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The 1960s in Australia was a politically turbulent time with assimilation policies being questioned by moves in various spheres, including education, to address inequality. The late 1960s also saw the emergence of activist responses to racism as well as the groundbreaking 1967 Referendum, which called for the alteration of two clauses within the Australian Constitution that discriminated against the Indigenous population. A few months after the Referendum was held, a conference called Aborigines and Education was convened at Monash University. Education was seen to be vital in addressing what was described as "profound educational disadvantage" experienced by Indigenous people. The debates that ensued show how education was imagined to be able to solve the problems Indigenous students were encountering. In this article I confine my interest to a selection of papers and examine the features of two distinctive discourses that emerge: that of "uplifting the Aborigine" and that of "upholding" Aboriginal dignity and pride. In doing this, I demonstrate how particular "race logics" were employed and contested in these debates. I argue that the insights garnered through analysis of these discourses offer opportunities for education research and practices that are in solidarity with the emancipatory goals of marginalised communities.

Australian initiatives to integrate regular and special education are discussed, focusing on problems with integrated service delivery and the role of educational legislation and public policy in effective services. The feasibility of a legislative approach within the Australian constitutional framework is examined. (Author/MSE)

The Australian and Indian legal systems share much in common given their shared colonial history. However, despite the similarities, both jurisdictions have adopted vastly different approaches in protecting their people under the auspices of constitutional guarantees and the protection of fundamental human rights. This paper will discuss how each jurisdiction protects the fundamental human rights and basic freedoms under their respective constitutions and whether these protections are adequate. The few constitutional guarantees that exist in Australia will be contrasted to the robust fundamental rights enshrined in the Indian constitution. It will be concluded that India sets a stronger example than Australia when it comes to constitutional rights and guarantees for three main reasons; first, the different vision of the constitutional framers of India and Australia; second, India's Constitution is easier to amend and therefore better placed to evolve and reflect changing societal norms; and finally, the divergent approaches of the Judiciary illustrate the broader interpretation of the scope of constitutional rights by the Indian judiciary. India and Australia can learn much from each other and the ways in which each country protects fundamental rights and basic freedoms are no exception to this. [ABSTRACT FROM AUTHOR]

The Library Association of Australia's submission to the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 and the Archives Bill 1979 is presented. Aspects of the Bill which affect access to information are discussed. (RAO)

This paper considers the thesis that Australia was practically independent in 1931. It criticises this argument by showing that the Commonwealth was dependent in various ways on the British Parliament between 1931 and 1942. The evidence of the period used in the paper includes archival material, parliamentary sources, legal cases and statutes. The reasons for the reluctance to adopt the Statute of Westminster, as well as the reasons for adoption in 1942, are explained. The conclusion is that legal and political opinion during this period drew a distinction between political and legal independence and that the actors of the 1930s were cautious constitutionalists. [ABSTRACT FROM AUTHOR]

This paper seeks to analyze a particular form of noncitizenship – arising from legal long-term temporary migration – that is increasingly significant to the contemporary Australian context and to understand some of its consequences. It argues that traditional pathways of permanent settlement and full citizenship are being disrupted by new temporary migration schemes that create ‘middling’ noncitizen subjects who experience ‘patchwork’ rights and statuses across complex and diverse migration pathways. Through a close analysis of policy narratives and discourses, as well as of the existing literature on the social conditions and emerging solidarities of these noncitizens, the paper shows the various ways that noncitizenship is depoliticized and citizenship contractualized in Australia. These entwined processes of depoliticization and contractualization have intimate effects on the lives of noncitizens, and also limit and constrain the emerging solidarities that seek to challenge their exclusion. The analysis has a number of implications for the ongoing study of contemporary transformations in citizenship in other ‘immigrant democracies’ globally. [ABSTRACT FROM PUBLISHER]

First Nations constitutionalism unfolds within a chthonic legal tradition which is incommensurable with most of the positivist theoretical and conceptual models deployed to investigate Westphalian constitutional systems. The irreducibility of analysis of chthonic constitutional traditions with such models of constitutionalism calls, on the one hand, for rethinking positivistic approaches to legal reasoning and rationalisation and, on the other hand, for identifying new conceptual grids in charting the normative and legal landscape of Indigenous constitutionalism. With specific reference to Australian First Nations constitutionalism, the purpose of this paper is to suggest the adoption of a conceptual apparatus for its investigation which reflects 'emic'1 understandings of what Indigenous legal orders are and how they operate. In doing so, the paper subsumes Australian First Nations constitutionalism into Mills's theoretical elaboration of 'rooted constitutionalism'2 and argues that such a 'rooted' kind of constitutionalism needs to be expounded through foundational concepts such as nomos, myths, and legal traditions which are experientially and culturally grounded in the lifeworld that sustain Australian First Nations constitutional traditions. Such a conceptual apparatus draws mainly from the theoretical framework elaborated by legal pluralism and legal theory to deal with the contemporary normative complexities of stateless legal orders. It is a macro-level conceptual apparatus that would be foundational to 'etic'3 understanding and theorisation of First Nations Australian constitutionalism. [ABSTRACT FROM AUTHOR]

The delegates to the 1890s Constitutional Conventions were well aware that the amendment mechanism is the 'most important part of a Constitution', for on it 'depends the question as to whether the state shall develop with peaceful continuity or shall suffer alternations of stagnation, retrogression, and revolution'.1 However, with only 8 of 44 proposed amendments passed in the 116 years since Federation, many commentators have questioned whether the compromises struck by the delegates are working as intended, and others have offered proposals to amend the amending provision. This paper adds to this literature by examining in detail the evolution of s 128 of the Constitution -- both during the drafting and beyond. This analysis illustrates that s 128 is caught between three competing ideologies: representative and respons ible government, popular democracy, and federalism. Understanding these multiple intentions and the delicate compromises struck by the delegates reveals the origins of s 128, facilitates a broader understanding of colonial politics and federation history, and is relevant to understanding the history of referenda as well as considerations for the section's reform. [ABSTRACT FROM AUTHOR]

An earlier article addressed recent developments in Australia concerning indigen-ous land rights and outlined political and legal aspects of the debate surrounding that. This is a more specifically comparative study that seeks to compare the legal aspects of the land rights of Australian indigenous people with the legal aspects of the land rights of the Sami people in Scandinavia. The paper recognises from the outset that these two parts of the world possess different legal histories, but argues that in the modern international context, comparisons can be drawn with respect to indigenous human rights. Further, the paper contends that in both these societies, there have been advances and retreats and that only full governmental commitment to the principles of international law will ensure that the human rights of the respective indigenous people advance. In looking at comparative indigenous rights, or the failure to achieve rights, the focus is on property, including consideration of inclusion/exclusion of native people as citizens, the effects of colonization and relative access to goods and services, language recognition, rights of cultural development and protection of heritage, as well as practical implications in controlling other forms of development and fostering sustainable growth. We broaden the consideration of indigenous human rights to include matters of compensation and costs. Our overall contention is that it remains one of the principal challenges for both Australian and Scandinavian law to identify and translate co-existence and human rights for the indigenous people of those nations. In framing any such legal measures, governments will have to confront wider political issues of tolerance, sovereignty and citizenship. The dilemma for Australian Aboriginals is that the chance to remain Aboriginal may have to involve an appeal to the prin-ciples of international law whereas in Scandinavia the recognition of Sami reindeer herding has generally failed to foster broader rights to land and natural resources although there are some signs that this is emerging in Norway. [ABSTRACT FROM AUTHOR]

In this article I consider the state of play for dignity in Australian constitutional law in the light of Clubb v Edwards; Preston v Avery ('Clubb') and Farm Transparency International Ltd v New South Wales ('Farm Transparency'). In Part II, I explore the meaning of dignity in these decisions. I respond to the concern voiced following Clubb that dignity is an indeterminate, incoherent or empty concept. Together, the judgments in Clubb and Farm Transparency give dignity some content and meaning. Doctrinal analysis of these judgments reveals the emerging meaning of dignity in Australian constitutional law. This article offers this original doctrinal analysis, focusing on the new light that Farm Transparency can cast on the meaning of dignity. This doctrinal analysis suggests that dignity in Australian constitutional law is a multidimensional concept, including dignity as the intrinsic worth of natural persons, and dignity as a thick autonomy interest. In Part III, I address the second concern voiced following Clubb that the quirks of the Australian constitutional law system preclude recognition of the dignity of the speaker, and thus will cause dignity to be relevant only to the limitation of the implied freedom of political communication and not its protection. I address the complexities that apply in the Australian context and argue that none of these completely closes the door on dignity. [ABSTRACT FROM AUTHOR]

One of the bases for the view that Commonwealth powers should be interpreted broadly is the idea that it is wrong to draw negative implications from positive grants of power. The paper argues that far from being wrong to draw negative implications from positive grants of power it is necessary to do so in that it is impossible to interpret such grants sensibly without drawing negative implications from them. This paper considers Isaacs J's argument in Huddart Parker that it is wrong to draw negative implications from positive grants of power, as it is the most detailed defence of that position, and the adoption of similar arguments in Work Choices. It then considers the merits of Isaacs J's argument, rejecting it because it is impossible to interpret positive grants of power without drawing negative implications from them in any context and in the Australian constitutional context in particular. This paper looks at how the scope of such implications is to be determined and how constitutional grants of power ought to be interpreted in the light of negative implications. It concludes that it is possible to determine the scope of the negative implications implicit in the s 51 grants of power and to interpret those powers in the light of the implications while accepting that state powers are residual and that their content cannot be determined until the content of all Commonwealth powers is known. [ABSTRACT FROM AUTHOR]

The issue involving the constitutionality of same-sex marriage in Australia is about which level of government can legislate on the subject of marriage under the distribution of powers provided by the Constitution. The country has an express provision in the Constitution granting Federal Parliament the power to pass laws on the subject of marriage and other correlating issues. Hence, an amendment to the Marriage Act was enacted in 2004 so as to define marriage as the union between one man and one woman to the exclusion of all others. Firstly, this paper analyzes whether the Federal Parliament has the authority under the Constitution to legislate on same-sex marriage. Secondly, the paper discusses whether any Australian state could grant a right for same-sex couples to engage in marriage that is not recognized under the federal law. [ABSTRACT FROM AUTHOR]

This paper considers the constitutionality of State and Territory same-sex marriage laws, and the power of the Commonwealth to enact same-sex marriage laws. It begins by providing an overview of relevant provisions of the Marriage Act 1961 (Cth) as well as proposed same-sex marriage laws in five Australian States, and four federal same-sex marriage Bills. In considering the constitutionality of State and Territory same-sex marriage laws, particular emphasis is placed on the potential inconsistency of such regimes with the Marriage Act, contrary to s 109 of the Constitution. It is argued that, on balance, the Marriage Act does not demonstrate a legislative intention to preclude State or Territory same-sex marriage; nor, at an operational level, is there likely to be any necessary conflict between the Marriage Act and State same-sex marriage laws of the type currently before Australian State Parliaments. The paper also examines Commonwealth power over same-sex marriage and concludes that the Commonwealth's power with respect to marriage extends to the enactment of laws for (or against) same-sex marriage. [ABSTRACT FROM AUTHOR]

The phrase 'peace, order and good government,' common to the definition of federal powers in both the Australian and the Canadian constitutions, has defined the relationship of the Crown and the citizen for more than five centuries. The archival record is fundamental to that relationship, providing its authoritative legal basis, documenting its evolution and continuing as a reminder of both our proudest achievements and our most dismal failures as a society. This paper reflects on the role of archives in recent Canadian human rights issues, highlighting both the strengths and the weaknesses of the record, the perception of archives as an agency of the state and the role of archives in helping society address highly contentious issues. [ABSTRACT FROM AUTHOR]

Analogy by reference to statute as a tool of legal analysis in the development of the common law is not prohibited. Recent cases confirm not only the existence of the tool but provide evidence of its use and application. However, to state that the judiciary on occasion develops the common law by analogy to statute - a concept that has been labelled the 'doctrine of analogy' - is simply to make a statement of conclusion. And that statement of conclusion invites several further questions. Is analogical reasoning by reference to statute qualitatively different from the usual type of analogical reasoning on which the common law depends? From what authority is this mode of reasoning derived? Put in different terms - what is the judicial function? This paper proposes that viewing the development of the common law through the lens of formal rules and substantive reasoning can assist in identifying the way the judiciary develops the common law by reference to statute, and the basis upon which the judiciary develops the common law by reference to statute. [ABSTRACT FROM AUTHOR]

The article offers a conference paper on the values of administrative law in relation to judicial review in Australia. It is inferred that the paper was presented at the 2010 Australian Institute of Administrative Law (AIAL) Forum held in Sydney, New South Wales on July 22, 2010. The difficulties facing Australian administrative law in fostering normative values are outlined.

The Australian Constitution, written in the 1890s, was drawn from both the United States Constitution and the British 'unwritten' constitution. These two constitutional models differ importantly in the significance they accord to words. The American Constitution uses words as an expresssion of sovereignty, a way of bringing into being a nation and a people. The nation it created was and remains deeply textual, even scriptural. American writing, both in journalism and fiction, has retained this mastery with words. The British model is a constitution that describes, rather than creates. Its unwritten constitution is a record of practices and traditions. British writing is strong on character and description, and is markedly less constitutive. The word is not the beginning, as it is in America. Where does Australia stand in these traditions? Although its constitution is written, it did not follow the American way of using words. Yet it has not fully followed the British approach, either. Australia is a nation of story telling, even in its constitution. This paper describes the historical background to these different constitutional models, and contemplates the value of wordcraft. Writing, rather than fighting, it concludes, is the lesson of history. [ABSTRACT FROM AUTHOR]

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The article focuses on the legal analysis of whether the Australian Constitution grants the federal government the power to establish and operate an Internet Referral Unit (IRU). Topics include the examination of three relevant heads of constitutional power: the Communications Power, the Defence Power, and the Corporations Power, to determine if they allow the creation of an IRU and the analysis considers various aspects, including the scope of these powers in peacetime and during war.

Amidst heightened contemporary debate over mechanisms to improve Indigenous democratic engagement, the vehicle of constitutional intervention warrants study. This article proposes that increased Indigenous intervention in constitutional litigation may prove a valuable tool for increased Indigenous influence over Indigenous affairs. Given the scarcity of empirical scholarship in this field, quantitative and qualitative analysis is undertaken on the High Court's approach to Indigenous interventions in constitutional cases between January 2012 and June 2023. Despite historic criticism of the High Court's reluctant and inconsistent approach towards non-party intervention generally, this analysis suggests the Court may hold a larger-than-anticipated appetite to hear from Indigenous voices in constitutional litigation. Subsequently, by drawing on the expansive constitutional intervention practice by Aboriginal Canadians in the Supreme Court of Canada, an argument is advanced for increased Indigenous interventions in the High Court. Three distinct advantages are identified from such practice: (1) the clarification of 'constitutional facts'; (2) the provision of pertinent 'social facts'; and (3) its normative value. This article concludes with consideration of the divergent constitutional frameworks and procedures between Canada and Australia as potential -- but arguably not fatal -- impediments to increased Indigenous constitutional intervention in Australia. [ABSTRACT FROM AUTHOR]

The implied freedom of political communication exists to ensure that Australians are able to exercise a free and informed choice as electors. Yet communication is a second-hand means of acquiring information, and it is not the only means. Nor is there any reason arising from the text or structure of the Australian Constitution why communication should receive special status. This paper makes the case for a related implication, an 'implied freedom of political observation', designed to ensure that electors can also acquire politically relevant information first-hand. It is argued that such an implication arises by force of the same logic that gave rise to the implied freedom of political communication, yet -- unlike the ill-fated 'implied freedom of political association' -- occupies a unique territory that goes beyond that already recognised freedom. [ABSTRACT FROM AUTHOR]

This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a signifi- cant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the 'rights' of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today. [ABSTRACT FROM AUTHOR]

Australia's states and territories have together held more than 50 referendums since Federation in 1901. And yet, as the literature on federal referendums has continued to grow, scholars have largely overlooked the rich history of direct democracy at the sub-national level. This article addresses this gap by providing the first comprehensive review of the use and regulation of referendums by the states and two mainland territories. It draws attention to the immense variety of referendum votes on constitutional amendments and contentious policy issues. It also examines rules and practices on a range of matters, including initiation, the form of the question, the status of the result, voting and campaigning. Additionally, the article surveys the overall state and territory referendum record, including the frequency and approval rate of referendums, and compares it to the federal record. The analysis is informed by a referendum dataset compiled from primary sources by the author. The Appendix, which draws on this dataset, presents the first, single repository of accurate information on state and territory referendums, including dates, topics, results, informality and turnout. [ABSTRACT FROM AUTHOR]

The relationship between federalism and rights is an under-studied aspect of Australia's constitutional system. It is rarely analysed in detail because the premise of most theories, which are drawn from the United States, is that federalism alters substantive outcomes on rights. These theories do not connect to Australia's constitutional experience because the country's federal system produces a large degree of policy uniformity. In this paper, I argue that Australia's federal system has a substantial impact on legislative deliberations on rights issues. Even when policy uniformity results, federalism introduces additional actors and alternative viewpoints into the lawmaking process, altering patterns of discourse. I employ three case studies -- counterterrorism, same-sex marriage and organised crime -- to highlight and analyse the connections between federalism and rights deliberation. This understanding of the relationship has implications for the place of federalism in Australia's constitutional system, which is often undervalued, and the country's approach to rights protection, which relies extensively on a deliberative process that is attuned to rights issues. [ABSTRACT FROM AUTHOR]

The article offers information about the court case Australian Electoral Commission v. Johnston that was executed in the High Court of Australia as of January-February 2014. Topics discussed include constitutional law of Australia related to the disputed elections, claims for the loss of ballot papers after counting and disputed results of the elections in reference to the Commonwealth Electoral Act 1918. It further discusses other cases like Bridge v. Bowen and Chanter v. Blackwood.

The Australian government has determined that the Australian Defence Force ('ADF') will prepare to counter non-geographic threats in a range of operational environments, including cyberspace. This article explores the viability of constitutional executive power to authorise the use of the ADF in counter cyber interference operations. Specifically, it looks to address the breadth and depth of the nationhood power as a lawful authority for operations outside of s 119 of the Constitution. This is an important area to explore, noting that interference operations will often fall below the 'domestic violence' threshold conventionally required to call out the troops. This article addresses the manner in which executive power can enable and support ADF operations from a jurisprudential and operational perspective. With reference to earlier ADF operations such as the Bowral call out in 1978 and the 2002 Commonwealth Heads of Government Meeting deployment, this article argues that executive power could provide a capability and legal authority for a suite of operations that may be seen as otherwise breaching Australian law. [ABSTRACT FROM AUTHOR]

This article examines the conceptual distinction between judicial interpretation and judicial amendment. It argues that there are contexts where courts can depart so far from the constitutional text, the intent or purposes of relevant constitutional provisions, and the broad consensus within the political community about what the constitution does and does not contemplate, that they engage in effective amendment of the constitution. In these instances, judicial reasoning acts in defiance of, or with disregard for, codified constitutional amending procedures. The distinction between judicial amendment and judicial interpretation is not a clear or easy one. An analysis of its invocation in the context of the United States, Canada, and Australia finds that the concept of judicial amendment is often employed in a way that threatens to merely replicate extant debates over competing theories of constitutional interpretation. At a conceptual level then, the distinction between judicial amendment and interpretation requires a high threshold. The article identifies a set of factors to establish when courts are no longer engaged in mere interpretation but are fundamentally altering the constitution itself. It then applies those factors to an analysis of three cases of judicial amendment in Canada and India. [ABSTRACT FROM AUTHOR]