The article analyses legal materials concerning the legal personality of the Commonwealth of Australia under domestic law. It argues that the Commonwealth as legal person has an existence, as a unit of the legal system, which is conceptually distinct from the Commonwealth of Australia as a nation, and the Commonwealth as federal government of that nation. Current idioms (eg ‘polity’ and ‘body politic’) have a tendency to confuse these distinctions. The article suggests, as a more appropriate way to denote the Commonwealth as legal person, the term ‘constitutional person’.

The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas with little formal institutional support. They must rely on their own resources or informal advice and counsel from colleagues and the head of jurisdiction. This article will explore whether this arrangement continues to be appropriate. We consider a hypothesis that a number of factors, including the growing numbers and diversity of the judiciary mean that it is less likely that there will be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers as to the adequacy of the ethical support available to them. Finally, we consider the variety of supports that are available in comparable jurisdictions and also in the legal profession, before turning to possible solutions to the question our hypotheses raise, including the introduction of ‘ethical infrastructures’ in the form of more formal arrangements that provide ethical guidance to judges. We argue that these ethical support mechanisms have the potential to enhance the quality of ethical decision-making and foster an ethical culture within the judiciary.

The well-known Kable decision, and the line of authorities to which it has given rise, derives a doctrine of the integrity of state courts from Ch III of the Australian Constitution. The basis for this doctrine, however, as well as its meaning and extent, remains contentious. This article articulates a coherent basis for the Kable doctrine, which both reveals it to rest on a genuine implication arising from the text of Ch III and contributes to an understanding of the content of the doctrine. The method that the article adopts to achieve a rigorous grounding of the Kable doctrine is predominantly theoretical, combining three philosophical approaches: a speech-act analysis of the relevant constitutional provisions, the semantic externalist theory of reference developed by Putnam and Kripke and a sociological understanding of institutions (including legal institutions) along the lines developed by Selznick. As the Kable doctrine is one of the fundamental components of contemporary Australian public law, showing that it is not merely a product of judicial invention in pursuit of desirable policy, but rather is genuinely grounded in the text of the Constitution, is important for establishing not only the legitimacy of the doctrine itself but the legitimacy of that larger body of law.

Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the Constitution confers on the High Court. The New South Wales Court of Appeal reads this narrowly, holding that only three specific remedies are protected, together with the rules and limitations that existed at federation. If correct, we might see the emergence of two bodies of doctrine, the old law of remedies and the new law of ‘judicial review’ (a concept that emerged only after federation). In an unrelated case, six High Court judges implied a limited privative clause ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his view, that branch of certiorari conflicts with judicial review fundamentals, is historically misconceived, and should apply only where the reviewing court can try the matter afresh. This article reviews these developments, discusses their rationales and questions both the history and its importance.

Existing studies for the United States examine the extent to which the public is knowledgeable about US courts, arguing that knowledge of the courts is linked to public support for their role. We know little, though, about the Australian public’s awareness of the High Court of Australia. We report the results of a survey of a representative sample of the Australian adult population, administered in November 2017. We find that few Australians know the names of the Justices, the number of Justices on the Court, how the Justices are appointed or for how long they serve. Awareness of recent cases decided by the Court is mixed. We find that age and education are better predictors of awareness levels than is gender. Our findings are important because in the absence of awareness of the High Court, the potential exists for the public to see the Court as having a more overt political role than it has, which may lower esteem for the Court. The potential for this to occur is exacerbated if, and when, politicians attempt to drag the High Court into the political fray, by attributing political motives to it that it does not have.

In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option.

Judges fulfil a fundamental constitutional role in democratic systems. Most research on judges, though, focuses on the public and constitutional significance of the judicial role, not the needs of individual judges. This article applies a labour law lens to help reconceive the judicial role in a way that balances the individual and collective needs of judges with the institutional and constitutional needs of the third arm of government, drawing on comparative analysis of Australia and the United Kingdom, and examples from common law countries. I argue that, while some progress has been made towards using labour law to structure and inform judicial roles, labour law offers new insights into how judges and judicial work might be supported. This may both assist judges in their individual capacity and support the judiciary as an institution. It therefore has significance for judges as individuals and the judiciary’s fundamental constitutional role.

The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.

This article offers a critical analysis of the norms, policy, procedures and outcomes associated with contemporary decision-making under the ‘character test’ per Migration Act 1958 (Cth) s 501. Of late there has been a steep increase in the number of visa refusals and cancellations on adverse character grounds due to the convergence of a reformulated character test and single-minded, authoritarian, administration by ministerial office-holders. This article teases out the significant and, arguably, adverse consequences for the quality of administrative justice of ministerial control over visa decisions absent independent administrative review. It is argued that the integrity of ministerial decision-making and the legitimacy of outcomes are dubious. This is because the process of identifying and balancing the important countervailing community interests and individual (human) rights, in the course of reaching the preferable decision, does not appear to be carried out in a detached, proper and genuine manner, pursuant to rational and intelligible reasoning processes. In conclusion, when viewed holistically, the judicial decisions analysed in this article suggest that the unwavering pursuit of community protection has come at a significant adverse cost to administrative justice and, necessarily, to individuals/families who bear the harsh consequences.

This article explores the effect of treaty withdrawal on domestic legislation implementing a treaty in the Australian constitutional context. In R (Miller) v Secretary of State for Exiting the European Union (‘Miller’), the Supreme Court of the United Kingdom held that the executive cannot exercise its prerogative power to withdraw from a treaty where that withdrawal would frustrate or invalidate domestic law. This article contends that treaty withdrawal would be unlikely to have this effect on a law implementing a treaty in the Australian context. The article ultimately draws two conclusions. First, a law implementing a treaty would likely survive treaty withdrawal in most cases due to the law’s enduring nexus with Australia’s foreign relations, enabling its continued characterisation as a law ‘with respect to’ s 51(xxix) of the Constitution. Secondly, in the event that withdrawal does lead to a loss of constitutional support, the law would likely become prospectively invalid from the date of effective withdrawal (an outcome identical to legislative repeal in its effect). The article contends that this outcome would not, however, engage the constraint on executive power so emphatically reasserted in Miller. This is because the law’s invalidity is consistent with the implied will of the legislature and thus reinforces, rather than contravenes, the fundamental principle of parliamentary sovereignty which the constraint on executive power protects.

Consumers use financial intermediaries such as brokers and other credit advisers to navigate complex financial markets and to provide guidance on credit products. In 2017 ASIC reported that ‘[b]rokers … are responsible for arranging … half of all home loans in Australia’ (Australian Securities & Investments Commission, Report 516: Review of Mortgage Broker Remuneration (2017) 8 [18]). The National Consumer Credit Protection Act 2009 (Cth) (‘Credit Regime’) regulates the conduct of such advisers including requiring disclosure of fees and some commissions. The Credit Regime also permits conflicts between the interest of the adviser and the client, provided that the adviser has in place ‘adequate arrangements to ensure … [that the client is] … not disadvantaged by any conflict of interest’ and that the conflict does not breach the adviser’s obligation to act ‘efficiently, honestly and fairly’. This article demonstrates that equitable fiduciary obligations also operate to regulate the conduct of the adviser in his or her dealings with the client. Such conflict and other conduct may breach any equitable fiduciary obligation thus exposing the adviser to equitable remedies. Equitable fiduciary obligations may thus be an as yet under-exploited avenue of protection for consumers and a concomitant zone of compliance risk for those subject to the Credit Regime.

When should financial interests bar someone from election to or service in Parliament? This article critically analyses the case law on the Constitution’s provisions on pecuniary interests and offices of profit. These cases are seeing the High Court sculpting new law out of old stone. The article is structured both chronologically and thematically, and explores the case law’s litigational and political context, and its relationship to pecuniary interest registers, as well as its jurisprudential value. Ultimately, the Court is found to be grappling with—and somewhat at sea in — fixing workable and consistent purposes for the constitutional provisions, especially given the need to fit these provisions within the broader values of parliamentary and electoral law and practice. The article concludes by assaying and proposing reform options.

An Australian Offensive Cyberspace Operations (OCO) capability has emerged as an important sub-component of national power. While significant academic literature exists concerning OCO’s place within the international law of armed conflict, and international law in general, literature regarding domestic law is scarce. Nevertheless, an understanding of the domestic law governing the Australian Defence Force’s (ADF’s) authority to conduct OCO is necessary as the gap in the research potentially exposes the Government and individuals to legal risks that are not well understood. The aim of this article is to analyse the proprietary and constitutional implications of ADF OCO to inspire further research at a time when the Comprehensive review of the legal framework governing the National Intelligence Community is underway. The qualitative research analyses statutory and case law authorities to argue that Australian proprietary and constitutional law creates important implications for ADF OCO. The analysis suggests that these implications oblige the Commonwealth to be careful in balancing its legislative and executive power to provide the ADF with the legal authority to conduct OCO. The research finds that OCO impinges upon the proprietary rights of others, requiring legal authority which, if created under statute, generates an obligation to compensate proprietors under just terms. However, if the authority arises under the executive power, then the obligation to compensate may not apply. Further, such executive powers may exist under a royal war prerogative. As a corollary, we suggest that in an escalated conflict environment, the ADF may be able to conduct OCO without any legislative amendments to the criminal law although express immunities would be preferred.

Consumer financial protection and the integrity of the Australian financial system are critical to the Australian economy in many ways, including the provision of an effective banking system, and the security of Australia’s significant superannuation savings. This is especially the case in an environment where financial products have become more complex and difficult for consumers to understand. In recent years there have been several scandals in Australia’s financial sector that have undermined confidence in the financial system, and exposed regulatory failure. The authors argue that there needs to be a more effective oversight of the key regulators in the Australian financial system to maintain confidence in the system, and prevent capture of the regulators by the financial services industry. The authors contend that the recommendation of the Financial System Inquiry for the establishment of an Assessment Board to provide continuous oversight of the financial regulators is an effective solution to the poor regulatory outcomes encountered in Australia in recent years. The consequences of not having such oversight are likely to be more financial scandals, and further instability in the financial system. These deficiencies must be addressed as a matter of urgency.

In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.

Employment relations are well understood. Business format franchising is a newer and rapidly evolving business expansion formula, also providing employment. This article compares the fates of employees and franchisees in their employer/franchisor insolvency. Whereas employees enjoy protection, franchisees continue to operate in conditions that have been described as Feudal. We identify the inherence of moral hazard, path dependency and optimism bias as reasons for the failure of policies and corporations laws, globally, to adapt to the franchise relationship. This failure comes into sharp focus during a franchisor’s insolvency. We demonstrate that the models of participation available to employees in the United States, Australia and the United Kingdom could be used to inform a re-balancing of the franchisees’ relationship with administrators and liquidators during the insolvency of their franchisor, providing franchisees with rights and restoring their dignity.