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.

Recently, attention has been drawn to the proliferation in Australia of statutory authorities, which appear to be, to some extent, independent of government control. The Australian Constitution requires responsible government, and this article attempts to determine the extent to which the Constitution permits the establishment of statutory authorities outside the traditional organisational structure of ministerial departments of state, and to what extent such authorities may be independent of ministerial and parliamentary control. On the assumption that responsible government requires some measure of accountability of all parts of the executive government of the Commonwealth, the article examines the extent to which statutory authorities are accountable in accordance with the provisions of the Constitution, and also whether any other areas of law, especially administrative law, may provide some measure of accountability of statutory authorities.

I give personal and not official opinions in this article but as the first, and so far only, President of the Commonwealth Conciliation and Arbitration Commission the conciliation and arbitration I discuss shall be those in the national area.

The Commission’s work comes under fire from many directions. Those who see it as a predominantly legal institution are very critical. Curiously enough they divide into two opposing sections, the one pointing to the Commission’s failure to adhere strictly to a predictable judicial process and the other condemning it for being too legalistic. On the other hand, there are those who look on the Commission as an economic legislative body and criticise its alleged inability to gauge the impact of its decision making policy on the level of economic activity in Australia. Indeed, all criticisms, if one adopts the exclusively particular view of the Commission which each set of critics has, may have some justification.

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.

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.

The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. This area of law has recently undergone an extensive restatement by the American Law Institute (‘ALI’) and been the subject of legislative attention in all Australian states. In the light of these developments this essay sketches some essential issues relevant to factual causation which apply not only to the tort of negligence but throughout the law.

Professor Nettheim's answer to this question involves a rigorous examination of legislation and judgments from the eighteenth century on. The reluctance of courts and legislatures to protect servicemen from their employer, the Crown, in the matters of remuneration and termination of service is criticized. The right-lessness of servicemen is presented as being not only inequitable, but also incompatible with the image of military service as a career, and with the related need to attract qualified personnel.

Our argument in this paper is that the evidentiary practices and procedures that have been developed by the Australian Refugee Review Tribunal are operating at a routinely low standard. Such practices contribute to decisions that are manifestly unfair and potentially wrong in law. A recent working paper from the Office of the United Nations High Commissioner for Refugees ('the UNHCR') notes that evidentiary questions have been 'largely ignored in the academic literature.' Our conclusions are drawn from our detailed study of more than 300 refugee tribunal decisions made in Canada and Australia in response to asylum claims brought by lesbians and gay men. Our overall frame of inquiry in this study considers how the respective tribunals grapple with the issue of identity, the complex cluster of dilemmas around the public/private divide, the inability of many decision-makers to imagine the 'other' who stands before them in these claims, and the way this area of law encodes and reflects homophobic stereotyping.

The United States is said to be undergoing a republican revival. Republicanism is a political theory and philosophy that has become enmeshed in the debates surrounding United States constitutionalism. Commentators have argued for several different paradigms of republicanism. Frequently, support for a particular paradigm has been sought from an understanding of historical and modern political thought and, more significantly for our purposes, from the era that saw the birth of the United States Constitution.

The multifarious origins of, and many views on, republicanism, as well as the number of commentators moulding the concept to suit their own ends, make republicanism difficult to pin down. The core elements of modern republicanism may be taken to refer to a system of government by the people equally that seeks to achieve the common good through deliberation by political actors who act not in their own interest or the interests of their constituents but for the community as a whole. This is a far cry from the “militarist, elitist, religious, and sexist sentiments” historically displayed by republicanism.

This article provides an overview of the developments in 2004 regarding the constitutional freedom of political communication. This will be done through a discussion of the cases of Coleman v Power and Mulholland v Australian Electoral Commission. These two cases have confirmed the validity of the general propositions in Lange v Australian Broadcasting Corporation, regarding the existence of a freedom of political communication implied from the Australian Constitution, and provide the basis for some observations with respect to that implication. In this article an overview is given of the basic principles in Lange, followed by a detailed discussion of relevant parts of the judgments in Coleman and Mulholland. This article ends with analysis of some of the issues raised by the cases.

The purpose of this article is to examine Australia's regulatory system for the classification of publications, films and computer games, the National Classification System (‘NCS’), and to question whether its classification decision process is susceptible to political influence. Formed in 1995 as a cooperative scheme between the Commonwealth, States and Territories, the NCS was created to overcome problems associated with former classification schemes that operated on a non-national basis in each Australian jurisdiction. It is argued that, although the current system is superior to the ones of the past, it still allows, or at least perceivably allows, political influence in censorship decision-making, as was historically the case. This is because documents used by the Classification Board and Classification Review Board (‘the Boards’) to make classification decisions are ambiguous and often inconsistent, and, even with redrafting, would remain so without the benefit of judicial precedent. The ambiguity created by the classification documents legitimates the possible exercise of political influence through a variety of means.

My first and quite unnecessary comment is that if anyone can speak with authority about Freedom of Information (“FOI”) in Australia and about the origins of the Commonwealth’s Freedom of Information Act in particular it surely is Mr Lindsay Curtis. I recall many of the events of 1973 onwards into 1979 when I retired from the Public Service. Especially I recall the long haul that was commenced in 1973 with the assistance of Mr Tony Mondello, the legal adviser to the United States Civil Service Commission, and that eventually reached fruition in 1982 with the passage of the FOI Act. All through that period Lindsay Curtis was more closely associated than any other public servant with the project. He has given us the benefit of that experience in an interesting, able and fluent paper.

My second and equally obvious comment is that the FOI Act is here to stay. Lindsay Curtis has said we are undergoing a revolution. I believe the revolution has already taken place. Some of us may find it rather difficult to live with the consequences.

In Australia there are nine bodies of legislation; Commonwealth, State and Territorial. The laws within each of these systems may differ from each other in significant ways. Such differences, especially when occurring in areas of “technical law”, may cause considerable inconvenience to Australians and to their legal advisers. In social and economic terms, for many purposes Australia is a single nation, and is not divided by State boundaries. Enactment of uniform laws in each part of Australia could lead to much greater convenience for businesses, individual citizens and lawyers.

This article examines some of the ways in which international organisations and bodies within other federal nations have been working towards the unification and harmonisation of rules of law, in selected areas. From this examination, some parallels are drawn with the situation in Australia. The article also makes some suggestions for greater uniformity of laws in Australia against the political background which may explain why law in Australia has come to be diverse.

Imagine this scenario. A court composed of an even number of judges is deciding the constitutionality of national legislation critical to the efficient administration of justice in a federal state. In argument, the chief law officers of all representative governments ask that the legislation be upheld as it was reached through a lengthy negotiated compromise of all the parties. By virtue of an equal split of opinion between the six judges hearing the case, a legislative 'sleight of hand' is triggered and the scheme is found to be constitutional. Twelve months on, the same court agrees to reconsider its previous decision. Things are generally unchanged, the same arguments are presented. The matter, however, is heard by a differently-composed, odd-numbered bench. If ever the combined desire of all governments was that a court should heed the ancient maxim 'stare decisis et non quieta movere–stand by the thing decided and do not disturb the calm'–it would be now. Instead, a majority finds that the same scheme is unconstitutional; it therefore collapses.

The use of public procurement as a vehicle for achieving public policy objectives can conveniently be traced to the Fair Wages Resolution which was adopted by the British House of Commons in 1891. This technique was subsequently adopted in many jurisdictions, and finds clear expression in the International Labour Organisation (‘ILO’)'s Labour Clauses (Public Contracts) Convention 1949 (No 94) (‘Convention No 94’). This article describes the British model and its international progeny, and then examines a controversial and unusual Australian mutation in the form of the National Code of Practice for the Construction Industry (‘Code’) and the various iterations of the associated Implementation Guidelines (‘Guidelines’) which have been adopted since 1998. It suggests that the Code and Guidelines, especially under the Howard Government, constitute a perversion of the traditional use of public procurement as a vehicle for the implementation of public policy in the industrial context. That is because they were directed to the curtailment of the rights of workers and their organisations rather than protecting employment standards and promoting collective bargaining. The article argues that the Code and Guidelines sit uneasily with accepted notions of the rule of law in a number of respects, and with certain aspects of Australia's obligations in international law. It also discusses the Fair Work Principles (‘FW Principles’) which have applied to all aspects of procurement by the Commonwealth since January 2010, and suggests that they embody an approach to public procurement and the promotion of social objectives which is rather more in keeping with international best practice than that reflected in the Construction Industry Code and Guidelines.