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 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.

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.

To say that managers should be accountable to the market only begins the analysis. The problematic downside to this glib norm is that a volatile market can be a fickle master who may regularly override the superior judgment of his manager-servant. Thus, the central question from a public law perspective is how much accountability is too much.

John C Coffee, Jr

The last two decades of corporate law scholarship in the United States have been marked by the ascendancy of law-and-economics research, the centrepiece of which is the contractarian theory of the corporation and the corporate law. Contractarians seek to explain the corporation as the focal point for a process of contracting between various constituencies. Contractarians explain corporate law as a corpus of “default rules” which fills gaps where these contracts are less than fully specified, but which can be excluded by the parties.

In October 1994, the High Court decided two cases, Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd both of which are of considerable constitutional importance to the States in terms of the reach of Commonwealth implied rights and the recognition of State implied rights. Theophanous establishes a constitutional defence to a defamation action based upon the implied freedom of political discussion previously derived from the Commonwealth Constitution in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth. In Stephens, this defence was applied in the context of an entirely State matter.

One is not often called upon to review for a law journal a book which is not written either by a lawyer or specifically for a lawyer. Mr Stanley Brogden's Australia's Two-Airline Policy is such a book and its paper jacket states that the book is of particular interest for students of economics, public administration, business administration, political science and for general readers and libraries. Since, however, the Melbourne University Press is noted for its publication of serious and scholarly works, and further, because the two-airline policy cannot properly be understood without an adequate grasp of the legal and constitutional framework in which it operates, it seems quite proper to make an assessment of Mr Brogden's work. Mr Brogden is a very experienced aviation writer as the book will quickly demonstrate. It is the purpose of this review not only to assess the book on its merits but also to supplement the account of the two-airline policy by a closer examination of legal issues and some observations on the future implications of the policy.

As Barrett's case1long ago demonstrated, a provision in a Commonwealth Act may perform the “double function” of conferring both a jurisdiction upon a court to grant a remedy, and a “substantive statutory right or duty” upon a litigant by means of “providing that in certain circumstances a person may take proceedings in a particular court to obtain a specified remedy”. The difficulty is in divining when the Parliamentary Counsel has intended that this double function be performed. Under s 76(ii) of the Constitution, Parliament may confer jurisdiction upon a federal court in “any matter arising under any laws made by the Parliament” (emphasis added). How is one to tell if “Parliament has been too sparing in the exercise of its powers and has made only a bare grant of jurisdiction without enacting a substantive law to which the exercise of jurisdiction is referable”?

The battles over official secrecy have to be fought on many different fronts. In the United Kingdom—whose ministers and public servants allegedly have a “passion for secrecy”—this was more than usually evident during 1967. Two pieces of legislation—namely, the Parliamentary Commissioner Act, 1967 (U.K.) and the Public Records Act, 1967 (Eng.)—represented a modest triumph for those who would wish to see more light shed upon the affairs of the nation. Elsewhere the picture was rather more familiar. The Security Commission recommended a further tightening of documentary security in the Cabinet Office; this followed upon the conviction under the Official Secrets Acts, 1911 to 1939 (U.K.) of a young typist in the Cabinet Office, “the first known occasion on which classified papers have been extracted from” this inner sanctum of government.

McGinty v Western Australia is a significant indicator of present and prospective attitudes of the High Court to major issues of representative democracy, such as electoral representation and equality. In affirming by a majority that substantial numerical voter inequality in Western Australian state electorates did not infringe a concept of representative democracy in either the Commonwealth or the Western Australian constitutions, the court went beyond a refusal to overturn AG (Cth); Ex Rel McKinlay v Commonwealth of more than twenty years earlier.

In McKinlay, a voter had sought a declaration that s 19 of the Commonwealth Electoral Act 1918 (Cth), which permitted a variation of 10 per cent of the number of electors above or below the quota for a state's seats in the House of Representatives, was invalid on the grounds that it offended the first paragraph of s 24 of the Commonwealth Constitution. The High Courts held that s 24 did not require that the number of people or the number of electors in electoral divisions be equal. In other words, it was found that the Commonwealth Constitution did not mandate a principle of one vote, one value.

This article critically examines the approach adopted by the courts to causation in securities and financial product disclosure cases, where a plaintiff alleges loss as a result of defective disclosure by a product issuer. The article argues that the reliance approach should be rejected as the sole approach to causation in securities and financial product disclosure cases. The article gives two principal arguments in support of this claim. Firstly, the reliance approach, by insisting that causation may only be established by proving reliance on the disclosure document, implicitly assumes a ‘rational choice’ approach to investor decision-making which, as demonstrated by a significant body of behavioural research, does not accurately reflect the reality of investor decision-making. Secondly, the reliance approach sits at odds with other developments in securities cases and misleading and deceptive conduct jurisprudence. I argue that the courts should recognise that causation may potentially be demonstrated in a variety of ways other than reliance on the disclosure document, including reliance on sources such as communications from financial advisers, newspapers, online sources, briefings, investor roadshows, social media and other marketing practices.

This paper will examine the principles governing standing to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and administrative review under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), with particular emphasis on standing problems in actions brought by individuals and organizations seeking to raise broad or non-traditional claims of public interest.

Even though the tests for standing under the ADJR Act and the AAT Act are formulated in different terms than the common law rules and were specifically drafted to broaden restrictive common law requirements, a review of decisions by the Federal Court and the Administrative Appeals Tribunal (AAT) shows that each has often limited itself to familiar common law concepts of standing, without clearly exploring whether such limits and the doctrines or policies which support them are appropriate to the form of review being exercised.

This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.

In Singh v Commonwealth (‘Singh’), the High Court was presented with the question whether a person born in Australia can be considered an ‘alien’ for the purpose of s 51(xix) of the Constitution (‘naturalization and aliens’). In a 5:2 decision the Court rejected the plaintiff's argument that birth in Australia necessarily accorded her the status of non-alien and thus a constitutional nationality which could not be displaced by legislative reliance on other heads of power. The decision is important, both for its elucidation of Parliament's scope to regulate Australian citizenship — the subject of a series of important cases over the last two decades involving strong dissents and two reversals in approach — and for its consideration of principles of constitutional interpretation.

Our comprehension of the legal means and methods by which military forces are employed, controlled and — where considered necessary — immunised, is incomplete. Some questions are — in a jurisprudential sense — well settled, or at least evolving along a logical, comprehensible, and generally linear course. Thus the scope of the defence power under the Australian Constitution has, on the whole, been relatively consistently interpreted over time as an elastic power — expanding in time of large-scale conflict, contracting in time of profound peace, variably waxing and waning between these two poles in situations of uncertainty less than war but short of settled peace. There have certainly been some new developments in understanding the scope of the power — such as the High Court of Australia’s decision in Thomas v Mowbray (relating to the constitutional validity of the federal control order regime). In this case the majority held that components of the defence power are also exercisable through non-military organs such as the police. But on the whole, our understanding of the power has developed along conceptually and chronologically coherent and logical lines. Similarly, there is no question in the Australian context that this evolution has also been more generally coherent in terms of its interaction with related constitutional questions. Thus Thomas v Mowbray is, in many ways, a belated cross-referral allowing police and intelligence agencies to access authority under the defence power. This merely reflects and accompanies the long established principle that the military forces can likewise be used for law enforcement purposes — as confirmed in Li Chia Hsing v Rankin. It is perhaps justified to say that were we to apply a jus ad bellum / jus in bello approach (law of armed conflict based and thus formally inapplicable, but nevertheless useful) to the problem, the jus ad bellum issues — the when and why of use of military forces in law enforcement operations — are relatively settled, or at least evolving coherently and consistently with their history and precedent.

This article will examine the divergence between law and practice in criminal investigation by police and consider the degree to which it may contribute to an imbalance between the interests of the individual and the public interest in the efficient detection and investigation of crime. It will be argued that the imprecision of the existing law and the failure by the legislature to accord new, tightlydefined, specific-purpose powers to the police have made a major contribution to the pressure on police to misuse existing (and often more intrusive) powers or to exercise de facto powers not authorised by law. It is contended that this pressure often arises from a desire by police to find a more practical means of attaining agreed community objectives than that provided by the artificial standards of the existing law. A strong case can therefore be advanced in favour of refurbishing police powers to accord (more closely) with present conditions, while at the same time strengthening the safeguards cast around those powers. This article will argue that case.

This article considers the YouMeUnity Report proposal for the inclusion of new language provisions in the Australian Constitution as part of a package of reforms for the constitutional recognition of Aboriginal and Torres Strait Islander people. The article outlines the important symbolic and substantive effects of recognising language rights in the Constitution. The article explains how the recognition of a national language and the recognition of minority languages are conceptually distinct — promoting a national language is aimed at promoting national unity and enhancing the political and economic participation of individuals in the state, whereas protecting minority languages is aimed at recognising linguistic diversity, enriching the cultural life of the State, maintaining connections with other nations, and recognising language choice as a basic human right. The article argues that there is a strong case for minority language recognition, and in particular, the recognition of Aboriginal and Torres Strait Islander languages, in the Australian Constitution, but warns against the recognition of English as the national language.

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.

In resolving disputes, the High Court of Australia sometimes has cause to expound upon the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. This article examines overblown and disingenuous New Right criticism directed towards the High Court in the aftermath of judgments deemed favourable to Indigenous Australians. It finds two themes recur in these attacks: that the High Court’s decision is undemocratic, or that the High Court has acted illegitimately. This article demonstrates that such claims are legally baseless. Drawing on quotes from major players in this debate, the article argues further that beneath this criticism lies a deeper angst over the sovereign foundations of Australia; an anxiety that reappears in arguments against contemporary calls for constitutional reform. As Australia nonetheless inches closer towards constitutional recognition of Aboriginal and Torres Strait Islander peoples, the ferocity of New Right censure suggests that the movement may fear the Australian people do not share their same suspicions.