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Current Issue: Volume 44(3)


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VOLUME 44(3)

Australian Indigenous Constitutions: Recognition and Renewal


The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.

Rights-Scrutiny Cultures and Anti-Bikie Bills in Australian State Parliaments: 'A Bill of Rights for the Hell's Angels'


This paper analyses how four Australian state parliaments debate the rights implications of anti-bikie bills that restrict various individual rights. It focuses on three state parliaments—those of Victoria, Queensland and New South Wales—which have committees that scrutinise all bills for their rights implications and it compares the debate in these parliaments with that of South Australia where such systematic rights-scrutiny of all bills is absent. The paper considers whether the existence of a formal parliamentary committee for rights-scrutiny strengthens or diminishes the process of parliamentary scrutiny of bills for their rights implications. Overall the paper argues that, regardless of the system in place, parliamentary rights-scrutiny remains weak in the four surveyed Australian states when parliaments debate law and order bills. However, this weakness is manifested in different ways, with full and frank rights-deliberation deficient in Victoria, Queensland and New South Wales and systematic and well-informed rights-scrutiny absent in South Australia.

What's Wrong with Cartels?


Cartels have a significantly negative impact on economic welfare. Anti-cartel competition law—such as the provisions of pt IV div 1 of the Competition and Consumer Act 2010 (Cth)—tries to tackle this negative impact through civil and criminal remedies. The prohibition of cartels is most commonly justified on economic grounds. However, reference is also often made to broader moral grounds for proscribing cartels—for example, it is commonly stated that cartels are deceptive, unfair or engaged in a form of cheating. This article advances a unified account of the moral status of cartels that integrates both economic and moral factors. It does so by emphasising the relationship of cartel behaviour to the moral duty to promote the common good. Cartels are wrong because they undermine the role of open and competitive markets as a salient response to an important social coordination problem in a way that leads to seriously harmful economic outcomes. This combination of factors supplies a robust justification for both civil and criminal sanctions in appropriate cases, thereby affording a principled foundation for the current framework of cartel regulation in Australia.

Unlocking the Energy of the Amazon? The Need for a Food Fraud Policy Approach to the Regulation of Anti-Ageing Health Claims on Superfood Labelling


The prevention and control of ‘food fraud’, including false or misleading statements made about a product for economic gain, is now emerging as an important and discrete policy goal for governments and regulators in the interface between food and public health. The control and prevention of food fraud complements regulation to ensure microbial food safety. This article uses a case study of anti-ageing claims made in the labelling and advertising of açai berry superfood products to argue that Australia’s new regulatory system for nutrient content and health claims on food (Australia and New Zealand Food Standards Code Standard 1.2.7) inadequately addresses ‘food fraud’. This article argues that the over-reaching claims on açai product labelling will potentially mislead consumers and subvert public health messages in a context of ‘gastro-anomy’ (confusion over appropriate norms for eating) and ‘healthism’ (individual responsibility for making healthy choices). This conduct can usefully be conceptualised as food fraud. Second, the article argues that although the substance of Standard 1.2.7 is well designed to avoid food fraud, the fact that the standard allows food businesses to self-substantiate evidence when making some health claims undermines the protection offered. Australian food regulators need to articulate a more strategic and proactive approach to the prevention and control of food fraud.

Older Workers and Requests for Flexibility: A Weak Right in the Face of Entrenched Age Discrimination