One of the distinctive features of the Australian legal landscape is the increasing use of commissions that possess coercive powers to supplement normal police methods in the investigation of crime. This practice became common in the late 1970s and early 1980s, when a number of Royal Commissions into organised crime or corruption were conducted. It continued with the establishment at both the Commonwealth and State level of standing commissions charged with the investigation of various types of serious crime or corruption. This article is concerned with an analysis of the ability of Royal Commissions and standing commissions to use their coercive powers to investigate crime when the investigation may interfere with pending criminal proceedings. It argues that the divergent authorities in this area can best be understood as turning on the fact that the separation of powers doctrine imposes limits on the powers of Commonwealth commissions that do not exist in relation to State commissions.

The nature of the Australian Consitution is usually described as eiher monarchic and parliamentary, or republican and federal. However, more than succinct expressions of the key political concepts behind the Australian Constitution, the two metaphors are the products of particular forms of analysis. Essentially, the terms parliamentary or consitutional monarchy and federal republic are the products of either revisionist or institutional interpretations of the Australian Constitution. The institutional interpretation focuses on tie practical function of the Constitution's federal and parliamentary institutions, and the origins of these devices within the British and American Constitutions. For example, as the Australian Constitution embraces the institutions of both Anerican federalism and British parliamentary government, institutionalists interpret its nature by relating the strucure and operation of Australia's federal and parliamentary institutions to the function of sinilar devices within the British and American Constitutions.

Anthony Frank Mason came to the notice of many in the legal profession early in his career. He was admitted to the New South Wales Bar in 1951 and three years later had his first significant success in a constitutional challenge to provisions of the Bankruptcy Act, arguing that provisions purporting to give power to the registrar were contrary to Chapter III of the Constitution. Shortly afterwards he endeavoured to appear for Fitzpatrick in the proceedings before the House of Representatives against his client and Browne for contempt of Parliament but he was denied permission. He has said that that experience had a considerable effect on his outlook in respect of the principles of natural justice and the importance of the courts in protecting the citizen.

In 1964 he was appointed Solicitor-General of the Commonwealth. While he was the fourth person to hold that position (the others being Garran, Knowles and Bailey) he was the first Solicitor-General who was not also Secretary of the Attorney-GeneralIs Department. His main duties were, therefore, to act as counsel and adviser to the Commonwealth. This gave him insights into the institutions and organisation of government which no doubt played their part in the formation of his later judicial views on public law.

I begin by reminding you that in 1964 Sir Anthony was appointed Commonwealth Solicitor-General and that he continued in that office until 1969. This is a matter of some importance in charting his legacy in administrative law.

The Solicitor-General Act 1916 (Cth) (the 1916 Act) provided in s 2 for the appointment by the Governor-General of a person to be the Solicitor-General of the Commonwealth and to have such duties and functions as prescribed by or under any statute or as were delegated to him by the Attorney-General. The 1916 Act was repealed by the Law Officers Act 1964 (Cth) (the 1964 Act). This provided for the reconstitution of the office of Solicitor-General as the second Law Officer of the Commonwealth and made detailed provisions with respect to that office.

The implied freedom of communication about government and political matters is now firmly entrenched in constitutional jurisprudence, following the High Court decisions in Lange v Australian Broadcasting Corporation and Levy v Victoria. Both its existence and the manner of its implication, namely from the text and structure of the constitution, are “not open to doubt”. Although this more “traditional” approach to the derivation of constitutional implications appears to reduce the likelihood of further implications based upon representative government, the scope and extent of the implied freedom still require considerable elaboration. However, the application of accepted principles to particular areas, even if that leads to an expanded interpretation of the freedom, has a surer foundation than the derivation of new freedoms.

A court's approach to non-parties, such as the amicus curiae and intervener, reflects its perception of its own larger role. The Supreme Courts of Canada and the United States, as well as the Constitutional Court of South Africa, have welcomed submissions from public interest organisations and others and have drafted Rules of Court to allow their participation in cases raising important issues of public policy. The South African Court has even solicited submissions from strangers to the litigation, such as academics, in order to broaden its perspective on a case arid on the consequences of any decision it might reach. The approach of these courts shows how each has embraced the roles of law-maker arid interpreter of an ambiguous constitution.

The High Court of Australia, on the other hand, frequently denies the amicus curiae and intervener any meaningful function. They are riot even mentioned in the Rules of Court. While it is true that the total number of interventions in the Court has increased over the last decade, the door has often been closed.

It is often claimed that, in addition to arriving at the “correct or preferable” decision in the individual case, a primary objective of an administrative review system is to have a “normative” influence on government decision-making. As the Federal government has made a commitment to the overhaul of the administrative review system, it is timely to question the significant normative achievements which have been claimed over the past two decades of codified administrative review rights in Australia.

The first part of this article outlines the theoretical and practical foundations of the normative goal and the changing influences upon it. It attempts to unpack the concept and consider some of its claims. Is it, for example, realistic in the context of the dynamics of government administration, to continue to claim the “normative effect” as a goal of administrative review? Is the administration responsive to review? Is there evidence of administrative law “values” in the culture and processes of the administration?

It seems natural, almost inevitable, that courts should perceive their role in judicial review as protection of the rights of citizens. Presented with litigation between citizens, the court protects the rights of the party .entitled to win. In the case of litigation between citizen and government, if there are any rights at all to protect, they will be rights of citizens. We can hardly speak of rights of government. Yet government, in exercising powers conferred by the parliament which represents the people in accordance with the will of the majority, claims a mandate to make policy and implement it. Perhaps this mandate is also a right deserving of the protection of the courts. It could be argued, after all, that the public interest consists in the collective rights of the majority.

In a recent article Andrew Lokan has suggested that the courts are faced with political choices as they deal with native title. The purpose of this paper is to consider the history of the recognition of Aboriginal customary rights to land in Australia, assess the extent to which policy and political issues have thus far been relevant in those developments and then to consider the extent to which such policy and political issues may be relevant in the future. Possible limitations upon the policies that might be considered by the courts are discussed. The discussion also affords an opportunity to look back over the development of the law of native title and to review how and why we have come to where we now are.

This paper examines the relationship between so-called “merits review” of administrative decision-making, and “judicial review” of administrative action as that term is used in the title of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), for instance. In particular, it assesses and, in some respects, challenges the widely held view that there is a qualitative difference between merits review and judicial review. The main thrust of my argument will be that the differences between judicial review and merits review are not as stark as they are often portrayed. More provocatively, I will suggest that merits review can plausibly be described as judicial review in disguise.

Section I considers the constitutional underpinnings of merits review, and concludes that from a functional point of view, the exclusion of merits review from the judicial power of the Commonwealth is hard to justify. Section II examines various suggested distinctions between judicial review and merits review. Its main conclusion is that merits review is characterised by the power to exercise afresh the decisionmaking power invested in the original decision-maker.

To be trite is to be worn out by constant use or repetition, or to be hackneyed or commonplace. The word “trite” is derived from the Latin word terere meaning essentially “to rub”. Thus, the word has physical associations, as if a trite remark actually erases its own origins because they are of no use anymore. Obviously the more used something is, the more trite it becomes, or so one would expect. There is even a built-in pejorative connotation, as to overuse a phrase, or resort to trite propositions can, in some cases, “rub” the listener the wrong way.

Since the very humble beginnings of the common law courts, judges have identified law that is trite. In the 15th century, Chief Justice Brian, in a case known only as T Pasch's case, said, in words that have since rung down the centuries:

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 concept of the Crown is…deeply ambiguous.”

The ambiguity surrounding the concept of the Crown stems from the very many functions that it has been required to perform. One tends to forget that it is merely a type of hat, as Maitland and Lord Simon have observed, so bound up in the symbolism of that headgear has the word become. So important was this symbolism that Oliver Cromwell ordered that the regalia should be totally broken. This symbolism, in its turn, metamorphosed from representing the person of the king or queen to the artificial person of a corporate body, though it was not clear whether the Crown was a corporation sole or corporation aggregate. This corporate manifestation was needed to explain how it was that government continued without being dependent on the person of the sovereign. The Crown was the government occupying a role not dissimilar to the Holy Trinity, being the executive, judicial and legislative arms of government in one. Each of these arms to this day, both in England and Australia, does things in the name of the sovereign.

The current arrangements for taxation of superannuation in Australia are directed to ensuring that individuals make more adequate provision for their retirement than has occurred in the past. The use of tax concessions to do this obviously involves a cost to the public revenue. The use of tax concessions in relation to superannuation is both inefficient, because it provides concessions to those who would make provision for their retirement even without the concessions, and inequitable, because it provides the greatest concessions to those at the upper end of the income scale. Taxpayers who are unlikely to access the concessions fully are those who do not follow the traditional work pattern of a substantial unbroken period of employment. The aim of this article is to demonstrate that, at the turn of the century, many women have work patterns that differ from the traditional model and that the current arrangements for superannuation, which form a major component of the government's retirement incomes policy, are inequitable and should be changed.

Since its creation by the Family Law Act in 1975 the Family Court of Australia has relied on various measures which have been implemented from time to time to overcome the deficits in its jurisdiction in relation to children. These deficits emanate from insufficiencies in constitutional power. Those measures include the addition in 1983 of the jurisdiction in relation to the welfare of a child by the Family Law (Amendment) Act 1983 (Cth) and the reference by the Australian States, between 1986 and 1990, of substantial powers by the Commonwealth Powers (Family Law Children) Acts. These substantially extended the jurisdiction of the Family Court in respect of ex-nuptial children. Remaining gaps in jurisdiction were filled by the enactment of the State and Federal Jurisdiction of Courts (Cross-Vesting) Acts 1987 which conferred on the Court the jurisdiction of the State Supreme Courts. The Court has thus been in the happy position since 1987 of hearing State matters in association with children's issues which were instituted in the Family Court; and it has received and heard State matters involving State law which were transferred to it by State Supreme Courts.

Corporations are undergoing a subtle transformation. Usually regarded as investment vehicles for shareholders, corporations are now assuming an additional identity–as entities which share responsibility for upholding human rights. This new identity does not sit comfortably with conventional wisdom on corporate governance. Traditional corporate governance theory, based on nineteenth century notions of trust, posits that ‘the company’ is a legal entity embodying the members from time to time. Directors, as trustees of corporate assets, owe duties to foster the interests of the shareholders by maximising their investments. Under this view, directors do not owe wider obligations to society.

This traditional understanding, however, is beginning to yield to more recent legal and social pressures. Legal developments in regulatory practice, in combination with an upsurge in social movement activism, is now forcing corporations to accept that they are more than mere economic entities. They are also private ‘governments’–social and political entities with the ability to exercise general powers over themselves and, more importantly, over others.

The principal focus of this essay is review of administrative decisions taken in the course of co-operation between governments in a federation or in a constitutional system with some federal characteristics.

The nature of the problem is illustrated, albeit in a different context, by a decision of Sir Anthony Mason in Tasmanian Wilderness Society v Fraser. The decision concerned an inter-governmental body, the Australian Loan Council. The Loan Council was established pursuant to the Financial Agreement, authorised by s 105A of the Australian Constitution. Its members were the Prime Minister and the Premiers of each of the States, or their nominees who were often, in practice, their Treasurers. As it then stood, the Financial Agreement provided for approval of the combined borrowing program of all Australian governments by the Loan Council, under weighted majority voting rules that gave the Commonwealth two votes and a casting vote. In practice, the Loan Council had long since assumed the function of approving the aggregate borrowing program for “larger” semi-government authorities as well, under the socalled “Gentlemen's Agreement”.

The franchise is the linchpin of representative democracy. The level of representation is dependent upon the extent of the franchise. This most fundamental of democratic rights, the right to vote for those who govern, is not entrenched in the Commonwealth Constitution. At the time the Constitution was enacted, the franchise was in a period of flux, with property qualifications and plural voting on the demise and the concept of a universal franchise in the ascendant. Proposals to enshrine the franchise in the Constitution met with protests that the smaller colonies, such as South Australia (which allowed women the right to vote) were attempting to impose their will on the larger colonies of New South Wales and Victoria. It is not surprising therefore that such protection as mar be found in the Constitution for the right to vote has been described as “obscure”.

My subject is the extent to which the federal features of the Constitution restrict the power of Parliaments in Australia to legislate to confer discretionary powers on executive and administrative officers. I shall also examine the relevance of the ayailability and scope of administrative law remedies to that issue.

By “the federal features of the Constitution” I mean the distribution of powers between the Commonwealth and the States and provisions that deal with the relationship of the several States with each other and with the Commonwealth, such as ss 92 and 117; and those limitations on federal powers designed to prevent State favouritism, for example ss 99 and 51(ii), (iii).

I will not be dealing with the effect of the separation of the judicial power of the Commonwealth on the administration, under Chapter III of the Constitution. While an independent and separate central judiciary may be regarded as an essential ingredient of a federal state, its role and function extend further, providing a guarantee of the rule of law, which is, of course, just as applicable to non-federal states.