Australian constitutionalism appears to be in turmoil. Ever since the Free Speech cases of 1992, commentators have been telling us that constitutionally we have undergone a “glorious revolution” and that Australian constitutionalism has experienced a “fundamental paradigm shift” from parliamentary to popular sovereignty. They have remarked on the “inadequacy of our constitutional theory of government” and urged us to acknowledge “a new foundation on which, step by step, our constitutional jurisprudence will need to be rethought.” This would include a new theory of judicial review.

Some of this hyperbole can be attributed to youthful exuberance and, for older enthusiasts, to the allure of novelty. All are excited by the prospect of implied constitutional rights. The constitutionally “frozen continent” admittedly presented a fertile field for those commentators who have complained of our “impoverished constitutional culture”, bemoaned the absence of “an underrmg [constitutional] philosophy or vision” or even “an overall framework”, and queried the appropriateness of our existing “constitutional concepts, ideals and values ... to the Australia of the late twentieth century”. Our constitutional framers have even been criticised for adopting features of the United States Constitution only “at a secondary machinery level” but “nothing of [its] spirit”; or, as another commentator put it, “drawing on its most conservative, least inspiring features — jettisoning the rest”. The original United States Constitution’s solicitude for slavery was presumably overlooked.

Executive accountability is the central concern of administrative law and accountability, in administrative law terms, is achieved principally by a system of judicial and tribunal review of administrative decision-making. The ease with which citizens can approach courts and tribunals for review of government action, therefore, becomes an accountability issue. In turn, that raises the question of the tests for standing and any other jurisdictional gateways to review. This article is not concerned with issues of standing and whether a person is “aggrieved”. However, it will discuss the jurisdictional tests which must be satisfied in order to obtain review by the Federal Court (generally referred to as “judicial review”) and the Commonwealth Administrative Appeals Tribunal (AAT/Tribunal) (generally referred to as “administrative review”). The statutory tests are designed to determine the point in the decision-making process at which judicial and administrative review is permissible. The underlying hypothesis is that the jurisdictional tests have been devised to strike a balance between protecting the rights of individuals affected by government decisions while preserving efficient administration.

This article argues against the disenfranchisement of prisoners and explores the terrain of possible political and legal reform in this area. After a brief introduction defending the importance of the franchise, the article falls into several parts. First, there is an examination of the definition of the franchise by Australian electoral law, in the context of international norms. The second part explores arguments for and against prisoner enfranchisement, and draws on overseas jurisprudence, and historical and political theory. The practical effect of the disenfranchisement is then assessed statistically, and also in terms of realpolitik. Finally, the possibility of using anti-discrimination law to challenge these laws is considered.

Traditionally, estoppel by representation cannot interfere with the exercise of a statutory power or the performance of a statutory duty by an administrative body. According to this principle, referred to below as “the traditional rule”, the public purpose served by the statute prevails over the private interest of an individual who may have been misled to the extent of relying on a misrepresentation to his or her detriment. This article begins by examining the ambit of this rule.

The second part of the article analyses the basis for estoppel in administrative law. It will be argued that public law estoppel must be based on analogous private law principles, and not on some unique public law doctrine.

The remainder of the article then considers transposing private law estoppel into a statutory context. Specifically, it deals with the application of estoppel to representations about intra vires exercises of power, and then examines representations about ultra vires administrative action.

One of the difficult issues liberal democracies face is how to distinguish allowable government action from the protected sphere of human activity. Rights have become increasingly important as a critical standard for evaluating the justification of policy. Yet no consensus exists on the best institutional methods for defining the scope of rights or for ensuring that rights are adequately and appropriately considered in the formulation of policy. Since the Second World War, many countries have shown an increasing interest in utilising a bill of rights against which to evaluate state action. Even parliamentary systems, founded on Dicey's precepts that the rule of law and parliamentary sovereignty are a superior way for respecting rights, have departed from, or have been pressured to alter, this institutional framework.

However, a bill of rights, which accords a more authoritative role for judges in resolving citizen-state conflicts, is not without its critics. Proposals for bills of rights attract a wide range of concerns that judicial review of codified rights will reify rights, distort the way political issues are dealt with, assign priority to a different range of values, and result in elected officials reneging on their political responsibility to undertake controversial political decisions.

The Australian Constitution expressly guarantees very few individual rights. One of its rights-conferring provisions is s 116. Incongruously situated in the Chapter dealing with the States, s 116 prohibits the Commonwealth from, amongst other things, legislating against the free exercise of religion or for the establishment of any religion. The United States Constitution, by contrast, includes a comprehensive Bill of Rights which includes a similar, though not identical, religious guarantee. In very different contexts therefore both the High Court of Australia and the Supreme Court of the United States of America have adjudicated upon a similar constitutional provision.

[I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should turn to constitution making.