The principle of subsidiarity offers a criterion for the rational allocation of roles within federations between federal and state governments. The principle states that ‘functions should be performed by the lowest level of government competent to do so effectively’. However, embedded in the principle is a hierarchy: there are ‘higher’ and there are ‘lower’ levels of government. This hierarchy suggests a point of view from which assessments of optimal allocation are to be made. The deeper question, therefore, is this: ‘who will decide for whom?’ The reform of a federal system turns not only on what principles are used, but on questions of process: who will decide what those principles require, and how will they go about doing it? A problem of path dependency lies at the heart of Australia's federal malaise. It is this problem that we need to be grappling with when considering the optimal design of the system. To do so, we need to consider not only the principles but also the processes by which the federal system is to be reformed. This paper draws on the comparative experience of Switzerland, Germany and Austria to provide guidance about how Australia's federal system might best be reformed.

If we want to know how to change institutions, we must be attuned to the fact that there is frequently a mismatch between the initial aims of institution-builders and the contemporary value we attach to them.

The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.

The standing rule in administrative law requires parties to demonstrate that they have a special interest in the subject matter of the decision they wish to challenge in judicial review proceedings. This article examines the problems the special interest requirement has presented in judicial review, particularly to environmental groups, and how it has been liberalised in lower courts. The article then examines several possible reforms to standing and concludes that a standing rule should be retained but relaxed.

This paper analyses how four Australian state parliaments debate the rights implications of anti-bikie bills that restrict various individual rights. It focuses on three state parliaments–those of Victoria, Queensland and New South Wales–which have committees that scrutinise all bills for their rights implications and it compares the debate in these parliaments with that of South Australia where such systematic rights-scrutiny of all bills is absent. The paper considers whether the existence of a formal parliamentary committee for rights-scrutiny strengthens or diminishes the process of parliamentary scrutiny of bills for their rights implications. Overall the paper argues that, regardless of the system in place, parliamentary rights-scrutiny remains weak in the four surveyed Australian states when parliaments debate law and order bills. However, this weakness is manifested in different ways, with full and frank rights-deliberation deficient in Victoria, Queensland and New South Wales and systematic and well-informed rights-scrutiny absent in South Australia.

Disputes between States of Australia over the sharing of the waters of rivers that flow through or form the boundary between two or more States (‘transboundary rivers’) have frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe the resolution of these disputes in terms of limits on State legislative and executive power. After reframing the problem in this way, the article first examines the scope of State legislative and executive power and its extraterritorial effect with respect to the regulation of transboundary rivers. Secondly, the article considers inconsistencies between the laws and regulations of two States with respect to transboundary rivers. Finally, constitutional implications and limits on State power are examined, with particular focus on whether there may be scope for the extension of the Melbourne Corporation principle to assist in the resolution of some transboundary river disputes.

The loss suffered by unsecured creditors of all insolvent companies is the non-payment in full of amounts rightfully owed to them. This loss is all the more unacceptable to creditors when a company has been illegally phoenixed by the transfer from the insolvent company of assets at undervalue. One way of increasing the pool of funds available for distribution to creditors is to issue proceedings seeking compensation against directors alleging that their ‘phoenixing’ amounted to a breach of directors’ duties or insolvent trading. Such an action may be instigated by the liquidator and by ASIC. ASIC's enforcement role can be contrasted with the recovery role of the liquidator where the latter acts primarily in the furtherance of private interests, being those of the insolvent company's creditors; ASIC's mandate, on the other hand, is to act in the public interest. The purpose of this article is to examine the enforcement roles of liquidators and ASIC where suspected illegal phoenix activity has occurred. Following consideration of the difficulties faced by liquidators acting on behalf of creditors of phoenixed companies, this article considers whether it is appropriate, from a policy perspective, for the public regulator to promote private interests by exercising its enforcement powers for the benefit of creditors. The argument in favour of a publicly funded regulator seeking compensation for creditor losses is particularly compelling in the context of illegal phoenix activity, given the inability of creditors to bring enforcement proceedings themselves and the difficulties faced by liquidators when they seek redress for creditors’ losses.

Cartels have a significantly negative impact on economic welfare. Anti-cartel competition law–such as the provisions of pt IV div 1 of the Competition and Consumer Act 2010 (Cth)–tries to tackle this negative impact through civil and criminal remedies. The prohibition of cartels is most commonly justified on economic grounds. However, reference is also often made to broader moral grounds for proscribing cartels–for example, it is commonly stated that cartels are deceptive, unfair or engaged in a form of cheating. This article advances a unified account of the moral status of cartels that integrates both economic and moral factors. It does so by emphasising the relationship of cartel behaviour to the moral duty to promote the common good. Cartels are wrong because they undermine the role of open and competitive markets as a salient response to an important social coordination problem in a way that leads to seriously harmful economic outcomes. This combination of factors supplies a robust justification for both civil and criminal sanctions in appropriate cases, thereby affording a principled foundation for the current framework of cartel regulation in Australia.

The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown.

Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making.

The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.

A central tenet of the High Court of Australia's account of statutory interpretation is that the aim when interpreting a statutory provision is to ascertain the meaning of the words contained in that provision. The goal of this article is to challenge that tenet, which I call “the meaning thesis”. I argue that the High Court's acceptance of the meaning thesis leaves it unable to account for important features of the practice of statutory interpretation. In particular, it struggles to account for the ways in which statutory provisions interact with other legal norms (including other statutory provisions), especially when those other norms are introduced into the law after the statutory provisions with which they interact. This, I argue, provides a powerful reason to abandon the meaning thesis. I conclude by briefly suggesting how we might begin to develop a more satisfactory account of statutory interpretation.

The prevention and control of ‘food fraud’, including false or misleading statements made about a product for economic gain, is now emerging as an important and discrete policy goal for governments and regulators in the interface between food and public health. The control and prevention of food fraud complements regulation to ensure microbial food safety. This article uses a case study of anti-ageing claims made in the labelling and advertising of açai berry superfood products to argue that Australia's new regulatory system for nutrient content and health claims on food (Australia and New Zealand Food Standards Code Standard 1.2.7) inadequately addresses ‘food fraud’. This article argues that the over-reaching claims on açai product labelling will potentially mislead consumers and subvert public health messages in a context of ‘gastro-anomy’ (confusion over appropriate norms for eating) and ‘healthism’ (individual responsibility for making healthy choices). This conduct can usefully be conceptualised as food fraud. Second, the article argues that although the substance of Standard 1.2.7 is well designed to avoid food fraud, the fact that the standard allows food businesses to self-substantiate evidence when making some health claims undermines the protection offered. Australian food regulators need to articulate a more strategic and proactive approach to the prevention and control of food fraud.

This paper considers the recent controversy surrounding section 18C of the Racial Discrimination Act, and assesses the need for reform. I argue that the controversy surrounding section 18C is traceable to two causes. Firstly, section 18C locates the harm of hate speech within the experience of a victim, and secondly, describes this experience in terms of ‘feelings’ such as offence and insult. This ‘victim focus’ departs from the traditional characterisation of vilification as speech that harms social cohesion – an approach I refer to as the ‘incitement focus’. I defend section 18C's ‘victim focus’ by analysing the reasoning of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the German Constitutional Court where the ‘incitement focus’ is dominant. Through this comparison, I demonstrate that the ‘incitement focus’ is ill adapted to deal with the harm of hate speech in societies with a high degree of social cohesion. In these circumstances, the connection between speech and incitement is less amenable to legal reasoning, although courts legitimately perceive harm in the social and historical significance of hate speech. In contrast, Australia's ‘victim focus’ is better adapted to an inquiry into the relationship between speech and social and historical patterns of persecution. While I defend section 18C's description of this relationship in terms of ‘offence’ and ‘insult’, I recommend that the provision be amended to require that ‘insult’ be considered within an historical and social context. This may strengthen the public's perception that section 18C is a legitimate restriction on speech.

In this article, we focus on one of the most important statutory protections for Australian consumers in financial hardship: the right to seek a variation of a credit contract contained in s 72 of the National Credit Code. We provide a comprehensive history of this right, which has been part of Australian consumer credit law since the 1970s. Over the years, it has evolved from a very limited right to seek an extension of time to pay a debt on grounds of illness and unemployment, to a broader provision that requires credit providers to comply with a prescribed process before they can commence enforcement action against a consumer who has sought a variation to their payment arrangements. We also undertake an analysis of the evolution of this right to demonstrate that despite improved understandings of the causes of financial hardship, it continues to envisage a middle-class subject with a strong awareness of their rights, and excludes some particularly vulnerable consumers. This right is also representative of a regulatory approach that envisages a limited role for consumer credit law, and does not sufficiently address the imbalance of bargaining power between the consumer and the credit provider. We argue for the imposition of an obligation to provide a minimum range of hardship assistance directly upon credit providers, as a means of addressing this imbalance and ensuring more meaningful protection for consumers in financial hardship.

In 2013, the right to request flexible work arrangements was extended to include employees who are 55 years or older, with a refusal by an employer of such a request in theory available only on the basis of ‘reasonable business grounds.’ This expansion of the right to request is one of a number of different strategies implemented with a view to enhancing the workforce participation of older Australians. This paper examines the scope of the right to request and how it operates with respect to older workers as part of the National Employment Standards in the Fair Work Act 2009 (Cth). The paper also examines the gender dimension in the making of requests and in the utilisation of flexible work practices. Since the ‘right’ exists as merely the subject for negotiation at a workplace level, rather than an enforceable claim, this paper contends that it is unable to overcome persistent and prevalent age discrimination in employment. The paper argues that a review process and independent oversight are required in order to bring about the attitudinal change necessary if the right to request flexible work arrangements is to operate as a viable means of providing constructive opportunities for older workers to maintain their workforce participation.

Australian enterprise agreements are intended to be simple documents that are easy for workers to understand and straightforward for businesses to apply. This article argues that simplicity is undermined when agreements contain indeterminate language and ambiguous provisions, since these features make it difficult to pin down the precise meaning of agreements. It presents findings from an empirical study that examines two forms of uncertainty in enterprise agreements: first, the use of vague, open-textured terms such as ‘reasonable’ and ‘practicable’; and, second, the inclusion of particular types of poorly drafted provisions that are difficult to interpret. The findings show that while the use of indeterminate terms increased over time, there was a substantial decline in the use of particular types of ambiguous provisions. The study also suggests that these outcomes have been influenced by two factors, legislative change and union involvement in bargaining. The findings add to our understanding of the nature of legal complexity and will provide the basis for a nuanced analysis of future proposals to reform the legislative framework for agreement-making.

Plenary executive power seems repugnant to the rule of law. It is often said that such power cannot exist: that all executive power must have legal limits. Yet, it remains unclear which principle or principles of Australian constitutional law would prevent the federal Parliament from conferring plenary executive power. The High Court has suggested that a federal statute purporting to confer an entirely open-ended discretion on a Minister would simply not be a ‘law’, or else lack the requisite connection to a head of power found in ss 51 or 52 of the Australian Constitution. This article examines the latter claim. It explains the nature of the limitations imposed by ss 51 and 52 and the role of the High Court in ensuring that those limitations are complied with. It concludes that the scope of executive power that Parliament may confer is constrained by ss 51 and 52, but not to the extent that has been suggested by the High Court.

Australian administrative law's continuing emphasis on the concept of jurisdictional error is increasingly unique amongst common law jurisdictions. This paper argues that recent developments in Australian jurisprudence have provided little guidance for administrative decision-makers, who are left ‘tiptoeing through the tripwires’ of judicial review. Combining a detailed analysis of primary decisions, academic publications and historical scholarship, this paper suggests that this lack of guidance is the result of a widespread judicial reluctance to engage with either the guidance or educative roles of judicial review. As this paper demonstrates, failure to do so encourages uncertainty, unpredictability and a general lack of clarity which inhibits judicial review's ability to guide decision-makers and contribute to the maintenance of effective governance, administrative justice, and the rule of law in Australia. Particular attention is given to the decisions of Minister for Immigration and Citizenship v Li, Plaintiff M61/2010E v Commonwealth, and NBMZ v Minister for Immigration and Border Protection, which together encapsulate many of the most problematic aspects of recent jurisprudence. To avoid these consequences, this paper calls on senior judges and commentators to articulate a clearer framework which will be applied to guide the future development of the doctrine of jurisdictional error.

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.

In 2010, the Commonwealth government proposed Australia's third attempt to give federal constitutional recognition to local government. In 2013, the government secured the passage through Parliament of a Constitution Alteration but, due to political events, and amid much controversy, the proposed amendment was not put to the people. This paper examines the merits and prospects for success of the proposed reform, with an eye to lessons for the future of local government's place in the federal system. It argues that the legal and constitutional cases for the alteration were strong, but limited, and poorly contextualised, theorised and articulated. We use public opinion evidence to conclude that had it proceeded, the referendum result would probably have been a third failure. These lessons are important for ongoing debate over sub-constitutional and constitutional reform to Australian intergovernmental relations, including questions of federal financial redistribution at the core of the proposal. Overall, the events of 2013 reinforce arguments that reforms to the position of local government, while important, should only be pursued as part of a holistic package of federal reform and renovation; and that more robust deliberative processes and principles must be adhered to before again attempting any constitutional reform.

Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the ‘for the purpose of’ interpretation is misconceived and therefore that the improper purpose test is wrong.

Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the development of the institution has been ad hoc and fragmented. What has followed, however, has been the transformation of the institution to apply to new contexts, to the extent that it is questionable in some instances as to whether ‘ombudsman’ remains the appropriate descriptor for the institution. This article explains and critiques these developments, observes that the conditions which have created such change are set to continue and argues that care must be taken to protect citizen trust in the ombudsman brand.