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.

The ability of ministers to exercise de facto control over statutory corporations presents a significant governance problem for the Australian public sector. Parliaments have attempted to define the degree of autonomy granted to the statutory corporation by regulating the flow of communication between ministers and boards. Reporting requirements are one legal technique. Another is the use of legislative provisions which grant the minister formal powers of direction over the corporation and which impose upon its directors obligations to disclose corporate information to the minister. These provisions vary widely in their language; and their meaning is often a source of concern for corporate office holders and third parties dealing with the corporation. Statutory powers of direction raise fundamental questions of institutional design: how closely ought statutory corporations be controlled by the Executive? And in what manner ought the Executive be accountable to Parliament for its activities?

Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.

In this article, Mr Justice Kirby surveys two major issues which are before the Australian Law Reform Commission in its Reference to reform defamation laws. First, he suggests that any reform requires revision of procedures to deliver remedies that are apt for damage to reputation. Unless the judicial system can produce speedier redress and more relevant remedies, it is suggested that administrative or other regulation will replace court procedures. Secondly, the article explores the problems arising in the age of mass communications from Australia's eight different systems of defamation law. After weighing the arguments for and against a uniform code, it is suggested that the present disparity promotes confusion, uncertainty, self-censorship and forum shopping. Four methods of achieving a uniform code are explored. These include a return to the common law, reference of power to the Commonwealth by the States, an attempt to secure agreement with the States on uniform laws and the use of a number of Commonwealth powers to support a national Act. As the vehicle chosen will affect the law proposed, it is suggested that the choice can not be delayed.

Mr Partlett is concerned to review the theoretical and practical place of government programs which positively discriminate in favour of groups on racial lines. He reviews the justification of this benign discrimination in relation to the notion of equality. He finds that the justification of benign discrimination depends upon its social realities. With reference to recent United States constitutional law developments he concludes that programs of benign discrimination must be closely justified to ensure that they do not trespass on certain fundamental rights and freedoms of the individual.

Australian government initiatives are then reviewed together with an appraisal of their legal standing under the various pieces of anti-discrimination legislation in Australia.

The author attempts to synthesise out of this discussion a strategy under which benign programs may be encouraged for the promotion of equality for aborigines, while at the same time the individual human rights of others are protected.

The Australian Taxation Office (“ATO”) currently employs in excess of 18,000 staff engaged in collecting all the main taxes and charges imposed by Parliament (except customs, excise duties and departure taxes). For the year ended 30 June 1990, the ATO collected $75.96 billion in Commonwealth revenue. Through its National Office, sixteen Branch Offices and eighteen Regional Offices, the ATO received over 11 million income tax returns, issued over 8 million tax assessments, conducted over 25,000 audits and answered over 4 million taxpayer enquiries and requests for advisings during that year. These figures show that the work of the ATO is very much a matter of mass decision making.

It is not surprising, therefore, that the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) has had an effect on taxation administration. However, the perspective of the ATO is that the ADJR Act has had a substantial impact on some areas of that administration and little or no impact on others.

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.

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.

Though at times inconvenient for lawyers and their clients, the use by the Commonwealth of delegated legislation to fill lacunae in statutes is hardly remarkable, and the constitutional validity of provisions authorising that use even less a matter of controversy. Nonetheless, there may be reason to doubt whether the same can so readily be said of the inclusion in Commonwealth statutes of so-called ‘Henry VIII’ clauses – that is, statutory provisions purporting to authorise the promulgation of subordinate legislation that either amends or is inconsistent with the relevant principal statute. In particular, one might ask to what extent such provisions may, regardless of their width, be accommodated within the distribution of power contemplated by the text and structure of the Constitution.

The task of answering this question requires, as a first step, that fresh consideration be given to the limits, if any, upon Parliament’s ability to confer on other institutions some part of the legislative power of the Commonwealth.

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.

The possibility that an Australian State might one day seek to unilaterally secede from the Commonwealth has always held an ambiguous position in the political and constitutional folklore of Australia. On the one hand, such a notion conjures up visions of rampant political idiosyncrasy so ludicrous as to provoke little more than amused disbelief. On the other, even to pose the conceptual question of the disintegration of the painstakingly constructed and laboriously maintained Australian federal structure is to raise an issue almost too distasteful to contemplate. The status of secession as both a political and constitutional topic has thus essentially been that of a joke, but of a joke which, when fully considered, might be regarded as being in thoroughly bad taste.

Imagine a Westminster common law jurisdiction without a bill of rights. As things stand at present, all important social policy decisions in this jurisdiction, including decisions about how rights are to be balanced against one another and against overall community welfare claims, rest with the elected legislature and executive. Not everyone in this jurisdiction is happy with this arrangement, however. There are some politicians who are not averse to joining the world-wide trend by adopting some sort of bill of rights. A handful of them in fact, mostly from the main left of centre political party, are positively keen on the idea. They see the post-Second World War Americanisation of constitutional law, with its emphasis on formalising the role and place of human rights in a legal instrument the judges oversee, as an unambiguously good thing. They would like an entrenched, justiciable model.

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.

Mr Bayne in addressing the topic of the exemptions under the Freedom of Information Act 1982 (“FOI Act“) has concentrated his analysis on and dealt at some length with, the provisions of Part IV - Exempt Documents.

To achieve a balanced understanding of the role and significance of the exemptions I believe one needs in addition to see how the FOI Act fits into the broader context of arrangements for access to official information.

There are other qualifications and limits set on the application of the “legally enforceable right” in s II which might also be considered usefully in the context of exemptions.

It is in addition important as Mr Bayne has indicated in dealing with, for example, s 36 to take account of the requirements of ss 8 and 9 of the FOI Act if the application of Part IV is to be seen in proper context.

I propose therefore to address these matters before commenting on selected issues raised by Mr Bayne with respect to particular exemptions in Part IV.

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.

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.

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”?