One notable outcome of the 2004 federal election is that no Indigenous Australian was elected to federal Parliament. Since July 2005, when Aden Ridgeway’s term as Senator expired, there have been no Indigenous Australians among the 226 members of the national Parliament. This article explores briefly why this is the case, and then moves to consider the viability of Australia adopting a quota system whereby ‘dedicated’ or ‘reserved’ seats of Parliament would be created for Indigenous Australians.

The issue of the protection of privacy sums up a congeries of public anxieties about the standing of individuals in relation to those who exercise governmental and economic power. The issue has impinged increasingly on governmental and legal processes but it is one which these processes have had difficulty assimilating. At a general level, this article attempts to provide some insights into this difficulty, taking the Privacy Act 1988 (Cth) as its main focus.

Until now, analyses of the Privacy Act have tended to concentrate quite narrowly upon its provisions. Although a number of shortcomings have been identified as a consequence, no detailed or systematic explanations for these shortcomings have been advanced. This article seeks both to outline the deficiencies in the Act and to explain them. It takes as its point of departure the premise that the Act's deficiencies cannot be explained adequately by looking only at its provisions or formal legislative history.

Socio-legal scholars have long recognised the importance of understanding the difference and the interaction between the ‘law in the books’ — the formal legal rules and doctrines made by parliaments and the courts, and the ‘law in action’ — the processes and practices by which those rules and doctrines are put into effect. Similarly, public lawyers and regulatory theorists have highlighted the importance of understanding the role of regulatory discretion in the enforcement of rules. The commonly understood message in these overlapping areas of research is that we cannot properly understand the law if we limit our attention to formal rules. A related point is that there is nothing necessarily improper about the exercise of regulatory discretion. Nor is there anything necessarily improper about the fact that the processes of rule enforcement can produce different outcomes than might be suggested by a simple reading of the rule itself.

The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?

This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading ‘originalist’ case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.

Although the framers of the Commonwealth Constitution, steeped in the study of American federalism, found the United States Constitution a valuable model which they could copy or adapt to the requirements of the six federating Australian colonies, they deliberately departed from the judicial provisions of that model in two major respects: first by creating the High Court of Australia as a general court of appeal from the Supreme Courts of the States; and, secondly, by empowering the Parliament to invest State courts with jurisdiction in all matters which might be brought before the High Court in its original jurisdiction.

Most High Court decisions which touch upon the Australian Constitution are posthumously examined in academic literature. Some, though too few, have been subjected to more lengthy and detailed analysis. The Franklin Dam case is not an exception. Within eighteen months, it has consumed a substantial number of pages of commentary. Prominent are discussions concerning specific constitutional powers — corporations, race, external affairs and nationhood — and prohibitions — ss 51(xxxi) and 100 and implied restrictions. General premises and themes which underlie the processes of constitutional adjudication have attracted rather less attention. There has been some enunciation of interpretative principles and discussion of the political dimensions of judicial review. Further elaboration would be invaluable. Perhaps, commentators are waiting for the dust to settle before advancing to these, and other, more nebulous aspects of constitutional decision-making. When they do so, the dimensions of Australian constitutional law scholarship could be irretrievably enhanced.

The Great Barrier Reef is a vast area of enormous biological, including human, importance. In recent years the significance of the Great Barrier Reef has been growing because of the increased interest in global climate change and the role of the reef as a potential predictor of the impact of climate change, especially upon the marine environment. The Great Barrier Reef has also legally been important because of its status as a marine park and World Heritage site. To that end, the Great Barrier Reef has specifically been regulated by the Great Barrier Reef Marine Park Authority (‘GBRMPA‘) in accordance with the Great Barrier Reef Marine Park Act 1975 (Cth). Those parts of the reef within the Great Barrier Reef Marine Park (‘Marine Park’) have particular protections under the Act and activities within those parts ordinarily require permission from GBRMPA. Activities authorised by GBRMPA are exempt from the environmental assessment provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), the Commonwealth’s principal environmental legislation.

Strategic litigation plays a crucial role in advancing human rights in the digital age, particularly in cases where data subjects, such as migrants and protection seekers, experience significant power imbalances. In this Article, we consider strategic litigation as part of broader legal mobilization efforts. Although some emerging studies have examined contestation against digital rights and migrant rights separately using legal mobilization frameworks, scholarship on legal mobilization concerning the use of automated systems on migrants and asylum seekers is scarce. This Article aims to address this gap by investigating the extent to which EU law empowers strategic litigants working at the intersection of technology and migration. Through an analysis of five specific cases of contestation and in-depth interviews, we explore how EU data protection law is leveraged to protect the digital rights of migrants and asylum seekers. This analysis takes a socio-legal perspective, analyzing the opportunities presented by EU data protection law and how civil society organizations (CSOs) utilize them in practice. Our findings reveal that the pre-litigation phase is particularly onerous for strategic litigants in this field, requiring a considerable investment of resources and time before even reaching the litigation stage. We illustrate this phase as akin to “climbing a wall,” characterized by numerous hurdles that CSOs face and the strategies they employ to overcome them.

The High Court's judgment in Minister for Immigration and Ethnic Affairs v Teoh is perhaps the most controversial judgment handed down by the Court this year, for both legal and political reasons. On the political side it has added further fuel to the fire about the significance of the ratification of treaties and the roles of the Executive and the Parliament in the process of ratification and implementation of treaties. On the legal side, it has developed the law on “legitimate expectations” and provided interesting obiter dicta on sleeping issues such as the use of treaties and international law in the interpretation of statutes and the development of the common law. It has also left open questions about the status of treaties which form schedules to legislation but which are not directly implemented by that legislation. This note will address the legal, rather than the political, aspects of the Teoh case, starting with the development of the law on “legitimate expectations”, and then considering issues concerning the use of unincorporated treaties to develop and affect the law in other ways.

This article considers the publication in 1879 of the Moral Philosophy of Aristotle, a book aimed at Oxford University undergraduates studying for the Classics degree course known as Literae Humaniores. This book is of contemporary interest. It takes us to the heart of the question of whether the work of Aristotle is meant for everyone or just for a select few. In principle, whatever we have inherited from Antiquity (whether materially or intellectually) belongs to us all. Therefore, there is an educational requirement to make it accessible to everyone and this should apply to Aristotle’s Nicomachean Ethics. But Aristotle is famously obscure and so in practice the study of Aristotle is confined to a small elite. Hatch’s The Moral Philosophy of Aristotle tries to overcome the problem of Aristotle’s obscurity by paraphrasing the Nicomachean Ethics in a popularising fashion and in sharp contrast to the way Aristotle is usually presented. To bring out the distinctive qualities of the Hatch approach this article compares The Moral Philosophy of Aristotle with the translations published in the modern Clarendon Aristotle series, which are intended for a readership made up largely of professionals working in universities. The article contrasts Hatch’s goals of readability and dogmatic clarity with the insistence on semantic fidelity which is the hallmark of the Clarendon series. The article concludes that there is a greater risk of distorting Aristotle’s meaning on the Hatch approach, but that this is compensated for by its pedagogic merits, and suggests that ideally teachers will use both Hatch and Clarendon together.

The notion of the relevant market, together with the process for identifying it, is a construct used in competition law in order to determine whether competition exists between two or more producers for the purposes of Part IV of the Trade Practices Act 1974 (Cth).

This legislation confers upon the courts and the Trade Practices Tribunal the duty to decide whether certain courses of conduct have the purpose, or have (or are likely to have) the effect, of substantially lessening competition in a market. The market delineation process provides the first in a set of stepping-stones which enable the courts to discharge this task in the principled and certain manner that is required by the doctrine of the rule of law. The procedures comprised within it enable the court (or other trier of fact) to organise complex fact situations and classify them in such a way as to enable competition policy, as embodied in legislation such as the Trade Practices Act, to be intelligently applied. It permits a degree of quantitative evaluation which in practice would not be possible if the lessening-of-competition issue were attacked directly.

Australia has, mercifully, been spared from revolutionary changes of grundnorm or “rules of recognition”, with their consequential appeals to “necessity”, of the sort which have plagued courts in Pakistan, lJganda, Ghana, Nigeria, Zimbabwe, the Seychelles and Grenada, among others. But that has not meant that arguments based upon extra-constitutional powers and prohibitions have been absent from Australian constitutional jurisprudence. Human ingenuity being what it is, commentators and even judges, undaunted by the absence of a tenable constitutional argument, have occasionally resorted to extra-constitutional notions.

This paper explores the boundary between constitutional rules and principles and extra-constitutional political notions. That boundary is, of course, indistinct because the constitution includes implied powers and prohibitions. Hence, opinions will inevitably differ as to whether a particular power or prohibition is implied in the Constitution and, thus, is constitutionally conferred or imposed, or alternatively arises (if at all) extra-constitutionally.

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

“But it was inherent in the very nature of the medium which they had selected for their own self-defence that it could not be reserved for the exclusive use only of their own class. The law, in its forms and traditions, entailed principles of equity and universality which, perforce, had to be extended to all. sorts and degrees of men”.