Australian Law Reform Commission

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Abstract This article provides the first comprehensive study of statutory definitions of ‘journalist’ and ‘journalism' in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing literature on the meaning of ‘journalist' in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide-variety of areas of law, including protections for press freedom, journalistic access to information, shield laws and whistleblower protections.

There are significant problems with how the justice system responds to sexual violence. This essay discusses some of the Victorian Law Reform Commission’s recent reform recommendations, focusing on affirmative consent. It considers the history of consent reform, beginning with the introduction some 30 years ago of a communicative consent model. It explains why further reform is needed and what affirmative consent is designed to achieve.

Codification seems to be coming back into vogue in Great Britain, especially in Wales and in Scotland as a result of devolution and a related (if possibly temporary) surge in nationalism. Using Germany as a comparator, we argue that a codification renaissance should be met with caution. By examining German literature on the history of codification, it can be seen that codification is a difficult transplant in Great Britain. In any event, the German experience shows that codification is no panacea. Furthermore, when it comes to codification, we are quite literally speaking a different language to continental lawyers. Codifying statutes, more achievable in the British jurisdictions than larger, continental-style codes, reflect a peculiarly British style of codification, but risk being the compromise that pleases nobody. A patchwork of substantive reform, consolidation and restatement is proposed as a more suitable domestic solution.

Abstract The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.

The argument that led to the inclusion of Sec. 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The provision states: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The clause was proposed and pursued by Henry Bournes Higgins at the Constitutional Convention of 1897-1898 at which the Constitution was drafted. The argument Higgins presented appears, on first inspection, to be rather odd. Relying on cases and events in America, the nature of which he misrepresented to the Convention, Higgins appeared to argue that the reference to ‘Almighty God’ in the constitutional preamble might give rise to a Commonwealth power to legislate in respect of religion. At first glance the argument appears to be sophistry. Indeed, the Convention’s leader, Edmund Barton, described it as ‘far-fetched’. This article argues that Higgins’ argument was not sophistry nor far-fetched. It argues that the fundamental concern underlying Higgins’ argument, which in reality had little to do with the preamble, reflects what would now be considered an orthodox approach to constitutional interpretation. Although presented in a spectacularly confused manner, the true substance of Higgins’ argument was that although the Commonwealth was not granted any express power to legislate with respect to religion, those powers that the Commonwealth was expressly granted were wide enough to authorise legislation respecting religion. The article begins by setting out the standard account of Higgins’ argument for Sec. 116 as presented by various scholars and judges. It then briefly surveys the political background to Sec. 116, which provides the context in which Higgins presented his argument. That background involves the political campaigns for and against the inclusion of a reference to ‘Almighty God’ in the constitutional preamble as well as Higgins’ broader motives in introducing a provision prohibiting laws touching religion. The article then sets out Higgins’ argument as he presented it to the Convention. Next, the article closely examines the evidence – American case law and legislation – on which Higgins based his argument. The article then examines Higgins’ thinking on two matters: what he knew about the American case law and legislation on which he based his argument and how he understood the nature of constitutional grants of legislative powers. Finally, bringing together the analysis presented so far, the article presents an alternative reading of Higgins’ argument for Sec. 116 to that presented by the standard account.