Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.

The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.

The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.

This article considers the phenomenon of contractually-imposed restraints on political communication. Such restraints often incidentally arise from broad limits on out-of-hours conduct imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds of settlement. It is argued that the implied freedom of political communication has work to do in relation to at least some categories of such restraints. The various objections to that view are examined and it is argued those objections are not compelling. The article analyses the question of how the implied freedom would operate in respect of contracts that impermissibly burden freedom of political communication, and suggests that this may be achieved by developing the common law of contract to accomodate a doctrine similar to the doctrine governing unreasonable restraints of trade.

The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Processing Regime for certain asylum seekers has posed new and important questions for Australian administrative law, especially in respect of the place, scope and effect of merits review. This article considers the early and formative jurisprudence of the federal courts in relation to ‘Fast Track decisions’ made by the IAA. It concludes that the Fast Track process represents a novel development in Australian public law: a partial review process which is not sufficient to correct the errors of the decision-maker at first instance but which appeared for a time capable of immunising elements of the decision from appeal or direct judicial review. It is, in its intention and current operation, more than a ‘targeted tinkering’ with the mechanics of merits review and of migration law in Australia. It deserves attention as it commences its journey through superior courts and as the regime settles into the Australian administrative law landscape.

A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

Globally, financial system regulators are susceptible to deliberate and inadvertent influence by the industry that they oversee and, hence, are also susceptible to acting to benefit the industry rather than the public interest – a phenomenon known as ‘regulatory capture’. Australia, arguably, has an optimal model of financial system regulation (a ‘Twin Peaks’ model) comprising separate regulators for prudential soundness on the one hand, and market conduct and consumer protection on the other. However, the current design of the Twin Peaks model has not been sufficient to prevent and address prolonged and systemic misconduct that culminated in a public Royal Commission of Inquiry into misconduct in the industry. Subsequent to the Royal Commission and other inquiries, the Department of Treasury has proposed legislation to establish an Assessment Authority to assess the effectiveness of the Twin Peaks regulators. The proposal includes enquiries by an Assessment Authority into the regulators’ independence, so as to identify instances of, and thereby mitigate, their capture. As with all financial system regulators, the Assessment Authority itself may be susceptible to regulatory capture, either by the Twin Peaks regulators, or by the financial industry. Thus, this paper poses the question: how can the new Assessment Authority be optimally constituted by legislation, and operated, to effectively oversee the effectiveness of the regulators, but itself remain insulated from the influence of the regulators and industry? We analyse the primary sources of influence over financial system regulators that the Assessment Authority will likely face and recommend ways in which a robust design of the Assessment Authority can mitigate those sources of influence. In doing so, we adopt an inter-disciplinary approach, drawing upon not only regulatory theory but also for the first time in relation to this question, organisational psychology. Our findings address gaps in the proposed legislation currently before Federal Parliament and propose methods by which those gaps may be filled, in order to ensure that this important reform to Australia’s financial regulatory regime has the greatest chance of success.

This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.

The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, ‘this article addresses’ the key elements of the defence—what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members.

This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275 on the class of administrative actions that are amenable to entrenched judicial review of State powers. The article shows that the application of this understanding to entrenched review of Commonwealth powers has significant explanatory value. It casts new light on two puzzling features of entrenched review of Commonwealth powers: The discrimen between executive and judicial power that underpins a separation of powers rationale for entrenched review of Commonwealth executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Commonwealth officers. Viewing entrenched review as a guarantee of legal accountability for jurisdictions prompts new insights into its constitutional rationale and its specific contribution to government under law.

Australian corporate law allows for significant civil penalties to be imposed by a court on negligent corporate officers, including directors. For more than a decade, Australian Securities and Investments Commission used civil prosecutions for negligence exclusively in situations where an officer is alleged to have exposed their corporation to foreseeable risk of harm that would flow from a contravention by the corporation of a regulatory or disclosure obligation. This enforcement strategy—known as ‘stepping-stones’—has been strongly criticised, including by Rares J in his 2020 dissenting opinion in the Cassimatis appeal. This article explains how stepping-stones works as an enforcement strategy in the context of corporate compliance failures, explores the various criticisms of it, and argues for reform. It proposes a legislative alternative that rebalances individual officer liability, to reflect contemporary governance practices and encourage better management and oversight of non-financial risk in corporations.

This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

The period of 2018–19 threw up political crises in Australia and the United Kingdom that raised circumstances in which the reserve powers of the Queen or the Governor-General might have been exercised. This article discusses in depth the 2018 challenge to Prime Minister Turnbull’s leadership, including how the Governor-General should have responded if he had been asked to dissolve Parliament in the midst of the challenge or if he had been advised not to appoint Dutton as Prime Minister due to concerns about his eligibility to sit in Parliament. The second part deals with the question of whether royal assent should be refused, upon ministerial advice, to a bill, such as the Medevac Bill in Australia and two Brexit delay bills in the United Kingdom, which were passed against the wishes of the relevant government, including when procedural or non-justiciable constitutional requirements were breached in the passage of the bills. It concludes that the best way of resolving such issues is to resort to the application of fundamental constitutional principles.

This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet, while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.