Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long-standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and, over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share.

Australian constitutionalism appears to be in turmoil. Ever since the Free Speech cases of 1992, commentators have been telling us that constitutionally we have undergone a “glorious revolution” and that Australian constitutionalism has experienced a “fundamental paradigm shift” from parliamentary to popular sovereignty. They have remarked on the “inadequacy of our constitutional theory of government” and urged us to acknowledge “a new foundation on which, step by step, our constitutional jurisprudence will need to be rethought.” This would include a new theory of judicial review.

Some of this hyperbole can be attributed to youthful exuberance and, for older enthusiasts, to the allure of novelty. All are excited by the prospect of implied constitutional rights. The constitutionally “frozen continent” admittedly presented a fertile field for those commentators who have complained of our “impoverished constitutional culture”, bemoaned the absence of “an underrmg [constitutional] philosophy or vision” or even “an overall framework”, and queried the appropriateness of our existing “constitutional concepts, ideals and values ... to the Australia of the late twentieth century”. Our constitutional framers have even been criticised for adopting features of the United States Constitution only “at a secondary machinery level” but “nothing of [its] spirit”; or, as another commentator put it, “drawing on its most conservative, least inspiring features — jettisoning the rest”. The original United States Constitution’s solicitude for slavery was presumably overlooked.

Executive accountability is the central concern of administrative law and accountability, in administrative law terms, is achieved principally by a system of judicial and tribunal review of administrative decision-making. The ease with which citizens can approach courts and tribunals for review of government action, therefore, becomes an accountability issue. In turn, that raises the question of the tests for standing and any other jurisdictional gateways to review. This article is not concerned with issues of standing and whether a person is “aggrieved”. However, it will discuss the jurisdictional tests which must be satisfied in order to obtain review by the Federal Court (generally referred to as “judicial review”) and the Commonwealth Administrative Appeals Tribunal (AAT/Tribunal) (generally referred to as “administrative review”). The statutory tests are designed to determine the point in the decision-making process at which judicial and administrative review is permissible. The underlying hypothesis is that the jurisdictional tests have been devised to strike a balance between protecting the rights of individuals affected by government decisions while preserving efficient administration.

It is often said that the great innovation of America's eighteenth century constitution-makers was not their acceptance of the ideal of constitutionalism but their insistence that legal constraints on government be subject to alteration, breaking free front the hold of divine law and natural right theories. To be sure, the notion of constitutionalism necessarily entails that there be some distinction between how ordinary legal change is effected and how a constitution is changed. A constitution binds and guides ordinary law-making by virtue of itself not being subject to those processes.

The Commonwealth has since federation formed and controlled many corporations, both statutory and those created under companies legislation. In this article we explore the constitutional basis for the Commonwealth forming and controlling a Corporations Law company. This is a topic which has received little attention but it is becoming increasingly clear that a proper understanding of the Commonwealth's constitutional position, when it forms and controls companies, is necessary because of the increased emphasis on commercialisation and entrepreneurialism and the sometimes drawn-out process of privatisation of Commonwealth bodies.

It is generally assumed in this article that the Commonwealth will make use of a company for some commercial purpose, but we acknowledge this is not always the case. It is possible, and quite common, for the Commonwealth to use a company for the implementation of a policy or for some other governmental purpose not directly related to commercial activity. The use of the company form by the Commonwealth in any situation raises important questions about government responsibility and accountability. While we do not address these questions directly in this paper, our underlying concern nevertheless is that the use of a company by the Commonwealth for ordinary commercial purposes has the potential to erode the notion of governmental responsibility.

This article argues against the disenfranchisement of prisoners and explores the terrain of possible political and legal reform in this area. After a brief introduction defending the importance of the franchise, the article falls into several parts. First, there is an examination of the definition of the franchise by Australian electoral law, in the context of international norms. The second part explores arguments for and against prisoner enfranchisement, and draws on overseas jurisprudence, and historical and political theory. The practical effect of the disenfranchisement is then assessed statistically, and also in terms of realpolitik. Finally, the possibility of using anti-discrimination law to challenge these laws is considered.

Traditionally, estoppel by representation cannot interfere with the exercise of a statutory power or the performance of a statutory duty by an administrative body. According to this principle, referred to below as “the traditional rule”, the public purpose served by the statute prevails over the private interest of an individual who may have been misled to the extent of relying on a misrepresentation to his or her detriment. This article begins by examining the ambit of this rule.

The second part of the article analyses the basis for estoppel in administrative law. It will be argued that public law estoppel must be based on analogous private law principles, and not on some unique public law doctrine.

The remainder of the article then considers transposing private law estoppel into a statutory context. Specifically, it deals with the application of estoppel to representations about intra vires exercises of power, and then examines representations about ultra vires administrative action.

The ability of ministers to exercise de facto control over statutory corporations presents a significant governance problem for the Australian public sector. Parliaments have attempted to define the degree of autonomy granted to the statutory corporation by regulating the flow of communication between ministers and boards. Reporting requirements are one legal technique. Another is the use of legislative provisions which grant the minister formal powers of direction over the corporation and which impose upon its directors obligations to disclose corporate information to the minister. These provisions vary widely in their language; and their meaning is often a source of concern for corporate office holders and third parties dealing with the corporation. Statutory powers of direction raise fundamental questions of institutional design: how closely ought statutory corporations be controlled by the Executive? And in what manner ought the Executive be accountable to Parliament for its activities?

This is the song that never ends
It goes on and on my friend
Someone started singing it not knowing what it was
And they'll go on forever now because
It is the song that never ends …

Choice of law in tort may seem to be a tune we cannot get out of our heads at the moment, but it must be remembered that it presents a set of problems which have vexed legal minds — practical, academic and judicial — for centuries. Recent years have seen the issue of conflicts between the tort regimes of the Australian states and territories prove particularly difficult to address. This article will first canvas some of the reasons for the difficulty in formulating a rule in this area. These reasons are many and varied. First, the proper or central function of the law of tort itself has long been the subject of dispute. Then, the very nature of a right in tort has not lent itself to any obvious choice of law approach. The rapid evolution in this century of new kinds of torts has exacerbated the matter.

One of the difficult issues liberal democracies face is how to distinguish allowable government action from the protected sphere of human activity. Rights have become increasingly important as a critical standard for evaluating the justification of policy. Yet no consensus exists on the best institutional methods for defining the scope of rights or for ensuring that rights are adequately and appropriately considered in the formulation of policy. Since the Second World War, many countries have shown an increasing interest in utilising a bill of rights against which to evaluate state action. Even parliamentary systems, founded on Dicey's precepts that the rule of law and parliamentary sovereignty are a superior way for respecting rights, have departed from, or have been pressured to alter, this institutional framework.

However, a bill of rights, which accords a more authoritative role for judges in resolving citizen-state conflicts, is not without its critics. Proposals for bills of rights attract a wide range of concerns that judicial review of codified rights will reify rights, distort the way political issues are dealt with, assign priority to a different range of values, and result in elected officials reneging on their political responsibility to undertake controversial political decisions.

Australia in the 1990s, like most other industrialised countries, is characterised by its high level of technological development, the increased automation of transactions between businesses and their customers and the reversal of pre-existing trends towards large government. These factors have combined to create an environment in which the issue of privacy and, in particular, the need for a private sector regime to protect privacy has begun to feature on the political agenda.

The need to regulate personal information became a matter of concern for the first time in Australia in the context of the controversy generated by an unsuccessful attempt to introduce a national identity card, the Australia Card. The main concern at that time focussed on the need to regulate the activities of the government; the Privacy Act 1988 (Cth), which was enacted in conjunction with initiatives to extend the use of the tax file number as a de facto identifier, covered only the activities of the Commonwealth public sector.

The Australian Constitution expressly guarantees very few individual rights. One of its rights-conferring provisions is s 116. Incongruously situated in the Chapter dealing with the States, s 116 prohibits the Commonwealth from, amongst other things, legislating against the free exercise of religion or for the establishment of any religion. The United States Constitution, by contrast, includes a comprehensive Bill of Rights which includes a similar, though not identical, religious guarantee. In very different contexts therefore both the High Court of Australia and the Supreme Court of the United States of America have adjudicated upon a similar constitutional provision.

[I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should turn to constitution making.