In this article, we focus on one of the most important statutory protections for Australian consumers in financial hardship: the right to seek a variation of a credit contract contained in s 72 of the National Credit Code. We provide a comprehensive history of this right, which has been part of Australian consumer credit law since the 1970s. Over the years, it has evolved from a very limited right to seek an extension of time to pay a debt on grounds of illness and unemployment, to a broader provision that requires credit providers to comply with a prescribed process before they can commence enforcement action against a consumer who has sought a variation to their payment arrangements. We also undertake an analysis of the evolution of this right to demonstrate that despite improved understandings of the causes of financial hardship, it continues to envisage a middle-class subject with a strong awareness of their rights, and excludes some particularly vulnerable consumers. This right is also representative of a regulatory approach that envisages a limited role for consumer credit law, and does not sufficiently address the imbalance of bargaining power between the consumer and the credit provider. We argue for the imposition of an obligation to provide a minimum range of hardship assistance directly upon credit providers, as a means of addressing this imbalance and ensuring more meaningful protection for consumers in financial hardship.

In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.

The Copyright Law Review Committee (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the “digital revolution”, permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission.

Taxation law — Principles of interpretation of tax Acts — Form and substance — Partnerships — Change in ownership — Disposals other than in the ordinary course of business — Election by partnership to value trading stock at cost price — Dividend stripping — Income Tax Assessment Act 1936 (Cth) — Ss. 36, 36A

This article is about the interpretation of legal texts. Its immediate aim is to defend, against a certain sort of originalist objection, the well-known cases that hold that the Australian Constitution, by implication, guarantees certain political freedoms and entitlements. That is not to say that the article intends to vindicate the outcome of every one of those cases – rather, it intends to vindicate the general methodology and orientation of those cases as stated by the High Court in Lange v Australian Broadcasting Corporation.

The general character of the originalist objection I have in mind is that no implication (other than perhaps a strictly logical implication) can be drawn from a legal text which is at odds with the actual intentions of the authors of that text.

Pursuant to s 5(1) of the Disability Discrimination Act 1992 (Cth) (“the Act“), an alleged discriminator will have discriminated against a person with a disability if they treat the disabled person less favourably, because of their disability, than they treat or would have treated someone without the disability, ‘in circumstances that are the same or are not materially different'.

A matter crucial to the assessment of whether there has been illegal discrimination for the purposes of the Act, therefore, is what constitutes the circumstances of the aggrieved person's case. In order for there to be a contravention of the Act not only must the alleged discriminator have treated the disabled person less favourably than they would have treated someone without a disability, but the alleged discriminator must have treated the disabled person less favourably than they would have treated someone without a disability who was in the same circumstances as the person with the disability.

“There is not a crime, there is not a dodge, there is not a swindle, there is not a vice which does not live by secrecy”, said Joseph Pulitzer. Needless secrecy is as difficult to eradicate as the evils which it spawns, though Mr McMillan suggests administrative and legislative techniques that could redress the balance in favour of openness. Much of the article is a discussion of one such technique, freedom of information legislation, and of a report on that topic published in 1976 by an interdepartmental committee established by the Federal Government. By reference to past Australian secrecy, U.S. experience under similar legislation, and bureaucratic inevitability, Mr McMillan argues that legislation based upon the committee’s report would do more to entrench the Administration’s right to withhold official information than to secure the public's right of access to it. Alternative proposals for a freedom of information Act are suggested.

Since this article was written the Federal Government has announced that it will introduce a Freedom of Information Bill after considering the committee’s proposals and comments thereon.

This article offers a critical analysis of the norms, policy, procedures and outcomes associated with contemporary decision-making under the ‘character test’ per Migration Act 1958 (Cth) s 501. Of late there has been a steep increase in the number of visa refusals and cancellations on adverse character grounds due to the convergence of a reformulated character test and single-minded, authoritarian, administration by ministerial office-holders. This article teases out the significant and, arguably, adverse consequences for the quality of administrative justice of ministerial control over visa decisions absent independent administrative review. It is argued that the integrity of ministerial decision-making and the legitimacy of outcomes are dubious. This is because the process of identifying and balancing the important countervailing community interests and individual (human) rights, in the course of reaching the preferable decision, does not appear to be carried out in a detached, proper and genuine manner, pursuant to rational and intelligible reasoning processes. In conclusion, when viewed holistically, the judicial decisions analysed in this article suggest that the unwavering pursuit of community protection has come at a significant adverse cost to administrative justice and, necessarily, to individuals/families who bear the harsh consequences.

When an employee sexually harasses a fellow employee away from the workplace or outside work hours, such as at a bar or a private party, difficult questions arise as to whether the employer should be held vicariously liable. Conversely, difficult questions arise as to the extent to which an employer might legitimately seek to supervise or regulate the conduct of its employees outside of work.

This article traces the key decisions that have considered this issue of sexual harassment away from the workplace or outside normal work hours (for convenience, I have referred to such conduct as ‘off-duty sexual harassment’).

As the discussion in Part Two illustrates, the leading decisions in the Australian federal jurisdiction considering the scope of vicarious liability for off-duty sexual harassment have taken a consistently broad approach to the requisite nexus with the employment. This culminated in the watershed decision of the Federal Magistrates Court last year in Lee v Smith, where an employer was held vicariously liable when an employee raped a fellow employee at a private residence following a social dinner party.

This article examines historical aspects of the convention that Australian judges are precluded from engaging in political activities. That convention is an element of the strict separation of judicial functions and the independence of the judiciary. Apart from the deliberative component which may be carried out in private and the very limited role for closed hearings, the judicial process is essentially acted out in public. However, upon appointment to the bench, a judge is expected to limit involvement in other forms of public life and to conduct his or her private life so as to avoid, as far as is reasonably practicable, involvement in activities which might (or might be seen to) compromise the judge's or a court's independent status or the impartial disposition of specific cases or issues. The less involved a judge is in non-judicial activities the less likely it is that the judge will be confronted with determination of a case or an issue in which he or she has some interest.

Until 1967, Indigenous Australians were excluded from being counted as amongst ‘the people’ in the Australian Constitution, by s 127. That section was deleted by referendum. However, s 25 remains in the Constitution, and allows for the reintroduction of such exclusion. This article is a detailed reconsideration of both sections in light of an understanding of ‘the people’ as a reference to the constitutional community represented by the Parliament. Exclusion of Indigenous Australians prior to 1967 is considered, highlighting the way in which s 127 operated. Then, the position post-1967 is addressed to show that the deletion of s 127 did not result in equality because s 25 continues to provide for racial exclusion. This article argues that this ongoing possibility of exclusion by s 25 affects the nature of the Australian constitutional community, by indicating that it can be racially discriminatory.

In this article Ross Cranston discusses the changing nature of Federalism, tracing its development and examining possible characterizations of its basis. After reviewing the elements of “co-operative” and “coercive” Federalism, the author turns to “New Federalism” and what that means in terms of the Fraser government. He concludes that disputes over financial and other intergovernmental agreements are best left to the political sphere with the High Court acting in a supplementary role because of the inherent untidiness of a Federal system of government.

“The Official Secrets Act stiffens the spine of the secretive bureaucrat and softens the vertebrae of the press”1

The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' anti-organised crime measures (International Finance Trust Co v New South Wales Crime Commission, South Australia v Totani, and Wainohu v New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.

Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the ‘for the purpose of’ interpretation is misconceived and therefore that the improper purpose test is wrong.

There is undoubtedly a growing willingness in the High Court to find constitutional implications protecting individual freedoms or rights. There are a number of possible bases for this approach, including the separation of powers and the common law. In this context, the High Court's decisions in Australian Capital Television Pty Ltd v Commonwealth (No 2) (the Political Advertising case) and Nationwide News Pty Ltd v Wills (which together I shall call the “principal cases”) are very significant. A majority of six judges in the decisions held both that the Constitution entrenches the system of representative democracy and that this in tum implies constitutional protection of free speech on political matters. The two cases were handed down on the same day and must be read together as. the judges' reasoning for these conclusions overlap between the cases. The significance of the principal cases is twofold. They constitute the clearest acceptance by the Court to date of an implied constitutional limitation relating to individual freedom. More importantly, they establish a new basis for finding further constitutional implications. If freedom of political communication is constitutionally protected because it is essential to representative democracy, other freedoms and requirements might be similarly essential and be similarly protected.

Australia has, mercifully, been spared from revolutionary changes of grundnorm or “rules of recognition”, with their consequential appeals to “necessity”, of the sort which have plagued courts in Pakistan, lJganda, Ghana, Nigeria, Zimbabwe, the Seychelles and Grenada, among others. But that has not meant that arguments based upon extra-constitutional powers and prohibitions have been absent from Australian constitutional jurisprudence. Human ingenuity being what it is, commentators and even judges, undaunted by the absence of a tenable constitutional argument, have occasionally resorted to extra-constitutional notions.

This paper explores the boundary between constitutional rules and principles and extra-constitutional political notions. That boundary is, of course, indistinct because the constitution includes implied powers and prohibitions. Hence, opinions will inevitably differ as to whether a particular power or prohibition is implied in the Constitution and, thus, is constitutionally conferred or imposed, or alternatively arises (if at all) extra-constitutionally.

The author considers whether the Commonwealth can enact “manner and form” legislation, especially provisions enabling the House of Representatives to enact laws which are the subject of a deadlock between the Houses, and legislation entrenching civil liberties. He argues that the legislative power of the Commonwealth has the same properties as that of the United Kingdom Parliament, which can impose “manner and form” limitations on itself; parliamentary supremacy is procedurally self-embracing. Hence, the Commonwealth Parliament can do likewise, except in so far as the Commonwealth Constitution provides to the contrary. The Constitution does prevent Parliament requiring legislation to be enacted by specified majorities in Parliament, or substituting a new legislature for the present Parliament. But the Commonwealth Parliament can enact provisions requiring legislation to be enacted in a specified form, and can establish an additional legislature for the enactment of legislation, including appropriation laws. Such legislation may be enacted pursuant to the procedure in section 57 of the Constitution, and could provide a method of avoiding a Supply crisis like that of 1975.

Five years ago the global financial crisis threatened the world's financial system and its aftermath wreaked devastation across many parts of the globe. Mis-selling of home mortgages to consumers unable to repay their loans and global sales of financial products linked to residential lending were at the heart of the crisis. Financial reforms governing housing credit frameworks and the selling of complex financial products have ensued within domestic and international spheres. This article reviews the regulatory structures in Australia governing the provision of residential housing mortgages and credit assistance and the provision of financial advice. Its analysis focuses on customer suitability processes, client duties, and remuneration provisions because these legal features significantly influence, and can adversely impact, consumer outcomes. It suggests specific reforms to ensure adequate consumer protection and enhance the consistency and efficacy of the credit framework. It also calls for renewed debate on the remuneration structures of mortgage brokers.