This article will offer an account of the Australian Constitution in which the development of a United States ('US')-style void-for-vagueness doctrine, or at least one important aspect of it, is not precluded. To that extent, it takes issue with the High Court's recent and emphatic rejection of such a doctrinal possibility in Brown v Tasmania. Yet the proffered basis of that rejection was sound: without an Australian equivalent to the due process requirements of the Fifth and Fourteenth Amendments of the United States Constitution, there was no constitutional basis to support such a doctrinal development. But the analysis undertaken throughout this article highlights that the contemporary US void-for-vagueness doctrine has two aspects: fair notice and arbitrary enforcement. Due process is the justification for the former; separation of powers is the justification for the latter. The Australian Constitution recognises a qualified separation of powers due to its incorporation of the principle of responsible government. This principle - and the constitutional relationship it establishes between the legislative and executive arms of government - authorises (vague) statutes, which, in the US context, would invite arbitrary enforcement by police and prosecutors and so offend executive separation of powers. This aspect of the US doctrine has no constitutional basis in Australia. However, a vague or 'standardless' law also invites arbitrary enforcement if it requires a judge to effectively 'legislate' to determine a legal controversy. The argument offered is that the Australian Constitution does not preclude development of an Australian void-for-vagueness doctrine if necessary to maintain judicial separation of powers.
Corrective services in Victoria, New South Wales and the Australian Capital Territory use the Level of Service Inventory-Revised ('LSI-R') risk assessment tool to predict whether offenders will be re-incarcerated following release. LSI-R informs decisions about prison placement, a range of therapeutic and other corrective interventions and parole for several thousand offenders across Australia each year. Despite its widespread use, public and policy scrutiny ofLSI-R within Australian corrective services remains sparse, and the variables that affect risk scores are not widely published. I unpack LSI-R here, and argue that its application to the Australian population, particularly to Aboriginal and Torres Strait Islander persons, may contravene the Guiding Principles for Corrections in Australia: Revised 2018. I argue for rigorous public investigation into the use of LSI-R within affected states, and set out guidelines for its scope and content.
This article analyses the statutory provisions and all case law on bestiality offending recorded throughout settler Australias' history. It identifies that while bestiality is an offence in every state and territory, the law does not disclose a clear rationale for a prohibition against sexual activity between humans and animals. It considers how Judeo-Christian attitudes toward non-procreative sex influenced bestialitys' origins and development in English law, and whether progressive and conservative international views on animal rights provide guidance on its continued criminalisation. The article concludes that conflicting perspectives within modern academic and activist discourses do not provide guidance on maintaining the offence, and so the crime of bestiality challenges the boundary of the criminal law.
In recent years, the special case has become the procedure of choice for parties seeking to ventilate matters of significance in the original jurisdiction of the High Court of Australia. Yet, the use of this procedure has received negligible scrutiny. This article addresses this deficiency. It considers the history of special cases, explores how the procedure evolved in Australia, examines the reasons behind its contemporary popularity and reviews several recent examples where the procedure was used and misused. As the High Court demonstrates increasing willingness to scrutinise the use of special cases, there is a renewed need for parties to have a better understanding of the operation and limits of the procedure, and the importance of formulating the facts and questions of law appropriately.
This paper examines the history of administrative tribunals in Australia from pre-Federation until the establishment of the Administrative Review Tribunal on 14 October 2024, with a focus on changes in their functions and in legislative and judicial attitudes concerning their independence. When colonial governments and legislatures began to establish administrative tribunals, they were generally considered to be part of the machinery of government. Since those early beginnings, there has been a gradual attitudinal change regarding the role and independence of administrative tribunals. Today, many tribunals are tasked with reviewing government decisions and the need for them to be, and be seen to be, independent of the agencies whose decisions they review is generally accepted by Australian legislatures and courts. Indeed, some merits review tribunals, such as the Administrative Review Tribunal, are expected not only to provide redress for a specific individual by overturning a particular inappropriate decision, but also to improve administrative decision-making more generally and foster good government.
This article reconsiders the limits of judicial power to interpret legislation. It is said that Australian courts have no power to choose the meaning of legislation. But that claim is inconsistent with other aspects of Australian constitutional law, and the standard account of vagueness. The article proposes two ways of reconciling this tension. The first is to rethink the scope of judicial power and recognise that courts have some authority to contribute to legislative content. The second is to rethink the scope of legislative power and recognise that there are some limits on the power of Australian parliaments to enact vague laws. The article concludes that both are plausible, and that the most compelling resolution involves some element of each.
Voluminous information about individuals is being shared every day and everywhere. Streamlining data sharing activities effectively allows public and private entities to use information for policy advancement, knowledge creation and business growth. At the same time, such sharing of personal information also risks harming individuals' privacy and autonomy. How are data sharing activities governed in Australia? What are the main problems with the existing legal framework? This article explores three ways in which the interests of individuals whose data is being shared may be better protected. These are (a) improvements in data privacy and data sharing legislation, (b) adapting private law frameworks to create more protective structures (as in the notion of 'data trusts' and 'information fiduciaries') and (c) enhancing data governance through better contracts, including model data sharing agreement templates. We conclude that while law reform may be desirable, particularly along the lines of the first possibility, organisations that truly 'care about privacy' can act now to improve their data sharing practices through better data sharing agreements and the data culture that they cultivate. The Australian Office of the National Data Commissioner can lead the way with a restructured and reimagined data sharing model agreement.
The prevailing view of the Australian Constitution for much of the 20th century considered it uninspired, inflexible and ill-adapted to the advancement of the Australian nation. That view was not shared by early constitutional scholars, who regarded it as innovative, dynamic and capable of empowering popular sovereignty. Recently, a new generation of scholars is recapturing that earlier perception. Their emergent body of work is concerned with exploring the distinctiveness - the Australianness - of the Australian Constitution.
The concept of equitable vicarious liability will be unfamiliar to many Australian lawyers. Vicarious liability is of enduring significance in the law of tort but is rarely invoked in the context of equitable wrongdoing. Yet English courts are now comfortable applying vicarious liability to equitable wrongs, and recent dicta of the High Court of Australia and the Supreme Court of New South Wales suggest that Australian law might follow suit. This article considers whether such a development should be encouraged. It argues that a doctrine of equitable vicarious liability would be both justified and principled, in that it would fill a gap in the law, without creating incompatibility with equitys' existing approach to determining liability. However, it doubts the strength of the authorities that have sparked these developments, contending that the evidence of vicarious liability being applied by the Court of Chancery, cited by majorities of the House of Lords and the High Court of Australia, has been misunderstood.
An extensive body of psychological research establishes that practices commonly used in preparing witnesses to give evidence in civil proceedings are prone to corrupt witness memory. To grasp the scope of judicial perceptions of this issue in Australia, and to assist in informing a way forward, we conducted a survey of trial judges in superior courts in four Australian jurisdictions (N = 73, response rate = 51%). We also interviewed 26 of those judges. We asked judges about their experience with the reliability of witness statements and canvassed their views on a range of witness preparation practices and potential reforms. The judges reported serious perceived deficiencies in witness statements and affidavits, which they attributed to problems with the witness preparation process. There was a strong consensus in favour of more guidance and education for the profession to try and address these problems.
This article considers how, if at all, trustees' indemnity rights compete with one another. Each trustee has its own right to indemnity, but each trustees' indemnity is a single right to indemnification, not a series of separate rights generated by each legitimate transaction. The indemnity is a right for the trustee to be reimbursed or exonerated out of the trust assets before the beneficiaries can lay claim to those assets. Where more than one trustee claims indemnification and there are insufficient assets to cover all such claims, it is suggested that a rateable sharing approach is preferable.
It has been argued that dignity was recognised in Clubb v Edwards ('Clubb') as an Australian constitutional value. This means that Australia must confront the well-recognised confusion and criticisms concerning dignity as a legal concept. It is widely claimed that the meaning of dignity remains either indeterminate or incoherent, or both. This article argues that the meaning of dignity can be sufficiently determinate and coherent. The route to this conclusion is not to insist on a single formula across jurisdictions and contexts such as autonomy, equality or non-fungibility. Instead, drawing on the dominant conceptions, I propose a holistic four-dimensional approach to dignity. Guided by this definition, I offer an investigation into and explanation of the meaning of Australian constitutional dignity in Clubb.
Algorithmic discrimination represents a growing challenge for equality law. While the elimination of discrimination in employment and occupation is a fundamental obligation of International Labour Organization members, Australian equality law remains ill-adapted to respond to emerging risks. This article argues that the automated application of machine learning algorithms presents five critical challenges to equality law related to the scale of data used; their speed and scale of application; lack of transparency; growth in employer control; and the complex supply chain associated with digital technologies. Considering principles from privacy and data protection law, third -party and accessorial liability, and collective solutions, this article puts forward reforms and suggestions to better set the framework for accountability for algorithmic discrimination in the workplace.
The constituent power of the Australian people has long been neglected. This article will turn to the transnational history of the Australian founding period to provide a clearer understanding of Australian constituent power. This history shows that the Australian framers adopted a version of constituent power borrowed from the American tradition of constituent power and which gives the people legal sovereignty to alter constitutional law outside of Parliament but in a way regulated by law. Remembering this constituent power tradition holds both conceptual and practical lessons for the way we understand Australia's constitutional order and the way that the Australian people exercise their constituent power to alter their constitutional order. In particular, it shows the importance of separating Australian constitution-making from ordinary, parliamentary politics. It therefore suggests that a fully-elected convention for drafting proposed constitutional amendments could revitalise the people's role in constitutional change. Furthermore, it also demonstrates the broader importance of theorising a constituent power tradition that allows the people to make constitutional law outside of Parliament but in a cooperative process regulated by ordinary law and institutions.
Press freedom has received heightened attention in Australia since 2019, when the Australian Federal Police raided a journalist and the Australian Broadcasting Corporation in consecutive days. Subsequently, there has been increased discussion about how to better protect public interest journalism. Such discourse has not been framed in the language of human rights. None of Australias existing human rights laws explicitly protect press freedom. In contrast, human rights laws in several other jurisdictions provide express or implied press freedom protection. Drawing on comparative law, this article identifies opportunities for Australian human rights law to address encroachments on press freedom. It argues that the right to freedom of expression might provide heightened protection for journalists, their sources and newsgathering activities, and that a constellation of rights might together limit attempts to undermine journalism. The article concludes by considering the potential for stronger press freedom protection in Australian human rights law.
The federal government has committed to law reform to protect press freedom in police investigations. But what form should this protection take? This article undertakes the first critical, comparative analysis of the protections afforded to the press from search and seizure powers across Australia, Canada and the United Kingdom. It is also informed by developments in the United States and New Zealand. The analysis demonstrates that Australia lags well-behind these comparable nations in providing even a bare minimum of protection for the press. More importantly, it illuminates a workable and appropriate law reform agenda for Australia, capable of achieving law enforcement aims without undue incursion on press freedom.
As part of what can now be recognised as an increasing 'constitutional turn' in the law and literature of statutory interpretation, Lisa Burton Crawford has recently provided an 'institutional justification' for the principle of legality. There are, however, significant limits to Crawford's justification for the principle, which mean that the principle that survives on Crawford's account is so weak as to be barely recognisable. This responsive article identifies the limits to Crawford's account before posing an improved institutional justification for the robust principle of legality as it exists today.
This paper explores the different ways in which ideas from moral and political philosophy underpin the development of the law. The shape of the substantive law can be seen to reflect assumptions and choices about core philosophical notions such as the moral obligation of one person to another, the attribution of responsibility for conduct and the nature of the relationship between the individual and the state. And the task of adjudication often calls for the exercise of moral judgement, either explicitly or implicitly. It follows, I contend, that lawyers need to develop the capacity to think philosophically about law. This means having sufficient philosophical awareness, understanding and fluency to engage with the ideas which are in play. Building that capacity should be one of the goals of legal education.
The many principles that govern judicial and merits review of administrative decisions are a valuable body of doctrinal law, but they are not comprehensive. This article examines an important gap in those laws, which arises from the vast inequality that often exists between individuals and the government. This inequality of arms can take many forms, such as in differences in financial resources, in knowledge of institutional processes, or in the quality of legal representation (or the ability to retain lawyers). These differences can place those seeking review of an official decision at a serious disadvantage, but the laws governing administrative review contain no requirement of equality of arms. This article examines several distinct principles relevant to the review of administrative decisions and argues that they provide courts and tribunals with no clear means to address inequality of arms in administrative review. That gap in our law should be addressed.
