Baker v The Queen & Fardon v Attorney General for the State of Queensland

In 2004, the High Court of Australia had cause to revisit its 1996 decision in Kable, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of Fardon and Baker demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be "tough on crime". The so-called "Kable principle", as construed by the High Court in 2004, may prove to be the "constitutional watch dog that barks but once".

National Australasian Convention, Sydney 1891

Photograph of the delegates of the 1891 Australasian Convention held in Sydney.

Southeast Asia: a community of diversity

The region known as the Southeast provides the basis for a broad political community characterized by cultural and ethnic diversity, disparities in economic performance, and differences in regime and constitutional foundations. In recent years, the Association of Southeast Asian Nations (ASEAN) group of nations has made strides toward building a community based on respect for these differences. Despite a growing acceptance for democratic processes and human rights, the influence of these values over existing institutions and state behavior remains incomplete. The future development of the ASEAN region, and the nations that comprise it, is likely to be based on the strength and character of the relationships these states forge with one another and with more powerful external actors.

Theological Voices. PAC Politics and the Abortion Debate: Abortion Politics and the Reagan Era

This investigation shall focus upon the issue of legalized abortion. I believe the complex controversy surrounding the issue of abortion, demonstrates more clearly than any other single contemporary issue the social, political, moral and religious forces working for change in a post-Reagan America. I shall examine in depth the theology, writings, strategies and activities of those Americans who seek to express themselves and their beliefs in religious, or religiously supported interest groups. The current debate surrounding abortion legislation lends itself to several forms of analysis: religious, political, sociological, etc. I will write from the perspective of a student of religion. I shall focus more upon the religious, moral and theological conviction-s of the abortion activists than upon their constitutional right to free speech or assembly. I shall give more attention to denominational structures and church/state relations than to the structuring of representative districts and democratic theory.

Commitment of the Mentally Ill in Maine: a History of Public Policy

This paper traces the historical development in the State of Maine of the procedures by which persons found to be mentally unsound can be committed to institutional care against their will. Beginning in 1820 and continuing to the present, specific changes in the statutes governing this area are noted. Both the criminal and civil commitment procedures are dealt with. Following the historical trace, pending legislation relating to the criminal commitment process is examined in detail. Finally, consideration is given to the need for a complete reexamination of the practice of involuntary commitment involving ethical and constitutional issues.

Opting out of shareholder governance rights: a new perspective on contractual freedom in Australian corporate law

One of the classic debates in corporate law relates to whether the rules of corporate law are ar should be 'mandatory', in that companies must comply, or 'enabling' - meaning a set of default rules which companies have the choice of adopting or 'opting out' of through alternative contractual arrangements. The so-called 'mandatory/enabling' debate has been especially prominent in the United States fro numerous reasons, yet has also received some attention in Australia. That said, the extent to which companies can 'opt out' of corporate law has rarely been considered as a practical issue in Australia - particularly whether Australian companies can 'opt out' of provisions under the Corporations Act ("the Act"). However, just recently, two high-profile events in Australia have made 'opting out' of corporate law a relevant issue, especially the question of whether companies are free to 'opt out' of provisions of the Corporations Act  which provide express governance rights to shareholders. These events were Boral's constitutional amendment in 2003 to restrict the ability of shreholders to propose amendments to the company's constitution, and the contemplation and introduction of so-called 'pre-nuptial' agreements- designed to by-pass the right of shreholders to vote on removing directors in public companies. In the light of these two recent events, in this article the authors revisit the mandatory/enabling debate. However, rather than going over old ground as to whether a mandatory or enabling approach to corporate regulation is desirable, the authors approach the issue from a fresh perspective: that Australian Securitiesand Investments Commission's ("ASIC") existing relief powers under the Act should be extended to provide a means for companies to opt out of provisions containing shareholder governance rights.

Women, minorities, and proportional representation in Parliament : a proposal for voting reform

The right to vote permits the voices of the electorate to be heard in democracies. However, voting is often insufficient for minorities to obtain representation by their preferred candidates. For traditional political ‘minorities’ including women, self-representation is essential to political equality and social equity. Despite holding roughly 50% of the electoral vote in Australia for 100 years, women comprise only 22% of the Commonwealth Members and 29% of Senators. This paper proposes a new vote counting system, STV with Borda elimination or STV-B. STV-B retains proportional representation but much greater voter control over selection of candidates. STV-B would provide women with a mechanism that yields proportional representation for women without undermining party representation.

Generation B and the end of empire

Many scholars have traced the events and issues which accompanied the postwar decline in the British Empire and the changing nature of the Australian-British relationship. Most tell the story through a complex narrative of shifting foreign, defence and economic policies from the real separation between Australia and Britain occurred, when Britain tried unsuccessfully to enter the European Economic Community and when Australia assisted the United States at war in Vietnam. Others attempt to tell the story of the end of empire through intricate constitutional and legal discussions. But the real separation between Australia and Britain was far more complex and nuanced than it is possible to adequately explain, as David Lowe argues here.

Hollow avowals of human rights protection-time for an Australian federal bill of rights?

Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however, important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed - a federal bill of rights? In the course of this analysis the author makes suggestions for reform; specifically how a federal bill of rights may address the paucity of constitutional protection.

A need for national regulation on property investment advice and marketeering - suggestions put forward

The property investment advice and marketeering industry is currently unregulated in Australia. There is no uniform national or state regulation in this area. The only protection and remedies currently available are those under the general consumer protection laws scattered in various Acts, and even so, these have numerous problems.This article sets out to argue for a new set of laws to regulate property investment advice and marketeering. In providing suggestions for reform, the article also argues that, to overcome the constitutional difficulty, a national co-operative approach is the only way to move forward in this area and suggests that a new regulator be set up to administer and enforce the new proposed laws on property investment advice and marketeering.

The status of flag desecration in Australian law

Law relating to the desecration of the Australian flag in a public place - the influence of the flag on Australia's culture and politics - whether flag desecration is a constitutionally protected political communication - the constitutionality of the Flags (Protection of Australian Flags) Amendment Bill 2008 - whether the treatment of flag desecration under Australian law is likely to change if and when a statutory bill of rights is enacted.

Australian property investment advice : an unregulated industry and the need for better consumer protection laws

Currently, consumers have no means of protecting themselves when they are looking for property investment advice in Australia. There is no uniform national or State regulation in the property investment advice and marketeering industry. The only protection and remedies currently available are those under the general consumer protection laws scattered in various Acts, and even so, these have numerous problems. This paper highlights what those problems are under the general consumer protection laws and suggests some changes to the current system. The paper also argues that a national co-operative approach is the only way to move forward in this area and suggests that the constitutional difficulty can be overcome by using the legislative conferral of state powers provision, which has often been overlooked. The paper also argues that a new regulator be set up to administer and enforce the new proposed laws on property investment advice.

Australia and East Timor : elitism, pragmatism and the national interest

For over two decades the issue of East Timor's right to self-determination has been a ‘prickly’ issue in Australian foreign policy. The invasion by Indonesian forces in 1975 was expected, as Australian policy-makers had been well informed of the events leading up to the punitive action being taken. Indeed, prior discussions involving the future of the territory were held between the Australian Prime Minister and the Indonesian President in 1974. In response to the events unfolding in the territory the Australian Labor Government at the time was presented with two policy options for dealing with the issue. The Department of Defence recommended the recognition of an independent East Timor; whereas the Department of Foreign Affairs proposed that Australia disengage itself as far as possible from the issue. The decision had ramifications for future policy considerations especially with changes in government. With the Department of Foreign Affairs option being the prevailing policy what were the essential ingredients that give explanation for the government's choice? It is important to note the existence of the continuity and cyclical nature of attitudes by Labor governments toward Indonesia before and after the invasion. To do so requires an analysis of the influence ‘Doc’ Evatt had in shaping any possible Labor tradition in foreign policy articulation. The support given by Evatt for the decolonisation of the Netherlands East Indies (Indonesia) gave rise to the development of a special relationship-so defined. Evidence of the effect Evatt had on future Labor governments may be found in the opinions of Gough Whitlam. In 1975 when he was Prime Minister, Whitlam felt the East Timor issue was merely the finalisation of Indonesia's decolonisation honouring Evatt's long held anti-colonialist tradition existing in the Australian Labor Party. The early predisposition toward Indonesia's cohesiveness surfaced again in the Hawke and Keating Labor governments of later years. It did not vary a great deal with changes in government The on-going commitment to preserving and strengthening the bilateral relationship meant Indonesia's territorial integrity became the focus of the Australian political elites’ regional foreign policy determinations. The actions taken by policy-makers served to promote the desire for a stable region ahead of independence claims of the East Timorese. From a realist perspective, the security dilemma for Australian policy-makers was how to best promote regional order and stability in the South East Asian region. The desire for regional cohesiveness and stability continues to drive Australian political elites to promote policies that gives a priority to the territorial integrity of regional states. Indonesia, in spite of its diversity, was only ever thought of as a cohesive unitary state and changes to its construct have rarely been countenanced. Australia's political elite justifications for this stance vacillate between strategic and economic considerations, ideological (anti-colonialism) to one of being a pragmatic response to international politics. The political elite argues the projection of power into the region is in Australia’s national interest. The policies from one government to the next necessarily see the national interest as being an apparent fixed feature of foreign policy. The persistent fear of invasion from the north traditionally motivated Australia's political elite to adopt a strategic realist policy that sought to ‘shore up’ the stability, strength and unity of Indonesia. The national interest was deemed to be at risk if support for East Timorese independence was given. The national interest though can involve more than just the security issue, and the political elite when dealing with East Timor assumed that they were acting in the common good. Questions that need to be addressed include determining what is the national interest in this context? What is the effect of a government invoking the national interest in debates over issues in foreign policy? And, who should participate in the debate? In an effort to answer these questions an analysis of how the ex-foreign affairs mandarin Richard Woolcott defines the national interest becomes crucial. Clearly, conflict in East Timor did have implications for the national interest. The invasion of East Timor by Indonesia had the potential to damage the relationship, but equally communist successes in 1975 in Indo-China raised Australia's regional security concerns. During the Cold War, the linking of communism to nationalism was driving the decision-making processes of the Australian policy-makers striving to come to grips with the strategic realities of a changing region. Because of this, did the constraints of world politics dominated by Cold War realities combined with domestic political disruption have anything to do with Australia's response? Certainly, Australia itself was experiencing a constitutional crisis in late 1975. The Senate had blocked supply and the Labor Government did not have the funds to govern. The Governor-General by dismissing the Labor Government finally resolved the impasse. What were the reactions of the two men charged with the responsibility of forming the caretaker government toward Indonesia's military action? And, could the crisis have prevented the Australian government from making a different response to the invasion? Importantly, and in terms of economic security, did the knowledge of oil and gas deposits thought to exist in the Timor Sea influence Australia's foreign policy? The search for oil and gas requires a stable political environment in which to operate. Therefore for exploration to continue in the Timor Sea Australia must have had a preferred political option and thoughts of with whom they preferred to negotiate. What was the extent of each government's cooperation and intervention in the oil and gas industry and could any involvement have influenced the Australian political elites’ attitude toward the prospect of an independent East Timor? Australia's subsequent de jure recognition that East Timor was part of Indonesia paved the way for the Timor Gap (Zone of Cooperation) Treaty signing in 1989. The signing underpinned Australia's acceptance of Indonesian sovereignty over East Timor. The outcome of the analysis of the issues that shaped Australia's foreign policy toward East Timor showed that the political elite became locked into an integration model, which was defended by successive governments. Moreover, they formed an almost reflexive defence of Indonesia both at the domestic and international level.

Facts, threats and reds : common law constitutionalism and the rule of law

In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere.

Statutory verification of water rights: the 'insuperable' difficulties of propertising water entitlements

The abolition of riparian entitlements in the early stages of colonial Australia and the vesting of these rights in the Crown represented a turning point for the evolution of private water rights. The extinguishment of common law rights connected to vested land interests and the introduction of new, unaligned statutory entitlements provided a new and fundamentally different system for the creation and regulation of private water entitlements. Unlike riparian entitlements, in the absence of express definition, statutory water entitlements may only be verified as property where such a construction is consistent with the nature and scope of the entitlement. In this respect, the statutory framework has disaggregated the propertisation of water rights from land ownership and linked the process to broader statutory interpretation principles. The shift away from institutional property has generated concerns about the interpretive approaches appropriate for the verification of legislative water entitlements. This article examines the existing interpretive approaches and argues that the blurring of the propertisation process with the separate issue of whether any change or modification of such water rights attracts s 51(xxxi) of the Commonwealth Constitution has produced a situation where core property indicia is increasingly overshadowed by legislative defeasibility. In the recent High Court decision of ICM Agriculture Pty Ltd v Commonwealth, the focus of the majority judgements upon the inherent susceptibility of legislative entitlements to variation or extinguishment acted as a catalyst for the non-propertisation of statutory bore water licences in New South Wales. The emphasis the majority judgements gave to legislative defeasibility precluded a full and balanced assessment of other highly relevant property indicia, in particular the expectation interests of the holders. Conflating property and constitutional evaluation in this way is inappropriate in an era where entitlements to natural resource interests are increasingly statute based and the verification process has significant social and economic repercussions. Determining whether a statutory entitlement constitutes property requires a careful balancing of legislative intent, social and environmental context and individual expectation and the vicissitudes of a regulatory context should not eclipse this process.