Constitutional jurisprudence in the United States and Australia is said to be separated by two factors: an entrenched Bill of Rights and the doctrine of parliamentary supremacy. Views of this distinction have been expressed by a succession of High Court Chief Justices.

It seems generally admitted that the term ‘police power’ was first used in 1827 by Marshall C.J. in Brown v. Maryland. However the concept which underlay this term was not new. References to ‘regulations of internal police’, ‘matters of police’ etc. are found in the writings of such eminent eighteenth century authors as Montesquieu, Blackstone, and Vattel. These terms found an early use in newly independent America.

Recent assertions by the Australian States of a right to participate in the foreign policy process, in particular by the conclusion of international agreements and by the establishment of relations with foreign governments, are examined in the light of constitutional and international law. Some reference is made to Canadian and United States precedents.

The author concludes that the Federal Government has, to a large extent, an exclusive executive and legislative competence in matters of foreign relations. However, the States also have certain legitimate concerns and aspirations in such matters. The way in which these State interests can be met, while maintaining a unified Australian voice, is discussed, with particular reference to the new arrangements for co-operation between the Commonwealth and the States in treaty-making, agreed to at the Premiers’ Conference in 1977. The way in which the Commonwealth uses its constitutional powers, as well as the responsibility which the States show in the exercise of their powers in relation to treaty implementation, is likely to determine the course of future constitutional development in this area.

Constitutional systems of Westminster heritage are increasingly moving towards fixed-term parliaments to, amongst other things, prevent the Premier or Prime Minister opportunistically calling a ‘snap election’. Amongst the Australian states, qualified fixed-term parliaments currently exist in New South Wales, South Australia and Victoria. Queensland, Tasmania and Western Australia have also deliberated over whether to establish similar fixed-term parliaments. However, manner and form provisions in those states' constitutions entrench the Parliament's duration, Governor's Office and dissolution power. In Western Australia and Queensland, unlike Tasmania, such provisions are doubly entrenched. This article considers whether these entrenching provisions present legal obstacles to constitutional amendments establishing fixed-term parliaments in those two states. This involves examining whether laws fixing parliamentary terms fall within section 6 of the Australia Acts 1986 (Cth) & (UK). The article concludes by examining recent amendments to the Electoral Act 1907 (WA) designed to enable fixed election dates in Western Australia without requiring a successful referendum.

The Great Barrier Reef is a vast area of enormous biological, including human, importance. In recent years the significance of the Great Barrier Reef has been growing because of the increased interest in global climate change and the role of the reef as a potential predictor of the impact of climate change, especially upon the marine environment. The Great Barrier Reef has also legally been important because of its status as a marine park and World Heritage site. To that end, the Great Barrier Reef has specifically been regulated by the Great Barrier Reef Marine Park Authority (‘GBRMPA‘) in accordance with the Great Barrier Reef Marine Park Act 1975 (Cth). Those parts of the reef within the Great Barrier Reef Marine Park (‘Marine Park’) have particular protections under the Act and activities within those parts ordinarily require permission from GBRMPA. Activities authorised by GBRMPA are exempt from the environmental assessment provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), the Commonwealth’s principal environmental legislation.

Public awareness of the consequences of international law for Australians was highlighted during the battle in the 1980s to save the Franklin River in south-west Tasmania. That battle, which eventually resulted in the Commonwealth Parliament relying upon the provisions of the 1972 Convention for the Protection of the World Cultural and Natural Heritage to enact the World Heritage Properties Conservation Act 1983 (Cth), was finally resolved when the High Court of Australia in the Tasmanian Dain case upheld the validity of the legislation on the basis of the Constitution, s 51(xxix), the Commonwealth's external affairs power. This decision set off a sequence of events which resulted in subsequent High Court decisions that gave further scope to the external affairs power and which also gave the Hawke ALP government great confidence as to its ability to rely upon conventions and treaties, both bilateral and multilateral, as a source of legislative power.

In Burge v Swarbrick, the High Court of Australia delivered an important decision on the most elusive of works protected by copyright: the work of artistic craftsmanship ('WAC’). Drawing on the history and reasons for that protection, and adopting the analysis of Lord Simon in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd, the Court affirmed the orthodox view that such works have ‘special status’ in law on account of their ‘real artistic quality'. In its judgment, whether a work has that quality depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently ‘unconstrained by functional considerations'.

In the discussion below I consider that view, and other aspects of the Court's decision. I suggest the requirement for artistic quality is simply a requirement for a WAC ‘not imaginary, unreal or apparent only'. Further, the properties of this type of work are better conceived in historical terms than the formal aesthetic terms of the Court. On this view, whether an object is a WAC depends on both its properties of form and the history of its individual production, meaning the (subjective) intent of its individual author and view of society with respect to its nature.

In Britain the Attorney-General is free from Cabinet control in deciding whether or not to initiate prosecutions or to terminate criminal proceedings. This article discusses the question whether the British rule applies in Australia. It examines the Mercantile Bank case (Victoria, 1893), the termination by federal authorities of the proceedings against John Brown in 1929, and evidence provided by federal Cabinet minutes before 1946. It seems that the British rule was not established in Australia before World War II. If Australian Attorneys-General are now regarded as exercising an independent authority, this is probably a case of importing a British convention after it had evolved in the United Kingdom. When the federal Attorney-General, Mr Ellicott, resigned in 1977, both he and the Prime Minister stated that Cabinet should not interfere with decisions to start or discontinue criminal proceedings. It would, however, be premature to regard this as a firmly established convention and it is clear that there were grave differences between Mr Ellicott and his colleagues as to some practical implications of the rule.

There is a well-known obscurity in the law relating to Commonwealth immunity from State legislative power. It is that whereas the High Court has laid down in clear terms that the Commonwealth is not subject to State legislative power at all, it has at the same time said that the Commonwealth may be “affected by” State laws but has not explained what is meant by “affected by”.

There is also a less well-known obscurity in the law relating to State taxation of Common\vealth public servants. The High Court has held that general State tax laws apply to Commonwealth public servants in the same way as to other subjects of the State, unless the Commonwealth enacts legislation exempting the payments which it makes to its public servants by way of salary or pension from State taxation. The obscurity is that a Commonwealth law prescribing salaries for its own public servants appears to be an exercise of exclusive legislative power; that a law exempting such salaries from State taxation appears to be incidental to that power, and therefore itself an exercise of exclusive power; but that if this is so, the State tax law also, in its application to Commonwealth salaries, appears to be an exercise of Commonwealth exclusive power and therefore invalid in the first place.

Economic and technological developments suggest that the Commonwealth will again be pressed to consider the enactment of a scheme to guarantee universally either a minimum income or a job opportunity. In this article, Mr Arup examines the debate over the efficacy of the two guarantees, concentrating upon their structural problems and operational difficulties as these result from doubts about constitutional power. He concludes that support for either guarantee lies in a combination of heads of constitutional power.

In a federal system there is a constant need to resolve problems created by conflicting provisions of laws enacted by. the federal legislature and those enacted by a state or provincial legislature. In the case of a unitary system it is merely the question of a later statute conflicting with an earlier statute enacted by the same legislature, and in such an instance, the conflict is resolved by regarding the earlier law as having been impliedly repealed by the later law.

In the Australian federal system the conflict is resolved by resorting to the express provisions of s 109 of the Commonwealth Constitution, which reads as follows:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

It could hardly be disputed that the fundamental issue in Australian constitutional law and theory is federalism. Federalism is the keystone of the Australian constitutional system, and is the battleground over which most of the great conflicts in Australian constitutional law have been fought. Nor could it plausibly be denied that the absolute basis of Australian federalism is the continued existence of the States. What makes Australia ‘federal’ is the presence of two separate spheres of government, each with its own organs, powers and functions, the Commonwealth and the States. Whatever other features of the Australian constitutional system might safely be dispensed with without endangering the title ‘federal’, there can be little doubt that the abolition of the States would involve the termination of federalism within Australia.

The present article, then, is concerned with an issue which goes to the heart of Australian federalism — the abolition of the States which collectively go to make up the federation itself.

The inclusion in legislation of a discretionary power to be exercised by a member of the bureaucracy is nowadays commonplace. Such a discretion is usually open-ended and the basis on which it is to be exercised is spelled out in only the most general terms. To enable the discretionary power to be exercised consistently and in accordance with the intentions of the government, it is customary to find a policy being adopted relating to the manner of exercise of the discretion. This article is concerned with the attitude adopted by courts and tribunals when reviewing governmental action based on a policy relating to a discretion. It will be seen that the courts have moderated an original approach that disapproved of the reliance by decision-makers on policy rulings. Tribunals, on the other hand, and the Administrative Appeals Tribunal in particular, will be shown to have rejected constraints that may have been thought to have been placed upon them by governmental policy statements.

There is agreement that the tax law is very complex and needs improvement. At that level of generality it is not easy to attract an argument. However once one cuts below that layer of broad agreement there has not been the same level of understanding or concord on what can be done to put things right.It is good to see positive signs that these issues deserve serious public debate so that we can reach common ground on what is achievable by the Tax Law Improvement Project.

It is clear that tribunals are a permanent feature of the administrative law landscape. The concept of merit review of administrative decisions by bodies other than courts has survived initial resistance from the executive, distrust by the courts, the managerialist pressures of the 1980s, and the downsizing, outsourcing movements of the 1990s. As Pearce commented, the recommendation in the Better Decisions report in 1995—the most comprehensive examination of the Commonwealth's merit review system since the 1970s—that merits review tribunals should be retained, albeit in a more integrated structure, is evidence of that acceptance. The Coalition Government, not without some struggle, broadly accepted that recommendation and the results, in the Administrative Review Tribunal Bill 2000 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 (ART (CTP) Bill) attest to that response. Such a development shows how far we have come in twenty five years. In the States and Territories, there has been the same process of slow acceptance followed by expanded use of tribunals, many of them dealing with work previously done by courts.

What has led to this position? Tribunals have certain characteristics, which often given them advantages over the courts. As the Franks Committee in the United Kingdom noted in the 1950s, these include ‘cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject’.

This article explores the significance of the Kenya National Human Rights Commission (‘KNCHR’) and the National Gender and Equality Commission (‘NGEC’), as independent ‘fourth branch’ institutions protecting democracy (‘IPDs’) in Kenya, in promoting and protecting human rights, democracy and addressing poverty and economic inequality. It provides a conceptual background for the establishment of the two Commissions and evaluates their functions and effectiveness compared to civil society organisations with similar roles. It then examines the unique role of the Commissions in addressing poverty and economic inequality and their accomplishments in upholding the rule of law, democratic ideals and human rights in Kenya. The article also analyses the challenges faced by the Commissions in achieving their goals and the opportunities arising from their emergence as fourth branch IPDs. Finally, it concludes that the constitutional entrenchment of the KNCHR and NGEC provides them with credibility, legitimacy and freedom to carry out their work effectively. However, resource constraints and dependence on political goodwill may hinder their effectiveness in translating human rights, particularly socio-economic rights, into reality. Despite these challenges, the Commissions’ oversight, investigation and complaint handling roles are critical in preventing and addressing poverty and economic inequality through data-driven transformation and collaborative efforts.

Australia acceded to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) on 21 January 1954 and acceded to the 1967 Protocol relating to the Status of Refugees (the Refugee Protocol) on 13 December 1973. The prohibition on refoulement is the key provision of the Refugee Convention. Article 33(1) provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(2) provides that the benefit of article 33(1) cannot be invoked by a refugee “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

Employment relations are well understood. Business format franchising is a newer and rapidly evolving business expansion formula, also providing employment. This article compares the fates of employees and franchisees in their employer/franchisor insolvency. Whereas employees enjoy protection, franchisees continue to operate in conditions that have been described as Feudal. We identify the inherence of moral hazard, path dependency and optimism bias as reasons for the failure of policies and corporations laws, globally, to adapt to the franchise relationship. This failure comes into sharp focus during a franchisor’s insolvency. We demonstrate that the models of participation available to employees in the United States, Australia and the United Kingdom could be used to inform a re-balancing of the franchisees’ relationship with administrators and liquidators during the insolvency of their franchisor, providing franchisees with rights and restoring their dignity.