There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized ‘Mason Court revolution’ – the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes – why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a story of the successful development of an executive-based institution for cooperative governance in the Australian federal system. By contrast, the Council of the Australian Federation (CAF), created in 2006 as a forum for interstate co-operation and policy development, has been far less effective. This article explores the reasons behind CAF's difficulties after a very short-lived initial impact. Integral to this account is the significance of Canadian experience of horizontal intergovernmental relations, which directly inspired the Australian Premiers to found CAF. The numerous indications of political congruence – some temporary, others systemic – between the Canadian and Australian settings obscured a deeper constitutional incongruence between the two jurisdictions and this is fundamental to appreciating CAF's failure as a transplant. CAF's ability to operate effectively as a significant institution was inevitably constrained by the parameters of the Australian federal system that its establishment was, in many ways, seeking to transcend.

Five years ago the global financial crisis threatened the world's financial system and its aftermath wreaked devastation across many parts of the globe. Mis-selling of home mortgages to consumers unable to repay their loans and global sales of financial products linked to residential lending were at the heart of the crisis. Financial reforms governing housing credit frameworks and the selling of complex financial products have ensued within domestic and international spheres. This article reviews the regulatory structures in Australia governing the provision of residential housing mortgages and credit assistance and the provision of financial advice. Its analysis focuses on customer suitability processes, client duties, and remuneration provisions because these legal features significantly influence, and can adversely impact, consumer outcomes. It suggests specific reforms to ensure adequate consumer protection and enhance the consistency and efficacy of the credit framework. It also calls for renewed debate on the remuneration structures of mortgage brokers.

This article explores the circumstances in which a judicial officer may be required to recuse himself or herself on the basis of an opinion provided in the course of practice as a legal practitioner, prior to appointment to judicial officer, particularly where that opinion was on a matter of law only (including the constitutional validity of legislation). We suggest that questions concerning disqualification of judicial officers in such circumstances might be better approached by considering broader concepts of fairness, in addition to asking whether the provision of the pre-judicial opinion gives rise to considerations of apprehended bias. We also explore possible developments of the law to avoid the undesirable situation where the disqualification of a particular judicial officer may depend upon whether one party to the litigation chooses to disclose the existence or the content of advice that it has received.

The community store licensing regime was first introduced as part of the Northern Territory National Emergency Response Act 2007 (Cth) and subsequently expanded under the Stronger Futures in the Northern Territory Act 2012 (Cth). The legislation introduced a new penalty regime with a range of sanctions that may be imposed if community stores have not complied with their licence conditions.

It is the penalty regime that is the focus of this paper, as a credible sanctioning strategy to deal with breaches of the licensing regime is not currently in place. Such a strategy is essential to ensure that the penalty regime leads to greater compliance with the spirit of the law — ensuring food security — and not just the letter of the law — ensuring that the terms of community store licence conditions are met. Consequently, the article considers the strengths and weaknesses of the new penalty regime and proposes a regulatory approach that may be used by the Secretary to deal with breaches of licence conditions.

The Road Safety Remuneration Act 2012 (Cth) (the Act) explicitly enables the Road Safety Remuneration Tribunal to make orders that can impose binding requirements on all the participants in the road transport supply chain, including consignors and consignees at the apex of the chain, for the pay and safety of both employee and independent contractor drivers. The tribunal is also specifically empowered to make enforceable orders to reduce or remove remuneration related incentives and pressures that contribute to unsafe work practices in the road transport industry. Recently the tribunal handed down its first order. The article considers whether, and the degree to which, the tribunal has been willing to exercise its explicit power to impose enforceable obligations on consignors and consignees – such as large supermarket chains – at the apex of road transport supply chains. It examines the substance and extent of the obligations imposed by the tribunal, including whether the tribunal has exercised the full range of powers vested in it by the Act. We contend that the tribunal's first order primarily imposes obligations on direct work providers and drivers without making large, powerful consignors and consignees substantively responsible for driver pay and safety. We argue that the tribunal's first order could have more comprehensively fulfilled the objectives of the Act by more directly addressing the root causes of low pay and poor safety in the road transport industry.

The central hypothesis of the paper is that bit by bit and largely unnoticed Australian corporate law has undergone a profound change. Australian corporate law, and particularly the Corporations Act 2001 (Cth), has moved from an essentially private law, substantive rights model, to one that seeks to regulate the company and those involved in its affairs through the prescription of processes and procedures by which corporate decisions may be made and by which the procedural correctness of those decisions is assured. The paper will also seek to demonstrate, by an analysis of the changes in the patterns of corporate case law, that this proceduralising trend has effected a fundamental change in the nature of corporate law and the role of the courts and may now claim to be a, if not, the principal characteristic of Australian corporate law. The paper concludes by highlighting some of the wider implications of this trend and the risk it poses to the intellectual heart of corporate law.

The modern registered company owes its immediate creation to the legislature. Historically, however, the nature of the corporate form and the content of what is now known in Australia as corporate law has been very much more the work of the courts. It is thus the case that the decision of the House of Lords in Salomon v A Salomon & Co Ltd is more often cited as the foundation of modern corporate law than are the Joint Stock Companies Act 1844 (UK) or the Limited Liability Act 1855 (UK). It is also the case that the building blocks of corporate law were predominantly taken from the private law. Within the open girders of the statutory framework, corporate law was built out of the concepts of contract, property, and trust. It is thus not surprising that the company was, and is still, regarded as a fundamentally private legal and economic institution.

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

There has been limited research into the relevance of public benevolent institutions (‘PBI's) to the management of native title benefits. Despite this omission, a new, tax-effective, structure was proposed in 2013, being the ‘Indigenous Community Development Corporation’ (‘ICDC’). PBI characterisation is also becoming more relevant as native title determination numbers increase, such that there is a suitable and interested body, the prescribed body corporate (‘PBC’) that can pursue a variety of functions in fulfilling its statutory duties and in seeking to realise the economic, social and cultural objectives of Indigenous groups. This article asserts that a purpose of addressing Indigenous disadvantage is a PBI purpose and that it permits a broad range of activities in order to meet that end. Accordingly, PBI status should be available for many PBCs and other benefits management structure institutions. As a result, the proposed grounds for introducing the ICDC are significantly less compelling and it is argued that a more cautious approach is warranted, being one that better recognises ICDC limitations and that does not over-emphasise the potential benefits.

Traditionally, statutory provisions prohibiting direct discrimination have employed a test of less favourable treatment. This test is controversial since it requires the use of a comparator, which is widely regarded as giving rise to a range of serious problems. It is commonly assumed, both by academics and legislators, that reliance on a comparator, and the problems to which such reliance gives rise, can be avoided by employing a test of unfavourable treatment instead of a test of less favourable treatment. In this article, we subject this assumption to critical scrutiny. We acknowledge that, on what is probably the most common understanding of the test of unfavourable treatment, employing that test does avoid the need to rely on a comparator. However, we argue that this understanding renders the test of unfavourable treatment radically over-inclusive. We then consider alternative approaches to understanding the test of unfavourable treatment, and investigate whether these approaches avoid the need to rely on a comparator whilst also avoiding the over-inclusiveness problem. We argue that this depends, ultimately, on what the value is that underlies prohibitions on discrimination.

This article examines whether Australia's regulatory settings for temporary migrant labour are working effectively and argues that a backdoor currently exists which permits the entry of low skilled migrant workers on visas which are not for a work purpose, namely the international student visa and the working holiday maker visa. We propose that an explicit visa pathway be created for low and semi-skilled workers so that the working conditions of these visa holders are more appropriately monitored and to enable Australia's temporary labour migration program to better meet skill shortages in the economy.

Section 119 of the Australian Constitution confers a duty on the Commonwealth to protect the states against invasion. It also directs the Commonwealth to protect the states against domestic violence when an application is made by a state government. This article contends that there are compelling reasons to construe this second limb of s 119 as a federal constraint on the power of the Commonwealth to call out the military domestically. This interpretation of s 119 is consistent with the plain meaning and constitutional context of the provision and it coheres well with the High Court's revival of interpretive federalism.

The Australian federation is built upon an enduring respect for the independence of the judicial arm of government. This is reflected in the principle that the judiciary should be kept separate from the legislature and executive. A practice seemingly at odds with these values is the appointment of senior judges to vice-regal offices. Despite this, the practice has attracted scant academic attention, and has never been challenged in the courts. In this article we examine the conferral of vice-regal roles on serving federal, state and territory judges. We ask, first, whether such appointments ought to continue to be made and, secondly, whether they are constitutionally permissible.

A ‘functional’ approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.

Payday loans are small-amount, short-term, unsecured, high-cost credit contracts provided by non-mainstream credit providers. Payday loans are usually taken out to help the consumer pay for essential items, such as food, rent, electricity, petrol, broken-down appliances or car registration or repairs. These consumers take out payday loans because they cannot — or believe that they cannot — obtain a loan from a mainstream credit provider such as a bank. In recent years there has been a protracted debate in Australia — and in several overseas jurisdictions — about how to regulate the industry. Recent amendments to the National Consumer Credit Protection Act 2009 (Cth) — referred to in this article as the 2013 reforms — are designed to better protect payday loan consumers. While the 2013 reforms provide substantially improved protection for payday loan consumers, further changes to the law may be warranted. This article raises several law reform issues which should be considered as part of the 2015 review into small amount credit contracts, including whether the caps on the cost of credit are set at the right level, whether the required content and presentation of the consumer warnings needs to be altered, whether more needs to be done to protect consumers who are particularly disadvantaged or vulnerable and whether a general anti-avoidance provision should be included in the credit legislation.