The phrase ‘Australian exceptionalism’ is most often used these days in relation to Australia's stand with the United States in the war against terror and the Australian government's attitude to international human rights law. Australia is exceptional also in being now the only English-speaking democracy without a judicially enforceable bill of rights at the federal level. Although not unrelated, here I want to explore whether the part of Australian public law that deals with judicial review of administrative action is also ‘exceptional’. I will identify the features that are commonly said to set Australia apart from other common law jurisdictions and justify Australia taking a different path in the elaboration of the principles of judicial review of administrative action.

In March 2007, the Human Rights and Equal Opportunity Commission ('HREOC’) concluded that ‘it's about time for a new approach’ to the problems faced by men and women in respect of work and family responsibilities in Australia. Based on two years of consultation, HREOC issued its final report, It's About Time: Women, Men, Work and Family, noting that many Australians struggle to combine work and family and that workers with family responsibilities experience significant discrimination and inequality. HREOC concluded that the federal government could do more to address the difficulties faced by workers trying to satisfy both their work and family responsibilities and put forward a wide array of recommendations to this effect. Its central recommendation was the enactment of new federal legislation to promote cultural change through greater protection and support for workers with family responsibilities. The Family Responsibilities and Carers’ Rights Act would serve to bolster the prohibition of discrimination on the basis of carers’ responsibilities and provide employees with a right to request flexible working arrangements.

Agitation for parenting reform has become a prominent feature of family law policy debates in recent years. Many countries, such as England and Canada, have proceeded cautiously in response to such demands. Australia, on the other hand, opted for a bolder step and enacted a suite of shared parenting amendments in 2006, including a presumption of ‘equal shared parental responsibility'. The Shared Parental Responsibility Act was designed to facilitate substantial, if not equal, involvement by both parents in children's lives following separation, provided this is safe. While conversations about the implications of this move continue to take place, the first empirical evidence of its impact on post-separation parenting patterns has now been published. Its data suggest the reforms have been successful in producing an increase in ‘substantially shared care arrangements’ since the legislation came into force. At the same time, however, the research indicates that a significant number of these arrangements are characterised by intense parental conflict, and that shared care of children is a key variable affecting poor emotional outcomes for children.

In 2006, Parliament made major amendments to the Family Law Act 1975 (Cth) (‘Family Law Act’) to encourage a greater level of shared parenting, and to give greater emphasis to the importance of children maintaining a relationship with both parents in the absence of violence or abuse. There are major differences between trial judges in how to apply the new laws to the problem of parental relocation — where the primary caregiver wants to move a long way from the other. The central problem is determining how much importance should be given to a parent's freedom of movement given this greater emphasis on the involvement of both parents. There are stark differences in the policy and approach of different trial judges, which have yet to be resolved by an authoritative and carefully reasoned decision of an appellate court.

This article examines these substantial differences in view between judges on this issue since the 2006 amendments, and proposes a way forward based upon revisiting the leading judgment of Kirby J in the High Court in AMS v AIF.

The concept of equality has been a familiar tenet of democratic theory since antiquity, but it has always been a skewed notion. In Athens, the birthplace of democracy (demokratia: the power of the people), women and slaves were excluded from ‘the people’ so far as life in the polis was concerned. Aristotle believed that this exclusion was justified because women and slaves were inferior in phusei (by their natures). The idea that ‘justifiable’ discrimination may be invoked selectively to derogate from equality continues to be the case today. What is justifiable is determined by those with power, just as it always has been. Equality between human beings, therefore, is a contingent and permeable notion; absolute equality belongs only in the world of the quantifiable and the mathematical. While women and Others have been ‘let in’ to public life, the heritage of the past continues to lie like a dead weight on equal participation.

The relationship between law and history has long been the subject of academic interest. Both disciplines have occasion to turn to the past, yet their purposes and methods for doing so often vary. Some commentators have noted the similarities between the two disciplines, describing them as ‘intellectual cousins’ who share a ‘natural affinity'. Yet, equally, commentators have noted the tensions between the two disciplines, depicting them not as allies but as strangers or enemies. These scholars have painted a picture of competing logics, suggesting that the clash between the law's ‘logic of authority’ and the historian's ‘logic of evidence’ creates an uneasy relationship.

Although capturing the attention of both judges and commentators, the intersection between law and history continues to elude precise definition.

When an employee sexually harasses a fellow employee away from the workplace or outside work hours, such as at a bar or a private party, difficult questions arise as to whether the employer should be held vicariously liable. Conversely, difficult questions arise as to the extent to which an employer might legitimately seek to supervise or regulate the conduct of its employees outside of work.

This article traces the key decisions that have considered this issue of sexual harassment away from the workplace or outside normal work hours (for convenience, I have referred to such conduct as ‘off-duty sexual harassment’).

As the discussion in Part Two illustrates, the leading decisions in the Australian federal jurisdiction considering the scope of vicarious liability for off-duty sexual harassment have taken a consistently broad approach to the requisite nexus with the employment. This culminated in the watershed decision of the Federal Magistrates Court last year in Lee v Smith, where an employer was held vicariously liable when an employee raped a fellow employee at a private residence following a social dinner party.

Patents provide inventors and their assignees and licensees with a fixed period of market exclusivity, during which they can exclude others from use of their inventions and charge monopoly prices on the sale of their products. In return, inventors are required to disclose to the public the nature of their inventions and the best methods of performing them. This public bargain provides the underlying justification for the patent system: patents are good for society because they provide the incentive to innovate and innovation benefits society. If inventors can recover the costs put into research and development and earn rewards through product pricing and licence fees, they will be encouraged both to take their inventions through to commercial production, and to engage in further innovation. Full disclosure further encourages innovation by allowing others to use the invention once the patent has expired.

On 9 February 2007, all State Premiers, in the Council for the Australian Federation, agreed that a constitutional convention should be held in 2008 to propose reforms to Australia's federal system. The need for a Constitutional Convention to improve the operation of the federal system has been supported by a broad coalition, ranging from business groups, to local government, academics and the media. Bob McMullan, in his former role as Shadow Minister for Federal/State Relations, stated that the idea was ‘worthy of serious consideration'. The 2020 Summit, held in April 2008, also proposed the holding of a constitutional convention to reconsider the allocation of powers and functions across all tiers of government and the finances needed to fund them.

In an illuminating analysis of the concept of justiciability, Geoffrey Marshall distinguishes two senses of the term. In the first, descriptive sense, justiciable issues are issues which have, in fact, been committed by parliaments to a judicial forum. Any question which has been made subject to adjudication is, in the descriptive sense of the word, a justiciable question. In the second, prescriptive sense, justiciable issues are issues which are suitable to be resolved judicially. In the United Kingdom, there is no obstacle to Parliament requiring courts to resolve questions which are not suitable to be resolved judicially. By contrast, in terms of the Australian Constitution, the Chapter III courts are limited to answering questions which are justiciable in the prescriptive sense of the term.

There has recently been a minor research and publishing boom in the field of refusals of royal assent to Bills in Australia. When in the throes of finalising my own contribution to this outburst of scholarship, I discovered that the figurehead German Federal President had just refused his assent to two government Bills passed by the Bundestag (the lower house of Parliament). In the two cases, which occurred in October and December 2006, the Federal President acted because he thought the proposed statute unconstitutional. Further research revealed that these were the seventh and eighth refusals of assent by a Federal President against the government's wishes since the foundation of the Federal Republic in 1949. As a result, there is a long-running academic debate in Germany about the circumstances in which the figurehead Federal President may refuse assent. Some scholars even permit the Federal President to assess every proposed law to ensure that it complies with the constitutional charter of rights, while others take a more restrictive view and confine his task to errors of parliamentary procedure and/or restrictions on law-making power other than those to be found in the charter of rights.

In Burge v Swarbrick, the High Court of Australia delivered an important decision on the most elusive of works protected by copyright: the work of artistic craftsmanship ('WAC’). Drawing on the history and reasons for that protection, and adopting the analysis of Lord Simon in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd, the Court affirmed the orthodox view that such works have ‘special status’ in law on account of their ‘real artistic quality'. In its judgment, whether a work has that quality depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently ‘unconstrained by functional considerations'.

In the discussion below I consider that view, and other aspects of the Court's decision. I suggest the requirement for artistic quality is simply a requirement for a WAC ‘not imaginary, unreal or apparent only'. Further, the properties of this type of work are better conceived in historical terms than the formal aesthetic terms of the Court. On this view, whether an object is a WAC depends on both its properties of form and the history of its individual production, meaning the (subjective) intent of its individual author and view of society with respect to its nature.

Governments create and commission copyright protected material as part of their core administrative functions and they sometimes compete with the private sector as developers of commercially valuable assets. Governments also use under licence copyright protected material owned and created by others. A wide range of copyright material is also submitted to State and federal governments when individuals and corporations comply with legal obligations or conduct business with government agencies. That material submitted to governments, and the information it contains, can have value that extends beyond the initial transaction. Governments can add value by compiling and processing the information and then charge the public for access. Material submitted to government is also an important source of information about how governments function. When the principles of open government and transparency are discussed, the primary focus is usually upon access to information recorded in documents created within government agencies. However, it is often necessary to extend access to documents received by agencies. Copyright in that material will be privately owned and that can conflict with public access.

For a time, the discipline of Australian military forces provided an interesting study in the application of Imperial legislation. That feature of the system has fallen away at least since the enactment of the Defence Force Discipline Act 1982 (Cth) ('Discipline Act’). Since then, attention has been directed to the consequences of a tension between the necessary (or at least universally accepted) nature of military discipline and the values embedded in Chapter III of the Constitution.

Beginning a discussion of the Constitution and military justice in 2005, Mr Tracey observed:

Gypsy Jokers v Commissioner of Police (‘Gypsy Jokers’), at least in the Western Australian Court of Appeal, concerned the application of the so-called Kable v Director of Public Prosecutions (NSW) (‘Kable’) principle (or principles). That is, the principle restricting the State legislatures’ powers to confer responsibilities on State courts vested or capable of being vested with federal jurisdiction, especially State Supreme Courts, as would be incompatible with the exercise of that federal jurisdiction. Kable's focus has been sharpened and narrowed in subsequent cases to refer to theories of the ‘institutional integrity’ of State courts, or their actual and apparent ‘independence and impartiality’.

On appeal to the High Court, Gypsy Jokers dramatically shifted from a development of relatively novel and volatile constitutional principles into an application of canons of statutory construction, followed by a conclusion of constitutional validity that bypassed the leading tests.

The internet is a new and ubiquitous tool for conducting business. In the age of e-commerce, distance and physical borders mean very little. The Constitution, however, was drafted at a time when trade and commerce was characterised by important geographical considerations, the most significant being the geo-political boundaries between the several colonies that became the States. The internet has all but destroyed whatever remnants of that age might have survived the previous 100 years. This tension between recent technological advancement and long established constitutional jurisprudence confronted the High Court in Betfair Pty Ltd v Western Australia.

Betfair is one of a long line of cases dealing with the freedom of interstate trade and commerce enshrined in s 92 of the Constitution, the most litigated section of Australia's highest document of government. But it is also truly unique: Betfair is the first time that the freedom of interstate trade and commerce has been considered in an e-commerce context. Presented with this opportunity, the High Court has elaborated upon the approach to s 92 set down nearly 20 years ago in Cole v Whitfield. The outcome has significant consequences for both State and Commonwealth internet regulators.