*Please note that the links to the content in this Part will direct you to Westlaw AU.
The latest issue of the Public Law Review (Volume 25 Part 3) contains the following material:
- Commonwealth v Australian Capital Territory – Margaret Brock
- Options for the Senate’s voting system – Brian Costar
- Williams v Commonwealth (No 2): The National School Chaplaincy Program struck down again – Simon Evans
Federal implications under the Australian Constitution – Stephen McLeish SC
The drawing of implications from the federal nature of the Australian Constitution has traditionally been resisted on the authority of the Engineers case. The High Court has deprecated reliance on the “federal balance” as an aid to interpretation, while endorsing the relevance of concepts such as “national concern”. The article suggests that neither approach is especially useful in interpreting the Constitution, but that the federal nature of the Constitution is an important contextual consideration from which implications might be drawn in appropriate cases, including in relation to aspects of Commonwealth legislative and executive power and the operation of s 96 of the Constitution.
In Hong Kong, there is no specific legislation that recognises a general right to privacy but that does not mean that individuals are not protected in cases of privacy intrusions. Protection can be provided by the common law either by an extended breach of confidence action or a sui generis privacy cause of action. However, common law developments can be hindered by human rights instruments. This article seeks to identify the constitutional restraint that Hong Kong courts may face in developing actions in privacy and offers an alternative interpretation of Hong Kong’s human rights instruments with a view to further enhance the development of privacy actions as between private individuals.
In the Australian States, a long tradition continues of the Chief Justice of the Supreme Court serving as acting Governor, either through formal appointment as Lieutenant- Governor or by statutory mandate as Administrator. This article examines the validity of the Chief Justice undertaking vice-regal functions as acting Governor in light of the Kable incompatibility principle. The history of, and objections to, this practice are outlined, before two potential justifications are examined: conferral under the persona designata doctrine, and a novel and untested argument arising from the history of the practice and s 106 of the Australian Constitution. It is argued that such appointments can be justified only in limited circumstances under the persona designata doctrine, and that the more extensive appointments which exist in the majority of Australian States at present are invalid.
- Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment by Bernadette McSherry – Reviewed by Kris Gledhill
For the pdf version of the table of contents, click here: WAU – PLR Vol 25 Pt 3 Contents.