A court's approach to non-parties, such as the amicus curiae and intervener, reflects its perception of its own larger role. The Supreme Courts of Canada and the United States, as well as the Constitutional Court of South Africa, have welcomed submissions from public interest organisations and others and have drafted Rules of Court to allow their participation in cases raising important issues of public policy. The South African Court has even solicited submissions from strangers to the litigation, such as academics, in order to broaden its perspective on a case arid on the consequences of any decision it might reach. The approach of these courts shows how each has embraced the roles of law-maker arid interpreter of an ambiguous constitution.

The High Court of Australia, on the other hand, frequently denies the amicus curiae and intervener any meaningful function. They are riot even mentioned in the Rules of Court. While it is true that the total number of interventions in the Court has increased over the last decade, the door has often been closed.

Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them.

The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers.

This paper asks what the regulatory assessment of the novel processed meat analogue products reveals about the nature of food regulation in Australia. We analyse Food Standards Australia and New Zealand’s (‘FSANZ’) assessment of the recent application by Californian technology company Impossible Foods Inc to sell its proprietary burger products which contain a genetically modified protein that is said to make their burger ‘bleed’. We show that FSANZ’s assessment process has little capacity to engage with broader and longer term, social, ecological and public health implications of novel foods and changing food markets. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as whole and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. Extending the capacity of Australia’s regulatory regime for food to deal with more than the safety of individual ingredients will become more urgent as other novel foods, such as cell-based meats, enter the marketplace.

No two areas of law-in Australia are moving with quite the breathless pace of corporate law and labour law. Changes under the Corporate Law Simplification project promise to be fundamental and far-reaching. And in Australian labour law, the enterprise bargaining regime under the Industrial Relations Reform Act 1993 is charting new waters. Lord Wedderburn has referred to the “unaccustomed proximity” of corporate law and labour law, and indeed, little recognition of the other's significance is evident in the reforms unfolding in each of these vital fields. This article focuses on the relevance of corporate law to labour lawyers. Its message, however, might just as easily be reversed.

The Australian Founding Fathers paid no attention at all to the position of the Australian aboriginal race, and the only two references to aborigines in the Constitution are highly negative in character.They are:

s. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

...

(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

s. 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

A Freedom of Information (FOI) barometer would indicate a significant shift in the prevailing attitudinal responses to access to government held information at the state level in Australia in recent years. The responses would vary between jurisdictions but only in terms of details not substance. What began as a few recitations of concern about delays, application of exemptions and fees has now metamorphosed into a strong phalanx of information commissioners, parliamentary committees, ombudsman and others seeking fundamental reforms. In 1994 Spencer Zifcak argued that the history of FOI in Victoria could be seen as proceeding through three phases - optimism, pessimism, revisionism. The Zifcak typology could be expanded Australia-wide with a fourth stage being added; namely, a return to fundamentals.

In the period up to December 1998 a number of factors had placed state FOI regimes under considerable stress.

The principal focus of this essay is review of administrative decisions taken in the course of co-operation between governments in a federation or in a constitutional system with some federal characteristics.

The nature of the problem is illustrated, albeit in a different context, by a decision of Sir Anthony Mason in Tasmanian Wilderness Society v Fraser. The decision concerned an inter-governmental body, the Australian Loan Council. The Loan Council was established pursuant to the Financial Agreement, authorised by s 105A of the Australian Constitution. Its members were the Prime Minister and the Premiers of each of the States, or their nominees who were often, in practice, their Treasurers. As it then stood, the Financial Agreement provided for approval of the combined borrowing program of all Australian governments by the Loan Council, under weighted majority voting rules that gave the Commonwealth two votes and a casting vote. In practice, the Loan Council had long since assumed the function of approving the aggregate borrowing program for “larger” semi-government authorities as well, under the socalled “Gentlemen's Agreement”.

The Engineers' Case was regarded by many at the time as establishing a standard of interpretation for the Constitution that did not involve aresort to implications-or at any rate made it less likely that the Court would resort to implications. The ‘implications’ with which the judgments in the Engineers’ Case were concerned involved two distinct but connected doctrines—

(a) the reserved powers of the States.

(b) the immunity of instrumentalities (Commonwealth and State).

In 2006, Parliament made major amendments to the Family Law Act 1975 (Cth) (‘Family Law Act’) to encourage a greater level of shared parenting, and to give greater emphasis to the importance of children maintaining a relationship with both parents in the absence of violence or abuse. There are major differences between trial judges in how to apply the new laws to the problem of parental relocation — where the primary caregiver wants to move a long way from the other. The central problem is determining how much importance should be given to a parent's freedom of movement given this greater emphasis on the involvement of both parents. There are stark differences in the policy and approach of different trial judges, which have yet to be resolved by an authoritative and carefully reasoned decision of an appellate court.

This article examines these substantial differences in view between judges on this issue since the 2006 amendments, and proposes a way forward based upon revisiting the leading judgment of Kirby J in the High Court in AMS v AIF.

Australia has welcomed new business investment of $200 billion for integrated gas projects. However lower than expected tax receipts have tempered the early optimism of project benefits. In particular, petroleum resource rent tax (PRRT) revenues since the 2002–03 financial year have fallen. These reduced revenues have raised concerns about the effectiveness of petroleum taxation in Australia and pressured the Australian Government to call for a review of the PRRT in late 2016. Examined are the modifications necessary to the petroleum fiscal regime to address one of the PRRT Review's aims of providing an equitable return to the Australian community. Findings from a case study of an operational gas project include the need for PRRT modifications, and the addition of royalties for particular integrated natural gas projects in Commonwealth waters. The article is significant for its unique overview of Australia's petroleum taxation since the fall in oil prices from mid-2014 and the rise of gas export projects. This interdisciplinary and empirical research forms an important contribution to the current Commonwealth PRRT Review through its recommendations for change to the Petroleum Resource Rent Tax Assessment Act 1987 (Cth). It calls for more uniform federal legislation for the taxation of petroleum resource projects.

Few cases of recent times, beyond the decisions of Mabo and Wik, could rival Minister for Immigration and Ethnic Affairs v Teoh, for the dramatic response it provoked in political, legal and academic circles. In the aftermath of the High Court's decision in Teoh came three Commonwealth Bills, one state Act, several ‘executive statements’ at both the Federal and state level, and numerous academic commentaries. Yet, despite the many attempts to override the decision by successive federal governments, the Teoh principle continues to apply to the administrative decisions made at the federal level. The third of the Commonwealth Bills aimed at over-riding the Teoh principle of legitimate expectation progressed only as far as its predecessors, with its debate in the Senate having been adjourned on 5 April, 2001.

It is unlikely that enactment of the proposed Bill would have laid the Teoh principle finally to rest, and developments since the last Senate Inquiry conducted in 1997 raise further issues pertaining to the original High Court decision. In particular, subsequent case law has provided clear judicial statements regarding the effectiveness (or ineffectiveness) of earlier executive statements issued by successive federal governments, as well as outlining what constitutes a legally enforceable ‘executive indication to the contrary'. In addition to recent developments on the domestic front, the proposed Bill had also been criticised by one international body for being inconsistent with Australia's international legal obligations, with the recommendation that it be withdrawn. Given the very minor differences between the third Bill and its two predecessors, this charge could also have been laid in respect of each of the earlier Bills.

Enforcement of patents is a pivotal factor in determining whether or not the patent system performs its public role of stimulating innovation. Without the means to exclude imitators, the party who pays for the original idea or invention will, in many cases, not be able to recoup their outlays, with the result that such parties are likely to direct their investment elsewhere and invest less in research and development. Enforceability matters even if the invention embodied in a patent is not being directly commercialised by the inventing organisation. Intellectual property (‘IP’) owners will not, for example, be able to license, cross-license, or sell their IP rights, or enter into joint ventures based on those rights, if the licensee, buyer or joint venture partner has no confidence that their IP rights confer effective exclusivity over brands, ideas or creations. Furthermore, IP owners will be reticent to disclose their ideas to prospective partners if they have doubts about their ability to prevent the other party from expropriating their proposal. Direct enforcement of each and every patent does not have to occur for the patent system to be effective. All that is required for incentives to work is that people believe that infringement will be stopped if necessary.

A Constitution cannot be applied without employing some theory of interpretation. An adequate theory—that is, a coherent method or approach—must address two fundamental, connected questions. In what sense are words in the text to be understood? How is ambiguity or uncertainty to be resolved? Resolution of these matters is logically prior to the determination of particular controversies.

Of necessity, judges have provided some answers to these foundational questions. But the issues have only begun to attract significant express attention in recent times, particularly in light of developments relating to implied rights. This new-found concern is not surprising, for the further one moves from considering clear and direct stipulations of particular text, the more important one's interpretational approach becomes. The theory of constitutional interpretation employed affects both one's readiness to recognise implications, and the nature and age of the sources to which reference is made in so doing.

On 9 February 2007, all State Premiers, in the Council for the Australian Federation, agreed that a constitutional convention should be held in 2008 to propose reforms to Australia's federal system. The need for a Constitutional Convention to improve the operation of the federal system has been supported by a broad coalition, ranging from business groups, to local government, academics and the media. Bob McMullan, in his former role as Shadow Minister for Federal/State Relations, stated that the idea was ‘worthy of serious consideration'. The 2020 Summit, held in April 2008, also proposed the holding of a constitutional convention to reconsider the allocation of powers and functions across all tiers of government and the finances needed to fund them.

This article reports on the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the Fair Work Act 2009 (Cth), which regulates wages, working hours and other minimum employment conditions. Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. The authors provide a critical analysis of the FWO's use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings. The analysis is based on a review of all enforceable undertakings concluded in the period from 1 July 2008 to 30 June 2012, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings in the review period. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that are consistent with the key principles of responsive regulation. The number of enforceable undertakings accepted by the FWO, however, remains fairly limited. We set out a number of ways in which the regulator may maximise the utilisation of enforceable undertakings, and more fully realise the regulatory benefits of this particular compliance tool.

This is the third series in the annual Menzies Lecture series. The lectures were delivered at the University of Virginia and at William and Mary College Williamsburg on 8 and 12 October 1987.

Traditionally corporate law has been viewed as having characteristics that are commonly associated with private law. Largely this view developed as a result of the “law and economics” scholarship which dominated the corporate law debate, especially in the United States, in the last quarter of last Century. While the traditional “law and economics” approach supports the view that corporate law should be treated as a branch of private law, and that the state should have no role in its enforcement, other scholars, particularly those that adopt a progressive approach, argue that corporate law has, and should be recognised as having characteristics that are usually associated with public law. Arguably, an area of Australian corporate law that displays characteristics that are usually associated with public law is the statutory directors’ duties and the civil penalty regime that supports them. This enforcement regime gives the state through the corporate regulator, standing to take court based proceedings to enforce what are in effect, contracts that established corporate governance structures.

This article seeks to determine the appropriate role of a public regulator in these circumstances. The questions considered are: whose interests should the public regulator represent when it is tasked with the responsibility of enforcing the statutory directors’ duties that largely codify fiduciary and common law duties? Given that the duties are owed by directors to their company should the primary role of the public regulator be to represent the interests of the company, and its shareholders, who have suffered a loss as a result of the alleged contravention of the directors’ duties or should the primary role of the public regulator be to act in the interests of the members of the larger community? In these situations what are the interests of the larger community? Drawing on regulatory theory the argument advanced in this paper is that despite the fact that the statutory directors’ duties codify what are in effect private rights between directors and their companies, the primary role of a public regulator is not to utilise the enforcement mechanisms at its disposal in order to obtain compensation for companies who have suffered a loss. Rather, the regulator's primary role is to act in the interests of the larger community by utilising the enforcement mechanisms at its disposal strategically in order to encourage greater compliance.