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VOLUME 45(3)

National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update


This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action.

Defining Industrial Action


Unions engaged in enterprise bargaining under the Fair Work Act 2009 (Cth) (‘FW Act’) frequently exhibit considerable creativity in the forms of industrial action they take in order to pressurise employers to make concessions in bargaining. Examples of such conduct can include sending emails with the Caps Lock function turned on, wearing union campaign clothing or insignia whilst at work, and communicating with clients and customers of the target employer about the employees’ industrial campaign.

This creativity is pushing the definition of ‘industrial action’ in s 19 of the FW Act to its outer limits. This is important due to the fact that many aspects of the bargaining regime established under the FW Act turn upon whether particular conduct falls within the statutory definition. These include provisions concerning the lawfulness or otherwise of industrial action; access to orders to stop or prevent unprotected industrial action; payment of wages for periods when employees are engaging in industrial action; and employers’ capacity to stand down employees without pay where they cannot usefully be employed because of industrial action which does not involve the employer or its employees.

This article traces the current definition back to its origins in the system of conciliation and arbitration that operated in Australia throughout most of the 20th century. That system treated all industrial action as unlawful at statute and/or common law. The definition has not been significantly changed since the replacement of that system by one based on enterprise based bargaining, accompanied by limited recognition of the capacity lawfully to take industrial action in the course of such bargaining. Reviewing the current definition and its practical operation in its social, historical, and international context, the article concludes that the definition is not ‘fit for purpose’, and proposes that it should be revised in order better to accord with the purposes of the legislation and with the bargaining regime it establishes.

Popular Sovereignty and the Nationhood Power


The principle that the constitution derives its ultimate authority from the sovereignty of the people and the nationhood power were both developed by the High Court in the context of Australia’s emergence as an independent nation. Although this shared provenance suggests the possibility of a more significant connection between the two doctrines, such a connection has not been developed in Australian constitutional jurisprudence. The heavily criticised judgment of French J in the Tampa decision appears to allude to such a connection, but the relevant reasoning is ambiguous and either left undeveloped or implicitly rejected in subsequent High Court cases. This paper critically examines the relationship between popular sovereignty and the nationhood power on two levels. In the first instance, the paper investigates whether it is even coherent to seek to provide a normative ground for the nationhood power in popular sovereignty. The paper then considers whether such a justification is consistent with Australian constitutional doctrine. Unsurprisingly, the weight of constitutional principle and doctrine supports the general subjection of the executive to prior legislative authorisation, rather than a robust non-statutory executive power grounded in popular sovereignty. While this conclusion is predictable in an Australian context, a detailed examination of the relationship between the weaker conception of popular sovereignty operative in the reasoning of High Court and the nationhood power nonetheless reveals some important underlying assumptions of current doctrinal orthodoxy.

The Commercial Exceptions to Foreign State Immunity


The Foreign States Immunities Act 1985 (Cth) provides that foreign states are immune to the jurisdiction of Australian courts, and that their property is immune from execution. Those immunities are subject to important ‘commercial exceptions’. First, foreign states are not immune in Australian proceedings insofar as they concern a ‘commercial transaction’. Second, foreign states are not immune from execution in respect of ‘commercial property’. The distinction between the commercial and the non-commercial may be difficult to pin down. With reference to recent case law, including the High Court’s decision in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31, this article aims to articulate the scope of the commercial exceptions. It is argued that the scope of the commercial transaction exception is uncertain, and depends on courts’ approach to the task of characterisation. It is also argued that the commercial property exception is undesirably narrow, and will present a recurring impediment to the vindication of private rights.

It's Time for Federal Regulation of Retirement Villages

Paul Latimer

As Australia’s population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the states and territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law.

This article challenges the effectiveness of state and territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of state and territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.

Australia's Commonwealth Ombudsman 40 Years On—Achievements and Ten Challenges


The statutory office of Commonwealth Ombudsman was created in 1977, as part of the new federal administrative law. In this article, marking the 40th anniversary of the appointment of the first Commonwealth Ombudsman, Professor Jack Richardson, the author describes the early history, including the resistance in some quarters to the model adapted from Sweden. He describes the innovations of the first ten ombudsmen and the frustrations and difficulties they faced. He then identifies ten issues on the future of the office: (1) whether it should be directly linked to the Parliament; (2) whether it should be served by a select committee; (3) how its funding should be maintained; (4) protecting the Ombudsman title; (5) retaining ministerial support in circumstances of differences; (6) overcoming official resistance; (7) addressing judicial hostility; (8) embracing new technology and generic reform; (9) embracing self-criticism and human rights analysis; and (10) engaging with comparative and international outreach and innovation.

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