The ‘free trade’ provision in Australia’s Constitution, section 92, remains partially uncharted territory, both as to its practical operation and its doctrinal underpinnings. Section 92 is presently understood as a non-discrimination norm. While interpretation has cleaved the norm into two distinct strands, this article addresses only one of those, that concerning protectionist discrimination against interstate trade or commerce. Although there are many outstanding issues regarding this norm’s operation in particular settings – for instance its operation upon the Commonwealth and its ramifications for export controls – I will not be exploring those frontiers here. Rather, my interest is in the established core of the protectionist discrimination principle and the soundness of its doctrinal underpinnings. I will focus in this article upon a crucial missing piece in our contemporary picture of section 92’s make up, specifically, the relationship between legislative purpose and practical effect in the identification of protectionist discrimination.

This article examines the central role that credibility assessment plays in refugee determinations. It draws on the authors' own empirical study, Tales of the Unexpected, to display the complex ways in which applicants' poor mental health can affect their capacity to present a 'coherent and plausible‘ account of their experiences. The authors then explore the significant issues arising from the tendency revealed in the Tales study for decision makers to dismiss expert opinions expressed in reports tendered by applicants from psychologists specialising in cross-cultural mental health assessment. For example, consider the decision maker who observed that

It seems generally admitted that the term ‘police power’ was first used in 1827 by Marshall C.J. in Brown v. Maryland. However the concept which underlay this term was not new. References to ‘regulations of internal police’, ‘matters of police’ etc. are found in the writings of such eminent eighteenth century authors as Montesquieu, Blackstone, and Vattel. These terms found an early use in newly independent America.

The inclusion problem for theories of gender arises when those theories inappropriately fail to include certain individuals in the gender categories to which they ought to belong. The inclusion problem affects both of the most influential traditions in feminist theorizing about gender: social-position accounts and identity accounts. I argue that the inclusion problem can be solved by adopting a structured theory of gender, which incorporates aspects of both social-position accounts and identity accounts. According to the theory I favor, an individual’s gender is determined by their gender identity if they have one; otherwise, it is determined by their social position. My structured theory of gender offers a more direct solution to the gender inclusion problem than alternatives recently advocated by Barnes (2020), Jenkins (2023), and others. It also points the way to a simple solution to inclusion problems that arise at the level of gendered language.

A recent submission to the Senate Standing Committee on Constitutional and Legal Affairs said this about the Australian law of criminal procedure:

The recent law of criminal investigation is governed by a confusing “amalgam of common law, statutory law, court-directed practices and internal police regulations” .... A policeman’s non-observance of [a citizen’s rights] may lead to internal disciplinary procedures, but it does not constitute an offence nor give the suspect a cause of action [or, necessarily lead to exclusion of the evidence].

Several months of studying the law of criminal investigation in Australia have led me to agree with this conclusion. It is the purpose of this article to discuss what that law is, but to do so in the only context that has any meaning in the real world of law enforcement. That is, in the context of remedies, specifically exclusionary remedies, for police misconduct.

It is clear that tribunals are a permanent feature of the administrative law landscape. The concept of merit review of administrative decisions by bodies other than courts has survived initial resistance from the executive, distrust by the courts, the managerialist pressures of the 1980s, and the downsizing, outsourcing movements of the 1990s. As Pearce commented, the recommendation in the Better Decisions report in 1995—the most comprehensive examination of the Commonwealth's merit review system since the 1970s—that merits review tribunals should be retained, albeit in a more integrated structure, is evidence of that acceptance. The Coalition Government, not without some struggle, broadly accepted that recommendation and the results, in the Administrative Review Tribunal Bill 2000 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 (ART (CTP) Bill) attest to that response. Such a development shows how far we have come in twenty five years. In the States and Territories, there has been the same process of slow acceptance followed by expanded use of tribunals, many of them dealing with work previously done by courts.

What has led to this position? Tribunals have certain characteristics, which often given them advantages over the courts. As the Franks Committee in the United Kingdom noted in the 1950s, these include ‘cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject’.

This article will attempt to identify and define those constitutional principles, derived from the doctrine of the separation of powers, which govern the relationship between Parliament and the Chapter III courts in the precise situation where Parliament purports to amend the law which is applicable in pending legal proceedings (whether they are awaiting first instance hearing, or are on appeal). Arguably, these principles are also applicable in circumstances where proceedings are being contemplated, but have yet to be commenced. The fundamental enquiry is whether the separation of judicial power in Chapter III of the Commonwealth Constitution places limitations on the legislative competence of Parliament to affect the resolution of legal issues in the pending case. This issue has been the subject of greater judicial and academic scrutiny in the United States, providing considerable assistance in defining relevant constitutional limitations applicable in Australia. It is the aim of this article to undertake a detailed examination of the United States position to assist in the appreciation and development of principle in Australia.

Governments create and commission copyright protected material as part of their core administrative functions and they sometimes compete with the private sector as developers of commercially valuable assets. Governments also use under licence copyright protected material owned and created by others. A wide range of copyright material is also submitted to State and federal governments when individuals and corporations comply with legal obligations or conduct business with government agencies. That material submitted to governments, and the information it contains, can have value that extends beyond the initial transaction. Governments can add value by compiling and processing the information and then charge the public for access. Material submitted to government is also an important source of information about how governments function. When the principles of open government and transparency are discussed, the primary focus is usually upon access to information recorded in documents created within government agencies. However, it is often necessary to extend access to documents received by agencies. Copyright in that material will be privately owned and that can conflict with public access.

The adequacy of the legal protection given to fundamental rights and freedoms is a topic of concern in both Australia and Britain, two jurisdictions which share a common legal heritage. Both have witnessed extensive debates in recent times about the desirability or otherwise of a Bill of Rights designed to protect human rights.

It cannot be that Legislatures, being rational, seek to break down the fences they have erected around individual tribunals and let them roam at large by the simple expedient of a privative clause. The clause must be read in the context of the statute. It cannot be intended to transform tribunals into judicial libertines.

The decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission was hailed as a landmark, permitting almost unlimited judicial review into the activities of administrative bodies and inferior courts. De Smith commented

Yet the decisions which have followed Anisminic even in England have revealed that the case has contributed little certainty to an area in which apparently irreconcilable decisions proliferate.

There is agreement that the tax law is very complex and needs improvement. At that level of generality it is not easy to attract an argument. However once one cuts below that layer of broad agreement there has not been the same level of understanding or concord on what can be done to put things right.It is good to see positive signs that these issues deserve serious public debate so that we can reach common ground on what is achievable by the Tax Law Improvement Project.

The author of this article argues that whilst a desire for uniformity and certainty in taxation law is both desirable and necessary, it should not and cannot be achieved simply by extrapolating general property and trust concepts and authorities into taxation law. Conversely taxation authorities cannot mechanically be cited as supporting property and trust principles. The result of simple extrapolation not only inhibits effective judicial response to tax avoidance by by-passing important policy considerations but also creates uncertainty by obscuring the real reason for the decision.

This article examines the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) (“the 1979 Act“). It was the second legislative response of the Australian Government to steps taken by the Westinghouse Electric Corporation (“Westinghouse“) in its international uranium cartel antitrust suit in the United States District Court in Chicago. That suit and other legislation attributable to the uranium cartel which operated between 1972 and 1975 proceeded for more than four years and, until a recent spate of settlements mentioned later in the article, had been expected to continue well into the 1980s. At the outset it is necessary to say something of the events which provoked the District Court suit and related litigation.

In September 1975 Westinghouse announced in the United States that it was unable to fulfil its contractual obligations for the supply of uranium oxide (U3O2). Westinghouse's primary involvement in the nuclear energy industry is as a manufacturer of nuclear power plants (“reactors“) and not as a uranium miner. In the late 1960s reactor sales soared and Westinghouse offered electric utilities low price reactor fuel over long terms as an inducement to capture reactor sales.

Strategic litigation is a form of legal mobilization, where actors bring cases before judges not only to win in court, but also to pursue broader political, social or economic ends. Various actors can use the law strategically – big corporations, specialized non-governmental organizations or individual academics. The ends can range from resisting market regulation or a political advocacy campaign to simply “testing the law”. The results of strategic litigation maintain or change power relations in society, economy or politics.

This article provides an analytical framework for the Special Issue on Strategic Litigation in EU Law. This framework can be used to study strategic litigation mobilizing EU law. A contextual and normatively open definition of strategic litigation, recognizes that strategic litigation as a practice operates within specific social, institutional, and economic contexts while accommodating a spectrum of agendas from progressive to conservative. The framework encompasses three dimensions: the actors involved, the unique legal structures of EU law, and its effects—both in terms of strictly legal outcomes and of broader socio-political consequences. Ultimately, this framework aims to illuminate the dynamics of (dis)empowerment characterizing strategic litigation, paving the way for a comprehensive exploration of its implications within the EU legal landscape.

In 1994, the Commonwealth Parliament passed an amendment to the Immigration (Guardianship of Children) Act 1946 (Cth) (the ‘Immigration (GOC) Act’), which provided that the Minister is guardian of ‘every non-citizen child who arrives in Australia’. Although the Immigration (GOC) Act was originally enacted with respect to children who entered Australia under assisted migration or re-settlement schemes, the Act and the amendments introduced by the Immigration (Guardianship of Children) Amendment Act 1994 (Cth) have been interpreted to include unaccompanied children who come to Australia as asylum-seekers. Unaccompanied children commonly apply for protection visas and bring review applications and appeals in the Refugee Review Tribunal (‘the Tribunal’) and the courts. The Minister is the decision-maker, respondent in review proceedings, and a party in appeals; and is also the children's legal guardian. This gives rise to actual and perceived conflict between the Minister's duties as guardian and as a decision-maker or party to review and appeal proceedings.