My long-standing interest in our federal system of administrative law traces back to 1968. I then suggested to the Attorney-General (now Sir Nigel Bowen, Chief Justice of the Federal Court) that he establish the Commonwealth Administrative Review Committee (of which I became a member). Through the work of that Committee and later committees and the efforts of Mr Ellicott QC, who subsequently became Attorney-General, the system as we know it today came into being.

The federal system incorporates features of the review structures of the United Kingdom and the United States. As you know, the four elements in the federal system are:

1. (1) the Administrative Review Council (‘the ARC’);

2. (2) review by the ombudsman;

3. (3) judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’); and

4. (4) review on the merits by the Administrative Appeals Tribunal (‘the AAT’).

The Australian Constitution was drafted by the ‘founding fathers’ at several Constitutional Conventions in the 1890s and submitted to the people for approval. Following a Premiers’ Conference at which some further changes were made, and submission of the document again to the people, a delegation was sent in 1900 to present the new document to the British Government. After the British Colonial Office had made some minor changes, the Parliament of Westminster passed the Commonwealth of Australia Constitution Act 1900 (UK) on 9 July 1900. The preamble and enacting clause of the Act read as follows ...

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:- ....

One area in which the rights of Australian workers have lagged behind their counterparts in other western democracies is that of protection against unfair dismissal. The common law action for breach of the contract of employment has, of course, been open to employees in common law countries including Australia but recognition of the inadequacy of this procedure has led to the introduction of statutory protection against dismissal in a number of common law jurisdictions including the United Kingdom. While some of the Australian States have sought to legislate in this area the protection available at federal level has, at least until recently, been inadequate.

This paper will explore the background to the federal dismissals jurisdiction in Australia and the recent developments which have extended the protection against unfair dismissal available within the Australian Conciliation and Arbitration system. At federal level, a dual system of redress for unfair dismissal has developed.

The events leading up to the sixth double dissolution of the Commonwealth Parliament on 2 June 1987 and the subsequent abandonment of the Australia Card Bill 1986 highlight the difficulties any Federal Government faces when negotiating the passage of controversial legislation through a hostile Senate.

In the light of the legislative history of the Australia Card Bill, I propose to discuss the requirement of “identical bills” in s 57 of the Constitution, the amendments which ajoint sitting may consider and finally, the disallowance of regulations by the Senate with reference to s 57.