Until 1967, Indigenous Australians were excluded from being counted as amongst ‘the people’ in the Australian Constitution, by s 127. That section was deleted by referendum. However, s 25 remains in the Constitution, and allows for the reintroduction of such exclusion. This article is a detailed reconsideration of both sections in light of an understanding of ‘the people’ as a reference to the constitutional community represented by the Parliament. Exclusion of Indigenous Australians prior to 1967 is considered, highlighting the way in which s 127 operated. Then, the position post-1967 is addressed to show that the deletion of s 127 did not result in equality because s 25 continues to provide for racial exclusion. This article argues that this ongoing possibility of exclusion by s 25 affects the nature of the Australian constitutional community, by indicating that it can be racially discriminatory.

Judicial reasons often include general statements about the nature and behaviour of people and institutions and the nature of the world and society. These statements might be called social facts (‘SF’) and are made as part of judicial development and general application of law. The presence of SF statements in judicial reasoning in Australian cases has been acknowledged by commentators and judges. However, there has been little empirical examination of this phenomenon. This article discusses a content analysis study of SF in negligence cases in the Australian High Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play a range of roles in judicial reasoning. This includes predicting social, economic and behavioural consequences of legal rules, as part of setting a context or background to judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally dominate judicial reasoning. However, they appear to have a significant role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some individual differences between judges emerged. Judges do not use SF in all cases in the same way. Judges referred to SF more in high significance cases, and cases with multiple separate judgments. Judges also referred to SF more in single and dissenting judgments than in joint and majority judgments. Most SF referred to by judges were not sourced or referenced in any way and reference to empirical research was very rare. Where a source or reference for a SF was given by a judge it was usually to a legal source. Most SF appeared to source from judicial ‘common sense’ with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

The use of public procurement as a vehicle for achieving public policy objectives can conveniently be traced to the Fair Wages Resolution which was adopted by the British House of Commons in 1891. This technique was subsequently adopted in many jurisdictions, and finds clear expression in the International Labour Organisation (‘ILO’)'s Labour Clauses (Public Contracts) Convention 1949 (No 94) (‘Convention No 94’). This article describes the British model and its international progeny, and then examines a controversial and unusual Australian mutation in the form of the National Code of Practice for the Construction Industry (‘Code’) and the various iterations of the associated Implementation Guidelines (‘Guidelines’) which have been adopted since 1998. It suggests that the Code and Guidelines, especially under the Howard Government, constitute a perversion of the traditional use of public procurement as a vehicle for the implementation of public policy in the industrial context. That is because they were directed to the curtailment of the rights of workers and their organisations rather than protecting employment standards and promoting collective bargaining. The article argues that the Code and Guidelines sit uneasily with accepted notions of the rule of law in a number of respects, and with certain aspects of Australia's obligations in international law. It also discusses the Fair Work Principles (‘FW Principles’) which have applied to all aspects of procurement by the Commonwealth since January 2010, and suggests that they embody an approach to public procurement and the promotion of social objectives which is rather more in keeping with international best practice than that reflected in the Construction Industry Code and Guidelines.

Recent years have seen an increase in the number and scope of non-publication orders and other limits on open justice, an increase in the number of statutes that regulate or threaten open justice and the articulation of an Australian constitutional principle (of institutional integrity) that has the potential to protect some aspects of open justice. The purposes and values of open justice are, however, rarely examined in a comprehensive or theoretically-informed manner. This article provides a theory of open justice which accounts for its heterogeneous nature. Australian judicial approaches to the substance, limits and constitutional dimensions of open justice are analysed in light of the purposes and values of open justice, and a comparison with the much more coherent Canadian approach is supplied. The author concludes that threats to open justice are best managed by an analytical framework which systematically identifies both the benefits of open justice and the countervailing values that are at stake in a given case, and which seeks to provide maximum protection to all of these values on a case-by-case basis.

The Expert Panel on the Constitutional Recognition of Indigenous Australians has recommended the repeal of the ‘race power’ in the Constitution and its replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. This article analyses that recommendation, the assumptions that underlie it and the way the new provision might be interpreted by the High Court. In doing so, it uses archival material to shed new light on the 1967 referendum and whether it was intended only to permit ‘beneficial’ laws. The article concludes that there is a disjunction between the intention of the Expert Panel and the likely effect of its proposed amendment.