In his 1974 Hamlyn Lectures, Lord Scarman urged:

The theme was taken up in Australia by Mr Justice Brennan in 1979:

The present contribution seeks to provide an empirical overview of how the amended internal review mechanism established under the EU Aarhus Regulation is currently being deployed by civil society organizations to mobilize EU climate change law. This Article argues that the 2021 reform of the Aarhus Regulation has broadened the legal opportunity structure available to environmental organizations, which can now challenge a much broader set of EU administrative acts. However, this contribution holds that the internal review mechanism is being used strategically by environmental NGOs with the intention to contest - even before the EU judiciary - not only EU administrative acts, but also broader policy arrangements, representing the legal infrastructure of the EU ecological transition. In this regard, the Aarhus internal review mechanism can now be considered a real scientific dispute settlement forum, where NGOs and EU institutions can confront each other and disagree on the way scientific evidence is taken into account in the EU policymaking. Finally, the new specific features of the internal review mechanism are truly empowering only those organizations owning the necessary legal and technical expertise, allowing such NGOs to act as credible scientific interlocutors of the EU institutions on behalf of the wider public.

The Australian Taxation Office (“ATO”) currently employs in excess of 18,000 staff engaged in collecting all the main taxes and charges imposed by Parliament (except customs, excise duties and departure taxes). For the year ended 30 June 1990, the ATO collected $75.96 billion in Commonwealth revenue. Through its National Office, sixteen Branch Offices and eighteen Regional Offices, the ATO received over 11 million income tax returns, issued over 8 million tax assessments, conducted over 25,000 audits and answered over 4 million taxpayer enquiries and requests for advisings during that year. These figures show that the work of the ATO is very much a matter of mass decision making.

It is not surprising, therefore, that the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) has had an effect on taxation administration. However, the perspective of the ATO is that the ADJR Act has had a substantial impact on some areas of that administration and little or no impact on others.

Constitutional theory and doctrine are important to our understanding and experience of government. No description of Australian government is complete without reference to representative democracy, responsible government, separation of powers and the rule of law. Those and other theories also have substantial practical impact. Courts refer to them in developing legal principle and deciding cases. Legislators are reminded of them in framing laws. They structure transactions between the different institutions of government. The community is also influenced by them in evaluating the performance of the institutions of government.

The most important doctrine in analysing government legal accountability is the separation of powers. The essence of the doctrine is that parliament makes law, the executive administers it and the judiciary – in the context of adjudicating individual disputes – decides whether the law has been correctly construed and applied. This three-way division of functions avoids the undue concentration of power in any one branch of government, enables each branch to counterbalance the others, and ensures that legal disputes about government power are conclusively resolved by an independent judiciary.

This Comment considers the High Court's recent decision in Sweedman v Transport Accident Commission. The issue dealt with at greatest length in the judgments was the suggested conflict between New South Wales and Victorian enactments and the related suggestion that constitutional principles would enliven to resolve this conflict. A second issue, the potential application of the s 117 prohibition on State residence discrimination, attracted less detailed treatment. Nevertheless, the Court's resolution of this second issue is significant in its apparent departure from the approach taken in the landmark case of Street v Queensland Bar Association. While this Comment will explain the Court's reasoning on both issues, analysis of the decision will focus on the s 117 issue.

The Australian legal system in the last fifteen to twenty years has increasingly recognised and accommodated traditional Aboriginal rights, customs, practices and beliefs. The Commonwealth Parliament has been particularly active in this area, as illustrated by its enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), (the “Land Rights Act”), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). While there is no general treaty or “makarrata” between the Commonwealth or any State or Territory on the one hand and Australian Aboriginals either generally, or at a tribal or regional level on the other, this has been seriously considered by the Commonwealth and is regularly called for by Aboriginal leaders, see, for example the Barunga Statement of 12 June 1988.

The Australian legal system does not currently recognise that any antecedent native title is held by Aboriginals, as sovereignty over the Australian continent is considered to have been gained by settlement over terra nullius rather than by conquest, see for example Milirrpum v Nabalco Ply Ltd; there are indications however that the current members of the High Court may be prepared to review those fundamental legal assumptions provided a suitable legal vehicle can be found.

Public awareness of the consequences of international law for Australians was highlighted during the battle in the 1980s to save the Franklin River in south-west Tasmania. That battle, which eventually resulted in the Commonwealth Parliament relying upon the provisions of the 1972 Convention for the Protection of the World Cultural and Natural Heritage to enact the World Heritage Properties Conservation Act 1983 (Cth), was finally resolved when the High Court of Australia in the Tasmanian Dain case upheld the validity of the legislation on the basis of the Constitution, s 51(xxix), the Commonwealth's external affairs power. This decision set off a sequence of events which resulted in subsequent High Court decisions that gave further scope to the external affairs power and which also gave the Hawke ALP government great confidence as to its ability to rely upon conventions and treaties, both bilateral and multilateral, as a source of legislative power.

Section 90 of the Australian Constitution provides that:

Internet tech giants are regulated by multiple overlapping yet distinct pieces of EU legislation that establish a range of substantive digital rights for internet users, and varying legal opportunity structures for strategic litigation within their enforcement architecture. My Article focuses on the digital rights and enforcement architecture of the EU’s new Digital Services Act and Digital Markets Act compared to the General Data Protection Regulation. Consideration of key strategic litigation concerning the existing Regulation informs my exploration of opportunities and barriers for strategic litigation under the new Acts. Analysis of these strategic litigation opportunities necessarily encompasses the EU’s new regime for mass claims under the Representative Action Directive, and interaction between internet users’ digital rights and consumer protection laws. I contend that the new Acts comparatively centralize public enforcement power in the European Commission, marginalizing civil society, and effectively precluding most strategic litigation by civil society with regard to public enforcement. Furthermore, the new Acts could increase regulatory fragmentation and the risk of legal incoherence by establishing additional regulatory authorities and competences alongside existing institutions and regimes. I argue that private enforcement strategic litigation against internet tech giants could empower civil society to influence the development of digital rights. Private enforcement strategic litigation could also aid legal coherence as an enforcement mechanism that allows multiple areas of law to be raised and addressed at the same time, rather than in silos. However there are considerable barriers to such litigation, including legal questions such as cross-border jurisdiction and standing, and the resources needed for effective strategic litigation. Overall, concerning legal analysis for strategic litigation, my article demonstrates that we must consider both public and private dimensions of enforcement architecture across multiple area of law, taking into account the different power dynamics of different enforcement mechanisms, to understand the opportunities for strategic litigation to advance digital rights in the internet attention economy.

The legislation enacted to prevent the construction of the Franklin Dam relied on a number of federal legislative powers which included the corporations power and the races power in ss 51(xx) and 51(xxvi) of the Constitution respectively. In contrast to most of the other sections in the Constitution which confer legislative power on the Commonwealth Parliament those sections refer to persons or institutions. In a well-known passage in Stenhouse v Coleman, Dixon J (as he was then) said:

In most of the paragraphs of s.51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object.

For the last 40 or more years, academic administrative lawyers have advocated an ever-more expansionary role for judicial review of administrative action, and their urgings have usually been well-attuned to similarly expansionist tendencies on the part of the judges. Expansionists grew accustomed to being on the winning side, both in Australia and England, but we in Australia are beginning to learn that nothing lasts forever, even while the English expansions continue at almost break-neck speed. Three High Court cases are especially noteworthy. They are Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ('Lam’); NEAT Domestic Trading Pty Ltd v AWB Ltd ('NEAT Domestic’); and Griffith University v Tang ('Tang’).