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.
