This article begins the process of evaluating the adequacy of the procedural and substantive requirements that Australian communications regulators (and hence industry bodies) must satisfy before co-regulatory codes of practice can be registered. It considers if the procedural requirements relating to consumer and public consultation, included in the statutory frameworks that authorise and govern co-regulation in the media, online and telecommunications sectors, ensure co-regulatory rule-making is sufficiently responsive to the interests of consumers and citizens. Drawing on publicly available information about seven industry bodies that have drafted codes of practice and round table discussions with industry, consumers and regulators, the article highlights that the current engagement practices of industry bodies often fall short of the ‘democratic credentials’ of responsiveness. It suggests that the code registration criteria relating to consumer and public consultation must be overhauled if these weaknesses are to be rectified.

While transparent and efficient public sector procurement systems facilitate innumerable opportunities for stakeholders, the scale and scope of the global procurement market has rendered it increasingly vulnerable to corruption. The Organisation for Economic Co-operation and Development estimates that annually US$2 trillion of public funds is lost to corruption, yet governments have failed to respond with robust measures to deter such practice. Through comparing the debarment frameworks and policy goals across five jurisdictions, this article argues that Australia should consider adopting a discretionary debarment regime. By excluding bidders who have engaged in ‘corporate integrity offences’ from procurement contracts, debarment policies offer a potentially important mechanism in the fight against corruption. Debarment would not only protect the government from current threats, but it may also deter potential wrongdoers, encourage contractors to rehabilitate themselves, incapacitate actual offenders and facilitate development of a culture of compliance through the competitive advantage gains enjoyed by law-abiding firms.

The High Court has often said that the common law must conform to the Constitution. The High Court has not completely explained why this is so. This requirement is not explicitly mentioned anywhere in the Constitution itself. A number of scholars have suggested possible answers. One is that the Constitution is the supreme law and binding on everyone. Another suggestion has been that the common law must conform because the Constitution constrains ‘state action’: something more than just an exercise of constitutionally conferred power. This latter explanation appears to deviate from the High Court's exposition of the common law's relationship with the Constitution in Lange v Australian Broadcasting Commission. This article suggests that the Constitution has a broader application to the common law, in that it constrains all uses of judicial power, not just those that are considered to be ‘state action’. It contends that it is implicit in s 71 of the Constitution that the power to develop the common law yields to constitutional imperatives. This theory is more descriptively consistent with the High Court's practice and observations about the relationship between the common law and the Constitution.

There is now an expanding body of literature on the significant problem of business non-compliance with minimum labour standards including ‘wage theft’. Extended liability regulation beyond the direct employer is seen as one solution to this non-compliance in fragmented but hierarchically organised industries—such as the cleaning industry. This article uses empirical evidence to assess the effectiveness of one such regulatory scheme, the Cleaning Accountability Framework (CAF), in addressing non-compliance with minimum labour standards (including provisions of the Fair Work Act 2009 (Cth) and the Cleaning Services Award 2020). We find that CAF has been successful in identifying and rectifying certain non-compliance, improving working conditions for some cleaners involved in the scheme. We synthesise the key success factors of CAF in view of envisioning the adoption of such co-regulation frameworks in other industries. We also propose legal reforms that will support change across the cleaning industry.

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.

Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.

In Australia, a technocratic minimalist approach to constitutional interpretation leaves little space for what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big picture’ of what a constitution is, and why it matters, is systematically reduced to a ‘strict and complete legalism’ that shows little interest in the social and cultural functions of a constitution in the modern world. The ‘dual citizenship’ cases (2017–18), concerning s 44 of the Australian Constitution, provide an exceptional case study. The High Court of Australia’s narrow positivism shielded it from criticism, but at a high cost to Australia’s democratic and social fabric. This article argues that, at a time when the rule of law and the public sphere is under threat as never before, we can and should expect more of our peak legal institutions. A constitutional court without a broader commitment to constitutionalism imperils the legitimacy of the whole constitutional order and of the public sphere.

This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their houses without a ‘reasonable excuse’. This article considers the confusion around the order in the community and upper levels of the government. Publicly available information about the fines issued by the police is analysed and it is argued that an overly narrow application of the order by police meant that its application was not reasonably proportionate to the authorising legislation, the Public Health Act 2010 (NSW). It is concluded that if future lockdowns are required, care will need to be taken to ensure that Ministerial orders are crafted in line with the legislation and that police officers clearly understand their operation.