The power of the Commonwealth to confer authority on members of the Executive or Administration is restricted by the Constitution in two major respects—first, by the principle of the separation of powers, and secondly, by the doctrine that no law can give power to any person (other than a court) to determine conclusively any issue upon which the constitutional validity of the law depends. The second doctrine is sometimes metapholically summed up in the maxim “the stream cannot rise above its source”. The separation of powers principle affects a wider range of decision-making than the “source and stream” doctrine; but the latter doctrine, within the area of its operation, appears to be a greater limitation on legislative power.

For example, the principle of the separation of powers seems to prevent an Act from validly conferring power on an administrator to make conclusive determinations of law (and possibly findings of fact). in the course of settling a dispute about existing rights and duties. But where the power confided to the administrator to make findings of existing law or fact is merely preliminary to the creation of new rights and duties, then, in some circumstances at any rate, such power of detennination will not breach the separation of powers principle.

The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first recognition at law of the traditional ownership of land in Australia by Aborigines. It provides means whereby Aborigines claiming to have a traditional land claim to certain types of land in the Northern Territory can demonstrate that ownership to the Aboriginal Land Commissioner. If he finds that there are traditional Aboriginal owners of the land he reports that finding to the Commonwealth Minister for Aboriginal Affairs and may recommend a grant of it to a Land Trust. Sometimes problems in ascertaining which, if any, Aboriginals are the traditional Aboriginal owners of the land claimed arise from the difficulty inherent in expressing the land tenure system of one culture in the language of another. The author illustrates this with examples from one land claim hearing and argues that the use of interpreters is desirable to enable the claimants to put their case clearly and for the Commissioner to understand more fully the intricacies of Aboriginal land tenure systems.

In the context of proposals to amend the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, the Expert Panel established by the Australian Government recommended the insertion of a prohibition of racial discrimination. Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when considering the various options that are available. With this in mind, in this article I discuss the constitutional ideas regarding equality and non-discrimination that have already begun migrating from Canada to Australia and could continue to inform Australian consideration of the numerous issues that may arise. I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the Australian Constitution and the reform options that have already been identified, before considering what Canadian approaches could offer Australia, if anything. My view is that the utility of the transplantation of constitutional provisions depends on the starting point. Its usefulness may be less when the focus is a parochial issue. While it may be possible to draft a tighter prohibition, there could remain a risk that focusing on non-discrimination could overshadow the Aboriginal rights dimensions underlying many calls for recognition.

We study linearizability of actions of finite groups on singular cubic threefolds, using cohomological tools, intermediate Jacobians, Burnside invariants, and the equivariant Minimal Model Program.

An Australian lawyer seeking to identify the basic differences between the Australian and American constitutional systems is immediately struck by certain features of the latter system. The differences in that system flow from the break between the American colonies and England embodied in the Declaration of Independence of 1776 and are reflected in the changes to the individual State Constitutions which were made after the Revolution.

The major changes which were made to those Constitutions over a period of time were basic and fundamental: the replacement of the gründnorm of British parliamentary supremacy with the principle that sovereignty is derived from the people and, as a concomitant, the establishment of a Bill of Rights; the replacement of a British appointed Governor by a locally elected Governor; the incorporation of the doctrine of separation of powers pursuant to which the Governor as chief executive officer was not to be a member of the legislature and had no power to dissolve it. Finally, basic changes were made to the methods of constitutional alteration.

In the exercise of discretionary power there is no general duty to give reasons in the absence of a statutory requirement. This common law rule may be traced in part to a line of cases which.stand for the proposition that where the discretionary power of the administrator is conclusive as to the existence of the grounds for its exercise, the courts cannot scrutinise the reasons—any errors are within jurisdiction. For example in Allcroft v Lord Bishop of London the respondents argued that the reasons which the Bishop was required by the statute to state, disclosed irrelevant considerations. The House of Lords rejected an application for mandamus.

What is the influence of the Australian Constitution ('Constitution') on the common law of Australia? In Lange v Australian Broadcasting Corporation, a unanimous High Court stated:

Applying this principle, Lange developed the common law of defamation consistently with the implied freedom of political communication. Subsequently, in John Pfeiffer Pty Ltd v Rogerson, the High Court held that the common law of choice of law in tort 'should be developed to take into account various matters arising from the Australian constitutional text and structure.'

The introduction of ‘no-fault divorce’ in Australia in 1976 promised unhappy spouses a ‘dignified’ way to end their marriage without the need to assign responsibility for the relationship's demise. But in 1989, Richard Ingleby's study of matrimonial breakdown hinted that the reformers of the 1970s had failed to appreciate the non-mutuality of the uncoupling process, and that the Family Law Act 1975 (Cth) ('Family Law Act’) had not been ‘able to prevent divorcing parties feeling the need to consider issues of fault'. Since that time a growing body of research evidence has revealed that blame and recrimination remain salient issues for divorcing couples, and academic commentators have suggested that battles over children and property are often proxies for unresolved relationship grievances. In this climate, legal scholarship has witnessed a renewed interest in the issue of spousal conduct, with radical proposals to construct ‘disloyalty’ in marriage as a legally relevant matter in divorce settlements, and consumers of the family law system have called for the law to pay greater heed to the moral dimensions of intimate relationships.

In its joint judgment in the Standard Hours Inquiry, 1947 the Full Court of the Commonwealth Court of Conciliation and Arbitration observed:

The issue, as the history of the case indicates, comes to this Court as a number of industrial disputes (over 100 applications are before the Court) between many registered organizations of workers and their employers who are respondents. Some of these disputes are of long standing; others of them were created when it was known that the Court proposed to make a general investigation into standard hours. It is a commonplace of Australian industrial law that the limit of the constitutional power of the Court is to settle these disputes each within its ambit, and the ultimate judgment will in fact settle these particular disputes, and do no more. But we know, as a matter of practical fact, that it will in the long run lead to uniform standard hours throughout Australia. The responsibility of this onerous task does not properly belong to this Court. It is bound only to settle the dispute. It is something additional that State legislatures and State industrial tribunals make its decisions in these disputes the bases of industrial determinations.

One of the distinctive features of the Australian legal landscape is the increasing use of commissions that possess coercive powers to supplement normal police methods in the investigation of crime. This practice became common in the late 1970s and early 1980s, when a number of Royal Commissions into organised crime or corruption were conducted. It continued with the establishment at both the Commonwealth and State level of standing commissions charged with the investigation of various types of serious crime or corruption. This article is concerned with an analysis of the ability of Royal Commissions and standing commissions to use their coercive powers to investigate crime when the investigation may interfere with pending criminal proceedings. It argues that the divergent authorities in this area can best be understood as turning on the fact that the separation of powers doctrine imposes limits on the powers of Commonwealth commissions that do not exist in relation to State commissions.

In 1998 Australia's public employment service was replaced with a national network of public, private and community agencies—the Job Network—which compete for contracts to deliver services to unemployed people. This development represents the encroachment of competition policy and market ideology into one of the most fundamental areas of government responsibility—the welfare of citizens. The broader ramifications of the contracting out of employment services in terms of quality, efficiency, social costs and accountability are only beginning to be explored. This article examines the impact these changes have had upon one important feature of the social security system—the accessibility and effectiveness of external merits review.

Instruction on the Great Depression used to come from our parents, our grandparents, and the History Channel. Now everyone has something to say about it. Economists tell us that the global financial crisis is the biggest economic reversal since the Great Depression, and governments in Washington, London and Canberra are likening their resolve to that displayed by President Roosevelt in the early days of the New Deal. If they were even half-way right, then these would be busy times indeed for administrative lawyers. Although they are wrong, the legislative and administrative responses to the current crisis include measures that should rekindle some of administrative law's deepest concerns about the democratic legitimacy of the administrative state. New banking laws, in particular, have transferred enormous discretionary powers to central government's regulatory authorities, and these pose real issues about protection from arbitrary power, and about the very process of making laws and holding the administration to account. In other areas, we are likely to see a more hands-on style of market and corporate regulation, but probably nothing so radical as to require us to dig out the history books.

The announcement by the former Attorney-General, Mr. T. E. F. Hughes, at a meeting of Attorneys-General on July 9, 1970 that the Commonwealth Government was investigating the possibility of introducing a system of family courts into Australia and that a senior officer of his Department would visit overseas countries to study the operation of such courts has raised a number of questions as to the possible form that they would be likely to take. Since then, the officer concemed has made his investigation and returned, and there has been a change in the occupancy of the office of Attorney-General. Apart from that slender factual background there can be only speculation. From speculation one turns to a consideration of the legal and constitutional framework within which the Commonwealth's power to manoeuvre is to be found. It is the existence of that framework and the limitations it brings with it that distinguishes Australia's position from that of most overseas countries. That circumstance alone will of necessity influence any action the Commonwealth may be minded to take in the direction of family courts.

The only mention of juries in the Commonwealth Constitution is in section 80, which provides (inter alia) that “The trial on indictment of any offence against any law of the Commonwealth shall be by jury”. Apart from cases on the question what is meant by “ trial on indictment ”, there is not a great deal of authority on the constitutional questions that arise in relation to juries, civil and criminal, in federal jurisdiction.

Food insecurity (also known as food poverty) is the inability to afford or access a healthy diet. It has become recognised as a public health emergency and is a priority in the context of the environmental, geopolitical and socio-economic implications on businesses, households and civic society. This review paper aims to discuss the merits of collecting food insecurity data and its importance in informing cross-sectoral government and others’ understanding, policymaking and action on hunger. The review paper’s key findings are that concerted action on measuring and mapping food insecurity with the aim of eliminating or reducing its prevalence represents a triple win for government, business and citizens. However, measurement does not provide solutions to food insecurity but contributes importantly to understanding its extent and severity to inform and evaluate proffered solutions. Government, business and food insecurity researchers and commentators cannot merely continue to simply describe food poverty - but must effect meaningful change amidst our communities to improve life quality in a timely way for those experiencing acute and chronic hunger. This is best done by addressing the structural causes of food insecurity through economically, socially and culturally fair and appropriate policy levers, requiring cross-sectoral collaboration. Ultimately, food insecurity requires a long-term, sustainable solution that addresses the policy issues under focus: low income, under/unemployment, rising food prices and Welfare Reform, informed by routine, Government-supported monitoring and reporting of the extent of food poverty among our citizens.