Established in 1953, the Sydney Law Review is a leading Australian generalist law journal with open access peer-reviewed content. Emphasising Australian law, the Review publishes high-quality, timely articles that make an original contribution to legal scholarship. As of 2025 (Volume 47) the journal is published online only and under a continuous publication model. Content is published into a single annual (January-December) volume that fills throughout the year as each new item is published (with final citation details being immediate). Read more about the journal and our submissions process.
The High Court of Australia’s Constructional Choice in Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd
In Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd, the High Court of Australia made a five to two split decision that the Foreign States Immunities Act 1985 (Cth) (‘FSI Act’) s 14(3) — an exception to foreign State jurisdictional immunity in proceedings relating to the bankruptcy, insolvency or winding up of a body corporate — operated in a confined way and did not apply to ‘separate entities’ of a foreign State. The majority further considered s 22 of the Act to substantively confer jurisdictional immunity upon State separate entities. This decision demonstrates the role of extrinsic material in informing the constructional choice presented by generally worded statutory provisions and affirms the importance of the Australian Law Reform Commission’s 1984 Foreign State Immunity report in interpreting the FSI Act. In this case note, I examine the majority and dissenting approaches to the statutory construction of s 14(3) and comment on the potential uncertainty left for creditors of State ‘separate entities’ in light of the decision.
Reputation, Confusion and Discretion in Australian Trade Mark Law: Taylor v Killer Queen LLC
In Taylor v Killer Queen LLC, the High Court of Australia will have the opportunity to address three complex and unresolved issues under the Trade Marks Act 1995 (Cth). The first issue relates to one of the key grounds for cancellation of a trade mark registration, namely that another mark had acquired a reputation at the registered mark’s priority date and that the use of the later mark at that time would have caused confusion. The appeal will require consideration of how to determine when a trade mark has acquired a reputation and when the use of a similar mark, but in a different commercial field, will cause confusion. The second issue relates to a separate cancellation ground that applies where the use of the registered mark has come to cause confusion post-registration, and will require the High Court to clarify the nature of the use that needs to be considered. The third issue goes to the interpretation of a provision that gives the court discretion not to order the cancellation of a registration, even if one of the aforementioned grounds of cancellation has been made out. We explore each of these issues, highlighting the main areas of uncertainty on which it would be useful to receive guidance from the High Court. We pay particular attention to the third issue, arguing that the provision in question should be interpreted so that it does not in fact give a court any discretion to refuse cancellation where the application for cancellation is based on the first cancellation ground at issue in this case.
Cessnock City Council v 123 259 932 Pty Ltd: Clarifying Wasted Expenditure, A Facilitation of Proof
In Cessnock City Council v 123 259 932 Pty Ltd (‘Cessnock’), the High Court of Australia provided long-awaited clarity regarding the method of proving damages for wasted expenditure in an action for breach of contract. The plurality did so by presenting a new framework for assessing such damages where a wrongdoer’s breach causes or increases uncertainty regarding the position the plaintiff would have been in ‘but for’ the breach — a principle of facilitation of proof. This case note examines the High Court’s treatment of wasted expenditure, analysing the method of proving wasted expenditure and considering the application of Hadley v Baxendale. Further, Cessnock prompts consideration of how damages should be assessed, and why they are awarded. I argue that while the decision appears to provide an elegant solution to difficulties faced by plaintiffs in proving damages where a defendant causes or increases uncertainty as regards the plaintiff’s loss, the solution is impractical and inconsistent with earlier authority.
Proceedings for contempt of court are not a common event in Australia. Perhaps that is why the stories of mistakes made during contempt proceedings are legion. There has been uncertainty about whether to proceed, when to proceed and how to proceed. Those uncertainties have been laid to rest by this monumental work by Professor David Rolph.
Data Sharing in the Australian Public Sector after the Optus and Medibank Incidents: Taking Reasonable Steps to Prevent Data Breaches
In this article I identify weaknesses in the framework for public sector data sharing in Australia. Many Australian public sector agencies must share personal information they hold, potentially increasing the risk of a data breach. I consider the legal standard expected of data holders under the Privacy Act 1988 (Cth) to take ‘reasonable steps’ to protect the data, including in light of the 2022 Optus and Medibank breaches. For public sector data, legislated data sharing frameworks also apply, overriding some statutory protections and introducing potential areas of weakness and confusion. One concern is public sector reliance on the unsuitable ‘Five Safes’ data sharing principles, adopted into statutes with an apparent absence of critical examination. Data sharing agreements (‘DSAs’) may assist, but often fail to do so due to vague standards and contractual omissions. To meet the reasonable steps standard, I argue that public sector data holders should ensure that their DSAs require data recipients to have appropriate security governance and risk management in place (ideally including compliance with an independent security standard) and impose obligations regarding data retention, staff training, and auditing. To assist in meeting the reasonable steps standard, security risk assessments should also be undertaken as standard data sharing practice.
Beyond Restorative Justice: Prioritising Deliberative Self-Determination in Indigenous Sentencing Court Systems
Indigenous Sentencing Courts (‘ISCs’) are inadequately understood solely as restorative justice institutions. Instead, an alternative theory — ‘deliberative democracy’ — may help us analyse and understand the value of these courts. By examining a cross-section of ISC systems throughout Australian jurisdictions, I argue that the cultural and political aims associated with the introduction of ISCs calls for an alternative theory that takes greater account of the participatory role of Elders and Respected Persons and the broader social impact these courts seek to make. A broadened understanding of ISCs’ value to both state justice systems and Indigenous goals of self-determination emerges by considering the extent to which ISCs offer inclusive, authentic, and consequential deliberation to Elders and Respected Persons who assist the court in reaching a sentencing decision.
The Interpretation of UNCITRAL Law in Australian Courts: A Roadmap for Elevating the UN Sales Convention’s Status to That of Arbitration Law
Despite being part of Australian law for more than 30 years, the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) has not secured the internationally minded interpretation that CISG art 7(1) requires. Australia’s international commercial arbitration (‘ICA’) laws, however, are routinely approached by Australian courts with an internationalist perspective, as their own interpretative rules require. It is tempting to conclude that Australia’s approach to interpreting its ICA laws is transferable to the CISG context. In this article I address a previously unexplored nuance affecting that conclusion. Australian courts routinely accept Singaporean, Hong Kong and New Zealand interpretative influence concerning ICA laws. In the CISG context, however, significantly less influence from those jurisdictions exists. That being so, I explore how Australia’s courts might better apply the CISG in an internationalist manner. First, I recommend that Australia’s courts emphasise to practitioners the need to consider the CISG’s application and its internationalist interpretation requirements. Second, I recommend that Australian courts use the amicus curiae procedure to solicit third party submissions addressing the CISG’s interpretation. Both techniques are applied by foreign courts in the ICA context and would assist Australian courts in discharging their CISG art 7(1) obligations.
The Legal Recognition of Animal Sentience: Principles, Approaches and Applications by Jane Kotzmann and MB Rodriguez Ferrere (eds)
The Legal Recognition of Animal Sentience is an edited book offering an extensive discussion about the state of legal recognition of animal sentience in various international jurisdictions. The book’s subtitle — Principles, Approaches and Applications — cleverly delineates the contexts in which those meanings of animal sentience manifest, the implications and consequences of which are worked through.
The Evolution of the Australian Electoral System as a Constitutional Process
The form of popular sovereignty empowered by the Australian Constitution was framed to be government by ‘the people’ in constitutive and routine manifestations, both sustaining and sustained by the system of government it called into existence. It was framed to be dynamic — the design of the electoral system according to which the people would act in those distinct manifestations having been entrusted to development by ordinary legislation made by the Commonwealth Parliament. And this form of popular sovereignty can be seen to have evolved: through the development of a broad franchise and through the establishment of a system of compulsory and preferential voting by which that broad franchise has come to be exercised. The form of popular sovereignty empowered by the Australian Constitution can accordingly be seen today to be government by ‘the people’ writ large. In this lecture, I trace this evolution as a process by which ordinary legislation has built out the constitutional structure empowering popular sovereignty.
"We Are One, But We Are Many": Conceptions of Australia’s Sovereign People and the Proposed Voice to Parliament
This article examines the defeat of the 2023 referendum on the Aboriginal and Torres Strait Islander Voice to Parliament (‘Voice’) in terms of competing conceptions of ‘the people’ in Australian constitutional law. Applying James Tully’s theory of popular sovereignty to Australian law and history, this article advances the tension between two views of the sovereign people — as homogenous and formally equal, or plural and differentiated — as a lens to analyse developments in Australian constitutional law. It begins by briefly surveying the history of Indigenous Australian sovereign difference under the Australian Constitution, situating the recognition sought through the Voice. It then identifies, drawing on Tully’s critique of ‘modern constitutional’ popular sovereignty, an orthodox conception of the sovereign people persisting in Australian law as a homogenous, formally equal entity authorising the supremacy of representative Parliament. Finally, it suggests a competing strain of Australian constitutional thought which, constructing the sovereign people as plural, enables alternative forms of constitutional governance. Such plural modes of constitutionalism, it argues, were embodied by the Voice and informed the No campaign’s arguments in the terms of a ‘unified’ constitutional ‘people’. Through examination of the Voice, this article articulates competing constructions of ‘the people’ as a lens for interrogating developments in Australian constitutional law.
Aboriginal and Torres Strait Islander Voice to Parliament
A New Australian Constitutionalism? Constitutional Purposes, Proportionality and Process Theory
Australian constitutional law rests on a foundation of settled principle, including the idea that Australian constitutionalism comprises a mix of legal and political, negative and positive, and fixed and dynamic, constitutional commitments. It also depends on a series of settled substantive principles. Beyond this, there is greater contest between three rival visions of constitutional reasoning: legalism versus purposive or ‘functionalist’ approaches to interpretation; autochthonous versus proportionality-based tests of constitutional validity; and context-invariant versus process-sensitive or ‘representation-reinforcing’ approaches to construction. This essay explores these three dimensions of contest, and argues for the benefits of the newer approach within each of these dyads. Each of these approaches is conceptually and empirically distinct. But each offers important benefits from a democratic and rule of law perspective, and has affinities from a conceptual and comparative viewpoint. The essay therefore argues for a new purposive, proportionality-based and process-sensitive approach to constitutional construction, as a unified approach to constitutional construction in Australia. It also notes the incipient support for each element of this approach within the judgment of members of the High Court of Australia in recent Ch III cases.
Rethinking Corporate Groups: Insights from Systems Intentionality
Corporate groups continue to present significant challenges for corporate law and regulation. In this article, I consider the insights for group responsibility offered by a novel, holistic model of corporate responsibility entitled ‘Systems Intentionality’. Recently endorsed and applied in the High Court of Australia, this model posits that corporations manifest their states of mind through their systems of conduct, policies, and practices. Viewed at a certain level of generality, corporate groups can, and often do, operate as coordinated systems of conduct. Systems Intentionality suggests that such group systems will manifest certain states of mind, typically (but not necessarily only) that of the parent. These mindsets may be relevant to establishing the parent’s direct liability for harms resulting from its systems of conduct through orthodox, doctrinal routes. The model may, therefore, provide invaluable assistance towards placing group and network responsibility on more transparent and principled footing, consistent with recent, broader trends supporting direct parent liability.
Efficiency and Certainty in Decision-Making: An Evaluation of the Insolvency Practitioner Disciplinary Committees
The increase in rates of company failures and personal bankruptcy within the current economic climate warrants an assessment of the framework governing the conduct of the insolvency practitioners who administer them. Historically, trust and confidence in registered liquidators and trustees in bankruptcy has been impacted by concerns of widespread misconduct in the profession as discussed by the media and in the Australian Parliament. Providing evidence about this issue, which has been exceedingly scarce in academic literature, is in the public interest where financially distressed consumers are vulnerable to seeking the alternate services of untrustworthy insolvency advisers (otherwise known as ‘debt vultures’). The Insolvency Law Reform Act 2016 (Cth) introduced a new regulatory regime for insolvency practitioners; specifically, the introduction of pt 2 disciplinary committees in corporate insolvency and bankruptcy (‘disciplinary committees’). Matters referred to the disciplinary committees are deemed to be the most serious by the insolvency regulators. In this article, I examine the totality of cases that have been published by the committees from the commencement of the regime on 1 March 2017 to 1 March 2025, including critically evaluating how they identify and weigh factors to determine appropriate orders. I seek to provide answers to the questions of whether the committees are achieving their intended legislative objectives to be efficient and resolve misconduct matters in a timely manner, and whether there is certainty in their decision-making. Overall, my research found that there continues to be a small number of matters appearing before disciplinary committees.
Whistleblower Protections in Sport: The Missing Element in Australia’s Sports Integrity Framework?
Whistleblowers play a central role in exposing organisational wrongdoing. However, many potential whistleblowers stay silent for fear of the risks involved in speaking up. To encourage whistleblowing, governments and authorities have enacted whistleblower protection laws and created whistleblower support and incentive schemes. The potential utility of these mechanisms in sporting contexts has been insufficiently considered by researchers and policymakers. Given increased national and international attention on integrity in sport, including in Australia following the establishment of Sport Integrity Australia in 2020, consideration of the application and limitations of whistleblower protections in sport is timely. In this article, I identify critical gaps in Australia’s whistleblowing framework as it applies to sport and offer recommendations for reform to ensure sport-related whistleblowers can speak up safely and lawfully. The sporting context also offers a valuable case study to consider wider limitations of Australian whistleblowing law amid an active federal law reform agenda. Whistleblowers make a meaningful contribution to integrity in sport and elsewhere, and it is vital they are empowered to expose wrongdoing and protected when they do.
Constitutional shoehorning refers to a litigant using a constitutional provision that addresses one type of concern to advance a different type of concern. A litigant that seeks to protect their rights by bringing a challenge under a federal division of powers provision is an example. This article makes three arguments in relation to the concept. First, it is an understudied and distinctive move in constitutional argumentation and adjudication, different from implications and strained interpretations. Although challenges can arise when trying to identify instances of constitutional shoehorning, they are surmountable in most cases. Second, it has both positive and negative attributes. Third, it is an important feature of Australian constitutional law due to the absence of a bill of rights.
Dispossession Cycles and Resistance: Historical Continuums in the Deportation of First Nations Peoples
This article surveys the historical and contemporary context of Indigenous peoples’ entanglement in systems of criminal justice and migration control. Government attempts to remove First Nations peoples from Australia under visa cancellation provisions present a striking contemporary development in border control. Despite the High Court of Australia’s ruling that ‘Aboriginal Australians’ cannot be ‘aliens’ and therefore subject to visa cancellation provisions, Indigenous peoples continue to be targeted for exclusion and subject to the gaze of border control authorities. We use documentary research and draw on two case studies to explore the historical use of deportation to target First Nations peoples. We identify previous attempts to achieve law reform to rectify past injustices and prevent Indigenous peoples from being caught up in migration laws aimed at excluding non-citizens. We review the extensive literature on Love v Commonwealth and analyse the expanded visa cancellation provisions that have resulted in increased numbers of people being targeted for removal, and removed, from Australia. When analysed against the long shadow of colonisation, we argue that these applications of criminal and migration law represent a continuation of attempted exclusion and dispossession that has been, and continues to be, actively resisted by Indigenous peoples. In analysing the cyclical nature of dispossession and its resistance, the complex interaction of criminal and migration law can be seen to have created novel impacts for First Nations peoples in Australia.
Unearthing Language Rights Protections in the Racial Discrimination Act 1975 (Cth)
The Racial Discrimination Act 1975 (Cth) (‘RDA’) has been ineffective at preventing discrimination based on language. Australian courts have adopted narrow approaches to deny language-based claims by misconstruing the relationship between language and racial discrimination. These approaches portray language as an individual characteristic, subject language rights to proportionality analysis, require the positive existence of a language right, or narrow the scope of rights protected by the RDA to exclude language claims. This article argues that these denials have no basis. Historically, the use of language as a proxy for race has been a means of effecting exclusionary policies which fail to defend against racial and linguistic discrimination. Recognition of these dimensions of language supports the deconstruction of the doctrinal arguments which have been deployed to deny protection from racial discrimination in the context of language.
Scrutinising the Scrutiny Process in the Courts
In every Australian jurisdiction, a dedicated parliamentary committee scrutinises delegated legislation. When interpreting delegated legislation, courts may make assumptions about the nature and quality of the scrutiny performed by these committees. We argue courts should be cautious about reaching these conclusions. The article uses the High Court of Australia’s decision in Disorganized Developments Pty Ltd v South Australia as a case study. We show that, while a scrutiny committee might hold the promise of providing effective parliamentary oversight of delegated lawmaking, the reality may fall short of the ideal. With limited time and resources to scrutinise a large volume of instruments as well as to perform other functions, and with no guarantee of engagement from the Parliament or executive, scrutiny committees may not be able to scrutinise delegated legislation in a thorough or timely manner. Building on these insights, we consider the circumstances, and manner, in which a court might be justified in making findings about the process of scrutiny of delegated legislation.
Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims
Three decades on from its decisive advent in England and Australia, the change of position defence has become part of the fabric of the law of restitution. Yet its rationale — long neglected but increasingly scrutinised — remains a matter of debate. This article seeks to advance the debate by analysing possible rationales for the defence as it applies to the paradigm case of restitution, mistaken payments. After exposing difficulties with many of the candidates that have hitherto attracted support, this article advances two rationales better suited to facilitate principled development of the defence: outcome responsibility, and reciprocal recognition of decisional autonomy. Both rationales put the defence on firm normative foundations, align with its present contours and suggest areas for further development.
An Indigenous Right to Be Heard on the International Stage?
In the early 20th century, Indigenous peoples were effectively locked out of international organisations. In Self-Determination As Voice, a hugely valuable work of scholarship, Natalie Jones surveys the extent to which that has changed. Mechanisms for Indigenous participation in the United Nations and other organisations have proliferated since the creation of the Working Group on Indigenous Populations in 1982 and especially since the United Nations Declaration on the Rights of Indigenous Peoples of 2007. Jones concludes that it is arguable that there is now sufficient practice and opinio iuris to evidence a rule of customary international law about Indigenous participation in international governance. In this review essay, it is suggested that some might not fully agree with her analysis, either because they are more doubtful about the opinio iuris or because they place more weight on the practice of economic organisations and treaties that continue to exclude Indigenous peoples. But in any case the book identifies an accelerating trend. It also raises challenging questions about the role of soft law and how much it differs from international law in the strict sense.
When Indigenous nations’ sacred and cultural sites are threatened, legal disputes often frame land in one of two ways: either land is sacred, or it is property. In Land Is Kin, Dana Lloyd argues that this positioning is inadequate. Not only does it facilitate the damage and destruction of sacred sites, but it fails to appreciate the familial responsibilities we all have to Country. In this review essay, I outline Lloyd’s argument and suggest that emerging treaty processes in Australia offer one way to ground a deeper appreciation of land within Australian law and society.
Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas
The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.
An Empirical Study of the Distribution of Superannuation Death Benefits
In Australia, if a superannuation member dies before retirement, they will leave superannuation death benefits that must be distributed. Death benefits are usually distributed at the discretion of the trustee or, on appeal, by the Australian Financial Complaints Authority (‘AFCA’). Analysis of the distribution of death benefits is exceedingly scarce in the literature. There is some practitioner commentary and case law, but it is not consistent on how this discretion is, or should be, exercised. General trust law holds that trustees exercise broad discretions and have duties to consider all relevant matters, including any non-binding nomination of beneficiaries by the deceased. Other evidence suggests that AFCA does not follow this approach. This article undertakes the first empirical examination of the distribution of death benefits by AFCA. Key findings are (1) there is no evidence that the deceased’s wishes expressed in non-binding nominations have any association with distribution outcomes; and (2) there is a very strong association between receiving a distribution and AFCA’s view that someone was financially dependent on the deceased.
Australian Financial Complaints Authority
The High Court of Australia is yet to resolve the time when constitutional facts should be assessed. Instead, the Court examines constitutional facts at various points in time, including (1) the legislation’s enactment; (2) the relevant application of the legislation to the plaintiff; and (3) the High Court’s hearing. The time at which constitutional facts are assessed is important, as legislation can shift from valid to invalid over time where the constitutional facts underpinning the legislation’s validity change. This article contends that, generally, constitutional facts should be assessed up until the High Court’s hearing. It is argued that doing so is appropriate because such a timeframe is common to all persons, and enables the Court to reflect changing circumstances by assessing the validity of legislation in its most current context.
Unmet Need for Building, Home Contents and Comprehensive Car Insurance among Uninsured Australians: Survey Findings and Options for Reform
Home contents and comprehensive car insurance are not legally mandated in Australia. With the exception of strata title properties, there is also no legal requirement for homeowners to purchase building insurance. While these insurance products are widely regarded as ‘essential’ for managing the risk of disasters and other unexpected events causing property damage, significant proportions of Australians lack these types of coverage. In this article, we examine the extent of unmet need for insurance among this group, who remain vulnerable to devastating financial losses despite the availability of social security and other safety nets in the disaster context and beyond. In doing so, we draw upon the findings of a survey of uninsured Australians whose limited financial resources indicate a high level of exposure to financial loss in case of emergencies causing severe property damage. By contrast to industry assumptions of limited interest in insurance among those without coverage, our findings suggest most uninsured Australians would prefer to have some cover if it was affordable. We examine law and policy reforms that could address such unmet need, arguing that direct subsidies for Australians on low incomes, perhaps supported by statutory recognition of insurance as an ‘essential’ service, would be the most effective means of improving premium affordability for this group.
Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd
The High Court of Australia appeal in Naaman v Jaken Properties raises the question whether a successor trustee owes a ‘fiduciary duty’ to the former trustee to not destroy, jeopardise or diminish the former trustee’s right of indemnity over trust assets. That question arises to determine whether third parties are liable to account in equity as knowing recipients of property dissipated to frustrate the former trustee’s indemnity. It is argued in the appeal that the successor trustee holds the trust assets on express trust for the former trustee to the extent of the former trustee’s indemnity. That conclusion does not account for the variety of equitable interests. Three main points emerge. First, a current trustee has a ‘beneficial interest’ in trust assets only in a superficial sense. Second, upon transfer, that ‘beneficial interest’ is not ‘retained’ by the former trustee; the entitlement of a former trustee over the trust fund changes, and becomes analogous to a charge over a fund. The language of ‘beneficial interest’ in each case is misleading and should be eschewed. Third, it is unnecessary to ask, for the purposes of Barnes v Addy liability, whether any ‘duty’ owed by a successor to a former trustee is a ‘fiduciary duty’.
Sims v Commonwealth: The Ultimate Foundation of Australian Law and the Recovery of Ultra Vires Payments by the Commonwealth Executive
The application of a statutory limitation period to the recovery of mistaken payments by the Commonwealth to a former naval serviceman is not a place one would expect to locate the practical influence of jurisprudence. Yet it emerges in Sims v Commonwealth. The issue concerns the accurate identification of the ultimate foundation of Australian law. It is contended that the foundation is materialised by the interaction between the Australian Constitution and the common law: the Constitution is incomplete without common law doctrines. Therefore, there must be limits to the extent to which legislatures can abolish or amend the operation of common law rules in order to safeguard the constitutional allocation of powers. This necessarily includes limitation of action provisions. The contention is derived from recent High Court authority which was apparently not cited on appeal in Sims. A limitation period must be sourced elsewhere in the interaction between the Constitution and the unified common law of Australia.
Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia by Alice Taylor
Stare Decisis and Constitutional Guarantees: Commonwealth v Yunupingu
In Commonwealth v Yunupingu, the High Court of Australia will consider, inter alia, whether the requirement in s 51(xxxi) of the Australian Constitution that acquisitions of property must be on just terms applies to a Commonwealth law that is supported by the territories power in s 122 and no other head of power in s 51. Whether the just terms requirement applies to laws made under the territories power is a question of enormous significance. This question is in part answered by whether either Wurridjal v Commonwealth or Teori Tau v Commonwealth is good law, and whether either or both of those cases should be reopened and overruled. This column analyses this question in light of novel insights into the Court’s current approach to stare decisis in the constitutional setting drawn from the Court’s recent application of the doctrine in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, Vanderstock v Victoria and Vunilagi v The Queen.
Rethinking “On Just Terms”: Commonwealth v Yunupingu
Commonwealth v Yunupingu raises a number of constitutionally significant issues concerning the scope of the Commonwealth Parliament’s power under s 51(xxxi) of the Australian Constitution and its relationship to the territories power in s 122. One issue that is not directly raised by the questions before the High Court of Australia, but that will nevertheless inform the Court’s answers, concerns the meaning of ‘on just terms’. Is ‘on just terms’ a narrow and inflexible requirement to provide full market-based compensation? Or does it permit a broader and more flexible approach to determining the obligations of the Commonwealth and territory governments, which would allow for structural reparations and non-pecuniary remedies? We suggest that a broader and more flexible approach is generally to be preferred as a matter of both principle and prudence and that such an approach is especially relevant for the Court as it considers the consequences of its answers to the questions before it.