National uniform legislation links the federal distribution of powers achieved more than 119 years ago with the challenges and opportunities faced by Australia in an interconnected world. Over this span of time, developing national uniform legislation has been described as the ‘art of the impossible’. The main objective of this article is to critically examine the database of national uniform legislation with a view to applying public policy and federalist theory to explain how sustainable uniformity has been achieved. Rather than focusing on why an individual set of uniform Acts has not achieved a high level of uniformity or has diverged through unilateral amendment, this article examines national uniform legislation by analysing the factors at play. This approach allows the common patterns impacting sustainable uniformity to be identified. From among 84 sets of uniform Acts, four discernible links with theory have been found: (1) the ‘incrementalism and policy cycle’ model—to explain harmonisation that may take decades (31 sets); (2) the ‘multiple streams’ framework, explaining legislation that emerges as sustainably uniform from the outset due to an ‘open policy window’ (16 sets); (3) ‘pragmatic federalism’ solutions, such as skeletal legislation and the conferral of powers, which are developed in the course of inter-jurisdictional negotiations when uniformity is required but is particularly difficult to achieve (14 sets); and (4) the ‘advocacy coalition’ framework, which in contrast, explains situations where jurisdictions hold firm views about retaining diversity (23 sets). Developing and drafting national uniform legislation can become the ‘art of the possible’ with this improved understanding.

In numerous histories of Aboriginal peoples in Tasmania written up to the 1970s, the image of Truganini, in western clothes seeing out her days, is the visible presence of extinction. “Her last years were comfortable, it seems, but there was a shadow over them—her fear of the body-snatchers and mutilation after death... ‘Don't let them cut me up’ she begged the doctor as she lay dying. 'Bury me behind the mountains.' The histories end with romantic philosophical musings over the inevitable demise of Tasmanian Aborigines. “The Tasmanians were hurried and harried from the face of this earth by the poison of European contact and the sword of destruction. Unable to merge with the European colonists, unable to withstand them, they perished.” The histories present a natural and irrefutable closure. There are no Tasmanian Aborigines.

The advent of native title law has brought with it a new interrogation of the history of Aboriginal people in Australia. The claims process has produced new ethnographic, anthropological and historical interest in indigenous history and culture.

The Federal Court of Australia has only the jurisdiction conferred on it by statute. However, many disputes falling within that jurisdiction, particularly in trade practices matters, will also involve elements of common law or other State or federal statutory law. Section 32 invests in the Federal Court additional jurisdiction in some such cases in respect of “associated matters”. This may be compared with “pendent jurisdiction” developed by the federal courts in the United States. The object of this article is to analyse the meaning of the term “associated matters” and to consider the bearing it has upon the future relationship between the Federal Court and the various State courts.

Several recent cases have seen the courts approving ASIC's employment of a ‘stepping stone’ approach that applies directors‘ statutory duty of care as well as their other statutory duties in a novel context. The first ‘stepping stone‘ involves an action against a company for contravention of the Corporations Act 2001 (Cth). The establishment of corporate fault may then step stone to a finding that by exposing their company to the risk of criminal prosecution, civil liability or significant reputational damage, directors contravened one or more of their statutory duties in ss 180-2 of the Corporations Act, particularly their statutory duty of care, with the attendant civil penalty consequences. The effect of the ‘stepping stone’ approach is that directors may face a type of derivative civil liability for corporate fault. In this paper we analyse the stepping stone approach and assess the justification for imposing civil liability on directors for their company's misbehaviour. This paper also examines whether an extension of the stepping stone approach could make directors liable for their company's contraventions of non-Corporations Act laws as well as open the floodgates to make directors personally liable to shareholders, creditors, employees, or others affected by corporate fault.

There has been renewed interest in the constitutional dimensions of choice of law. This interest was reignited by the High Court’s decision in John Pfeiffer Pty Ltd v Rogerson, where the Court appealed to ‘constitutional factors’ as guiding the selection of the lex loci delicti as a common law choice of law rule in intra-national tort cases. While the central importance of the overarching constitutional framework to intra-national choice of law questions may be accepted, the High Court struggled to identify with precision the relevance of constitutional provisions and implications for the choice of law inquiry. In particular, it failed to respond adequately to concerns expressed in earlier majority judgments about the continued capacity of State legislatures to direct their courts as to the legal standards to be applied in a case involving out-of-state elements. Because of the fact pattern that arose in Pfeiffer, the High Court was able to avoid the more difficult questions that arise in intra-national choice of law cases, particularly the question of which legal standards apply when there is an ‘inconsistency’ between two or more State legislative provisions.

The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.

In 1994, the Commonwealth Parliament passed an amendment to the Immigration (Guardianship of Children) Act 1946 (Cth) (the ‘Immigration (GOC) Act’), which provided that the Minister is guardian of ‘every non-citizen child who arrives in Australia’. Although the Immigration (GOC) Act was originally enacted with respect to children who entered Australia under assisted migration or re-settlement schemes, the Act and the amendments introduced by the Immigration (Guardianship of Children) Amendment Act 1994 (Cth) have been interpreted to include unaccompanied children who come to Australia as asylum-seekers. Unaccompanied children commonly apply for protection visas and bring review applications and appeals in the Refugee Review Tribunal (‘the Tribunal’) and the courts. The Minister is the decision-maker, respondent in review proceedings, and a party in appeals; and is also the children's legal guardian. This gives rise to actual and perceived conflict between the Minister's duties as guardian and as a decision-maker or party to review and appeal proceedings.

The role of the judiciary in public law cases is a topic of debate in every age. The present age is no different. On topics as diverse as implied constitutional rights, native title, refugee determination and public sector tort liability, there has been a vigorous public debate between the critics and the defenders of judicial power. We live in an age, as the Tampa litigation reminds us, in which the national public policy agenda is increasingly structured by legal claims.

Many commentators would take the judicial role a step further by giving judges a more explicit role in applying human rights standards when evaluating the validity of executive (and, possibly, legislative) action. A constitutional or statutory Bill of Rights would be the most direct way of conferring that function on the judiciary. Less direct is the option, with steadily growing support, of judges taking account of international human rights instruments in discharging their adjudicative function. Whatever level of support those options attract, it seems probable that human rights principles will play an increasing role in judicial review of executive action. The principles are stamped already on many aspects of public law.

Amid considerable public controversy, the Australian Labor Party combined with the Government of Prime Minister John Howard to pass military call-out legislation through both houses of the Commonwealth Parliament on 7 September 2000. Less than three months after it was first announced and introduced in the House of Representatives on 28 June, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) came into force on 12 September, when it received royal assent by the Governor-General.

Under the amended Defence Act 1903 (Cth) (the Act), the Federal Government now has the power to call out the armed forces on domestic soil against perceived threats to ‘Commonwealth interests', with or without the agreement of a state government. Once deployed, military officers can order troops to open fire on civilians, as long as they determine that it is reasonably necessary to prevent death or serious injury. Soldiers will have greater powers than the police in some circumstances, including the right to shoot to kill someone escaping detention, search premises without warrants, detain people without formally arresting them, seal off areas and issue general orders to civilians.

These exasperated words were uttered by John Quick on Wednesday, 2nd March, 1898, in the concluding stages of the Australasian Federal Convention Debates that led to the formation of the Australian Constitution. Quick wanted a definition of citizenship in the Constitution. The Commonwealth, he argued, should have power to deal with Commonwealth citizenship, and membership of the Commonwealth; he advocated a “common citizenship for the whole of the Australian Commonwealth”. His proposals were rejected.

The last two decades have witnessed a colossal struggle between the government and the courts over judicial supervision of executive decisions with respect to migration. The struggle culminated in February 2003 with the High Court decision in Plaintiff S157/2002 v Commonwealth concerning the privative clause in the Migration Act 1958 (Cth) (‘the Act’). While upholding its constitutional validity, the Court rendered the privative clause effectively redundant by ruling it incapable of protecting decisions involving jurisdictional error.

It is at last being recognized that there is need to reform the antiquated and costly apparatus of administrative law that we inherited frum England. Despite murmurs of dissatisfaction extending over many decades all that has been achieved so far by legislation amounts to little more than a tinkering with the machinery of adjudication in marginal areas. The problem is an old one. The public interest demands that administration, including the provision of multifarious services that are crucial to the community, be carried out as efficiently as possible. Equally the public interest demands that individual rights and expectations should not be overridden by an uncaring bureaucracy.

‘Lawyers are not disposed to look behind the immediate constitutional framework to the ultimate sources of legal authority’: Lord Lloyd, The Idea of Law (1987) 173.

In spite of Lord Lloyd's observation, the centenary of federation has given many Australian lawyers the impetus to do just that, to consider the ‘ultimate source’ of authority for the Australian Constitution. The general aim of this article is to assess the legal basis of the Australian Constitution and, more specifically, how ‘autochthony’ for the Constitution might be achieved. Part I notes that as a result of the Australia Acts, some members of the High Court have instigated a move away from the traditional basis of the Constitution, the United Kingdom Parliament, to a new basis in popular sovereignty. However, as it could be said that the Australia Acts only dealt unequivocally with ‘autonomy', and not ‘autochthony', this move is dubious. Whether Australia's evolutionary achievement of autonomy means that both the political and legal sources of Australian constitutional authority now lie in some concept of popular sovereignty, is a next step. Part I further argues against the necessity for the judiciary alone to take this next step. This Part concludes by suggesting that, if the traditional legal basis is to be judicially discarded, and a local legal source found, the federal compact is the most historically correct interpretation of federation.

The legislation enacted to prevent the construction of the Franklin Dam relied on a number of federal legislative powers which included the corporations power and the races power in ss 51(xx) and 51(xxvi) of the Constitution respectively. In contrast to most of the other sections in the Constitution which confer legislative power on the Commonwealth Parliament those sections refer to persons or institutions. In a well-known passage in Stenhouse v Coleman, Dixon J (as he was then) said:

In most of the paragraphs of s.51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object.

“Universities occupy a central position in a national innovation system” and the benefits of their research extend to having better educated students, developing a body of knowledge and effective transfer of that knowledge to users. This knowledge may generate intellectual property with, not only educational and research value for the university itself, but also commercial or applied potential.

Australian universities recognise the need to protect, allocate and exploit these intellectual property rights and have policies or statutes that govern the management of their intellectual property resources. They face at least three challenges in the process. The first is to formulate a policy that clarifies ownership and limits misunderstandings between the originators of intellectual property and the university Establishing the appropriate mix of rights is fundamental to the success of their intellectual property management programs and their reputation. If they claim too much, the originators may produce an inferior product or seek employment or studies elsewhere. If they are too generous and considerate of originators’ rights, they may fail to provide adequate protection for both university interests and those of the wider community.

The Australian Industries Preservation Act 1906 (Cth) was modelled closely on the United States Sherman Act. Early United States criminal monopolization cases were not very successful, and the statutory language was read down by a judiciary oriented toward common law contract analysis. The same thing is happening in current Australian cases. One of the finest monopolization opinions ever written is that of Mr Justice Isaacs in the 1911 Coal Vend case. It should be resurrected and used as the foundation for the development of Australian restrictive trade practices law.

Can the formal amendment process embodied in s 128 of the Commonwealth Constitution be utilised to patriate the Constitution, to make Australia a republic, to establish a Bill of Rights, to abolish State Constitutions or Parliaments and to alter s 128 itself or provide a completely new amendment procedure? What is the ambit of s 128? This article considers the history, scope and interpretation of s 128.

Following the High Court's decision in the Election Advertising case, Toohey J's extra-eurial speech at a 1992 conference on constitutional law has inspired speculation as to the existence of an implied “Bill of Rights” in the Constitution. As reported in the Australian Financial Review, Toohey J's thesis avoided any direct challenge to the doctrine of Parliamentary supremacy by, “resorting to the Constitution — albeit implications arising from the Constitution as opposed to the written text — to legitimise judicial scrutiny of legislation”.