The new administrative law in Australia dates from the implementation, over a period of more than a decade, of the substance of the proposals advanced by the Kerr Committee and its successors in the early 1970s. The now familiar legislation swept away many of the procedural obscurities associated with the prerogative writs, codified the general principles governing judicial review of administrative action and provided for independent merits review of administrative decisions. These reforms paved the way for the emergence of what commentators have described as a “distinctively Australian jurisprudence in public law”. It is hardly necessary to say that Sir Anthony Mason played a pivotal role in the development of the distinctive jurisprudence, both through his membership of the Kerr Committee and his judgments in the leading administrative law cases of the 1980s and 1990s.

In this article, we examine the controversial national security law enacted by the People’s Republic of China for the Hong Kong Special Administrative Region in June 2020 and consider how this law interacts with two constitutional struggles that Hong Kong has experienced since its return to Chinese sovereignty in 1997. The first of these is a struggle over preserving rule of law principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law and international treaty obligations. The second is a struggle for democratisation, pursuant to constitutional commitments in the Basic Law. We argue that the national security law severely damages Hong Kong’s much-vaunted rule of law, as well as its ability to govern itself as a (relatively) liberal-democratic enclave within China. It muffles contestation over rule of law and democratic principles through facilitating rule by fear as a key modality of governance. The national security law expands the state’s coercive powers, and has the capacity to intimidate well beyond the letter of its provisions by creating rules and mechanisms to suspend legal protections altogether. Its provisions serve to reinscribe political discourse that has long been mainstream in Hong Kong as deviant. But at least as much as the NSL’s actual provisions, it is the loss of judicial scrutiny and the possibility of being transitioned into the Mainland legal system that operationalise rule by fear.

Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.

Cartels have a significantly negative impact on economic welfare. Anti-cartel competition law–such as the provisions of pt IV div 1 of the Competition and Consumer Act 2010 (Cth)–tries to tackle this negative impact through civil and criminal remedies. The prohibition of cartels is most commonly justified on economic grounds. However, reference is also often made to broader moral grounds for proscribing cartels–for example, it is commonly stated that cartels are deceptive, unfair or engaged in a form of cheating. This article advances a unified account of the moral status of cartels that integrates both economic and moral factors. It does so by emphasising the relationship of cartel behaviour to the moral duty to promote the common good. Cartels are wrong because they undermine the role of open and competitive markets as a salient response to an important social coordination problem in a way that leads to seriously harmful economic outcomes. This combination of factors supplies a robust justification for both civil and criminal sanctions in appropriate cases, thereby affording a principled foundation for the current framework of cartel regulation in Australia.

This article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in both states being Indigenous people. Protection of these states’ Indigenous people was a priority in 1963 and special status was given to these states in order to provide such protection. The study finds, nonetheless, that this special status has been eroded over the last 55 years by political interference by the federal government, and that the special status of these two states has proved ineffective, and indeed largely unacknowledged at the federal level. Accordingly, this study finds that federalism as protection for Indigenous people has been ineffective and the situation of the Indigenous people has as a result deteriorated over time. The solution, it is suggested, is through democratic empowerment at the state level and for federalism to provide deeper forms of constitutional protection.

Consumer financial protection and the integrity of the Australian financial system are critical to the Australian economy in many ways, including the provision of an effective banking system, and the security of Australia’s significant superannuation savings. This is especially the case in an environment where financial products have become more complex and difficult for consumers to understand. In recent years there have been several scandals in Australia’s financial sector that have undermined confidence in the financial system, and exposed regulatory failure. The authors argue that there needs to be a more effective oversight of the key regulators in the Australian financial system to maintain confidence in the system, and prevent capture of the regulators by the financial services industry. The authors contend that the recommendation of the Financial System Inquiry for the establishment of an Assessment Board to provide continuous oversight of the financial regulators is an effective solution to the poor regulatory outcomes encountered in Australia in recent years. The consequences of not having such oversight are likely to be more financial scandals, and further instability in the financial system. These deficiencies must be addressed as a matter of urgency.

The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas with little formal institutional support. They must rely on their own resources or informal advice and counsel from colleagues and the head of jurisdiction. This article will explore whether this arrangement continues to be appropriate. We consider a hypothesis that a number of factors, including the growing numbers and diversity of the judiciary mean that it is less likely that there will be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers as to the adequacy of the ethical support available to them. Finally, we consider the variety of supports that are available in comparable jurisdictions and also in the legal profession, before turning to possible solutions to the question our hypotheses raise, including the introduction of ‘ethical infrastructures’ in the form of more formal arrangements that provide ethical guidance to judges. We argue that these ethical support mechanisms have the potential to enhance the quality of ethical decision-making and foster an ethical culture within the judiciary.

For more than fifty years, Australian governments used a variety of legal powers to harass revolutionary organisations, and in particular the Communist Party of Australia (the CPA). After an historical review of these policies, this article examines Commonwealth's attempt between 1921–29 and 1932–37, to use its power under the Customs Act to prohibit the importation of seditious literature.

Between 1920 and 1950, the Commonwealth passed a number of Acts and made several Regulations to deal with the threats apparently posed by the CPA and other revolutionary bodies. Amendments to the Crimes Act 1914 (Cth) in 1920 made the uttering and publication of seditious words a Commonwealth offence. (These activities were already offences under state law.) Proclamations under the Customs Act 1901 (Cth) had the effect of prohibiting the importation of revolutionary literature. In 1926 and 1932, the Crimes Act was further amended. Bodies that advocated violent revolution became unlawful associations, and criminal sanctions were attached to a variety of acts by and on behalf of unlawful associations.

Human-induced climate change is an issue of unparalleled scale and gravity. There are calls for rapid, dramatic action on this issue, including declaration of a ‘climate emergency’. While this term has been used as a political call to action, the phrase has an obvious legal tenor. It invokes a particular category of state conduct – the ‘state of emergency’. What this article is concerned to do is to explore how a ‘climate emergency’ might assume a legal character and whether ‘climate emergency’ laws could sustain constitutional legitimacy in the Australian context. At present ‘mainstream’ political opinion in Australia, as represented by either the Labor or Coalition Parties, clearly does not favour such a course of action. Yet legal analysis of the concept is not intended as entirely speculative. If a ‘climate emergency’ – or policies intended to pursue comparably rapid social and economic change – is to be posed seriously, the term needs to be subject to critical analysis. This article hopes to contribute to that task.

The non-justiciability of certain executive decisions is based upon a number of notions including that of ‘polycentricity’, the unsuitability of certain types of power for review, deference to executive judgment, and the question of the judicially enforceable limits to power. In this article, it is argued that the concept is redundant. It is sufficient to consider whether a ground of review, invoked with an appropriate regard for the legalities merits distinction, is available. There is no further question of ‘justiciability’.

It is questionable whether it has ever really made sense to talk of ‘justiciability’ as a discrete notion, rather than justiciability upon this or that ground. Historically, it is trite to observe that questions of the existence and limits of the prerogative powers have been justiciable since at least the upheavals of the 17th century, even while courts would steadfastly refuse to examine the manner in which those powers were exercised. Thus, even prior to the decision in Council of Civil Service Unions v Minister for the Civil Service (‘CCSU’), non-justiciability in relation to prerogative powers meant simply the non availability of grounds of review other than the simplest form of ultra vires. CCSU itself established the potential availability of review of such powers for denial of procedural fairness, leaving open the question of whether the various abuse of power grounds might also be available. In short, the issue appears to be whether a decision is justiciable upon this or that ground of review, rather than the blanket availability or non availability of review. Once this point is grasped the inchoate concept of ‘justiciability’ becomes problematic at best. One need simply ask whether one or more grounds of review can be made out.

While State legislatures have responded, to some extent, to pressure for greater legal protection of consumers, consumer protection had never been an area of legislative activity on a national level until the passing of the Trade Practices Act 1974-1975 (Cth). Mr Goldring examines the effect of the Trade Practices Act 1974-1975 (Cth) on the area of consumer protection in Australia, and notes that the Act, in addition to introducing regulation of restrictive trade practices on a scale beyond that previously experienced in Australia, includes sweeping legislative innovations aimed to protect consumers. The Act is shown to prohibit certain types of undesirable commerical activity and gives to a wide range of potential plaintiffs the right to take action for damages and injunctive relief. The terms implied by law into contracts of sale of goods and hire-purchase are extended and similar terms are included in other types of contract.

I give personal and not official opinions in this article but as the first, and so far only, President of the Commonwealth Conciliation and Arbitration Commission the conciliation and arbitration I discuss shall be those in the national area.

The Commission’s work comes under fire from many directions. Those who see it as a predominantly legal institution are very critical. Curiously enough they divide into two opposing sections, the one pointing to the Commission’s failure to adhere strictly to a predictable judicial process and the other condemning it for being too legalistic. On the other hand, there are those who look on the Commission as an economic legislative body and criticise its alleged inability to gauge the impact of its decision making policy on the level of economic activity in Australia. Indeed, all criticisms, if one adopts the exclusively particular view of the Commission which each set of critics has, may have some justification.

Year by eventful year, a century has passed since the birth of Edward Aloysius McTiernan on 16 February 1892 at Glen Innes, New South Wales. The second of two children of Patrick McTiernan, police constable, and Isabella McTiernan (nee Diamond) came into a world on the brink of great political and legal changes. His life virtually spanned the whole history to date of the Commonwealth of Australia. It saw mighty wars, great scientific and social changes and the apogee and fall of the British Empire. Instructive it is to reflect upon the world he entered and the controversies which were agitating Australia and the mother country at a time young Edward was born.

A year before his birth, an event was to take place which affected the course of his life. In 1890, provision was first made for the payment of members of Parliament elected at the next general election in the colony of New South Wales.

There is no doubt that the Australian Competition and Consumer Commission ('ACCC’) has provoked very strong opinions among big business in Australia. This criticism reached its height in 2002 and 2003, at the end of Professor Allan Fels’ period as Chairman of the Commission. At this time, the Chief Executive Officers of a number of Australia's biggest companies regularly and publicly criticised the ACCC, and Professor Fels himself, for being ‘unfair, unjust and immoral', and having no ‘line of accountability at all.’ The ACCC's behaviour was criticised for being ‘a corruption of administration of the Trade Practices Act', ‘false and misleading behaviour on the part of the cop', and for using publicity ‘in a way that damages companies before they are proven guilty'. One chief executive said that ‘Fels’ use of the media … smacks of the Gestapo.’ Another called Fels a ‘smiling assassin’ who had inflicted ‘irreparable harm to the Australian economy.’

‘State courts’ can be understood in at least two ways. Their ‘attributes’ are the characteristics that define them as ‘courts’. Their ‘attribution’ is the extent to which they are regarded as emanations of a ‘state’ in its constitutional conception as a constituent unit of the federation. The principle first articulated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ensures the institutional integrity of state courts by protecting from legislative impairment their defining characteristics as ‘courts’. It therefore understands state courts almost exclusively by their ‘attributes’. This article examines the significance to the Kable principle of also understanding state courts by their ‘attribution‘. There are different conceptions of the proper attribution of state courts, coincident with different visions of how to accommodate simultaneous constitutional commitments to autonomous states and integrated courts. Those conceptions influence the content and application of the Kable principle in ways that are insufficiently appreciated. This insight permits a new perspective on the Kable principle as a doctrine of federalism, and its recent applications in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; and Wainohu v New South Wales (2011) 243 CLR 181. It also prompts an analysis of a contemporaneous evolution in the constitutional policy of the Commonwealth, whose Attorney-General typically intervened in Kable cases in support of the states, until recently seeking to extend to them certain Chapter III limitations.

It is strange to think that the question whether the High Court of Australia can grant the writ of certiorari may still be characterised as “unresolved”. To judge from the treatment this issue has received from several commentators, it might be asseverated that the matter is “unresolved” because “unimportant”. This article will examine the heads of jurisdiction which might be invoked to sustain the granting of the writ by the High Court.

As well, it will be necessary to consider whether, as a matter of principle, certiorari can or should issue to a superior court of record such as the Federal Court of Australia. The decision in Re Gray; ex parte Marsh casts doubt on the amenability of those tribunals to the writ at all. Since it has always been hitherto blithely assumed that Federal Court judges are susceptible to certiorari for the purpose of s 75(v), the dissentients’ view of Gray’s case, if accepted, would require a fundamental rethink of the entire area.

Traditionally, statutory provisions prohibiting direct discrimination have employed a test of less favourable treatment. This test is controversial since it requires the use of a comparator, which is widely regarded as giving rise to a range of serious problems. It is commonly assumed, both by academics and legislators, that reliance on a comparator, and the problems to which such reliance gives rise, can be avoided by employing a test of unfavourable treatment instead of a test of less favourable treatment. In this article, we subject this assumption to critical scrutiny. We acknowledge that, on what is probably the most common understanding of the test of unfavourable treatment, employing that test does avoid the need to rely on a comparator. However, we argue that this understanding renders the test of unfavourable treatment radically over-inclusive. We then consider alternative approaches to understanding the test of unfavourable treatment, and investigate whether these approaches avoid the need to rely on a comparator whilst also avoiding the over-inclusiveness problem. We argue that this depends, ultimately, on what the value is that underlies prohibitions on discrimination.

By a review of a series of comparable decisions in the Administrative Appeals Tribunal (AAT) some of the problems that may arise as the jurisdiction and role of the AAT continues to expand in the review on the merits of Commonwealth administrative decisions are identified. The problems include first, the apparent difficulty for democratic theory of unelected tribunal members (including persons who are also judges) reviewing policy determined by elected Ministers; secondly, the creation of a dichotomy between decisions made by the AAT and decisions of public servants faithfully and more consistently applying Ministerial policy; thirdly, the limitation upon the membership and procedures of the AAT which restrict any truly effective wide-ranging review of government policy; and, fourthly, the potential damage to community confidence in the judiciary, by the involvement of judges in the frank determination of controversial matters of public policy. The role of policy-making in the courts is acknowledged and similarities and differences in the function of the courts and the AAT in the review of policy issues are indicated. It is concluded that the AAT will require all arms of government in Australia to face more precisely the role of policy in adjudicative decision-making.

This article advances a new legal theory of the corporation—the “dual view” theory of the corporation. The theory states that the corporation must be explained in two different ways. First, the corporation must be explained internally to the law, as a legal category which acts as a trigger for the application of a set of legal rules. This “inner view” of the corporation says much about the function of the category within the legal system, but very little about why this category was designed to operate in this way. The inner view cannot explain the functions fulfilled by the category in the external world. To gain knowledge of the latter, one must adopt a second view-point, the “outer view”. The corporation must be explained as a legal artefact which facilitates the coordination of social action, whether this be in the economic system, the political system or indeed smaller systems of interaction such as the family.