The office of Attorney-General is an ancient one that remains central to the legal system. The Attorney-General exercises many functions and powers important to the legal system but is also a politician and member of cabinet. This article explains the key functions of the Attorney-General and also the political position of that officer. The focus of the article is upon federal law. It also examines three federal Attorneys-General of modern times and considers how their actions have influenced or reflected the changing conceptions of that office. The article does not suggest that changing conceptions of the office are either good or bad, but instead that they are a reality. The article suggests that these changes provide a reason to reconsider some of the traditional privileges of the Attorney-General, such as the power to grant a fiat in judicial review claims and the Attorney’s privileged position in standing for judicial review of administrative action.

Analysing the Australian convention debates of the 1890s, this article will show how the text of the Australian Constitution broke with British political constitutionalism by guaranteeing ‘the people’ a direct role in Australian political constitutionalism. This system of Australian ‘popular political constitutionalism’ has since led to distinct practices and debates. First, this unique form of political constitutionalism explains the implications the High Court has drawn from Sections 7 and 24 of the Constitution. The critical question for this jurisprudence is how the Court can protect the role of the people without undermining Australian political constitutionalism. Second, this popular political constitutionalism has also shaped the evolving role of proportionally elected upper houses in representing more than a simple majority in Australian parliamentary governance. This practice raises the question of how Parliament can move beyond majoritarianism without creating too many checks on political majorities.

Justiciability, or non-justiciability, has been regarded as a difficult and indeterminate concept in Australia. This article provides a definition of justiciability in order to clarify the interaction of justiciability with the grant of federal jurisdiction in Chapter III of the Constitution, as well as with related doctrines, such as the act of state doctrine and the American political question doctrine. It argues that justiciability is a constitutional limitation on federal jurisdiction to matters that are capable of being resolved by the exercise of federal judicial power. Accordingly, broad statements that certain subject matters are always non-justiciable should be rejected. Instead, it is necessary to demonstrate exactly what grounds a matter is said to be non-justiciable, arising from the text and structure of the Constitution.

This article considers how section 116 of the Australian Constitution applies to executive power. Notwithstanding that the express terms of s 116 apply only to legislative power, we argue that s 116 should be interpreted to also limit the exercise of executive power. A literal interpretation would have the effect that the Commonwealth can circumvent a constitutional limitation on legislative power through the exercise of executive power and would undermine the fundamental constitutional principle of legislative supremacy. An implication that s 116 restricts executive power in the same fashion as legislative power enhances the coherence of the Constitution as creating an integral polity and eliminates disconnect between legislative power and executive power with respect to the same subject matter.

Does the Constitution protect the ability of an Australian to enter the country? This article investigates that question. Whilst the Constitution provides no express guarantee of a citizen’s right to enter Australia, a series of recent cases — particularly Love v Commonwealth1 and Alexander v Minister for Home Affairs2 — give occasion to consider whether a freedom of entry forms an implied part of Australia’s constitutional framework. Early scholarly attempts to establish a freedom of entry have relied upon the definition of non-alienage to ground this implication. This article commences by reviewing the effect of the High Court’s recent alienage jurisprudence on these arguments. After concluding that fatal difficulties attend this approach, I investigate an alternative foundation for an implied freedom of entry: an implication drawn from a constitutional principle of popular sovereignty. Focusing on a recent thread of High Court jurisprudence which has placed an increasing emphasis on the constitutional protection afforded to popular sovereignty, I conclude that this alternative basis provides a viable foundation upon which an implied freedom of entry could be recognised in the Constitution.