when the Commonwealth acquired sovereignty over them as an attribute of nationhood.