The principle of subsidiarity was adopted as part of the law of the European Union as a response to perceptions of excessive centralisation and bureaucratisation within the European system of government. If subsidiarity is a solution to these problems in Europe, it might be asked: could it also be a solution to similar problems that arise in other federal systems, such as those of the United States and Australia? However, posing the question in this way is misleading because it is not at all clear that subsidiarity has been a solution in Europe, and in any case it cannot be assumed that a solution in one context will necessarily operate effectively in another.

This article closely examines the nature and operation of the principle of subsidiarity in Europe and asks what lessons might be learned from it. To do this, the article begins by identifying the carefully defined operation of the principle in EU law and then closely examining the application of the principle, firstly as a political decision-making procedure that involves the Member State parliaments in the European policy-making process, and secondly as a juridical principle enforceable by the European Court of Justice. The possible adoption of the principle in other federations is then discussed, but limitations on its effectiveness in Europe, as well as the different institutional and political circumstances of the Australian federal system, are shown to undermine its likely usefulness, unless other more fundamental issues about the way in which the federal system is understood, organised and operated are addressed.

Socio-legal scholars have long recognised the importance of understanding the difference and the interaction between the ‘law in the books’ — the formal legal rules and doctrines made by parliaments and the courts, and the ‘law in action’ — the processes and practices by which those rules and doctrines are put into effect. Similarly, public lawyers and regulatory theorists have highlighted the importance of understanding the role of regulatory discretion in the enforcement of rules. The commonly understood message in these overlapping areas of research is that we cannot properly understand the law if we limit our attention to formal rules. A related point is that there is nothing necessarily improper about the exercise of regulatory discretion. Nor is there anything necessarily improper about the fact that the processes of rule enforcement can produce different outcomes than might be suggested by a simple reading of the rule itself.

The nomination in 1930 of an Australian, Sir Isaac Isaacs, as Governor-General of the Commonwealth of Australia has become a minor landmark in the development of Australian independence. Opposed or supported at the time as a measure of the strength of Australia’s links with Britain, the appointment has become, for lawyers and historians alike, a test-case for Australian autonomy and the countervailing cultural and legal force of the imperial connection. The central collision between Australian Prime Minister James Scullin (who nominated Isaacs) and King George V (who resisted strongly) added to the constitutional interest of the appointment but contributed to the long closure to researchers of key parts of the documentary record.

For some, the story is a heroic one. This interpretation has its most vivid expression in the final volume of Manning Clark’s History of Australia. In a chapter entitled ‘An Australian in the Palace of the King–Emperor’, Clark takes Scullin’s meeting with the King in November 1930 as his theme and describes how ‘Jimmy Scullin has not grovelled to the English governing classes … Jimmy Scullin has spoken for the Australia that was coming to be.’ In more measured ways, John Robertson's biography of Scullin and Ross McMullin’s history of the Australian Labor Party both make Scullin almost a lone champion fighting British resistance to Isaacs.

In recent years there has been unprecedented concern about the impact of population change on Australian society. The concerns come from different quarters. Commentators have variously remarked that fertility is too low, immigration is too high, the population is ageing too rapidly, and that uneven spatial distribution is placing too great a burden on the infrastructure of already crowded cities. As further evidence of the growing interest in population dynamics, in 2010 the Australian Government created a new office of the Minister for Sustainable Population to help guide the development of policies to meet Australia’s future population needs.

These are important issues in a national population debate, yet demographic change also affects specific workforces in specific ways, and this has led to a new interest in workforce planning. This article examines how demographic change is likely to affect one aspect of the Australian judicial system in the future, namely, the cost of judges.

This article examines the breadth of the corporations power in s 51(xx) of the Australian Constitution. The issue we address can be posed in a couple of ways. Once formed, to what degree does the national Parliament have power to ‘re-form’ corporations? Or, to put it in a more neutral way, once incorporated, what power does the national Parliament have over a corporation’s constitution? Addressing this issue requires us to explore the vision or model of the corporation which underlies the limit, recognised in the Incorporation Case of 1990, that the Commonwealth may only wield power over corporations already ‘formed’.

As well as being of considerable theoretical interest, this question has importance from a more practical, federal perspective. Can the national Parliament legislate under the corporations power to regulate the formation, composition, operation and dissolution of the key corporate decision-making bodies, namely the board of directors and the general meeting? Could the corporations power, for instance, be used to mandate employee or environmental representation, or gender balance, on the boards of trading corporations nationwide? Does it extend to regulating board remuneration and the role of the general meeting in that contentious field? Many aspects of board composition and remuneration are currently dealt with by means of the ASX Principles of Corporate Governance (‘the Principles’), with which listed companies are expected to ‘comply or explain’.

With close to five million women in paid employment and constituting over 45 per cent of the total workforce and 57 per cent of the Australian public service, holding 28 per cent of the seats in Senate and 25 per cent of the seats in the House of Representatives, one could be forgiven for entertaining the thought that as a nation, we are beginning to acknowledge the importance of gender equality. However we are quickly reminded that this is far from the truth when it comes to corporate boards which are important sites of decision making that affect us all. In Australia, although women hold 27 per cent of senior positions in private companies, they only hold 10.9 per cent of the board positions in the top 200 listed companies on the Australian stock exchange. Addressing this issue has taken on utmost importance with many governments threatening to introduce legislation to make it happen. Perhaps unlike some of the enormous challenges of climate change and the Global Financial Crisis, this area is one where nation states see that they can make a difference.

Literature on the necessity for reform of Australia‘s federal division of government continues to blossom, reflecting the assessment of a leading expert in the area that the system is now at a ‘cross-road’ between delivering a vibrant and beneficial federalism to the Australian public or ‘merely a mask for the effective centralisation of power’. Although the solutions advanced by many commentators towards ensuring the first of these outcomes over the second are many and various, it is notable that none looks exclusively to constitutional amendment as the silver bullet of reform. The notorious difficulty of attaining a successful referendum result – particularly on federal issues which have traditionally been amongst the most contentious proposals –as well as the difficulty of encapsulating all that might be done in the way of federal reform within a single suite of proposed amendments, has ensured that sub-constitutional institutions and mechanisms have been looked to as a simpler, more effective way to achieve change.

Drug foods are part of every food culture, so Sidney Mintz has argued, and the energy drink, Red Bull, might be understood as one of our latest drug foods. Drug foods pose a challenge from a regulatory point of view for they bring into focus two of the great food debates – the impact of food regulation on food innovation and the role of food regulators in regard to public health. In so far as drug foods have traditionally formed a part of every diet, any attempt to ban or limit new or novel drug foods opens the food regulator to ‘endless charges of hypocrisy and irrationality’, ‘paternalistic’ behaviour and standing in the way of food innovation. On the other hand, if the food regulator does allow new drug foods to be manufactured and sold it is accused of failing in its duty to protect public health or of being ‘amoral’ in this regard.

In Plaintiff M61/2010E v Commonwealth (‘Plaintiff M61’), the High Court held in a unanimous joint judgment that the plaintiff asylum seekers on Christmas Island were entitled to procedural fairness and to have their claims for refugee status determined according to law. This decision has significant ramifications for the government’s asylum seeker policy, and it has already been the subject of academic commentary from an immigration perspective. The case also has broader doctrinal significance because it is only the second time that the full bench has considered what this article will call a ‘no-consideration’ clause. The Court held that the legislature can validly confer a power on a decision-maker and at the same time provide that the decision-maker has no duty to consider exercising it. However, on the facts before it, the Minister had decided to consider all requests for asylum and thus had moved beyond the protection of the no-consideration clause.

On 24 February 2011 the Australian Prime Minister Julia Gillard announced proposals for introduction of a ‘carbon price mechanism’ to commence as early as 1 July 2012. This announcement follows the establishment of a Multi-Party Climate Change Committee on 27 September 2010 with instructions to ‘explore options for the implementation of a carbon price [and] help to build consensus on how Australia will tackle the challenge of climate change’, starting from the position that ‘a carbon price is a necessary economic reform required to reduce carbon pollution’. Earlier in 2010 a major review of the Australian taxation system by Dr Ken Henry was released, providing extensive insights into how the tax system should be restructured ‘to deal with the … environmental challenges of the 21st century’, and its ‘interrelationships [with] … the proposed emissions trading system’. These developments are largely driven by the need for Australia to develop a credible climate change agenda once the Kyoto Protocol arrangements come to an end in 2012.

Changing the law can be a tricky business. Seen from the perspective of non-governmental organisations, law reform can mean years of lobbying governments and politicians for change; seen from inside government, law reform may signify months or years of consultation, drafting bills, and holding one’s breath for Parliament; seen from Parliament, law reform may mean a relatively simple examination and passage of a Bill or months of political haggling; from the perspective of the public, law reform may appear variously political, idealistic, long and drawn out or hasty. Law reform is all of these things.

Most often when we think about the strict process of changing laws in Westminster systems our minds turn to parliamentary examination and passage of government sponsored and private member bills. However, beyond the focus on this one piece of the law reform process, it is worth remembering that proposed legislation often stems from much broader studies of larger legal and policy issues.

In October 2007 a new era in Australian military criminal justice began with the establishment of an Australian Military Court (AMC). The AMC had, however, a short life, being found in August 2009 by the High Court of Australia to be contrary to Chapter III of the Australian Constitution. In May 2010 it was announced that a new Military Court of Australia, established in conformity with Chapter III, was to be established to replace the interim system put in place following the High Court’s invalidation of the first AMC. A Bill for a new military court was introduced to Parliament in 2010 but lapsed with the dissolution of Parliament for the 2010 election. No replacement Bill had been introduced as at the beginning of 2011. It is unclear when or whether a new military court will be established.

This article examines the reasons behind the establishment of the AMC and then considers the High Court decision in Lane v Morrison that unanimously held the AMC to be invalid. It then considers the implications for a replacement Chapter III compliant military court.