Tribunals and specialised courts with inquisitorial powers are now fairly common in Australia and appellate courts have begun to insist that in certain circumstances the powers be used. By “inquisitorial powers” is meant powers which enable the adjudicator to take the initiative in eliciting evidence and formulating legal arguments, and to control the way in which a case is presented. The Australian Committee on Administrative Discretions believed that it would be appropriate for their proposed administrative review tribunal to make use of an “investigative or inquisitorial process in most cases”. There have even been calls for the use of some inquisitorial procedures in ordinary courts of law. A radical change in the ordinary courts seems at present to be impracticable. On the other hand the Administrative Appeals Tribunal is still in a position to set its own pattern of development. It has been given almost carte blanche as to procedure and some wide inquisitorial powers. For the last six years it has been experimenting with the use of these powers, and some of its pre-trial procedures have already aroused interest. The Federal Court in its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is given power to exert far greater control over the conduct of proceedings than is normal in an adversary system.

The Independent Contractors Act 2006 (Cth) ('IC Act’) and the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth) ('Amendment Act’) implement further key aspects of the federal government's workplace relations policy, following the passage of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices Act’). The Work Choices Act substantially amended the Workplace Relations Act 1996 (Cth) ('WR Act’), introducing a national workplace relations system for employers who are (in the main) ‘constitutional corporations’ or federal public sector departments or agencies, and their employees. Through the Work Choices Act, the government also: transferred responsibility for minimum wage-setting from the Australian Industrial Relations Commission ('AIRC’) to a new body, the Australian Fair Pay Commission; provided five minimum statutory employment conditions for all workers covered by the national system; removed much of the procedural regulation relating to workplace agreements and substantive requirements such as the ‘no disadvantage’ test; and exempted businesses with 100 employees or less from unfair dismissal regulation.

By a review of a series of comparable decisions in the Administrative Appeals Tribunal (AAT) some of the problems that may arise as the jurisdiction and role of the AAT continues to expand in the review on the merits of Commonwealth administrative decisions are identified. The problems include first, the apparent difficulty for democratic theory of unelected tribunal members (including persons who are also judges) reviewing policy determined by elected Ministers; secondly, the creation of a dichotomy between decisions made by the AAT and decisions of public servants faithfully and more consistently applying Ministerial policy; thirdly, the limitation upon the membership and procedures of the AAT which restrict any truly effective wide-ranging review of government policy; and, fourthly, the potential damage to community confidence in the judiciary, by the involvement of judges in the frank determination of controversial matters of public policy. The role of policy-making in the courts is acknowledged and similarities and differences in the function of the courts and the AAT in the review of policy issues are indicated. It is concluded that the AAT will require all arms of government in Australia to face more precisely the role of policy in adjudicative decision-making.

Two recent decisions of the High Court, Mutual Pools and Staff Pty Ltd v Commonwealth (Mutual Pools) and Georgiadis v Australian and Overseas Telecommunication Corporation (Georgiadis) have re-opened the debate about the source of the Commonwealth's liability to be sued in civil proceedings. The debate can be expressed in this form: does that liability arise from the Constitution so as to confer a constitutionally guaranteed right to sue the Commonwealth (the “constitutional argument”) or does it arise from rights conferred by s 64 of the Judiciary Act 1903 (Cth) — possibly in combination with “rights to proceed” allowed by the Constitution? In practical terms this is a difference between entrenching the Commonwealth's liability in the Constitution or acknowledging that those “rights to proceed” can be removed by Commonwealth legislation preventing action against it.

A rock cairn, with two matchbooks buried beneath, was found on the summit of the highest hill on Thomas Island, Bunger Hills, East Antarctica. The matchbooks are most likely from United States World War II-era ration packs, which were distributed to various military and civilian expeditions from the mid-1940s into the 1950s. Bunger Hills was first visited by United States Navy ‘Operation Highjump’ in February 1947, when a seaplane most likely landed on a marine inlet, rather than a lake as reported previously. Thomas Island was first visited by United States Navy ‘Operation Windmill’ in January 1948, when a survey point was established, and it is probably this location that is marked by the rock cairn. The matchbooks were replaced beneath the cairn and the rocks replaced. Just over 76 years had elapsed between burial of the matchbooks, construction of the cairn and their rediscovery.

Our comprehension of the legal means and methods by which military forces are employed, controlled and — where considered necessary — immunised, is incomplete. Some questions are — in a jurisprudential sense — well settled, or at least evolving along a logical, comprehensible, and generally linear course. Thus the scope of the defence power under the Australian Constitution has, on the whole, been relatively consistently interpreted over time as an elastic power — expanding in time of large-scale conflict, contracting in time of profound peace, variably waxing and waning between these two poles in situations of uncertainty less than war but short of settled peace. There have certainly been some new developments in understanding the scope of the power — such as the High Court of Australia’s decision in Thomas v Mowbray (relating to the constitutional validity of the federal control order regime). In this case the majority held that components of the defence power are also exercisable through non-military organs such as the police. But on the whole, our understanding of the power has developed along conceptually and chronologically coherent and logical lines. Similarly, there is no question in the Australian context that this evolution has also been more generally coherent in terms of its interaction with related constitutional questions. Thus Thomas v Mowbray is, in many ways, a belated cross-referral allowing police and intelligence agencies to access authority under the defence power. This merely reflects and accompanies the long established principle that the military forces can likewise be used for law enforcement purposes — as confirmed in Li Chia Hsing v Rankin. It is perhaps justified to say that were we to apply a jus ad bellum / jus in bello approach (law of armed conflict based and thus formally inapplicable, but nevertheless useful) to the problem, the jus ad bellum issues — the when and why of use of military forces in law enforcement operations — are relatively settled, or at least evolving coherently and consistently with their history and precedent.

Premixed hydrogen flames are prone to thermodiffusive instabilities due to strong differential diffusion effects. Reproducing these instabilities in large eddy simulations (LES), where their effects are only partially resolved, is challenging. Combustion models that account for differential diffusion effects have been developed for laminar flames, but to use them in LES, models for the turbulence/flame subfilter interactions are required. Modelling of the subfilter interactions is particularly challenging as instabilities synergistically interact with turbulence resulting in a strong enhancement of the turbulent flame speed. In this work, a combustion model for LES, which accounts for thermodiffusive instabilities and their interactions with turbulence, is presented. In the first part, an a priori analysis based on a direct numerical simulation (DNS) of a turbulent hydrogen/air jet flame is discussed. Progress variable, progress variable variance and mixture fraction are rigorously identified as suitable model input parameters, and an LES combustion model based on pre-tabulated unstretched premixed flamelets with varying equivalence ratio is formulated. Subfilter closure is achieved via a presumed probability density function and a significant reduction of modelling errors is achieved with the presented model. In the second part, LES of the DNS configuration are performed for an a posteriori analysis. The presented combustion model shows significant improvements in predicting the flame length and local phenomena, such as super-adiabatic temperature, compared with combustion models that either neglect differential diffusion effects or consider these effects but neglect the subfilter closure. Two variants of the model formulation with a water- or hydrogen-based progress variable have been tested, yielding overall similar predictions.

Health is one of the major areas of public expenditure in Australia. In 1991–1992, Australian governments spent $22.5 billion of the total health expenditure of $33.2 billion. A substantial part of Commonwealth expenditure subsidises patient access to private medical services through Medicare, which operates within the fee-for-service system with no cap on the number of services or on the total budget outlays for them.

Since its creation by the Family Law Act in 1975 the Family Court of Australia has relied on various measures which have been implemented from time to time to overcome the deficits in its jurisdiction in relation to children. These deficits emanate from insufficiencies in constitutional power. Those measures include the addition in 1983 of the jurisdiction in relation to the welfare of a child by the Family Law (Amendment) Act 1983 (Cth) and the reference by the Australian States, between 1986 and 1990, of substantial powers by the Commonwealth Powers (Family Law Children) Acts. These substantially extended the jurisdiction of the Family Court in respect of ex-nuptial children. Remaining gaps in jurisdiction were filled by the enactment of the State and Federal Jurisdiction of Courts (Cross-Vesting) Acts 1987 which conferred on the Court the jurisdiction of the State Supreme Courts. The Court has thus been in the happy position since 1987 of hearing State matters in association with children's issues which were instituted in the Family Court; and it has received and heard State matters involving State law which were transferred to it by State Supreme Courts.

The legislative prohibitions on the parallel importation of copyright material should not survive the new technological developments in the transmission of that material. Australian copyright law should come to grips with that reality and remove the existing prohibitions. Yet the adoption of current proposals for the amendment of copyright law may lead to a situation in which copyright owners could effectively prevent parallel importing. This could be done by copyright owners even if the existing statutory provisions specifically aimed at preventing parallel importing were repealed.

This article looks at the justifications for prohibiting parallel importing and the strength of those justifications in the light of new or developing means of distributing copyright material. Those justifications have been seriouslr questioned in recent years by a series of reports of the Prices Surveillance Authority (PSA) which has criticised the continuing prohibition of parallel importing. The criticisms in these reports have not made any detailed reference to the effects that changes in technology will have on the means of distributing copyright material. Those criticisms, combined with the impact of new technology, tip the balance of the debate concerning parallel importing in favour of permitting parallel importing.

This article investigates the possibilities for promoting and implementing a more progressive or essentially social democratic political and constitutional agenda within the existing institutional and constitutional constraints of federalism. Although this question has been a long debated and much discussed one in social democratic political and constitutional theory, this article seeks, indeed, to bring new light to this (traditional social democratic) perspective by emphasising the potential advantages of federal theory and the federal structure for a developing and contemporary social democratic agenda. Particular attention is devoted to the progressive possibilities which inhere in the States and their accompanying (State) constitutions and the consequent potential which State constitutionalism has to support a renewed and more distinctively progressive political (and constitutional) practice.

Judicial reasons often include general statements about the nature and behaviour of people and institutions and the nature of the world and society. These statements might be called social facts (‘SF’) and are made as part of judicial development and general application of law. The presence of SF statements in judicial reasoning in Australian cases has been acknowledged by commentators and judges. However, there has been little empirical examination of this phenomenon. This article discusses a content analysis study of SF in negligence cases in the Australian High Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play a range of roles in judicial reasoning. This includes predicting social, economic and behavioural consequences of legal rules, as part of setting a context or background to judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally dominate judicial reasoning. However, they appear to have a significant role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some individual differences between judges emerged. Judges do not use SF in all cases in the same way. Judges referred to SF more in high significance cases, and cases with multiple separate judgments. Judges also referred to SF more in single and dissenting judgments than in joint and majority judgments. Most SF referred to by judges were not sourced or referenced in any way and reference to empirical research was very rare. Where a source or reference for a SF was given by a judge it was usually to a legal source. Most SF appeared to source from judicial ‘common sense’ with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

In this article, I present the results of a study into the extent to which property figured as a constitutional and political concept in the drafting of the Constitution at the Australasian Federal Conventions of the 1890s. Property is a fundamental concept of western legal orders and a powerful political and rhetorical tool. Accordingly, it is important to understand both how it affected the drafting of the Constitution and how it is reflected in it. In Section I, I outline the process by which the Constitution was drafted by the Australasian Federal Conventions in the 1890s. In Section II, I identify the constitutional provisions in which ‘property’ and some related terms appear and assess the extent to which the Conventions shed light on the meaning of those provisions. In Section III, I discuss the striking ways in which property, as a political concept, influenced debate at the Conventions on constitutional provisions that do not themselves deal with property. In the final section, Section IV, I attempt an overall assessment of the significance of the concept of property at the Conventions.

There is undoubtedly a growing willingness in the High Court to find constitutional implications protecting individual freedoms or rights. There are a number of possible bases for this approach, including the separation of powers and the common law. In this context, the High Court's decisions in Australian Capital Television Pty Ltd v Commonwealth (No 2) (the Political Advertising case) and Nationwide News Pty Ltd v Wills (which together I shall call the “principal cases”) are very significant. A majority of six judges in the decisions held both that the Constitution entrenches the system of representative democracy and that this in tum implies constitutional protection of free speech on political matters. The two cases were handed down on the same day and must be read together as. the judges' reasoning for these conclusions overlap between the cases. The significance of the principal cases is twofold. They constitute the clearest acceptance by the Court to date of an implied constitutional limitation relating to individual freedom. More importantly, they establish a new basis for finding further constitutional implications. If freedom of political communication is constitutionally protected because it is essential to representative democracy, other freedoms and requirements might be similarly essential and be similarly protected.

When a marriage breaks down if the parties are unable to agree as to how their assets are to be divided their disputes may currently be heard in two different court hierarchies applying two disparate sets of legal principles. Inevitably this position leads to forum shopping and to the proliferation of legal proceedings which are not directed at resolving the substantive issue between the parties. It produces uncertainty, duplication, expense and delay. Although the problems associated with dual jurisdiction in matrimonial property disputes arise both before and after divorce, neither the Family Court nor the Supreme Courts have yet, it seems, formulated policies which ought to be pursued. Nor have they been consistent in their choice or application of the legal mechanisms that they enlist to break the deadlock. It is suggested here that both the federal and state courts should aspire to the centralisation of matrimonial property disputes, so far as is constitutionally feasible, within the Family Court. With that objective in mind the various legal devices currently invoked to resolve disputes about jurisdiction are critically reviewed. Some techniques are suggested to overcome problems which recur in the case law and a general approach is proposed which, it is hoped, will achieve consistency in the aims and in the legal principles adhered to by the courts in the future.

Industrial Law (Cth) – Restraint of State industrial commission jurisdiction – Validity of restraining order – Necessity to specify what matter is removed from State jurisdiction – Requirement of interstate industrial dispute for valid restraining order – Relationship between matter and parties – Validity of empowering Commonwealth provision – Conciliation and Arbitration Act 1904 (Cth) s 66

With increasing use of skilled temporary migration by employers and its significant influence upon Australia's permanent migration intake, the 457 visa has far-reaching implications — both for the domestic labour market and for the long-term composition of the Australian population. The scheme was introduced in 1996 to facilitate the temporary migration of skilled overseas workers to alleviate domestic skill shortages. Predicated upon a premise of business demand, the scheme allows employers to sponsor overseas workers whose occupations are on the Consolidated Sponsored Occupation List. Verification of whether the employer's attestation of a skill shortage is genuine is provided through employer-conducted labour market testing for certain occupations and the market salary rates requirement. This article questions whether these regulatory mechanisms are effective for ensuring the 457 visa program meets its objectives.