This article provides an empirical analysis of the legislative practice of the Australian Parliament and considers its implications for the rule of law. Federal legislation is so voluminous, complex and changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to know. This could be potentially ameliorated by Australian courts embracing Chevron-style deference, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More broadly, the article comments upon the way in which the rule of law and legislation should be understood in a modern administrative state.

In 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Commonwealth Parliament to be citizens of a ‘foreign power’ and thus ineligible, under s 44(i) of the Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature was similarly ineligible. In this article, we argue that the conclusion in Re Canavan was incorrect: that both the Court’s reasoning about the purpose of s 44(i)—to avoid ‘split allegiance’—and its methodology for determining foreign citizenship were inconsistent in their own right and also against its reasoning in Re Gallagher. We challenge the Court’s conflation of citizenship and allegiance with obedience to a state. We examine the rules of international law for identifying a person’s citizenship, as well as exceptions to these rules, including what came to be known as the ‘constitutional imperative’, which the Court held will exempt a foreign citizen from s 44(i) disqualification under certain circumstances. We conclude that the Court, in seeking to avoid ‘uncertainty and instability’ in its interpretation of s 44(i), did the opposite. Had it looked, instead, to the relevant foreign state for an authoritative determination of a person’s citizenship, confusion and uncertainty surrounding s 44(i) could have been avoided, and a democratic understanding of Australian citizenship could have been prioritised.

The constitution pervades the governance practices of a state, far beyond its application and interpretation in the courts. This Special Issue draws together a field of scholarship that considers these extrajudicial dimensions of constitutional practice to reveal a very different constitution to the juridified version. It is a more complex, dynamic and pervasive vision of the constitution, focused on the ongoing relationships of a broader set of constitutional institutions and actors. These relationships are mediated by the legal and political dimensions of the constitution and by the narratives and symbolism that grow up around it. In this introduction, we explore three themes of the pervasive constitution: the importance of constitutional narratives and symbols, the multiplicity of constitutional actors and the relational nature of constitutionalism. This recalibrated understanding of the constitution reveals constitutional actors and power dynamics that are often invisible in more traditional accounts of constitutionalism. This recalibration is particularly important in addressing contemporary constitutional challenges. In settler systems hoping to decolonise, courts have proven important but insufficient sites of constitutional change, and it is in political spaces that new constitutional stories can be told, stories which acknowledge the full sovereignty of Indigenous peoples and their claim to territory. In countries experiencing democratic backsliding, extrajudicial actors have been championed as the backstops to democracy and human rights. We argue that only by understanding the space outside the courts will we appreciate the breadth of new constitutional possibilities.

This article examines the compatibility of extra-departmental executive agencies, a defining feature of the modern regulatory state, with responsible government, one of the architectonic principles of the Australian Constitution. Some scholars have argued that a constitutional implication derived from responsible government should be drawn limiting the types of entities that may be established by the Commonwealth and imposing requirements relating to the relationship that must exist between ministers and entities within their portfolio. This article argues that the view that independent statutory agencies are a derogation from the principles of responsible government rests on a misunderstanding of responsible government. Responsible government is an inherently evolutionary system: as incorporated into the Australian Constitution, responsible government was intended to be flexible and non-prescriptive, allowing for change in the governmental arrangements considered necessary from time to time. Independent statutory agencies should not be seen as a challenge to the true principles of responsible government but a legitimate evolution in governance arrangements, which the Constitution deliberately left open.

The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.

Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.

This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.

Judicial incapacity, while under-researched, presents unique challenges for supporting and responding to issues of judicial performance. In this article, we argue for a reconceptualisation of this topic based on contemporary theories of socially-constructed disability and principles of anti-discrimination law. While assisting and supporting judicial officers who are attempting to work with a disability or ongoing health issue will always be complex, this reconceptualisation offers heads of jurisdiction, conduct commissions and parliamentarians, who retain the ultimate sanction of removal, the opportunity to craft a surer guide for handling cases of incapacity. This will not only better serve the individual concerned, affording them greater agency and dignity than has traditionally been the case, but also protect the principle of judicial independence.

Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that have a role to play in safeguarding electoral democracy against government attempts to undermine the fairness of the electoral process. This article explores the extent to which the Australian Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting electoral democracy. It demonstrates that independence, impartiality and a supportive legislative framework help the AEC to be effective in performing these roles, but that inadequate powers, lack of budgetary autonomy and answerability to political actors operate as constraints. More generally, the analysis presented shows the value of expanding our understanding of the role of fourth branch institutions so that we take account of their activities in both fostering and safeguarding key democratic values.

In this article, the author argues that certain types of constitutional interpretation in Australia have become far too unmoored from the written constitutional text and its intended meaning, the reductio ad absurdum of such unmoored general approaches being the recent High Court of Australia case Brown. The author therefore asserts that there is a serious problem with some types of constitutional interpretation in Australia that have evolved to a point where we can observe few if any outside constraints on the outcomes available to top judges. The author finishes, briefly, by considering what can be done about this state of affairs.

National uniform legislation links the federal distribution of powers achieved more than 119 years ago with the challenges and opportunities faced by Australia in an interconnected world. Over this span of time, developing national uniform legislation has been described as the ‘art of the impossible’. The main objective of this article is to critically examine the database of national uniform legislation with a view to applying public policy and federalist theory to explain how sustainable uniformity has been achieved. Rather than focusing on why an individual set of uniform Acts has not achieved a high level of uniformity or has diverged through unilateral amendment, this article examines national uniform legislation by analysing the factors at play. This approach allows the common patterns impacting sustainable uniformity to be identified. From among 84 sets of uniform Acts, four discernible links with theory have been found: (1) the ‘incrementalism and policy cycle’ model—to explain harmonisation that may take decades (31 sets); (2) the ‘multiple streams’ framework, explaining legislation that emerges as sustainably uniform from the outset due to an ‘open policy window’ (16 sets); (3) ‘pragmatic federalism’ solutions, such as skeletal legislation and the conferral of powers, which are developed in the course of inter-jurisdictional negotiations when uniformity is required but is particularly difficult to achieve (14 sets); and (4) the ‘advocacy coalition’ framework, which in contrast, explains situations where jurisdictions hold firm views about retaining diversity (23 sets). Developing and drafting national uniform legislation can become the ‘art of the possible’ with this improved understanding.

Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.

This article exposes how disparity in the immigration rules of different visas combines with poor enforcement of labour standards to produce a segmented labour market in the Australian horticulture industry. We argue that the precarious work norms of the horticulture industry result in a ‘demand’ on the part of employers for harvest workers to perform precarious jobs. Such demand has been met by the workers supplied through different segments of temporary migrant labour who may be a particularly attractive form of precarious labour because of the conditionalities they experience as a result of their visa class. Our analysis demonstrates that not only do growers make preferences between local and temporary migrant workers, but they also make preferences between different types of temporary migrant workers. In identifying segmentation between temporary migrant workers on different visa categories, the article makes a significant contribution to the labour market segmentation literature, which hitherto has focused on segmentation between migrant workers and non-migrant workers.

This article evaluates the rise of interpretation as an alternative means of judicially enforcing legislative compliance with rights. Instead of the traditional method where courts are empowered to invalidate statutes that are found to be incompatible with rights, the alternative empowers courts to interpret statutes in a manner that renders them compatible with rights. It argues that interpretation emerged as an alternative to invalidation among both constitutional reformers and judges in Australia (and elsewhere) in the 1990s and 2000s because interpretation was seen as a way of addressing democratic concerns about rights-based judicial review and as a less confrontational method of resolving rights issues. The article puts forward an argument for invalidation over interpretation on the basis that interpretation’s comparative appeal is not particularly strong—there are alternative ways of addressing the democratic concerns, and the connection between invalidation and confrontation is weak—and that invalidation is a more transparent, and therefore accountable, exercise of public power than interpretation.

This article explores the idea that constitutional scholars may be thought of as constitutional actors analogous to integrity institutions and examines the normative implications of conceiving of constitutional scholars in this way. One implication of such an analogy is to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing constitutional scholars as constitutional actors also sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in this highly politicised populist moment.