The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.

This article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.

With increasing use of skilled temporary migration by employers and its significant influence upon Australia's permanent migration intake, the 457 visa has far-reaching implications — both for the domestic labour market and for the long-term composition of the Australian population. The scheme was introduced in 1996 to facilitate the temporary migration of skilled overseas workers to alleviate domestic skill shortages. Predicated upon a premise of business demand, the scheme allows employers to sponsor overseas workers whose occupations are on the Consolidated Sponsored Occupation List. Verification of whether the employer's attestation of a skill shortage is genuine is provided through employer-conducted labour market testing for certain occupations and the market salary rates requirement. This article questions whether these regulatory mechanisms are effective for ensuring the 457 visa program meets its objectives.

This article examines the central role that credibility assessment plays in refugee determinations. It draws on the authors' own empirical study, Tales of the Unexpected, to display the complex ways in which applicants' poor mental health can affect their capacity to present a 'coherent and plausible‘ account of their experiences. The authors then explore the significant issues arising from the tendency revealed in the Tales study for decision makers to dismiss expert opinions expressed in reports tendered by applicants from psychologists specialising in cross-cultural mental health assessment. For example, consider the decision maker who observed that

Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues.

This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.

This article critically examines the law concerning dismissal on grounds of redundancy as it applies to the Australian Public Service (‘APS’). Such an examination is timely, given the newly elected Coalition government's stated intention to reduce the APS by 12 000 employees through natural attrition.

The article argues that a reduction of 12 000 employees through natural attrition alone is unlikely, and that redundancies are almost inevitable. Against this backdrop, the article considers recent legislative developments concerning dismissal on grounds of redundancy. Its focus is the genuine redundancy exclusion contained in s 389 of the Fair Work Act 2009 (Cth) (‘FW Act’) and its application to APS employment. The genuine redundancy exclusion precludes unfair dismissal claims if the redundancy is genuine, the employer complies with any consultation obligations in a modern award or enterprise agreement and it would not have been reasonable in all the circumstances to redeploy the affected employee within the employer's enterprise or that of an associated entity.

The article argues that, prior to the FW Act, redundancy obligations were predominantly dealt with in collective agreements, and did not require consultations or redeployment of redundant employees beyond the individual agency. However the FW Act fundamentally changed the law in this area. The article contends that a failure to comply with consultation obligations in an agency enterprise agreement will increase the prospects of a dismissal being found to be unfair. In the APS this is problematic, given the convoluted nature of many consultation clauses in enterprise agreements. The article also argues that the redeployment obligations in s 389(2) are extremely broad and, contrary to past practice under the Public Service Act 1999 (Cth) (‘PS Act’), encompass redeployment across the APS. The obligation to redeploy across the APS creates tensions in the law between the provisions of the FW Act and the devolution of managerial powers under the PS Act.

Australia has announced the need to review the distribution of responsibility among individuals, businesses and governments, as a consequence of the move to digital citizenship. Australia has formally framed the issues in these terms and has opened dialogue between government and citizens regarding responsibilities for the use and protection of digital identity.

This article examines digital citizenship in Australia and considers the implications for individuals, government and the private sector of the requirement for an individual to use his/her digital identity for transactions. The features and functions of digital identity are examined, and the consequences for individuals, business and government of system failure are considered. The analysis shows that, while there are consequences for all, individuals are most affected.

The author argues that the traditional approach of relying on privacy for protection is inadequate in these circumstances. Privacy, by its nature, cannot adequately protect the part of digital identity which is required for transactions. The argument presented is that, unlike privacy, the right to identity can protect the set of digital information required for transactions. Considering the new system is literally being imposed by government, the inherent vulnerabilities of the system, and the consequences of system failure for individuals, formal recognition of the right to identity is an essential element of accountable and responsible governance. Whilst in time the right to identity in this context may be recognised by the courts, the author argues that legislative recognition and protection of an individual's right to digital identity is needed now as a key component of the distribution of responsibility in this new digital era.

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.