The interaction between national constitutions and transnational sources of law (foreign and international) has generated quite an active disagreement in the United States about what these bodies of law have to do with each other. This paper will explore these debates and the postures towards transnational law and its role in domestic constitutional adjudication which they express. It will identify three postures — of convergence, of resistance, and of engagement — that are manifest in the opinions of different justices of important high courts around the world, and will argue for a posture of ‘engagement’ at least in established constitutional systems like that of the United States.

Topological properties of the spectrum of shallow-water waves on a rotating spherical body are established. Particular attention is paid to spectral flow, i.e. the modes whose frequencies transit between the Rossby and inertia–gravity wavebands as the zonal wavenumber is varied. Organising the modes according to the number of zeros of their meridional velocity, we conclude that the net number of modes transiting between the shallow-water wavebands on the sphere is null, in contrast to the Matsuno spectrum. This difference can be explained by a miscount of zeros under the $\beta$-plane approximation. We corroborate this result with the analysis of Delplace et al. (Science, vol. 358, 2017, pp. 1075–1077) by showing that the curved metric discloses a pair of degeneracy points in the Weyl symbol of the wave operator, non-existent under the $\beta$-plane approximation, each of them bearing a Chern number of $-1$.

Turbulence self-organization is studied in the flux-driven regime by means of the reduced model Tokam1D. Derived in the electrostatic and isothermal limit but keeping finite electron and ion temperatures, it features two instabilities that are suspected to dominate turbulent transport at the edge of L-mode tokamak plasmas: interchange (a reduced version of the resistive ballooning modes) and collisional drift waves, governed respectively by an effective gravity parameter $g$ and the adiabaticity parameter $C$. The usual properties of these two instabilities are recovered in the linear regime. The nonlinear study focuses on the self-organization of collisional drift-wave turbulence at $g=0$. It is found that the energy stored in zonal flows (ZFs) decreases smoothly at small $C$ due to the reduction of both electric and diamagnetic stresses. Conversely to gradient-driven simulations, no sharp collapse is observed due to the self-consistent evolution of the equilibrium density profile. The ZFs are found to structure into staircases at small and large $C$. These structures exhibit a rich variety of dynamics but are found to be robust to large perturbations. Their nucleation is found to be critically governed by the phase dynamics. Finally, the staircase structures are lost in the gradient-driven regime, when the system is prevented from storing turbulent energy into the equilibrium density (pressure) profile.

The primary purpose of this article is to discuss the Australian statutory law applying to civil aviation. There will also be some consideration of one or two unresolved questions involving the application of common law rules, selected not only because of their intrinsic interest, but also because they are partly affected by Federal and State Acts of Parliament.

The emphasis given in the Engineers’ case to the express terms of the Constitution, the application ofthe “golden rule” of construction and the exclusion of broad implications (stigmatised as political) had the effect of enhancing national power. This effect was reinforced by the application of the principle referred to by O'Connor J in a now much quoted passage in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association:

… it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.

For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

In the recent decision in New South Wales v Commonwealth (hereafter referred to as the Corporations case), the High Court's interpretation of s 51(xx) of the Constitution frustrated the Commonwealth Government's attempt to create a single national system for the regulation of companies and securities by denying the Commonwealth Parliament the ability to legislate for the incorporation of companies. Corporate existence, and the privilege of limited liability which arises from it, flows from registration under applicable companies legislation. The Commonwealth's ability to displace State companies legislation and bring all or most corporations within its scheme would therefore be significantly enhanced by the ability to legislate with respect to the incorporation of companies. The Corporations Act 1989 (Cth) was, for reasons mentioned below, a complex piece of legislation. However, any effort by the Commonwealth to extend its control of corporate regulation without the ability to control incorporation would be likely to generate a system whereby companies came into being by registration under a State Act, but were then bound to conduct their affairs in accordance with Commonwealth legislation - a system which might almost have been constructed by opponents of federalism in order to demonstrate its absurdity.

It seems natural, almost inevitable, that courts should perceive their role in judicial review as protection of the rights of citizens. Presented with litigation between citizens, the court protects the rights of the party .entitled to win. In the case of litigation between citizen and government, if there are any rights at all to protect, they will be rights of citizens. We can hardly speak of rights of government. Yet government, in exercising powers conferred by the parliament which represents the people in accordance with the will of the majority, claims a mandate to make policy and implement it. Perhaps this mandate is also a right deserving of the protection of the courts. It could be argued, after all, that the public interest consists in the collective rights of the majority.

In this article, I address the question whether religious vilification laws are contrary to the implied freedom of political communication affirmed in the High Court's decision in Lange v Australian Broadcasting Corporation. I will focus on three key issues. First, can the implied freedom extend, in principle, to religious speech, meaning speech that is motivated by religious belief as well as speech that simply deals with religion or religious topics? Secondly, do religious vilification laws place a relevant burden upon communication about political or governmental matters? Thirdly, are religious vilification laws reasonably appropriate and adapted to achieving some legitimate objective in a manner which is compatible with the constitutionally prescribed system of representative government? The latter two questions derive directly from the test formulated by the High Court in Lange for determining whether a law is contrary to the implied freedom of political communication.

In this article Ross Cranston discusses the changing nature of Federalism, tracing its development and examining possible characterizations of its basis. After reviewing the elements of “co-operative” and “coercive” Federalism, the author turns to “New Federalism” and what that means in terms of the Fraser government. He concludes that disputes over financial and other intergovernmental agreements are best left to the political sphere with the High Court acting in a supplementary role because of the inherent untidiness of a Federal system of government.

For centuries the superior courts have wielded a judicial big stick labelled ‘jurisdictional error’ in order to control and supervise the activities of administrators and inferior tribunals; moreover the stick has been brandished in the face of parliaments which have indicated fairly clearly that they intended the particular inferior body to be free of judicial interference. The doctrine of review for jurisdictional error is well established; but there is widespread criticism of its operation. The distinction between findings of inferior bodies which are ‘collateral’ to the merits and thus reviewable and those which are not, a distinction which is basic to the doctrine, has been described as one of the ‘apparently meaningless categories’ of legal reference. Particularly effective and persistent criticism has been mounted by D. M. Gordon. In his view the distinction between jurisdictional facts and other facts cannot be maintained. He is completely opposed to any acceptance of the idea that the courts should be free to manipulate jurisdictional error to control the activities of inferior bodies on policy grounds alone; arbitrariness and uncertainty have no place in the law of judicial review.

This article examines the breadth of the corporations power in s 51(xx) of the Australian Constitution. The issue we address can be posed in a couple of ways. Once formed, to what degree does the national Parliament have power to ‘re-form’ corporations? Or, to put it in a more neutral way, once incorporated, what power does the national Parliament have over a corporation’s constitution? Addressing this issue requires us to explore the vision or model of the corporation which underlies the limit, recognised in the Incorporation Case of 1990, that the Commonwealth may only wield power over corporations already ‘formed’.

As well as being of considerable theoretical interest, this question has importance from a more practical, federal perspective. Can the national Parliament legislate under the corporations power to regulate the formation, composition, operation and dissolution of the key corporate decision-making bodies, namely the board of directors and the general meeting? Could the corporations power, for instance, be used to mandate employee or environmental representation, or gender balance, on the boards of trading corporations nationwide? Does it extend to regulating board remuneration and the role of the general meeting in that contentious field? Many aspects of board composition and remuneration are currently dealt with by means of the ASX Principles of Corporate Governance (‘the Principles’), with which listed companies are expected to ‘comply or explain’.

The case of Langer v The Commonwealth, is important, for it reveals much about the understanding of “democracy” in Australia, including fundamental conflicts as to what is essential, and what is peripheral to our constitutional system of “representative democracy”. The Langer case raises questions about what amounts to a democratic “choice” in an election. Is “choice” merely a matter of being able to select from candidates offered, or does it involve the representation of the will of the people? Is it democratic to compel a voter to lie by requiring the voter to give preferences to candidates he or she rejects, or must voters have a right to vote in an informal manner if they do not wish to express a preference for certain candidates? Is the choice to vote informally a genuine political choice, and is advocacy of such a choice protected by the constitutional guarantee of freedom of political communication? Should it be a criminal offence to advocate activity which is not only legal, but would result in a formal vote?

The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' anti-organised crime measures (International Finance Trust Co v New South Wales Crime Commission, South Australia v Totani, and Wainohu v New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.