The purpose of this paper is to pose one question — should the Australian income tax system of the twenty-first century belong to the descendants of Henry Simons or to those of Frank Ramsey? Put another way, my topic is whether future tax policy should continue to be framed according to notions of comprehensive income tax or, instead,should be directed towards the goal of an optimal income tax.

Nothing is more certain to cause explosions of fear and loathing among some lawyers than the mention of the word “retrospectivity”. Few topics can be better guaranteed to produce conflict without resolution, heat without light. The term “retrospectivity” is used in the loosest possible way to refer to just about any change that affects a client's interests, and while debate may seem to resemble philosophical disputation, terms like “human rights”, “justice”, “democracy” and “the rule of law” are used for effect rather than argument. But despite the lack of rigour with which the public debate is conducted, the issues do reflect and exemplify genuine philosophical and theoretical problems.

There is a well-known obscurity in the law relating to Commonwealth immunity from State legislative power. It is that whereas the High Court has laid down in clear terms that the Commonwealth is not subject to State legislative power at all, it has at the same time said that the Commonwealth may be “affected by” State laws but has not explained what is meant by “affected by”.

There is also a less well-known obscurity in the law relating to State taxation of Common\vealth public servants. The High Court has held that general State tax laws apply to Commonwealth public servants in the same way as to other subjects of the State, unless the Commonwealth enacts legislation exempting the payments which it makes to its public servants by way of salary or pension from State taxation. The obscurity is that a Commonwealth law prescribing salaries for its own public servants appears to be an exercise of exclusive legislative power; that a law exempting such salaries from State taxation appears to be incidental to that power, and therefore itself an exercise of exclusive power; but that if this is so, the State tax law also, in its application to Commonwealth salaries, appears to be an exercise of Commonwealth exclusive power and therefore invalid in the first place.

Through an examination of the relevant authorities, including American and Australian cases, Mr Lindell comments on the justiciability of, and nature of the duty imposed on the legislature by, sections 24 and 29 of the Commonwealth Constitution. The main conclusion is that if the House of Representatives did not conform with the constitutional requirements concerning the number of members to be chosen from each State and electoral redistribution, the House may no longer legally exist. The High Court would naturally be reluctant to reach such a conclusion without first providing the opportunity for defects to be rectified and Mr Lindell suggests that measures could be adopted by the Court which would enforce compliance with the relevant provisions without invalidating previous actions of the Parliament. Mr Lindell also deals with the related issues of locus standi and jurisdiction, concluding than an action could lie in the High Court to enforce compliance with the relevant constitutional and other provisions concerning the composition of the House of Representatives.

This Article examines how private economic actors mobilize EU law to pursue broader legal, political, economic, or societal ends. It studies the strategic nature of corporate litigation before the Court of Justice of the EU in the context of the EU Emissions Trading System, a prime illustration of neglected strategic climate litigation. Corporate cases against the ETS have so far fallen under the radar of scholarship focused on EU strategic climate litigation. Such underrepresentation is linked to a double bias in scholarship, favoring high-profile climate cases that advance public interest causes and progressive agendas. Applying a normatively open definition of strategic litigation and actor-centered methodological approach, the Article brings to light features of corporate strategic litigation in EU law which otherwise go unseen. It offers empirical observations into boundary-testing behavior by private economic actors and the notion of a private generalizable interest, untangling strategic climate litigation by private economic actors as overlooked proponents in Court. The Article finally distinguishes a selection of legal strategies through which corporate actors mobilize EU law, such as instances of coordinated litigation; futile and seemingly routine challenges initiated before the Court to test judicial waters; and the use of litigation as a political advocacy tool.

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.