A wide range of state and federal laws recognise and regulate intimate and familial relationships. Such laws include inheritance, immigration, guardianship and superannuation as well as the areas that we traditionally think of as ‘family law’: property division and disputes over children following relationship breakdown.

There is no reliable demographic data on how many adults identify as lesbian or gay in Australia, but there is information to indicate that many lesbians and gay men live in long-term relationships, some of which include children. The Australian census has never asked individuals to identify their sexuality, but in 1996 and 2001 invited people to record if they are living in a same-sex relationship. These figures underestimate the numbers of couples for a variety of reasons: in 1996 the question itself was confusingly worded, and many people were unaware that they were able to record their relationship for the first time. The census does not record couples who do not cohabit. In addition, there are still many same-sex couples who would not feel comfortable recording their relationship on an official document such as a census.

The introduction of ‘no-fault divorce’ in Australia in 1976 promised unhappy spouses a ‘dignified’ way to end their marriage without the need to assign responsibility for the relationship's demise. But in 1989, Richard Ingleby's study of matrimonial breakdown hinted that the reformers of the 1970s had failed to appreciate the non-mutuality of the uncoupling process, and that the Family Law Act 1975 (Cth) ('Family Law Act’) had not been ‘able to prevent divorcing parties feeling the need to consider issues of fault'. Since that time a growing body of research evidence has revealed that blame and recrimination remain salient issues for divorcing couples, and academic commentators have suggested that battles over children and property are often proxies for unresolved relationship grievances. In this climate, legal scholarship has witnessed a renewed interest in the issue of spousal conduct, with radical proposals to construct ‘disloyalty’ in marriage as a legally relevant matter in divorce settlements, and consumers of the family law system have called for the law to pay greater heed to the moral dimensions of intimate relationships.

This article discusses the legal regulation of parenting in lesbian and gay families in Australia. This landscape of regulation includes laws that govern such families both before and after they are formed; that is, laws controlling access to potential family formation options in addition to laws that govern the status of parents and children in families that are formed through alternate means. There have been a number of important developments in these areas in recent years, including: challenges to laws that restrict access to fertility services; reforms to adoption laws in three jurisdictions; and deemed parental status for co-mothers in lesbian families formed through assisted reproduction in three jurisdictions. This article will detail how the new parental status reforms interrelate, including difficult questions regarding the recognition of this new parental status in other States and their interaction with federal law.

The Workplace Relations Act 1996 (Cth) (‘the Act’) pt VIB establishes a framework for the registration and enforcement of certified agreements, which are collective industrial instruments that regulate the employment relationship for a significant proportion of the workforce. The Act provides for agreements between unions of employees and employers and agreements between employers and employees directly. A certified agreement comes into effect only after it is approved by the employer and a ‘valid majority’ of its employees and is registered by the Australian Industrial Relations Commission (‘the Commission’). The significance of registration of a certified agreement lies in the imposition of legally enforceable rights and obligations upon the parties bound by the agreement. One of the most significant obligations imposed on the parties bound by a registered certified agreement is the obligation not to engage in industrial action for the duration of the agreement, which is ordinarily no longer than three years.

In July 2006, the Family Law (Shared Parental Responsibility) Act 2006 (Cth) ('the SPA’) came into operation, effecting wide-sweeping reforms to the Australian family law system. The reforms included amendments to Part VII of the Family Law Act 1975 (Cth) ('the FLA’) that seek to promote parental involvement with children and arrangements for equal or substantial shared care. While these changes apply to new orders made on or after the commencement of the legislation, in the case of applications for variation of existing orders, the changes only apply if the applicant can show some significant change in circumstance since the time of the making of the original order. This threshold requirement of changed circumstances is known as the rule in Rice and Asplund ('the Rule’). This Rule has been in operation for more than 25 years and its continued application has been expressly provided for in Schedule 1 Part 2 of the SPA. In this way the Government, acting upon concerns expressed by the Family Court, hopes to contain any increase in applications for variation.

Sometime after 1992, I first learned that the High Court of Australia had discovered that the Australian Constitution contained something that sounded very much like a freedom of speech guarantee. And the reasoning that supported that discovery sounded like the philosophy of Alexander Meiklejohn which I had been teaching in a seminar on Free Speech for several years.

Although Meiklejohn was talking about the United States Constitution, he was not emphasising the words of the First Amendment thereto. Drawing upon pre-Bill of Rights commitments recorded in various historical documents, Meiklejohn's view was that the framers of the United States Constitution had made a covenant with each other to build a democracy in which the people were both the governors and the governed. Freedom of speech, according to Meiklejohn, was necessary to make a democracy, and that was all that freedom of speech was designed to do.

It is clear that s 80 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) operates on the common law in cases in federal jurisdiction, but its precise effect is somewhat obscure. Section 80 provides:

Until recently, the High Court tended to concentrate on s 79 of the Judiciary Act (which applies the laws of the State and Territory where a court is exercising federal jurisdiction), and to consider s 80 only as an afterthought.

One notable outcome of the 2004 federal election is that no Indigenous Australian was elected to federal Parliament. Since July 2005, when Aden Ridgeway’s term as Senator expired, there have been no Indigenous Australians among the 226 members of the national Parliament. This article explores briefly why this is the case, and then moves to consider the viability of Australia adopting a quota system whereby ‘dedicated’ or ‘reserved’ seats of Parliament would be created for Indigenous Australians.

From the time of the Statute of Monopolies 1623, 21 Jac 1, c 3 ('Statute of Monopolies’), the flexible concept of a ‘manner of manufacture’ was understood to involve some form of limitation which was expressed in the statute as being ‘mischievous to the State … or hurt of trade, or generallie inconvenient'. Years of judicial consideration resulted in various classes of subject matter being carved out as unpatentable. Apart from non-contentious material such as discoveries, ideas and principles of nature, these classes included methods of medical treatment for humans, horticultural and agricultural methods, computer programs, presentations of information, plans and business schemes. The classes were relatively clear by 1959 when the High Court in National Research Development Corporation v Commissioner of Patents was asked to judge the patentability of an invention in an excluded class, namely a horticultural method. The trouble was that there were no consistent rationales to justify the excluded classes and to distinguish patentable from non-patentable subject matter.

That conclusion was reached in the 1560 case of Stradling v Morgan, and may be taken to correctly state the law at that time. In its context, it is clear that the phrase ‘foreign circumstances’ was intended to refer not to the state of international relations, but rather to the use of extrinsic material in statutory interpretation.

Despite this early acceptance by the English courts of the use of extrinsic material in statutory interpretation, strident restrictions on the use of extrinsic material were later to be introduced into the common law. In discussing the principle that, ‘Parliament speaks only through an Act of Parliament,’ Dicey stressed the point that, ‘the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment.’

In this article, I address the question whether religious vilification laws are contrary to the implied freedom of political communication affirmed in the High Court's decision in Lange v Australian Broadcasting Corporation. I will focus on three key issues. First, can the implied freedom extend, in principle, to religious speech, meaning speech that is motivated by religious belief as well as speech that simply deals with religion or religious topics? Secondly, do religious vilification laws place a relevant burden upon communication about political or governmental matters? Thirdly, are religious vilification laws reasonably appropriate and adapted to achieving some legitimate objective in a manner which is compatible with the constitutionally prescribed system of representative government? The latter two questions derive directly from the test formulated by the High Court in Lange for determining whether a law is contrary to the implied freedom of political communication.

This article investigates the possibilities for promoting and implementing a more progressive or essentially social democratic political and constitutional agenda within the existing institutional and constitutional constraints of federalism. Although this question has been a long debated and much discussed one in social democratic political and constitutional theory, this article seeks, indeed, to bring new light to this (traditional social democratic) perspective by emphasising the potential advantages of federal theory and the federal structure for a developing and contemporary social democratic agenda. Particular attention is devoted to the progressive possibilities which inhere in the States and their accompanying (State) constitutions and the consequent potential which State constitutionalism has to support a renewed and more distinctively progressive political (and constitutional) practice.

In a series of judgments in August and October 2004, the High Court found that the Migration Act 1958 (Cth) (‘the Act’) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. In doing so, a majority on the High Court arguably rewrote the rule book on the operation of Chapter III of the Constitution (‘Ch III’), undermining the majority judgment in Chu Kheng Lim v Minister for Immigration in the process.

This case note focuses primarily on Al-Kateb v Godwin. To the extent that they clarify or expand on the reasoning with respect to the operation of Ch III, reference is also made to Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs which were argued at the same time as Al-Kateb, and to Re Woolley; Ex parte Applicants M276/2003 by their next friend GS, which concerned the administrative detention of non-citizen children.

In Singh v Commonwealth (‘Singh’), the High Court was presented with the question whether a person born in Australia can be considered an ‘alien’ for the purpose of s 51(xix) of the Constitution (‘naturalization and aliens’). In a 5:2 decision the Court rejected the plaintiff's argument that birth in Australia necessarily accorded her the status of non-alien and thus a constitutional nationality which could not be displaced by legislative reliance on other heads of power. The decision is important, both for its elucidation of Parliament's scope to regulate Australian citizenship — the subject of a series of important cases over the last two decades involving strong dissents and two reversals in approach — and for its consideration of principles of constitutional interpretation.

P G Sharp's paper entitled ‘The First Paragraph of Section 55' was a valuable and interesting contribution to analysis of one of the more interesting, yet little discussed, sections of the Constitution. He provided a rich historical background to the section and its interpretation, and essentially made the argument that, following Permanent Trustee Australia Ltd v Commissioner of State Revenue (Victoria), there is no further need for legislative drafters to split taxation legislation into a ‘Taxing Act’ and an ‘Assessment Act’.

However, Sharp's argument leaves a great deal unsaid, and I have constructed four questions to set against his article, inviting further comment.

This Comment considers the High Court's recent decision in Sweedman v Transport Accident Commission. The issue dealt with at greatest length in the judgments was the suggested conflict between New South Wales and Victorian enactments and the related suggestion that constitutional principles would enliven to resolve this conflict. A second issue, the potential application of the s 117 prohibition on State residence discrimination, attracted less detailed treatment. Nevertheless, the Court's resolution of this second issue is significant in its apparent departure from the approach taken in the landmark case of Street v Queensland Bar Association. While this Comment will explain the Court's reasoning on both issues, analysis of the decision will focus on the s 117 issue.

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.