In March 2007, the Human Rights and Equal Opportunity Commission ('HREOC’) concluded that ‘it's about time for a new approach’ to the problems faced by men and women in respect of work and family responsibilities in Australia. Based on two years of consultation, HREOC issued its final report, It's About Time: Women, Men, Work and Family, noting that many Australians struggle to combine work and family and that workers with family responsibilities experience significant discrimination and inequality. HREOC concluded that the federal government could do more to address the difficulties faced by workers trying to satisfy both their work and family responsibilities and put forward a wide array of recommendations to this effect. Its central recommendation was the enactment of new federal legislation to promote cultural change through greater protection and support for workers with family responsibilities. The Family Responsibilities and Carers’ Rights Act would serve to bolster the prohibition of discrimination on the basis of carers’ responsibilities and provide employees with a right to request flexible working arrangements.

In 2006, Parliament made major amendments to the Family Law Act 1975 (Cth) (‘Family Law Act’) to encourage a greater level of shared parenting, and to give greater emphasis to the importance of children maintaining a relationship with both parents in the absence of violence or abuse. There are major differences between trial judges in how to apply the new laws to the problem of parental relocation — where the primary caregiver wants to move a long way from the other. The central problem is determining how much importance should be given to a parent's freedom of movement given this greater emphasis on the involvement of both parents. There are stark differences in the policy and approach of different trial judges, which have yet to be resolved by an authoritative and carefully reasoned decision of an appellate court.

This article examines these substantial differences in view between judges on this issue since the 2006 amendments, and proposes a way forward based upon revisiting the leading judgment of Kirby J in the High Court in AMS v AIF.

When an employee sexually harasses a fellow employee away from the workplace or outside work hours, such as at a bar or a private party, difficult questions arise as to whether the employer should be held vicariously liable. Conversely, difficult questions arise as to the extent to which an employer might legitimately seek to supervise or regulate the conduct of its employees outside of work.

This article traces the key decisions that have considered this issue of sexual harassment away from the workplace or outside normal work hours (for convenience, I have referred to such conduct as ‘off-duty sexual harassment’).

As the discussion in Part Two illustrates, the leading decisions in the Australian federal jurisdiction considering the scope of vicarious liability for off-duty sexual harassment have taken a consistently broad approach to the requisite nexus with the employment. This culminated in the watershed decision of the Federal Magistrates Court last year in Lee v Smith, where an employer was held vicariously liable when an employee raped a fellow employee at a private residence following a social dinner party.

In an illuminating analysis of the concept of justiciability, Geoffrey Marshall distinguishes two senses of the term. In the first, descriptive sense, justiciable issues are issues which have, in fact, been committed by parliaments to a judicial forum. Any question which has been made subject to adjudication is, in the descriptive sense of the word, a justiciable question. In the second, prescriptive sense, justiciable issues are issues which are suitable to be resolved judicially. In the United Kingdom, there is no obstacle to Parliament requiring courts to resolve questions which are not suitable to be resolved judicially. By contrast, in terms of the Australian Constitution, the Chapter III courts are limited to answering questions which are justiciable in the prescriptive sense of the term.

For a time, the discipline of Australian military forces provided an interesting study in the application of Imperial legislation. That feature of the system has fallen away at least since the enactment of the Defence Force Discipline Act 1982 (Cth) ('Discipline Act’). Since then, attention has been directed to the consequences of a tension between the necessary (or at least universally accepted) nature of military discipline and the values embedded in Chapter III of the Constitution.

Beginning a discussion of the Constitution and military justice in 2005, Mr Tracey observed:

Gypsy Jokers v Commissioner of Police (‘Gypsy Jokers’), at least in the Western Australian Court of Appeal, concerned the application of the so-called Kable v Director of Public Prosecutions (NSW) (‘Kable’) principle (or principles). That is, the principle restricting the State legislatures’ powers to confer responsibilities on State courts vested or capable of being vested with federal jurisdiction, especially State Supreme Courts, as would be incompatible with the exercise of that federal jurisdiction. Kable's focus has been sharpened and narrowed in subsequent cases to refer to theories of the ‘institutional integrity’ of State courts, or their actual and apparent ‘independence and impartiality’.

On appeal to the High Court, Gypsy Jokers dramatically shifted from a development of relatively novel and volatile constitutional principles into an application of canons of statutory construction, followed by a conclusion of constitutional validity that bypassed the leading tests.

The internet is a new and ubiquitous tool for conducting business. In the age of e-commerce, distance and physical borders mean very little. The Constitution, however, was drafted at a time when trade and commerce was characterised by important geographical considerations, the most significant being the geo-political boundaries between the several colonies that became the States. The internet has all but destroyed whatever remnants of that age might have survived the previous 100 years. This tension between recent technological advancement and long established constitutional jurisprudence confronted the High Court in Betfair Pty Ltd v Western Australia.

Betfair is one of a long line of cases dealing with the freedom of interstate trade and commerce enshrined in s 92 of the Constitution, the most litigated section of Australia's highest document of government. But it is also truly unique: Betfair is the first time that the freedom of interstate trade and commerce has been considered in an e-commerce context. Presented with this opportunity, the High Court has elaborated upon the approach to s 92 set down nearly 20 years ago in Cole v Whitfield. The outcome has significant consequences for both State and Commonwealth internet regulators.