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 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.

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?

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:

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.

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”.