In this article I will discuss two questions concerning “originalism” in Australian constitutional law. The questions are, first, the extent to which the contemporary meanings of constitutional provisions, express or implied, are the same as their original meanings in 1900, when the Constitution was created; and secondly, the extent to which those original meanings are determined by the intentions of the people responsible for creating it (whom I will call “the founders”). These two questions are distinct. Almost all literary critics would agree that the language in Shakespeare's plays should be understood in its original sixteenth century sense, but many would deny that any other evidence of Shakespeare's intentions is relevant in interpreting it. Similarly, a literalist, who believes that the meaning of the Constitution is exhausted by the meanings of its words, could hold that their original literal meanings are critical, but reject the relevance of any other evidence of the founders' intentions.

To say that managers should be accountable to the market only begins the analysis. The problematic downside to this glib norm is that a volatile market can be a fickle master who may regularly override the superior judgment of his manager-servant. Thus, the central question from a public law perspective is how much accountability is too much.

John C Coffee, Jr

The last two decades of corporate law scholarship in the United States have been marked by the ascendancy of law-and-economics research, the centrepiece of which is the contractarian theory of the corporation and the corporate law. Contractarians seek to explain the corporation as the focal point for a process of contracting between various constituencies. Contractarians explain corporate law as a corpus of “default rules” which fills gaps where these contracts are less than fully specified, but which can be excluded by the parties.

In recent years, the High Court has given increased attention to the nature and extent of constitutional limitations on Commonwealth legislative powers, both those limitations contained in express provisions and those implied from the text or structure of the Constitution. The issue inevitably arises as to the extent to which these limitations restrict the Commonwealth Parliament in the exercise of its power to make laws for the government of its territories under s 122 of the Constitution. Section 122 of the Constitution provides as follows:

• The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Whilst the European Union (EU) does not compare easily with any other political/legal entity, including the Australian federation, both are concerned with the designation of powers and responsibilities to appropriate political institutions at various levels. In both the EU and Australia, environmental law can potentially be generated at two levels at least: national and supra-national, or State and Commonwealth, respectively. Whilst the legislative competence of the EU and the Commonwealth, with respect to certain defined environmental matters, has been confirmed beyond doubt,4 debate is still focused on the desirability or otherwise of an expansion of environmental competence for the central authority.

In 1994 the New South Wales Parliament passed an extraordinary piece of legislation, the demise of which one is hard-pressed to mourn. Be that as it may, the means by which that demise was achieved are hardly to be celebrated, as the High Court decision which accomplished the task represents a further entrenchment of the unfortunate doctrine of “incompatibility” introduced the previous year in Grollo v Palmer and Others. In short, the decision in Kable v Director of Public Prosecutions (NSW) extends the doctrine of incompatibility to State courts so that State parliaments, although they remain entitled to usurp the functions of those courts, cannot assign to those courts any powers whose exercise is incompatible with the judicial power of the Commonwealth vested in those courts by Commonwealth legislation. In this respect, the decision represents the worst of both worlds by placing severe limitations on State courts without any corresponding limitations on State parliaments (except to the extent they may wish to confer powers on the courts in question). The result is that the States have judiciaries which are half-independent, and that half is the less important half.

The previous Australian government's aim was to remove the hereditary office of the monarch with only minor changes to the Australian system of government. Former Prime Minister Paul Keating stated that the proposed “republican” changes would have limited implications for the design and operation of Australian democracy. But his quest, and the quest of those who support the republican movement, may represent a more momentous shift in Australian political values and political sensibility than is widely admitted. This shift might lead to the enhancement of democratic participation. Indeed, the debate surrounding the republican initiative has already caused both a revised understanding of Australian political philosophy and a renewed appreciation of certain strong democratic threads in the history of Australia as a nation.