In this article, I present the results of a study into the extent to which property figured as a constitutional and political concept in the drafting of the Constitution at the Australasian Federal Conventions of the 1890s. Property is a fundamental concept of western legal orders and a powerful political and rhetorical tool. Accordingly, it is important to understand both how it affected the drafting of the Constitution and how it is reflected in it. In Section I, I outline the process by which the Constitution was drafted by the Australasian Federal Conventions in the 1890s. In Section II, I identify the constitutional provisions in which ‘property’ and some related terms appear and assess the extent to which the Conventions shed light on the meaning of those provisions. In Section III, I discuss the striking ways in which property, as a political concept, influenced debate at the Conventions on constitutional provisions that do not themselves deal with property. In the final section, Section IV, I attempt an overall assessment of the significance of the concept of property at the Conventions.

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.

Australia will, I believe, ratify the convention and afterwards this Parliament will pass the necessary legislation to show other countries that we join in universal condemnation of the horror [of genocide].

The existence and potential scope of a Commonwealth constitutional immunity from State law has been a vexed issue ever since the High Court decided its first case on this question in 1904 There have been major shifts in the approach of the Court over the last century, and the doctrines expounded by the Court have been subjected to an unusually large volume of academic criticism. The operation of Section 64 of the Judiciary Act 1903 (Cth), together with the presumption of crown immunity, have in many cases prevented the question of constitutional immunity from arising. There are, however, a range of situations in which the constitutional issue will still arise. More importantly, the Commonwealth immunity from State law remains a highly relevant topic because of the significance of the constitutional issues that it raises. The debate over the existence and scope of the immunity reflects a broader uncertainty as to the form of federalism created by the Australian Constitution.

In this article, I will argue that the Commonwealth immunity from State law must be recognised as a constitutional implication. Although there has been some acknowledgment that the immunity is an implication, there has been little consideration of the consequences that might follow from this.

The subject of corporate political donations is highly topical in several countries. The Australian Democrats have called for greater disclosure of donations made by companies to political parties, and for the introduction of a shareholder-approval rule where the donor is a public company. According to Democrat Senator Andrew Murray, ‘ever since the first political donation changed hands, money has been used to influence electoral outcomes and the process of government’.

The problems potentially associated with political donations are probably as old as democracy itself. Where the institution of democracy is coupled with and gives its imprimatur to relatively free market economics, the market for votes takes on characteristics not unlike those of the markets for goods and services. Free commerce and free elections give rise to the possibility of political exploitation and manipulation. Where political power depends on commercial attractiveness, commercial interests can be advanced by contributing funds to those political interests which promise the best commercial returns. Consequently, allegations of wealthy citizens – corporate or otherwise – buying political influence are not uncommon where their capacity to donate to political parties (and the parties’ correspondent capacity to accept) is relatively unhindered.

In an oft-cited passage from Attorney-General (NSW) v Quin Brennan J identified the scope of judicial review in terms which bear repeating:

The passage emphasized the centrality of the distinction between review for error of law and merits review. However, the qualification that the dichotomy, which is so readily stated in principle, is not always easy to apply in practice is also well-taken.

"The Common Law abhors infiniteness"

[C]o-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. ... Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Common-wealth can constitutionally do, the subject matter is beyond the reach of the legislature.

Co-operative federalism is the process by which the Commonwealth and the States organise for their overlapping constitutional powers to be exercised concurrently in order to achieve national outcomes through consensual processes. Beginning with Re Wakim, the controversial cross-vesting case, from which the opening statement above by Justice McHugh was taken, the High Court has applied a restrictive approach to interpreting constitutional and statutory provisions when cooperative arrangements have been challenged.

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.

‘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.

On 5 October 2000, the High Court handed down its latest decision on the scope of s 80 of the Commonwealth Constitution. This note provides an overview of the decision and its importance, and offers a critique of the reasoning employed in the majority judgments.

Section 80, variously described but commonly referred to as the trial by jury provision, “has led to some of the sharpest divisions of opinion in the history of this Court”. Whilst the decision in Cheng v The Queen (hereafter Cheng) confirms the interpretation given to s 80 in Kingswell v The Queen—which involved a challenge to the same provisions of the Customs Act 1901 (Cth)—some of the judges making up the majority in Cheng admitted to reservations about that interpretation. In addition, Kirby J and Gaudron J were vociferous in their disagreement with much of the majority's reasoning, which suggests that fundamental differences over the meaning of s 80 will continue to plague the Court into the future.

It is clear that tribunals are a permanent feature of the administrative law landscape. The concept of merit review of administrative decisions by bodies other than courts has survived initial resistance from the executive, distrust by the courts, the managerialist pressures of the 1980s, and the downsizing, outsourcing movements of the 1990s. As Pearce commented, the recommendation in the Better Decisions report in 1995—the most comprehensive examination of the Commonwealth's merit review system since the 1970s—that merits review tribunals should be retained, albeit in a more integrated structure, is evidence of that acceptance. The Coalition Government, not without some struggle, broadly accepted that recommendation and the results, in the Administrative Review Tribunal Bill 2000 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 (ART (CTP) Bill) attest to that response. Such a development shows how far we have come in twenty five years. In the States and Territories, there has been the same process of slow acceptance followed by expanded use of tribunals, many of them dealing with work previously done by courts.

What has led to this position? Tribunals have certain characteristics, which often given them advantages over the courts. As the Franks Committee in the United Kingdom noted in the 1950s, these include ‘cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject’.

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.