A recent submission to the Senate Standing Committee on Constitutional and Legal Affairs said this about the Australian law of criminal procedure:

The recent law of criminal investigation is governed by a confusing “amalgam of common law, statutory law, court-directed practices and internal police regulations” .... A policeman’s non-observance of [a citizen’s rights] may lead to internal disciplinary procedures, but it does not constitute an offence nor give the suspect a cause of action [or, necessarily lead to exclusion of the evidence].

Several months of studying the law of criminal investigation in Australia have led me to agree with this conclusion. It is the purpose of this article to discuss what that law is, but to do so in the only context that has any meaning in the real world of law enforcement. That is, in the context of remedies, specifically exclusionary remedies, for police misconduct.

There is no shortage of comparative articles addressing the legal, political, social and economic similarities between Canada and Australia. This is hardly surprising. Apart from their common British colonial heritage, the two countries share a number of other features conducive to such comparative studies. For example: federal political systems; long standing, national economic affluence; and large, sparsely populated, national territories. Perhaps less common are articles primarily stressing differences between the two countries. This paper is in this latter category.

The thesis advanced is that the real political differences (in a federal structure sense) between Canada and Australia are striking and growing. The aim of this article is to demonstrate that the explanation for this lies, principally, in the significant social, economic, cultural and political variations in each country. In Part 2 of the article, there is a sketch of the extent of some of these underlying, fundamental differences. Part 3 reviews several perspectives on the Constitutions of Canada and Australia.

This is the fourth in the annual Menzies Lecture series. These lectures were delivered at the Australian National University in October 1988.

My long-standing interest in our federal system of administrative law traces back to 1968. I then suggested to the Attorney-General (now Sir Nigel Bowen, Chief Justice of the Federal Court) that he establish the Commonwealth Administrative Review Committee (of which I became a member). Through the work of that Committee and later committees and the efforts of Mr Ellicott QC, who subsequently became Attorney-General, the system as we know it today came into being.

The federal system incorporates features of the review structures of the United Kingdom and the United States. As you know, the four elements in the federal system are:

1. (1) the Administrative Review Council (‘the ARC’);

2. (2) review by the ombudsman;

3. (3) judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’); and

4. (4) review on the merits by the Administrative Appeals Tribunal (‘the AAT’).

The Australian Constitution was drafted by the ‘founding fathers’ at several Constitutional Conventions in the 1890s and submitted to the people for approval. Following a Premiers’ Conference at which some further changes were made, and submission of the document again to the people, a delegation was sent in 1900 to present the new document to the British Government. After the British Colonial Office had made some minor changes, the Parliament of Westminster passed the Commonwealth of Australia Constitution Act 1900 (UK) on 9 July 1900. The preamble and enacting clause of the Act read as follows ...

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:- ....

It could hardly be disputed that the fundamental issue in Australian constitutional law and theory is federalism. Federalism is the keystone of the Australian constitutional system, and is the battleground over which most of the great conflicts in Australian constitutional law have been fought. Nor could it plausibly be denied that the absolute basis of Australian federalism is the continued existence of the States. What makes Australia ‘federal’ is the presence of two separate spheres of government, each with its own organs, powers and functions, the Commonwealth and the States. Whatever other features of the Australian constitutional system might safely be dispensed with without endangering the title ‘federal’, there can be little doubt that the abolition of the States would involve the termination of federalism within Australia.

The present article, then, is concerned with an issue which goes to the heart of Australian federalism — the abolition of the States which collectively go to make up the federation itself.

Ever since Bentham attempted to “pluck the mask of Mystery from the face ofjurisprudence”, courts have been accused of legitimating their decisions by hiding their real grounds, which are necessarily subjective and partisan, behind a smokescreen of artificial and esoteric ratiocination. Such iconoclasm has, in our century, been a staple of American realism, Marxism and more recently the critical legal studies ‘movement’, all of which have inevitably influenced Australian legal theory.

It has sometimes been argued that in constitutional cases the High Court has used ‘legalism’ to confer on essentially political decisions a speciously apolitical appearance. This argument is made most carefully and thoroughly by Brian Galligan, a political scientist, in his recent study of the High Court. His argument deserves to be carefully assessed, especially if he is right to predict that a more ‘realistic’ account of judging is destined to supplant ‘legalism’ in academic and legal circles, and in the public mind.

The passing of the 1988-1989 third financial quarter will probably be viewed by the BHP Group with mixed emotions. On the one hand BHP was recently reported to be “on course for [a] record $1 bn profit” for this current financial year, having in the first nine months lifted its profits to $768 million, a 5.8 per cent increase on the $725.8 million for the equivalent period in the 1987–1988 financial year. On the other hand however it was in this third quarter that the High Court, at the expense of BHP, was given its first opportunity to consider s 46 of the Trade Practices Act 1974 (Cth) in Queensland Wire Industries Pty Ltd v Broken Hill Pty Ltd and Australian Wire Industries Pty Ltd. In a decision shedding some much needed light on the section, the Court unanimously held that BHP misused its substantial degree of power in the steel products market by refusing to supply Y-bar to Queensland Wire Industries Pty Ltd (QWI), albeit in continued adherence to its policy of committing that product to manufacturing processes within the BHP group.

I welcome the opportunity to respond to Jeffrey Goldsworthy’s article, “Realism about the High Court”, in which he criticises aspects of my account of the High Court’s political role in interpreting the Australian Constitution. My book, Politics of the High Court, sets out the functions that the Founders intended the Court to play — interpreting the Constitution and adjudicating high level disputes involving governments — and examines, within a historical context, how the Court has actually carried out those functions in major decisions and lines of interpretation of key sections of the Constitution. As I pointed out in the book, this is the stuff of ‘high’ politics: authoritatively determining the meaning of the Constitution which is the basic instrument of government; and in particular disputes deciding whether to overrule democratically elected governments.

Guardianship laws either for intellectually disadvantaged people alone, or for anyone with diminished functional capacity (such as victims of brain trauma), are now popular in Australia (other than in Western Australia and the Australian Capital Territory) and New Zealand. These laws are based on North American experience, particularly that of the Dependent Adults Act 1976 (Alberta). The common thread is that it permits a guardian to be appointed to manage the property or the personal affairs of the disadvantaged person, or to make one or more of the multitude of decisions lying within these two broad areas of human living.

Contemporary legislation is notable for three things. First, partial orders are permitted (in place of only plenary orders). Indeed they are positively encouraged where any intervention at all is called for (the normalisation principle). Secondly, personal guardianships have been revived (having existed all along under cumbersome equity jurisdictions of – or associated with – superior courts).

One area in which the rights of Australian workers have lagged behind their counterparts in other western democracies is that of protection against unfair dismissal. The common law action for breach of the contract of employment has, of course, been open to employees in common law countries including Australia but recognition of the inadequacy of this procedure has led to the introduction of statutory protection against dismissal in a number of common law jurisdictions including the United Kingdom. While some of the Australian States have sought to legislate in this area the protection available at federal level has, at least until recently, been inadequate.

This paper will explore the background to the federal dismissals jurisdiction in Australia and the recent developments which have extended the protection against unfair dismissal available within the Australian Conciliation and Arbitration system. At federal level, a dual system of redress for unfair dismissal has developed.

The events leading up to the sixth double dissolution of the Commonwealth Parliament on 2 June 1987 and the subsequent abandonment of the Australia Card Bill 1986 highlight the difficulties any Federal Government faces when negotiating the passage of controversial legislation through a hostile Senate.

In the light of the legislative history of the Australia Card Bill, I propose to discuss the requirement of “identical bills” in s 57 of the Constitution, the amendments which ajoint sitting may consider and finally, the disallowance of regulations by the Senate with reference to s 57.

Brian Galligan says that I have misread or misunderstood the whole thrust of his argument. I suggest that the shoe is on the other foot. Readers will have to decide who has misunderstood whom.