The principle of subsidiarity was adopted as part of the law of the European Union as a response to perceptions of excessive centralisation and bureaucratisation within the European system of government. If subsidiarity is a solution to these problems in Europe, it might be asked: could it also be a solution to similar problems that arise in other federal systems, such as those of the United States and Australia? However, posing the question in this way is misleading because it is not at all clear that subsidiarity has been a solution in Europe, and in any case it cannot be assumed that a solution in one context will necessarily operate effectively in another.

This article closely examines the nature and operation of the principle of subsidiarity in Europe and asks what lessons might be learned from it. To do this, the article begins by identifying the carefully defined operation of the principle in EU law and then closely examining the application of the principle, firstly as a political decision-making procedure that involves the Member State parliaments in the European policy-making process, and secondly as a juridical principle enforceable by the European Court of Justice. The possible adoption of the principle in other federations is then discussed, but limitations on its effectiveness in Europe, as well as the different institutional and political circumstances of the Australian federal system, are shown to undermine its likely usefulness, unless other more fundamental issues about the way in which the federal system is understood, organised and operated are addressed.

In their majority judgment in the Work Choices Case, five Justices of the High Court endorsed a well known obiter dictum of Windeyer J in Victoria v Commonwealth ('the Payroll Tax Case’). The dictum concerns the Engineers’ Case, which famously repudiated the doctrines of implied intergovernmental immunities and reserved state powers, previously held by the Griffith Court to be entailed by the federal principle implicit in the basic structure of the Constitution. The Court in Engineers declared that both doctrines, and the reasoning on which they were based, were erroneous. But Windeyer J disagreed with this. He said that he had never regarded the decision in Engineers ‘as the correction of antecedent errors or as the uprooting of heresy': it ‘does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.'

There is now an expanding body of literature on the significant problem of business non-compliance with minimum labour standards including ‘wage theft’. Extended liability regulation beyond the direct employer is seen as one solution to this non-compliance in fragmented but hierarchically organised industries—such as the cleaning industry. This article uses empirical evidence to assess the effectiveness of one such regulatory scheme, the Cleaning Accountability Framework (CAF), in addressing non-compliance with minimum labour standards (including provisions of the Fair Work Act 2009 (Cth) and the Cleaning Services Award 2020). We find that CAF has been successful in identifying and rectifying certain non-compliance, improving working conditions for some cleaners involved in the scheme. We synthesise the key success factors of CAF in view of envisioning the adoption of such co-regulation frameworks in other industries. We also propose legal reforms that will support change across the cleaning industry.

This article discusses the legal regulation of parenting in lesbian and gay families in Australia. This landscape of regulation includes laws that govern such families both before and after they are formed; that is, laws controlling access to potential family formation options in addition to laws that govern the status of parents and children in families that are formed through alternate means. There have been a number of important developments in these areas in recent years, including: challenges to laws that restrict access to fertility services; reforms to adoption laws in three jurisdictions; and deemed parental status for co-mothers in lesbian families formed through assisted reproduction in three jurisdictions. This article will detail how the new parental status reforms interrelate, including difficult questions regarding the recognition of this new parental status in other States and their interaction with federal law.

This article provides an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of ‘typical’ people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change.

Changing the law can be a tricky business. Seen from the perspective of non-governmental organisations, law reform can mean years of lobbying governments and politicians for change; seen from inside government, law reform may signify months or years of consultation, drafting bills, and holding one’s breath for Parliament; seen from Parliament, law reform may mean a relatively simple examination and passage of a Bill or months of political haggling; from the perspective of the public, law reform may appear variously political, idealistic, long and drawn out or hasty. Law reform is all of these things.

Most often when we think about the strict process of changing laws in Westminster systems our minds turn to parliamentary examination and passage of government sponsored and private member bills. However, beyond the focus on this one piece of the law reform process, it is worth remembering that proposed legislation often stems from much broader studies of larger legal and policy issues.

Rhetorically and ideologically, the nineteen eighties has been a decade in which the individual has held centre stage. From American Express advertisements to the assumptions of neo-classical economists (and back again), Western society is imagined to be, and justified as, a society of autonomous self regarding individuals. Yet for all that, we remain a society of institutions. We live our lives largely in (and, to a significant extent, through) the institutions where we grow up, work, play and procreate. Institutions dominate virtually every area of social life and simultaneously sustain and infuriate us by providing the best and the worst experiences of our daily lives. We seem to be forever complaining about them and often seek to change or supplant them. But few believe that we should, or even could, do away with them and recreate a society of free willing individuals without institutional links and ties. Those who want to get rid of the family generally want more egalitarian and supportive structures.

The Road Safety Remuneration Act 2012 (Cth) (the Act) explicitly enables the Road Safety Remuneration Tribunal to make orders that can impose binding requirements on all the participants in the road transport supply chain, including consignors and consignees at the apex of the chain, for the pay and safety of both employee and independent contractor drivers. The tribunal is also specifically empowered to make enforceable orders to reduce or remove remuneration related incentives and pressures that contribute to unsafe work practices in the road transport industry. Recently the tribunal handed down its first order. The article considers whether, and the degree to which, the tribunal has been willing to exercise its explicit power to impose enforceable obligations on consignors and consignees – such as large supermarket chains – at the apex of road transport supply chains. It examines the substance and extent of the obligations imposed by the tribunal, including whether the tribunal has exercised the full range of powers vested in it by the Act. We contend that the tribunal's first order primarily imposes obligations on direct work providers and drivers without making large, powerful consignors and consignees substantively responsible for driver pay and safety. We argue that the tribunal's first order could have more comprehensively fulfilled the objectives of the Act by more directly addressing the root causes of low pay and poor safety in the road transport industry.

In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.

The recent High Court case on the Corporations Act and the reliance therein by the majority on ‘history’ to support their reading of s 51(xx) raises the question of what were prevailing community attitudes to uniform national legislation on corporations in the late nineteenth and early twentieth century. Whilst the views of the delegates to the Conventions and the views of the justices in the High Court in the Huddart, Parker & Co Pty Ltd v Moorehead have been selectively dusted off and resuscitated by the majority justices in the Corporations Act case the broader spectrum of opinion in relation to such matters, both at the time of federation and subsequently, is less well known. Nevertheless such views are also important in arriving at a proper understanding of the meaning of placitum (xx) of s 51.

The enactment of legislation to sever the remaining constitutional links between the United Kingdom and Australia makes it desirable to address the question as to why Australia's Federal Constitution should be regarded as an instrument of higher law and thus legally binding. The answer which one gives to that question may be significantly different to the answer which a lawyer is likely to have given when the Commonwealth of Australia Constitution Act 1900 (UK) was enacted.

A possible answer to the question was suggested by Sir Owen Dixon in a well known lecture delivered by him:

The Australian Constitution expressly guarantees very few individual rights. One of its rights-conferring provisions is s 116. Incongruously situated in the Chapter dealing with the States, s 116 prohibits the Commonwealth from, amongst other things, legislating against the free exercise of religion or for the establishment of any religion. The United States Constitution, by contrast, includes a comprehensive Bill of Rights which includes a similar, though not identical, religious guarantee. In very different contexts therefore both the High Court of Australia and the Supreme Court of the United States of America have adjudicated upon a similar constitutional provision.

In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Māori may have initially welcomed the intent of te Tiriti as a means for seeking British help to protect their international borders, the British prioritised the English version of the Treaty which recorded the transfer of sovereignty from Māori to the British. As the British transposed their dominant legal traditions of governance, including bringing to the fore their doctrine of parliamentary supremacy, Māori have been seeking their survival ever since. We extend this by focusing on why the doctrine of parliamentary sovereignty needs to adapt to the Treaty’s promise of bicultural power sharing.

The separation of judicial power from executive and legislative power has long been recognised as an important measure for guaranteeing individual liberty and for safeguarding against tyranny. As Winterton has noted, '[d]ividing governmental power is the oldest device for restraining it, and thereby protecting liberty'. However, it has also been widely recognised, particularly in recent years, that by entrenching the separation of federal judicial power, Chapter III of the Australian Constitution may offer individual guarantees beyond the arbitrary exercise of executive or legislative power. Consideration of exactly what these guarantees may include has significantly contributed to the recent interest in Chapter III of the Constitution. As one commentator proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the defining features of the last decade of Australian constitutional law'. This trend has raised many questions relating to the nature of judicial power and judicial independence, and the extent to which it does, and can, protect individual liberties.

In the Australian liberal democratic tradition, the expectation that government be accountable to the people is a product of the electorate’s grant of power to government. As government becomes more complex due to the expansion of human activity it regulates there is increased reliance upon official means of facilitating democratic accountability. Indicative of this development is the 20th century supplementation of traditional Westminster mechanisms of accountability with administrative law institutions such as the Commonwealth Ombudsman. These supplementary review processes and institutions of ‘new administrative law’ aim to render the application of discretionary decision-making by government administrators transparent and fair to the individual citizen. This was the primary vision of the Kerr and Bland Committees which framed the need for administrative review agencies against the background of the protection and promotion of individual citizen rights.

The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. This area of law has recently undergone an extensive restatement by the American Law Institute (‘ALI’) and been the subject of legislative attention in all Australian states. In the light of these developments this essay sketches some essential issues relevant to factual causation which apply not only to the tort of negligence but throughout the law.

The prevention and control of ‘food fraud’, including false or misleading statements made about a product for economic gain, is now emerging as an important and discrete policy goal for governments and regulators in the interface between food and public health. The control and prevention of food fraud complements regulation to ensure microbial food safety. This article uses a case study of anti-ageing claims made in the labelling and advertising of açai berry superfood products to argue that Australia's new regulatory system for nutrient content and health claims on food (Australia and New Zealand Food Standards Code Standard 1.2.7) inadequately addresses ‘food fraud’. This article argues that the over-reaching claims on açai product labelling will potentially mislead consumers and subvert public health messages in a context of ‘gastro-anomy’ (confusion over appropriate norms for eating) and ‘healthism’ (individual responsibility for making healthy choices). This conduct can usefully be conceptualised as food fraud. Second, the article argues that although the substance of Standard 1.2.7 is well designed to avoid food fraud, the fact that the standard allows food businesses to self-substantiate evidence when making some health claims undermines the protection offered. Australian food regulators need to articulate a more strategic and proactive approach to the prevention and control of food fraud.

The Australian High Court has in general rejected the use of extrinsic historical material in the interpretation of the Constitution. Though it has consistently claimed that in interpreting a Constitutional provision it is giving effect to the intentions of the founders, it has not been prepared to turn to the convention debates, draft constitutional bills or other primary records in order to ascertain the founders' intentions. The intention is to be ascertained from the ordinary and natural meaning of the words themselves, relying on the proper legal methods of construction and interpretation. However, even when this rule was considered to be settled doctrine there were exceptions. In those cases where the words were ambiguous the Court could turn to the drafts of the Constitution “as a matter of history of legislation”. As well, convention debates could be referred to “for the purpose of seeing what was the subject matter of discussion, what was the evil to be remedied, and so forth”.