The relationship between courts and social change can be viewed from at least two perspectives. The first, frequently explored in the literature, invites consideration of how courts respond to social change, real or apparent. The second directs attention to whether the courts themselves can bring about social change.

This article will attempt to identify and define those constitutional principles, derived from the doctrine of the separation of powers, which govern the relationship between Parliament and the Chapter III courts in the precise situation where Parliament purports to amend the law which is applicable in pending legal proceedings (whether they are awaiting first instance hearing, or are on appeal). Arguably, these principles are also applicable in circumstances where proceedings are being contemplated, but have yet to be commenced. The fundamental enquiry is whether the separation of judicial power in Chapter III of the Commonwealth Constitution places limitations on the legislative competence of Parliament to affect the resolution of legal issues in the pending case. This issue has been the subject of greater judicial and academic scrutiny in the United States, providing considerable assistance in defining relevant constitutional limitations applicable in Australia. It is the aim of this article to undertake a detailed examination of the United States position to assist in the appreciation and development of principle in Australia.

The ‘free trade’ provision in Australia’s Constitution, section 92, remains partially uncharted territory, both as to its practical operation and its doctrinal underpinnings. Section 92 is presently understood as a non-discrimination norm. While interpretation has cleaved the norm into two distinct strands, this article addresses only one of those, that concerning protectionist discrimination against interstate trade or commerce. Although there are many outstanding issues regarding this norm’s operation in particular settings – for instance its operation upon the Commonwealth and its ramifications for export controls – I will not be exploring those frontiers here. Rather, my interest is in the established core of the protectionist discrimination principle and the soundness of its doctrinal underpinnings. I will focus in this article upon a crucial missing piece in our contemporary picture of section 92’s make up, specifically, the relationship between legislative purpose and practical effect in the identification of protectionist discrimination.

The central purpose of this article is to test the assumption that constitutional cases generally produce a heightened level of disagreement amongst the members of the High Court. In addition to extra-judicial statements indicating that is so, there are a number of theoretical and pragmatic reasons why we would expect greater individuality in the delivery of constitutional judgments than might be observed in other areas. However, there has not been an empirical study of the Court’s behaviour in these cases which is of sufficient longitudinal scope so as to verify this suspicion, no matter how compelling the arguments or anecdotal impressions.

This study attempts to overcome that deficiency. In order to do so, it adopts the following structure. In Part II, the hypothesis under examination will be stated with consideration of the reasons currently given for its acceptance. In Part III, the methodology employed to test the hypothesis will be set out. In Part IV, results of the study will be presented with accompanying analysis. In the concluding Part, the findings of the study will be summed up and possible directions for future research will be suggested.

The Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) provides for judicial review based on decisions ‘to which this Act applies’. Persons aggrieved by ‘a decision to which this Act applies’, conduct engaged in for the purpose of making a decision to which this Act applies, or a failure to make a decision to which this Act applies are able to apply to the Federal Court for an order for review. ‘[D]ecision to which this Act applies’ is defined as a ‘decision of an administrative character, made … under an enactment’. Other similar statutory schemes providing for judicial review also rely on showing that there was or will be a decision made ‘under an enactment’. The High Court decision in Griffith University v Tang is the most recent to consider the meaning of this phrase.

In most cases, the employment relationship is capable of withstanding some friction and doubts … It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed guilty of a wrongdoing. The requirement may cause inconvenience to the employer. … The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived.

Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.