I have had an interest in inquisitorial procedures and a lack of conviction to the often claimed superiority of adversarial procedures as long as I have have any interest in the law. Until recently however I found it difficult to engage other Australian lawyers in discussions which questioned whether the adversarias system is necessarily the best. It seems that my experience reflected the strength of the “Anglo-American legal culture”.

The decision of the Court of Appeal of New South Wales in Government Insurance Office of New South Wales v Glasscock demonstrates both th traditional view that a trial should be adversarial and a more open approach to the question. One submission of counsel for the appellant was that the trial hal miscarried because of the extent of judicial intervention, which was summed u by saying that the adversarial basis of the trial had been lost as a result of the judge's intervention.

Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them.

The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers.

With wide-field phased array feed technology, the Australian Square Kilometre Array Pathfinder (ASKAP) is ideally suited to search for seemingly rare radio transient sources that are difficult to discover previous-generation narrow-field telescopes. The Commensal Real-time ASKAP Fast Transient (CRAFT) Survey Science Project has developed instrumentation to continuously search for fast radio transients (duration ≲ 1 second) with ASKAP, with a particular focus on finding and localising Fast Radio Bursts (FRBs). Since 2018, the CRAFT survey has been searching for FRBs and other fast transients by incoherently adding the intensities received by individual ASKAP antennas, and then correcting for the impact of frequency dispersion on these short-duration signals in the resultant incoherent sum (ICS) in real-time. This low-latency detection enables the triggering of voltage buffers, which facilitates the localisation of the transient source and the study of spectro-polarimetric properties at high time resolution. Here we report the sample of 43 FRBs discovered in this CRAFT/ICS survey to date. This includes 22 FRBs that had not previously been reported: 16 FRBs localised by ASKAP to. ≲ 1 arcsec and 6 FRBs localised to ∼ 10 arcmin. Of the new arcsecond-localised FRBs, we have identified and characterised host galaxies (and measured redshifts) for 11. The median of all 30 measured host redshifts from the survey to date is z = 0.23. We summarise results from the searches, in particular those contributing to our understanding of the burst progenitors and emission mechanisms, and on the use of bursts as probes of intervening media. We conclude by foreshadowing future FRB surveys with ASKAP using a coherent detection system that is currently being commissioned. This will increase the burst detection rate by a factor of approximately ten and also the distance to which ASKAP can localise FRBs.

Administrative law — Administrative Appeals Tribunal — Function of Tribunal in relation to ministerial policy — Application of ministerial policy — Administrative Appeals Tribunal Act 1975 (Cth)

In Ghaidan v Mendoza, the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights. The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant ‘as his or her wife or husband’, should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case. Section 2(2) was interpreted as applying to a person living with a tenant ‘as if they were his or her wife or husband’, despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.

For the purpose of reaching a decision about potentially defective administrative action into which he is conducting an investigation, the Ombudsman may wish to compel people to engage in various sorts of testimonial activity—the furnishing of information in writing, the production of documents, the answering of questions orally. This article examines the Ombudsman’s powers in that regard, pointing to matters which may give rise to difficulties in the exercise of such powers and suggesting a number of changes to the relevant provisions. Some of the matters discussed are relevant to the information-gathering powers of other Commonwealth agencies, for example, the Taxation Commissioner and the Trade Practices Commission. Not discussed in the article is the question of excuses which can be made to avoid complying with a valid request once made, a subject which deserves its own treatment separately.

The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court's judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not ‘the judicial power of the Commonwealth’ within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is ‘the judicial power of the Commonwealth’, but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court's reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.

Victoria was the first and, to date, the only Australian State to enact freedom of information legislation. The Freedom of Information Act (“FOI Act”) was passed by the Victorian Parliament in late 1982 and came into operation on 5 July 1983. The legislation was a major part of the Australian Labor Party's 1982 Victorian election platform and an early law reform initiative of the new Government.

Before examining the exemptions in the Act, I will outline the background of the Victorian legislation. This will indicate the various influences on the final form of the legislation and explain both the similarities and divergences between the Commonwealth and Victorian Acts.

This collection of articles, commentaries and book reviews, published here in the Federal Law Review, forms only the second symposium on electoral law published in Australia. Interest in how democratic choice is regulated and how elections are run – the rules of the game of electoral politics and the ways in which its dynamics intersect with those rules – is a staple of media debate and political science. Yet it is only beginning to emerge as a focus of sustained attention in the legal academy.

In the Australian and New Zealand common law tradition, the law governing elections in particular and democracy in general has been historically subsumed, and to a degree lost, under the broader rubric of ‘constitutional law’. In part this has been imposed from without; a product of the dicing up of the discipline of law into broad doctrinal categories to suit the legal profession, a practice perpetuated by the dictates of the admission rules. However, it has also been the consequence of academic neglect: an overlooking of the potential of the field by legal scholars.

The inclusion in legislation of a discretionary power to be exercised by a member of the bureaucracy is nowadays commonplace. Such a discretion is usually open-ended and the basis on which it is to be exercised is spelled out in only the most general terms. To enable the discretionary power to be exercised consistently and in accordance with the intentions of the government, it is customary to find a policy being adopted relating to the manner of exercise of the discretion. This article is concerned with the attitude adopted by courts and tribunals when reviewing governmental action based on a policy relating to a discretion. It will be seen that the courts have moderated an original approach that disapproved of the reliance by decision-makers on policy rulings. Tribunals, on the other hand, and the Administrative Appeals Tribunal in particular, will be shown to have rejected constraints that may have been thought to have been placed upon them by governmental policy statements.

Despite their numerous advantages, exit polls are not a common tool in the study of Canadian electoral behaviour. In this methodological note, we use data from two pilot projects to test small-scale exit polls’ accuracy when estimating party support. We mobilize exit-polling data collected in the 2018 Quebec provincial election (four voting locations) and the 2019 federal election in Quebec (two voting locations). We focus on chance error and bias error in small samples. Results obtained using parametric linear models suggest that small sample exit polls achieve relatively precise estimations. We do find, however, that right-of-the-centre parties’ vote share tends to be underestimated. These findings shed light on the strengths and shortcomings of small-scale exit polls in Canada.