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.

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.

The forthcoming appeal in Cessnock City Council v 123 259 932 Pty Ltd affords the High Court an opportunity to reconsider the law governing the recovery of expenditure incurred in reliance upon an unperformed contractual promise. The appeal’s central focus is likely to be the nature and status of the so-called ‘presumption of recoupment’ commonly said to provide the legal foundation for the recovery of such expenditure as damages for breach of contract. Depending on the arguments made, and on the Court’s approach, the appeal may additionally provide the chance to identify more precisely when expenditure incurred in reliance upon an unperformed contractual promise is presumptively recoverable as damages: in particular, the relevance of the rule established in Hadley v Baxendale in this context. It is argued that the High Court should reject the expansive interpretation of the Amann decision some have adopted or, alternatively, provide further guidance regarding the appropriate limits on presumptively recoverable reliance expenditure.