The franchise is the linchpin of representative democracy. The level of representation is dependent upon the extent of the franchise. This most fundamental of democratic rights, the right to vote for those who govern, is not entrenched in the Commonwealth Constitution. At the time the Constitution was enacted, the franchise was in a period of flux, with property qualifications and plural voting on the demise and the concept of a universal franchise in the ascendant. Proposals to enshrine the franchise in the Constitution met with protests that the smaller colonies, such as South Australia (which allowed women the right to vote) were attempting to impose their will on the larger colonies of New South Wales and Victoria. It is not surprising therefore that such protection as mar be found in the Constitution for the right to vote has been described as “obscure”.

The Expert Panel on the Constitutional Recognition of Indigenous Australians has recommended the repeal of the ‘race power’ in the Constitution and its replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. This article analyses that recommendation, the assumptions that underlie it and the way the new provision might be interpreted by the High Court. In doing so, it uses archival material to shed new light on the 1967 referendum and whether it was intended only to permit ‘beneficial’ laws. The article concludes that there is a disjunction between the intention of the Expert Panel and the likely effect of its proposed amendment.

The High Court's judgment in Minister for Immigration and Ethnic Affairs v Teoh is perhaps the most controversial judgment handed down by the Court this year, for both legal and political reasons. On the political side it has added further fuel to the fire about the significance of the ratification of treaties and the roles of the Executive and the Parliament in the process of ratification and implementation of treaties. On the legal side, it has developed the law on “legitimate expectations” and provided interesting obiter dicta on sleeping issues such as the use of treaties and international law in the interpretation of statutes and the development of the common law. It has also left open questions about the status of treaties which form schedules to legislation but which are not directly implemented by that legislation. This note will address the legal, rather than the political, aspects of the Teoh case, starting with the development of the law on “legitimate expectations”, and then considering issues concerning the use of unincorporated treaties to develop and affect the law in other ways.

The principle that the legislature can enact laws which bind the executive is a familiar one. The prerogative can be abrogated or abolished by legislation and the decisions of the executive made subject to administrative review.

More interesting, however, is the relationship within the federation between the legislature of one polity and the executive of another. To what extent can the laws of one polity bind the executive of another, or abrogate or abolish its prerogatives?

The High Court, over the last century, has had a very difficult time in answering these questions. Fundamental though they be to our governmental system, there has never been a clear and consistent principle established to provide ready answers to them. After the centenary of federation, one would think we would understand how the polities within that federation are intended to interact, but we do not.

On 9 February 2007, all State Premiers, in the Council for the Australian Federation, agreed that a constitutional convention should be held in 2008 to propose reforms to Australia's federal system. The need for a Constitutional Convention to improve the operation of the federal system has been supported by a broad coalition, ranging from business groups, to local government, academics and the media. Bob McMullan, in his former role as Shadow Minister for Federal/State Relations, stated that the idea was ‘worthy of serious consideration'. The 2020 Summit, held in April 2008, also proposed the holding of a constitutional convention to reconsider the allocation of powers and functions across all tiers of government and the finances needed to fund them.

The case of Langer v The Commonwealth, is important, for it reveals much about the understanding of “democracy” in Australia, including fundamental conflicts as to what is essential, and what is peripheral to our constitutional system of “representative democracy”. The Langer case raises questions about what amounts to a democratic “choice” in an election. Is “choice” merely a matter of being able to select from candidates offered, or does it involve the representation of the will of the people? Is it democratic to compel a voter to lie by requiring the voter to give preferences to candidates he or she rejects, or must voters have a right to vote in an informal manner if they do not wish to express a preference for certain candidates? Is the choice to vote informally a genuine political choice, and is advocacy of such a choice protected by the constitutional guarantee of freedom of political communication? Should it be a criminal offence to advocate activity which is not only legal, but would result in a formal vote?

The period of 2018–19 threw up political crises in Australia and the United Kingdom that raised circumstances in which the reserve powers of the Queen or the Governor-General might have been exercised. This article discusses in depth the 2018 challenge to Prime Minister Turnbull’s leadership, including how the Governor-General should have responded if he had been asked to dissolve Parliament in the midst of the challenge or if he had been advised not to appoint Dutton as Prime Minister due to concerns about his eligibility to sit in Parliament. The second part deals with the question of whether royal assent should be refused, upon ministerial advice, to a bill, such as the Medevac Bill in Australia and two Brexit delay bills in the United Kingdom, which were passed against the wishes of the relevant government, including when procedural or non-justiciable constitutional requirements were breached in the passage of the bills. It concludes that the best way of resolving such issues is to resort to the application of fundamental constitutional principles.

The rules concerning the inconsistency of Commonwealth and territory laws have been little explored and largely neglected. They rose to recent prominence in the challenge to the validity of the ACT's same-sex marriage laws. The ACT claimed that even if the Commonwealth's Marriage Act was intended to cover the field, the ACT's same-sex marriage law could still operate concurrently with it, because of the different application of inconsistency rules in the ACT. This article considers how inconsistency rules operate in the different territories, what was intended by the ACT inconsistency provision, how the High Court determined the issue, and whether a better explanation can be given for the outcome.