Recent Australian public law scholarship has demonstrated an increasing interest in the theme of constitutional values. In the current paper, I seek to clarify the terms of the debate by defending a distinction between (i) constitutional principles, understood as relatively flexible legal norms which rest on text, structure and history and (ii) extra-legal values. My argument is framed initially through a critical discussion of Rosalind Dixon’s proposal for a ‘functionalist’ approach to constitutional interpretation, which ascribes a central place to values in judicial reasoning. The functionalist position, I contend, lacks a sufficiently clear distinction between, on the one hand, constitutional principles as legal norms and, on the other, extra-legal values of political morality. As a consequence, the functionalist appeal to ‘constitutional values’ tends to shift between a relatively modest supplement to purposive approaches to judicial interpretation and a more ambitious proposal for judges to promote ‘normatively attractive’ values. These claims are elaborated and refined through a comparative analysis of German constitutional jurisprudence and a recent example of an appeal to values by the High Court.

Key changes to the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’), which offers minimum wage payments to parents on parental leave, took effect in July 2023. These changes sought to improve the gender equal utilisation of parental leave. This article assesses these changes to that end. The article also explores the regulation of employer-funded parental leave policies, which has been under-researched to date, drawing upon recent Workplace Gender Equality Agency data and interviews with human resource professionals. The data reveals that employer-funded parental leave policies often provide higher levels of income replacement than the PPL Act but mirror many of the PPL Act’s features that discourage gender equal parenting. These findings highlight the need for further reform in the regulation of paid parental leave to increase take up amongst men. Such reform will require flexible parental leave policies with non-transferrable and generous entitlements for all parents with high levels of income replacement.

Producing and disseminating knowledge is core university business and a collaborative, global activity engaging multiple stakeholders including universities, researchers, governments, Indigenous communities, commercial bodies and the public. While ownership of university inventions attracts scholarly and policy attention, effective management of copyright in research outputs is also necessary to maximise the benefits of publicly funded research, but often neglected. This article explains current dynamics in academic publishing and research ownership. It seeks to explain the complex interface of copyright law, university policies, academic customary practices, Enterprise Bargaining Agreements (EBA), research funder mandates and policies, the guidelines and policies that pertain to Indigenous research, and publishing contracts. The article concludes with proposals for copyright management to maximise opportunities for greater public benefit from Australian research.

The office of Attorney-General is an ancient one that remains central to the legal system. The Attorney-General exercises many functions and powers important to the legal system but is also a politician and member of cabinet. This article explains the key functions of the Attorney-General and also the political position of that officer. The focus of the article is upon federal law. It also examines three federal Attorneys-General of modern times and considers how their actions have influenced or reflected the changing conceptions of that office. The article does not suggest that changing conceptions of the office are either good or bad, but instead that they are a reality. The article suggests that these changes provide a reason to reconsider some of the traditional privileges of the Attorney-General, such as the power to grant a fiat in judicial review claims and the Attorney’s privileged position in standing for judicial review of administrative action.

Analysing the Australian convention debates of the 1890s, this article will show how the text of the Australian Constitution broke with British political constitutionalism by guaranteeing ‘the people’ a direct role in Australian political constitutionalism. This system of Australian ‘popular political constitutionalism’ has since led to distinct practices and debates. First, this unique form of political constitutionalism explains the implications the High Court has drawn from Sections 7 and 24 of the Constitution. The critical question for this jurisprudence is how the Court can protect the role of the people without undermining Australian political constitutionalism. Second, this popular political constitutionalism has also shaped the evolving role of proportionally elected upper houses in representing more than a simple majority in Australian parliamentary governance. This practice raises the question of how Parliament can move beyond majoritarianism without creating too many checks on political majorities.

For the purposes of assessing tax, section 170 of the Income Tax Assessment Act 1936 (Cth) permits the Commissioner to determine that the taxpayer has committed fraud or evasion. The taxpayer then bears the onus of showing that they have not. There is no requirement that the Commissioner show that such determination is correct, nor to support it with evidence. The Commissioner may, if they wish, do nothing more than put the taxpayer to proof by tendering their assessment as evidence. This article sets out in detail how the reversal of the onus of proof in cases arising from the Commissioner’s determination of fraud or evasion offends the principle of procedural fairness, as well as the principles of certainty and prospectivity. This paper also extends that analysis to disputes arising out of the commissioner’s determination of tax avoidance under Part IVA of the Income Tax Assessment Act 1936 (Cth). This paper further considers whether general administrative law principles, in particular the Briginshaw Principle, may obviate some of the concerns regarding the reversal of the onus of proof. It is contended that the reversal of the onus of proof in cases arising out of the Commissioner’s determination of fraud or evasion under section 170 and tax avoidance under Part IVA significantly offend fundamental tenets of the rule of law, namely, the principles of procedural fairness, certainty and prospectivity. It is further contended that requiring the Commissioner to adduce evidence to support the opinion or allowing the Commissioner’s determination to be judicially examined would obviate the offence to the rule of law.

This article begins with a simple question: why are the damages awarded to victims of sexual harassment so much lower than damages awarded for those defamed by false allegations of sexual harassment? This article undertakes a comparative analysis of the underlying rationales for awarding damages in the doctrines of sexual harassment and defamation, tracking the historical reasons why sexual harassment damages have traditionally been so low compared to other doctrines. Then, it directly analyses two cases which awarded some of the highest damages in their respective doctrines: Rush v Nationwide News Pty Ltd and Hughes v Hill. This analysis reveals how the ongoing effect that traditional factors inhibiting sexual harassment damages, such as gender stereotyping and the requirement to medicalise damages, results in ongoing discrepancies in the damages awarded between both doctrines. This article suggests a simple solution: applying similar rationales for assessing damages in defamation to sexual harassment decisions.

For many years, historical accounts of Australian Federation ignored the distinctive ideological origins of the Australian Constitution. From the mid 1980s until the 2000s, however, a generation of historians remembered how the Australian drafters built a distinctive constitutional democracy that combined trust in parliament with a direct constitutional role for a plural ‘people’: the people of Australia and the people of the states. Drawing on Chartist and American ideas of popular sovereignty, this system of popular political constitutionalism textually guarantees that ‘the people’ can ‘directly’ choose both houses of parliament, break deadlocks between these houses and make constitutional law. The definition of ‘the people’ in this distinctive form of constitutional democracy was, however, racially exclusive. In particular, First Australians were excluded from the plural people of Australia.

This intellectual history of the Australian Constitution, however, has had remarkably little impact on constitutional interpretation and discourse. This paper will begin the process of examining those implications. First, it will show how this history provides important contextual support and direction to the implied limitations on parliamentary power that stem from the constitution’s guarantee of representative democracy in sections 7 and 24 of the Constitution. Second, it will demonstrate how it aids in better understanding Australia’s unique constitutional system. To date, this system has remedied the racist roots of the original constitutional definition of the people largely through legislative reform. The constitutional recognition of First Australians is a critical step in acknowledging that First Australians are a distinct part of the plural Australian people. In the aftermath of the failure of the First Nations Voice to Parliament proposal, meaningful constitutional recognition for First Australians must address their structural exclusion from the plural Australian people.

Justiciability, or non-justiciability, has been regarded as a difficult and indeterminate concept in Australia. This article provides a definition of justiciability in order to clarify the interaction of justiciability with the grant of federal jurisdiction in Chapter III of the Constitution, as well as with related doctrines, such as the act of state doctrine and the American political question doctrine. It argues that justiciability is a constitutional limitation on federal jurisdiction to matters that are capable of being resolved by the exercise of federal judicial power. Accordingly, broad statements that certain subject matters are always non-justiciable should be rejected. Instead, it is necessary to demonstrate exactly what grounds a matter is said to be non-justiciable, arising from the text and structure of the Constitution.

The Australian Constitution was drafted, and the institutions of national government were established, during a period in which the atomism of laissez-faire liberalism was being rejected. Instead, progressive liberals of the era were searching for ways to encourage collective action and social ties, believing that this would, in turn, enhance personal wellbeing. This article contends that a clearer appreciation of the influence of the ‘social’ turn in liberalism upon Australia’s constitutional and institutional development might contribute to a fuller understanding of Australia’s distinctive constitutional and public law traditions.

The Immigration Assessment Authority (‘IAA’) provides the final merits review mechanism for people seeking asylum by boat in Australia. For fast-track applicants, the outcome of IAA review is incredibly significant, with consequences ranging from resettlement in Australia, removal to an applicant’s country of origin or indefinite immigration detention in harsh conditions. Eight years since its introduction, this article asks whether the IAA has realised the goal of promoting efficient review whilst meeting other important administrative objectives. The article takes a novel approach, applying a pre-formulated theory of administrative justice to analyse whether the IAA has balanced administrative justice properties. In so doing, this article offers a unique lens to critically reflect on the role of the IAA and whether, once its mandate is ended, this new model of review should be abandoned or revived for future merits review of asylum claims.

This article tracks the development of liquor laws in the Northern Territory, considering their impacts on Aboriginal justice outcomes and possible areas for reform. Noting the putative trade-off between health and justice outcomes, it examines the Northern Territory National Emergency Response Act 2007 (Cth), the Stronger Futures in the Northern Territory Act 2012 (Cth) and the 2022–23 Liquor Act 2019 (NT) amendments. Under the most recent Liquor Act amendments, the sale, possession and consumption of alcohol remain restricted in prescribed areas, which must determine the future of their liquor laws by 28 February 2027. This article proposes that greater investment is required to support Aboriginal leadership throughout this decision-making process. Indeed, a central proposition of this article is that the failure to adequately consult Aboriginal communities has been a shared feature of all three laws, and a fundamental barrier to improving Aboriginal justice. Reflecting on the interaction between Aboriginal and non-Aboriginal legal systems, this article identifies issues in the current policies that risk replicating the shortcomings of previous laws, thereby failing to empower Aboriginal leadership or improve Aboriginal justice services.

The Australian Constitution is only partly ‘liberal’ (securing political and economic liberties); another part is ‘socialist without doctrine’ (empowering governments to own and operate vast public capital, while providing social insurance in a market economy). That mixture is common in modern advanced economies but was anomalous in the Anglophone constitutional tradition in 1901. Legislative power over ‘old age and invalid pensions’, ‘railway construction’ and ‘conciliation and arbitration for the prevention and settlement of industrial disputes’ was an accepted part of the incipient Federal scheme but repugnant to Anglophone constitutional orthodoxy of the 19th century. The integration of ‘colonial socialism’ into the Constitution created one of the longest-standing puzzles in Australian jurisprudence, the Surplus Revenue Case of 1908, and laid the foundations for federal dominance of the Australian economy. Understanding the enduring impact of colonial socialism in Australian constitutionalism sheds light on how Australia’s distinctive political economy grew within a ‘Washminster’ system of government. It also provides principled guidance for future policy challenges that may require expansion of state involvement in the economy.

This article examines the legal case for banning ‘no cash’ policies at retailers in Australia, with a focus on fostering inclusivity for unbanked individuals and empowering consumers. The analysis explores three potential options for implementing such a prohibition: leveraging anti-discrimination laws, utilizing consumer protection laws or enacting new legislation. From a legal standpoint, the article argues that retailers should be mandated to accept cash when consumers seek to purchase essential goods and services. Drawing upon relevant legal frameworks, the article highlights the importance of protecting the rights of unbanked individuals and ensuring consumer choice. It explores the potential impacts on financial inclusion and consumer empowerment while considering the risks of financial crime. By delving into these considerations, this article aims to contribute to the ongoing discourse surrounding ‘no cash’ policies, offering insights and recommendations for policymakers and legal practitioners alike in their pursuit of a fair and inclusive society.

This article considers how section 116 of the Australian Constitution applies to executive power. Notwithstanding that the express terms of s 116 apply only to legislative power, we argue that s 116 should be interpreted to also limit the exercise of executive power. A literal interpretation would have the effect that the Commonwealth can circumvent a constitutional limitation on legislative power through the exercise of executive power and would undermine the fundamental constitutional principle of legislative supremacy. An implication that s 116 restricts executive power in the same fashion as legislative power enhances the coherence of the Constitution as creating an integral polity and eliminates disconnect between legislative power and executive power with respect to the same subject matter.

In 2018, the birth of the world’s first ‘CRISPR Babies’ rendered the global community in disbelief. This was the catalyst for an international moratorium on Heritable Human Genome Editing (‘HHGE’). For the first time, the international community was prompted to consider a pathway forward to regulate HHGE. In light of the evolving maturity of Clustered Regularly Interspaced Short Palindromic Repeats (‘CRISPR’) as a biotechnology, it is timely to evaluate Australian federal legal and regulatory frameworks governing human genome editing. The response to HHGE must carefully balance the need to prevent unethical applications, against the progress of research to improve and refine the technology. This article argues Australia’s federal legislative regime must be reviewed to ensure it has the necessary capabilities to effectively regulate HHGE. It applies three schools of thought which offer an instructive theoretical lens to understand how Australian law has responded to advancements in technology. In addition, an analysis of the governing federal legislation reveals three regulatory gaps — complexity, operational ambiguity and inconsistent legislative objectives. Together, these gaps may be indicative of a legislative and regulatory landscape that is no longer fit for purpose.