The power of the Commonwealth Parliament to authorise involuntary detention (that is, detention without the consent of the detainee) by the executive government has fallen for consideration by the High Court in a series of recent cases. The Court has also examined the circumstances in which courts may make orders for detention. The aim of this article is to discuss some of the issues which have arisen in these cases, including those over which there has been apparent disagreement between the Justices of the High Court. It argues for a conceptually coherent approach to detention, which favours substance over form while giving effect to the strict separation of judicial power from legislative and executive power required by the Commonwealth Constitution.

International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

The Engineers' Case was regarded by many at the time as establishing a standard of interpretation for the Constitution that did not involve aresort to implications-or at any rate made it less likely that the Court would resort to implications. The ‘implications’ with which the judgments in the Engineers’ Case were concerned involved two distinct but connected doctrines—

(a) the reserved powers of the States.

(b) the immunity of instrumentalities (Commonwealth and State).

Custody — Parents equally suitable custodians — Is there a presumption that a young girl should be left in the custody of her mother — Position and role of appellate court in custody proceedings — Family Law Act 1975 (Cth) — Ss. 43(c), 64(1)(a), (2)

In Australia, decisions about the post-separation relocation of a parent (usually a mother) with children where the other parent (usually a father) has opposed this are increasingly controversial, and have attracted both media and academic attention, including in the pages of this journal. Unlike in the United Kingdom where restrictions even on international relocations appear from analyses of the reported case law to be relatively rare, decisions in Australia restraining relocations are quite common. There has, as yet, been no Australian legislative reform specifically addressing decision-making on the issue of relocation. The decisions are made under the general provisions dealing with post-separation parenting (Part VII of the Family Law Act 1975 (Cth), hereinafter referred to as the ‘FLA‘).

On 9 February 2007, all State Premiers, in the Council for the Australian Federation, agreed that a constitutional convention should be held in 2008 to propose reforms to Australia's federal system. The need for a Constitutional Convention to improve the operation of the federal system has been supported by a broad coalition, ranging from business groups, to local government, academics and the media. Bob McMullan, in his former role as Shadow Minister for Federal/State Relations, stated that the idea was ‘worthy of serious consideration'. The 2020 Summit, held in April 2008, also proposed the holding of a constitutional convention to reconsider the allocation of powers and functions across all tiers of government and the finances needed to fund them.

It has long been a general rule of common law that a marriage is valid only if formalized in a manner recognised by the law of the place of celebration. This rule is continued in Australian law by explicit statutory provision.

In this Article Mr Fine suggests that in Australian Law the category of exceptions to the lex loci celebrationis requirement is significantly wider than in the common law of England. He also finds that in situations outside the scope of the requirement, Australian courts should apply the parties’ domiciliary law to decide formal validity—not the law of the forum, though the latter is used in English courts as the law of second resort.

Story was there commenting on Art 1 § 5 CI 1 of the United States Constitution which provides that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members”. In the United States, the Supreme Court has held that in exercising the power to judge elections, returns and qualifications of its members, the Senate acts as a judicial tribuna1. In Buckley v Valeo, it was noted that Art 1 § 5 CI 1 conferred power judicial in character, rather than legislative.

Bracketing his scholarship on administrative law and legal history, Michael Taggart is probably best known as the champion and chronicler of that genre of legal (and, more generally, scholarly) literature known as the ‘festschrift’. Despite the fact that this volume marks Mike’s very early retirement, because of ill-health, as Alexander Turner Professor of Law at the University of Auckland, the publication of a festschrift for the scholar who has done most to bring the genre out of the shadows is an event the reflexivity of which I am sure the honorand himself – being a man of wit and irrepressible joie de vivre – has found pleasing and amusing. The very title of the volume – a deprecatory self-description, we are told – echoes Mike’s interest in exploring the common law species of a genus which was, until recent years at least, much more popular in civil law than in common law countries.

In 2009, Australia experienced a record ‘high’ of 36 487 personal insolvencies. The magnitude of this figure, which represents all bankruptcies, debt agreements, and personal insolvency agreements in that financial year, is augmented when placed in the context of the 300 per cent increase seen in the number of Australian personal insolvencies between 1990 and 2009. This growth far exceeded the 28 per cent increase in the Australian population during that period. It is indisputable that personal insolvency is affecting a growing number of Australians.

Notwithstanding the inclusion of “Admiralty and maritime jurisdiction” within the constitutional grant of federal judicial power, current Admiralty jurisdiction in Australia is based solely on a nineteenth century Imperial statute, the Colonial Courts of Admiralty Act 1890. That this has remained the case for so long is regrettable, and reflects in part a traditional deference to Imperial control over international shipping (although lately there have been indications of greater legislative assertiveness over maritime matters generally), and in part a reluctance to interfere with the present allocation of jurisdiction among State courts.

A concerted effort is now under way to lay the foundation for the creation of a modern indigenous Admiralty jurisdiction, and with this in mind, the author sets out to examine the nature and extent of the current colonial jurisdiction, its interrelationship with the federal jurisdiction under section 76(iii) of the Constitution, and the desirability of abandoning the rigid nineteenth century base of the former to realise the full twentieth century promise of the latter.