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.

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.