This article reports on the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the Fair Work Act 2009 (Cth), which regulates wages, working hours and other minimum employment conditions. Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. The authors provide a critical analysis of the FWO's use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings. The analysis is based on a review of all enforceable undertakings concluded in the period from 1 July 2008 to 30 June 2012, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings in the review period. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that are consistent with the key principles of responsive regulation. The number of enforceable undertakings accepted by the FWO, however, remains fairly limited. We set out a number of ways in which the regulator may maximise the utilisation of enforceable undertakings, and more fully realise the regulatory benefits of this particular compliance tool.

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 nature of merits review, focusing upon the Administrative Appeals Tribunal. Some forms of merits review are less than full merits review and some are hybrid merits review. It is contended that a proper appreciation of merits review may expose misperceptions concealed in some claims that judicial review resembles merits review.

Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's ‘suitability’ for professional practise; also referred to as the ‘character test’ of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission.

This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that.

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.

Anti-discrimination law in Australia is at a crossroads. After four decades of proliferation of legislation to regulate discrimination, national attention has turned from increasing regulation to legislative consolidation and reform. This article contributes a theoretical analysis to the reform debate. Two liberal theoretical justifications for prohibiting discrimination, harm and redistributive justice, are considered. This investigation assists to determine when the state should intervene in order to restrict discrimination, and whether state and territory anti-discrimination regimes have a legitimate continuing role in Australia's legislative landscape.

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.

Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

Constitutional systems of Westminster heritage are increasingly moving towards fixed-term parliaments to, amongst other things, prevent the Premier or Prime Minister opportunistically calling a ‘snap election’. Amongst the Australian states, qualified fixed-term parliaments currently exist in New South Wales, South Australia and Victoria. Queensland, Tasmania and Western Australia have also deliberated over whether to establish similar fixed-term parliaments. However, manner and form provisions in those states' constitutions entrench the Parliament's duration, Governor's Office and dissolution power. In Western Australia and Queensland, unlike Tasmania, such provisions are doubly entrenched. This article considers whether these entrenching provisions present legal obstacles to constitutional amendments establishing fixed-term parliaments in those two states. This involves examining whether laws fixing parliamentary terms fall within section 6 of the Australia Acts 1986 (Cth) & (UK). The article concludes by examining recent amendments to the Electoral Act 1907 (WA) designed to enable fixed election dates in Western Australia without requiring a successful referendum.

The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?

This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading ‘originalist’ case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.

International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

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

A key objective of Australia's recent national water reforms is to keep water licence and entitlement holders accountable for the amounts of water they extract, trade and use. Water metering and the recording and reporting of water extraction and trading data are processes designed to ensure this accountability, and are central to Australia's water accounting regimes. Yet much of the data necessary to ensure compliance with water licences and access entitlements is not publicly available in Australia. This absence of publicly accessible information is due to a lack of rigour and transparency in statutory water accounting regimes. There are also restrictions imposed by water legislation and the laws of privacy and confidentiality that prevent public access to water accounting data, except in aggregated form. Consequently, commercial and industrial water consumers in Australia are not kept accountable for their consumptive water use and water market objectives are unfulfilled, contrary to the express provisions of the Intergovernmental Agreement on a National Water Initiative (‘NWI’). This article argues that statutory and policy frameworks for water accounting in most Australian jurisdictions fail to meet the NWI objectives for national water accounting. In response, it advocates legislative reforms that would facilitate the achievement of these objectives.

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 considers the YouMeUnity Report proposal for the inclusion of new language provisions in the Australian Constitution as part of a package of reforms for the constitutional recognition of Aboriginal and Torres Strait Islander people. The article outlines the important symbolic and substantive effects of recognising language rights in the Constitution. The article explains how the recognition of a national language and the recognition of minority languages are conceptually distinct — promoting a national language is aimed at promoting national unity and enhancing the political and economic participation of individuals in the state, whereas protecting minority languages is aimed at recognising linguistic diversity, enriching the cultural life of the State, maintaining connections with other nations, and recognising language choice as a basic human right. The article argues that there is a strong case for minority language recognition, and in particular, the recognition of Aboriginal and Torres Strait Islander languages, in the Australian Constitution, but warns against the recognition of English as the national language.

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.

In the context of proposals to amend the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, the Expert Panel established by the Australian Government recommended the insertion of a prohibition of racial discrimination. Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when considering the various options that are available. With this in mind, in this article I discuss the constitutional ideas regarding equality and non-discrimination that have already begun migrating from Canada to Australia and could continue to inform Australian consideration of the numerous issues that may arise. I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the Australian Constitution and the reform options that have already been identified, before considering what Canadian approaches could offer Australia, if anything. My view is that the utility of the transplantation of constitutional provisions depends on the starting point. Its usefulness may be less when the focus is a parochial issue. While it may be possible to draft a tighter prohibition, there could remain a risk that focusing on non-discrimination could overshadow the Aboriginal rights dimensions underlying many calls for recognition.

This article analyses arguments that the prerogative should be readily displaced by statute, where a statute deals with a subject matter similar to a prerogative. It does so by examining the leading cases on displacement of the prerogative in the United Kingdom and the Australian states, and displacement of the Australian Commonwealth's inherent executive power. The cases do not adopt a single rule but the question of whether a statute will be taken to displace a prerogative is highly dependent on the facts and the provisions of the particular statute. This article defends the current approach to displacement, for three reasons. First, the courts do not allow governments to subvert or ignore statutes by using the prerogative. Secondly, the courts have almost always decided in favour of liberty and against the conferral of coercive powers on government. Thirdly, a single rule could not do justice to all the variables involved in displacement cases. Ordinary principles of statutory interpretation are sufficient to deal with questions of displacement.

People who lose their jobs as a consequence of discriminatory treatment at work face an array of options for redress. They might bring proceedings for unfair dismissal before a statutory tribunal (the Fair Work Commission), or they may pursue a claim in the Federal Court of Australia. This article contemplates the possibility that the system for dealing with discriminatory dismissal could be rationalized so that aggrieved employees might have a single, accessible pathway through an administrative process to deal with such complaints. This would involve rethinking whether discrimination complaints ought to be treated as a matter of vindicating legal rights, or as a matter of arbitrating competing interests. Abandoning the language of rights may facilitate a pathway around the Boilermakers' doctrine (which mandates that only Chapter III courts can determine legal rights), and so enable the establishment of a more accessible and effective avenue for dealing with discrimination at work.

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.