The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.

This paper analyses how four Australian state parliaments debate the rights implications of anti-bikie bills that restrict various individual rights. It focuses on three state parliaments–those of Victoria, Queensland and New South Wales–which have committees that scrutinise all bills for their rights implications and it compares the debate in these parliaments with that of South Australia where such systematic rights-scrutiny of all bills is absent. The paper considers whether the existence of a formal parliamentary committee for rights-scrutiny strengthens or diminishes the process of parliamentary scrutiny of bills for their rights implications. Overall the paper argues that, regardless of the system in place, parliamentary rights-scrutiny remains weak in the four surveyed Australian states when parliaments debate law and order bills. However, this weakness is manifested in different ways, with full and frank rights-deliberation deficient in Victoria, Queensland and New South Wales and systematic and well-informed rights-scrutiny absent in South Australia.

Cartels have a significantly negative impact on economic welfare. Anti-cartel competition law–such as the provisions of pt IV div 1 of the Competition and Consumer Act 2010 (Cth)–tries to tackle this negative impact through civil and criminal remedies. The prohibition of cartels is most commonly justified on economic grounds. However, reference is also often made to broader moral grounds for proscribing cartels–for example, it is commonly stated that cartels are deceptive, unfair or engaged in a form of cheating. This article advances a unified account of the moral status of cartels that integrates both economic and moral factors. It does so by emphasising the relationship of cartel behaviour to the moral duty to promote the common good. Cartels are wrong because they undermine the role of open and competitive markets as a salient response to an important social coordination problem in a way that leads to seriously harmful economic outcomes. This combination of factors supplies a robust justification for both civil and criminal sanctions in appropriate cases, thereby affording a principled foundation for the current framework of cartel regulation in Australia.

The prevention and control of ‘food fraud’, including false or misleading statements made about a product for economic gain, is now emerging as an important and discrete policy goal for governments and regulators in the interface between food and public health. The control and prevention of food fraud complements regulation to ensure microbial food safety. This article uses a case study of anti-ageing claims made in the labelling and advertising of açai berry superfood products to argue that Australia's new regulatory system for nutrient content and health claims on food (Australia and New Zealand Food Standards Code Standard 1.2.7) inadequately addresses ‘food fraud’. This article argues that the over-reaching claims on açai product labelling will potentially mislead consumers and subvert public health messages in a context of ‘gastro-anomy’ (confusion over appropriate norms for eating) and ‘healthism’ (individual responsibility for making healthy choices). This conduct can usefully be conceptualised as food fraud. Second, the article argues that although the substance of Standard 1.2.7 is well designed to avoid food fraud, the fact that the standard allows food businesses to self-substantiate evidence when making some health claims undermines the protection offered. Australian food regulators need to articulate a more strategic and proactive approach to the prevention and control of food fraud.

In 2013, the right to request flexible work arrangements was extended to include employees who are 55 years or older, with a refusal by an employer of such a request in theory available only on the basis of ‘reasonable business grounds.’ This expansion of the right to request is one of a number of different strategies implemented with a view to enhancing the workforce participation of older Australians. This paper examines the scope of the right to request and how it operates with respect to older workers as part of the National Employment Standards in the Fair Work Act 2009 (Cth). The paper also examines the gender dimension in the making of requests and in the utilisation of flexible work practices. Since the ‘right’ exists as merely the subject for negotiation at a workplace level, rather than an enforceable claim, this paper contends that it is unable to overcome persistent and prevalent age discrimination in employment. The paper argues that a review process and independent oversight are required in order to bring about the attitudinal change necessary if the right to request flexible work arrangements is to operate as a viable means of providing constructive opportunities for older workers to maintain their workforce participation.

Australian administrative law's continuing emphasis on the concept of jurisdictional error is increasingly unique amongst common law jurisdictions. This paper argues that recent developments in Australian jurisprudence have provided little guidance for administrative decision-makers, who are left ‘tiptoeing through the tripwires’ of judicial review. Combining a detailed analysis of primary decisions, academic publications and historical scholarship, this paper suggests that this lack of guidance is the result of a widespread judicial reluctance to engage with either the guidance or educative roles of judicial review. As this paper demonstrates, failure to do so encourages uncertainty, unpredictability and a general lack of clarity which inhibits judicial review's ability to guide decision-makers and contribute to the maintenance of effective governance, administrative justice, and the rule of law in Australia. Particular attention is given to the decisions of Minister for Immigration and Citizenship v Li, Plaintiff M61/2010E v Commonwealth, and NBMZ v Minister for Immigration and Border Protection, which together encapsulate many of the most problematic aspects of recent jurisprudence. To avoid these consequences, this paper calls on senior judges and commentators to articulate a clearer framework which will be applied to guide the future development of the doctrine of jurisdictional error.

Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the ‘for the purpose of’ interpretation is misconceived and therefore that the improper purpose test is wrong.

Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the development of the institution has been ad hoc and fragmented. What has followed, however, has been the transformation of the institution to apply to new contexts, to the extent that it is questionable in some instances as to whether ‘ombudsman’ remains the appropriate descriptor for the institution. This article explains and critiques these developments, observes that the conditions which have created such change are set to continue and argues that care must be taken to protect citizen trust in the ombudsman brand.

This paper argues that the High Court should accept that the Commonwealth Constitution embraces the concept of voter equality, such that systems of malapportionment may be liable to constitutional challenge. Specifically, it argues that ss 7 and 24 of the Constitution create a system of representative government and representative democracy which require that elections be free and fair, and that a malapportionment could potentially interfere with the system of representative democracy which the Constitution requires. Recent case law reinforces notions of equality in ss 7 and 24, which can be applied in the context of voter equality.