bluuebunny/crossref_metadata_2025 huggingface dataset:
Federalism and Gender Equality
Authors: Williams Susan H
Published: January 2019

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and the context in which they are applied. Second, there are, nonetheless, some guidelines that can be gleaned from the experiences of countries around the world about the design elements that can make federalism more or less useful for promoting gender equality under different conditions. Third, applying these elements in the case of Myanmar suggests that women's organisations might make common cause with the ethnic minority groups that are negotiating with the government and the army over federalism issues because the women share with these groups certain goals with respect to federal systems. And fourth, there is a connection between gender and federalism, not at the pragmatic or design level, but at the theoretical level. This connection concerns the type of (ideal) orientation that is required of citizens in a federal system and the ways in which that orientation might be valuable for gender equality. It is, then, the character of federal citizens, rather than the federal system itself, that could be inherently beneficial to gender equality.
The Rejection of Constitutional Incrementalism in Nepal’s Federalisation
Authors: Malagodi Mara
Published: January 2019

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism’—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal’s federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal’s federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.
Fiscal Decentralisation in a Divided State: Bougainville in Papua New Guinea
Authors: Chand Satish
Published: January 2019

Is fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal decentralisation, agreed to as part of a peace agreement signed in 2001 following a decade-long civil war in Bougainville, provided the opportunity for national consolidation. However, tensions surrounding the implementation of arrangements for budgetary support of Bougainville are forcing further fracturing. A definitive answer to the question of whether fiscal decentralisation helped or hindered nation-building will be provided by the referendum, due by mid-2020, when the people of Bougainville will have the option to vote for independence from Papua New Guinea.
‘A Measure of Autonomy’: Federalism as Protection for Malaysia’s Indigenous Peoples
Authors: Harding Andrew
Published: January 2019

This article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in both states being Indigenous people. Protection of these states’ Indigenous people was a priority in 1963 and special status was given to these states in order to provide such protection. The study finds, nonetheless, that this special status has been eroded over the last 55 years by political interference by the federal government, and that the special status of these two states has proved ineffective, and indeed largely unacknowledged at the federal level. Accordingly, this study finds that federalism as protection for Indigenous people has been ineffective and the situation of the Indigenous people has as a result deteriorated over time. The solution, it is suggested, is through democratic empowerment at the state level and for federalism to provide deeper forms of constitutional protection.
The Politics of Secular Federalism and the Federal Governance of Religious Diversity in Asia
Authors: He Baogang , Allison-Reumann Laura , Breen Michael
Published: January 2019

A secular approach has dominated federal studies, perhaps because there seems a natural fit between federalism and secularism. However, the federal systems or practices of Asia bring that close association into question, and the federal accommodation of religious demands has not been examined fully. This article focuses on how religion has been approached, accommodated or resisted in federal and quasi-federal states in Asia. We select India, Malaysia, Pakistan, Myanmar, Sri Lanka and Nepal as cases. We first explore the relationship between federalism, secularism and religion, and find that secular values at the point of federalisation played an important role in federalism's establishment, but that they were later modified in the practice of federal accommodation of religion. We also identify and examine the federal governance of religious diversity, which features three types of accommodation—centrally-based, unit-based and group-based accommodation—with accommodative practices sometimes being for the benefit of a majority religion, and sometimes for a minority one.
Assessing Kenya's Cooperative Model of Devolution: A Situation-Specific Analysis
Authors: Gathii James Thuo , Otieno Harrison Mbori
Published: January 2019

Kenya's form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the complexity of devolution's relationship to national politics, as well as the broad variation in how devolution has unfolded in the 47 counties since 2013, this article argues in favour of a situation-specific assessment of devolution in Kenya. This analysis departs from the emerging scholarly consensus of devolution in Kenya represented in two predominant approaches. One approach contends that devolution in Kenya has simply devolved corruption and patronage from the national to the county level. Another approach argues that devolution has so far been relatively successful because it has introduced a new political system at the county level that has a robust system of checks and balances but that has empowered a new dynamic in Kenya's politics at the sub-national level. This article argues the first approach paints the emerging devolution experience with a broad brush that is not reflected in every county or even on every issue. This article has more in common with the second view. However, we argue for a more situation-specific, case by case analysis of devolution to show variations in how devolution has or has not facilitated the delivery of services and opportunities that were prior to 2013 likely to be unavailable particularly in the most economically disadvantaged counties.
A House Divided: Federalism and Social Conflict in Italy
Authors: Lev Amnon
Published: January 2019

Looking at Italy, the article argues that government serves as an intervening variable that can mediate the implication of federalism and social division. Its overall argument is that the Italian state maintained its unity through a governmental practice of configuring social division so as not to align on the North/South divide, while engaging in a comprehensive devolution of competencies to the subnational level. Through readings of Carlo Cattaneo and Guiseppe Mazzini, the first part of the article considers the conjunctural factors that allowed for the creation, against all odds, of Italy as a unitary state. The second part considers by what strategies the political parties colluded in preserving the unity of the national territory, and by what forms of devolution power was transferred to the subnational level. In conclusion, the article considers the rise of federalism in Italian politics from the 1990s.
Judicial Power and Consociational Federation: The Bosnian Example
Authors: Schwartz Alex
Published: January 2019

An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning. If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts. With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.
Conciliation and Arbitration in Australia — Where the Emphasis?
Authors: Kirby Richard
Published: January 2019

I give personal and not official opinions in this article but as the first, and so far only, President of the Commonwealth Conciliation and Arbitration Commission the conciliation and arbitration I discuss shall be those in the national area.

The Commission’s work comes under fire from many directions. Those who see it as a predominantly legal institution are very critical. Curiously enough they divide into two opposing sections, the one pointing to the Commission’s failure to adhere strictly to a predictable judicial process and the other condemning it for being too legalistic. On the other hand, there are those who look on the Commission as an economic legislative body and criticise its alleged inability to gauge the impact of its decision making policy on the level of economic activity in Australia. Indeed, all criticisms, if one adopts the exclusively particular view of the Commission which each set of critics has, may have some justification.
The Constitutional Power of the Commonwealth to Regulate Family Relationships
Authors: Sackville Ronald , Howard Colin
Published: January 2019

One of the more obvious characteristics of Australian federalism hitherto has been the marked reluctance of the Commonwealth to utilize its legislative powers to the full. The only two areas where the limits have been explored with any determination are taxation and industrial disputes. The phenomenon is no doubt a complex one, not to be explained solely or even primarily by reference to the structure of the Constitution or its interpretation by the High Court. Nevertheless both must have a bearing upon it.

It would be, for instance, hard to doubt that the Commonwealth has been made lazy in its legislative approach to government by the refusal of the High Court to imply any strict demarcation between legislative and executive functions, and by the Court’s generous interpretation of the scope of the power to attach conditions to money grants to the States under section 96. Similarly, growth of the trade and commerce power manifestly has been inhibited by the scope given to section 92, in marked contrast to the lack of interest shown by the Court in giving substantial content to the prohibition on preference in section 99 in relation to revenue laws.
The Ascertainment of Facts in Australian Constitutional Cases
Authors: Brazil Patrick
Published: January 2019

The suggestion that the Court should hear evidence touching the question of the constitutionality of a statute is somewhat startling when the possible far-reaching effect of such a course is, upon reflection, rendered apparent. (Barker v. State Fish Commission.)

Highly inconvenient as it may be, it is true of some legislative powers limited by definition … that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law. (per Dixon C.J. in Commonwealth Freighters Pty Ltd v. Sneddon).

Judicial review of the validity of legislation in a federal system may be regarded as an exercise in the interpretation of legal texts—ascertaining whether the impugned law conflicts with the superior law of the constitution—and therefore as a matter of law in which evidence plays no part or at best a subsidiary one. In the seminal case of Marbury v. Madison, Marshall C.J. ,thus described judicial review: “If two laws conflict with each other”, then in that event “the courts must decide on the operation of each”.
The Legal Status of the Australian Railways Services and of Railways Employment
Authors: Nettheim Garth
Published: January 2019

Over the years there have been established, at Commonwealth and State levels, a multiplicity of independent or semi-independent public bodies outside the traditional departmental structure. As far as conditions of employment with such bodies are concerned, some fall within the Public Service Board system, while others are governed by separate legislation which tends, however, to bear considerable similarities to the prevailing Public Service Board system. In addition, there may be some intersection of institutions—in New South Wales, for example, employees of a number of bodies which are not under Public Service Board control have, in common with public servants, a right of appeal to the Crown Employees' Appeal Board (though railway and transport employees retain their own appeal tribunal).
Trade Practices and Consumers: The Plea Non Vult Contendere Cum Domina Regina Et Posuit Se in Gratiam Curiae
Authors: O'Brien J. R.
Published: January 2019

When a defendant is asked to plead to a criminal charge, he is not restricted to the pleas of guilty and not guilty. Other pleas well known to lawyers include autrefois acquit and the plea to the jurisdiction. Some older pleas such as benefit of clergy have been abolished.

The plea of non vult contendere cum domina Regina et posuit se in gratiam curiae is unfamiliar to Australian lawyers. The last reported use of the plea in England was in 1702 in The Queen v. Telnpleman. The report of this case is unfortunately brief:

After pleading guilty to an indictment, the defendant may give evidence that justifies the fact in mitigation oj punishment—S.C. 3 Danv. 253. S.C. 1 Salk. 55.

After pleading guilty to an indictment, you may give anything in evidence that justifies the fact, or proves him not guilty of the fact; for the entry is non vult contendere cum dominâ Reginâ, sed ponit se in gratiam Curiae. And it is not like the case where one is found guilty by verdict.
Do Members of the Armed Forces have any Rights in their Employment?
Authors: Nettheim Garth
Published: January 2019

Professor Nettheim's answer to this question involves a rigorous examination of legislation and judgments from the eighteenth century on. The reluctance of courts and legislatures to protect servicemen from their employer, the Crown, in the matters of remuneration and termination of service is criticized. The right-lessness of servicemen is presented as being not only inequitable, but also incompatible with the image of military service as a career, and with the related need to attract qualified personnel.
Some Aspects of the Acquisition Power of the Commonwealth
Authors: Hamilton R. L.
Published: January 2019

Mr Hamilton's examination' of the Australian Government's power under s. 51 (xxxi.) of the Constitution begins with an analysis of judicial interpretation of the conceptsof “property” and “acquisition”. After drawing comparisons with the law relating to compulsory acquisition in the United States and Britain, he proceeds to suggest certain extensions of the definitions arrived at and to propose a test for “acquisition”, viz, whetherthe taking is for the “use and service of the Crown”. He concludes with awarning that some development of the law is required to combat any possible tendency toward “back door” acquisition by regulation.
Judicial Review and the Composition of the House of Representatives
Authors: Lindell Geoffrey J.
Published: January 2019

Through an examination of the relevant authorities, including American and Australian cases, Mr Lindell comments on the justiciability of, and nature of the duty imposed on the legislature by, sections 24 and 29 of the Commonwealth Constitution. The main conclusion is that if the House of Representatives did not conform with the constitutional requirements concerning the number of members to be chosen from each State and electoral redistribution, the House may no longer legally exist. The High Court would naturally be reluctant to reach such a conclusion without first providing the opportunity for defects to be rectified and Mr Lindell suggests that measures could be adopted by the Court which would enforce compliance with the relevant provisions without invalidating previous actions of the Parliament. Mr Lindell also deals with the related issues of locus standi and jurisdiction, concluding than an action could lie in the High Court to enforce compliance with the relevant constitutional and other provisions concerning the composition of the House of Representatives.
Resolving Commonwealth Ambiguity by Reference to State Laws
Authors: Austin R. P.
Published: January 2019

It is common for courts interpreting words in Commonwealth statutes to invoke State law to clarify the meaning of those words. For example, if a Commonwealth statute uses the word “shareholder” without adequate definition, reference will be made to State law as to the meaning of that word.

How is this approach to be justified? Part of the answer is that reference to State law was intended by the Commonwealth Parliament: but where is that intention to be found? Specifically, are sections 79 and 80 of the Judiciary Act 1903-1969 (Cth) relevant?
The Australian Legal Aid Review Report: An Appraisal
Authors: Purcell Terence
Published: January 2019

Amidst the turmoil of the recent Gair controversy in the Senate the Attorney-General tabled the first report of the Legal Aid Review Committee. Somewhat in keeping with the real political significance of the subject under review, the report was tabled very late one evening. Little or no publicity was given to its tabling, any notice taken being washed away by the turmoil of the times. Some might say that the modest size of the report deserved no greater recognition, but such a view is ungenerous and most certainly naive.

The document tabled is quite bulky, the greater part being taken up by the appendices. The almost clinical dissection of the existing legal aid facilities throughout Australia will give the role of this Committee real impetus. For too long lawyers and politicians in Australia have been smugly satisfied with the existing legal aid services. A close examination of the Report's appendices will reveal that local legal aid is very much like a badly moth-eaten patch work quilt.
Some Reflections on the Vienna Convention on the Law of Treaties
Authors: Brazil P.
Published: January 2019

Australia has recently acceded to the Vienna Convention on Treaties, one of the major codifying treaties concluded under United Nations auspices. Mr Brazil who was a member and later Leader of the Australian Delegation to the Conference that drew up the Convention, examines its scope, including its answer to the question—should the Convention cover the topic of treaty-making capacity of parts of federal States? Mr Brazil suggests that the Convention's rules on reference to preparatory materials as interpretative aids should be adopted by Australian courts. Its restatement of the topic of reservations and its reception of the notion of international public order (jus cogens) are evaluated. The themes of good faith and due process are seen to run through the Convention, which though not yet in force, has already gained wide acceptance.
Consumer Protection and the Trade Practices Act 1974-1975 (CTH)
Authors: Goldring John
Published: January 2019

While State legislatures have responded, to some extent, to pressure for greater legal protection of consumers, consumer protection had never been an area of legislative activity on a national level until the passing of the Trade Practices Act 1974-1975 (Cth). Mr Goldring examines the effect of the Trade Practices Act 1974-1975 (Cth) on the area of consumer protection in Australia, and notes that the Act, in addition to introducing regulation of restrictive trade practices on a scale beyond that previously experienced in Australia, includes sweeping legislative innovations aimed to protect consumers. The Act is shown to prohibit certain types of undesirable commerical activity and gives to a wide range of potential plaintiffs the right to take action for damages and injunctive relief. The terms implied by law into contracts of sale of goods and hire-purchase are extended and similar terms are included in other types of contract.
The High Court and Section 90 of the Constitution
Authors: Coper Michael
Published: January 2019

Certainty generally is illusion, Holmes once said, and repose is not the destiny of man. Mr Coper vividly illustrates this in relation to the High Court’s exposition of the meaning of “duty of excise” under section 90 of the Constitution, and argues that the Court’s failure to achieve certainty in this area has not been due to a Barwick-led departure from a so-called settled formula, as alleged by some critics, but has rather been the consequence of the inherent limitations of any legalistic approach. Mr Coper then looks to the purposes of section 90 for guidance, but finds a surprising degree of ambiguity surrounding them. The High Court has also referred to the purposes of section 90, but in attempting to achieve certainty without entirely losing sight of those perceived purposes, it has, Mr Coper argues, compromised both objectives. The author concludes by considering how the Court might escape from the present impasse.
The Formal Sufficiency of Foreign Marriages
Authors: Fine J. David
Published: January 2019

It has long been a general rule of common law that a marriage is valid only if formalized in a manner recognised by the law of the place of celebration. This rule is continued in Australian law by explicit statutory provision.

In this Article Mr Fine suggests that in Australian Law the category of exceptions to the lex loci celebrationis requirement is significantly wider than in the common law of England. He also finds that in situations outside the scope of the requirement, Australian courts should apply the parties’ domiciliary law to decide formal validity—not the law of the forum, though the latter is used in English courts as the law of second resort.
The Australian Constitution 1951-1976
Authors: Zines Leslie
Published: January 2019

The Commonwealth of Australia is 75 years old. Professor Zines, in this Article, looks at the record of judicial review of the Constitution over the past quarter century. He examines those areas (a) that have, during that time, illustrated, or provided the basis for, the development of general principles; (b) that seem to have particular political or social significance; or (c) that help in understanding the role and technique of the High Court.
The Role of Full Faith and Credit in Federal Jurisdiction
Authors: O’Brien B.
Published: January 2019

When the legal systems of two or more States apply to the same fact situation, they may prescribe, with respect to those facts, inconsistent sets of rights and liabilities. In this Article Mr O'Brien examines the role of full faith and credit in resolving the conflict. He concludes that while it is theoretically possible for full faith and credit to resolve the conflict, either on a substantive law basis or on a jurisdictional basis, the Courts have not been prepared to attribute to full faith and credit an operation which would enable it to perform either function. On the other hand, full faith and credit does perform a preparatory function in resolving this type of conflict by bringing such conflicts into federal jurisdiction wherein a resolution can ultimately be achieved.
“The Purest Treasure?” National Defamation Law Reform in Australia
Authors: Kirby M. D.
Published: January 2019

In this article, Mr Justice Kirby surveys two major issues which are before the Australian Law Reform Commission in its Reference to reform defamation laws. First, he suggests that any reform requires revision of procedures to deliver remedies that are apt for damage to reputation. Unless the judicial system can produce speedier redress and more relevant remedies, it is suggested that administrative or other regulation will replace court procedures. Secondly, the article explores the problems arising in the age of mass communications from Australia's eight different systems of defamation law. After weighing the arguments for and against a uniform code, it is suggested that the present disparity promotes confusion, uncertainty, self-censorship and forum shopping. Four methods of achieving a uniform code are explored. These include a return to the common law, reference of power to the Commonwealth by the States, an attempt to secure agreement with the States on uniform laws and the use of a number of Commonwealth powers to support a national Act. As the vehicle chosen will affect the law proposed, it is suggested that the choice can not be delayed.
Freedom of Information in Australia: Issue Closed
Authors: McMillan John
Published: January 2019

“There is not a crime, there is not a dodge, there is not a swindle, there is not a vice which does not live by secrecy”, said Joseph Pulitzer. Needless secrecy is as difficult to eradicate as the evils which it spawns, though Mr McMillan suggests administrative and legislative techniques that could redress the balance in favour of openness. Much of the article is a discussion of one such technique, freedom of information legislation, and of a report on that topic published in 1976 by an interdepartmental committee established by the Federal Government. By reference to past Australian secrecy, U.S. experience under similar legislation, and bureaucratic inevitability, Mr McMillan argues that legislation based upon the committee’s report would do more to entrench the Administration’s right to withhold official information than to secure the public's right of access to it. Alternative proposals for a freedom of information Act are suggested.

Since this article was written the Federal Government has announced that it will introduce a Freedom of Information Bill after considering the committee’s proposals and comments thereon.
Computers and the Law: The Protection of Intellectual Property
Authors: Lahore James
Published: January 2019

With the development and widespread use of computer technology difficult questions relating to the legal protection which may be given to computer “software” must be considered. In this article Mr Lahore examines the existing law relating to intellectual property and discusses whether the Patents Act 1952 (Cth) and the Copyright Act 1968 (Cth), as they have been and may be inter-preted and applied, provide suitable and adequate protection for this computer software.
The Duke of Westminster's Graven Idol on Extending Property Authorities into Tax and Back Again
Authors: Grbich Yuri
Published: January 2019

The author of this article argues that whilst a desire for uniformity and certainty in taxation law is both desirable and necessary, it should not and cannot be achieved simply by extrapolating general property and trust concepts and authorities into taxation law. Conversely taxation authorities cannot mechanically be cited as supporting property and trust principles. The result of simple extrapolation not only inhibits effective judicial response to tax avoidance by by-passing important policy considerations but also creates uncertainty by obscuring the real reason for the decision.
The Australian States and Participation in the Foreign Policy Process
Authors: Burmester H.
Published: January 2019

Recent assertions by the Australian States of a right to participate in the foreign policy process, in particular by the conclusion of international agreements and by the establishment of relations with foreign governments, are examined in the light of constitutional and international law. Some reference is made to Canadian and United States precedents.

The author concludes that the Federal Government has, to a large extent, an exclusive executive and legislative competence in matters of foreign relations. However, the States also have certain legitimate concerns and aspirations in such matters. The way in which these State interests can be met, while maintaining a unified Australian voice, is discussed, with particular reference to the new arrangements for co-operation between the Commonwealth and the States in treaty-making, agreed to at the Premiers’ Conference in 1977. The way in which the Commonwealth uses its constitutional powers, as well as the responsibility which the States show in the exercise of their powers in relation to treaty implementation, is likely to determine the course of future constitutional development in this area.
“Unification and Harmonisatton” of the Rules of Law
Authors: Goldring John
Published: January 2019

In Australia there are nine bodies of legislation; Commonwealth, State and Territorial. The laws within each of these systems may differ from each other in significant ways. Such differences, especially when occurring in areas of “technical law”, may cause considerable inconvenience to Australians and to their legal advisers. In social and economic terms, for many purposes Australia is a single nation, and is not divided by State boundaries. Enactment of uniform laws in each part of Australia could lead to much greater convenience for businesses, individual citizens and lawyers.

This article examines some of the ways in which international organisations and bodies within other federal nations have been working towards the unification and harmonisation of rules of law, in selected areas. From this examination, some parallels are drawn with the situation in Australia. The article also makes some suggestions for greater uniformity of laws in Australia against the political background which may explain why law in Australia has come to be diverse.
Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts
Authors: Gilbert Christopher D.
Published: January 2019

The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court’s recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr lustice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.
Eligibility for Consumer Contract Protection under the Trade Practices Act
Authors: Rumble Gary A.
Published: January 2019

In this article, Mr Rumble examines the 1977 amendments to the Trade Practices Act’s definitions of the words “supply”, “corporation” and “consumer” and their relationship to that part of the Act which gives contractual protection to consumers. The definition sections are tested against the policy goals identified by the Swanson Committee and against the general need for simplicity in consumer protection legislation. The verdict is unfavourable. It is demonstrated that the definition sections have some anomalous results. Mr Rumble argues, further, that the definition sections are a quag of ambiguity and specific areas of uncertainty are discussed to illustrate this argument.

Mr Rumble suggests that contract protection be taken out of the Trade Practices Act and incorporated in its own legislative framework.
Public Interest Group Participation in Decisionmaking: The Broader Meaning of the Law Reform Commission Proposals
Authors: Miller Alan S.
Published: January 2019

In this article the author examines the expanding rôle which public interest groups can play in decision making in our society. He discusses the proposals of the Law Reform Commission to ease the present rigid locus standi requirements and points out that the main issue is not access to the courts but to government itself, and that various matters which he then investigates control public access. He concludes by suggesting several ways in which the present situation may be modified and improved.
Does Aboriginal Law Now Run in Australia?
Authors: Hocking Barbara
Published: January 2019

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.
Judicial Method and the Interpretation of Papua New Guinea’s Constitution
Authors: Bayne Peter J.
Published: January 2019

In the latter half of 1979 the Supreme Court of Papua New Guinea delivered judgment in two cases in which it was called upon to decide a number of issues of fundamental significance to the interpretation of that country’s Constitution. In the course of this litigation, several of the Justices of the Court became embroiled in confrontation with the Government. The potential for such conflict had been foreseen by the makers of the Constitution, who took the view that conflict would be ameliorated if the Court adopted an autochthonous interpretation based on the social philosophy of the Constitution and on its legislative history. This article surveys the legal issues raised in these cases and evaluates the modes of interpretation employed by the Court by contrasting an “absolutist” with a “purposive” mode, with the latter expressing the intention of the Constitution’s makers. It concludes that for the most part the Court adopted the absolutist mode, and that thereby the autochthonous nature of the Constitution has been undermined.
Accountability of Commonwealth Statutory Authorities and “Responsible Government”
Authors: Goldring John
Published: January 2019

Recently, attention has been drawn to the proliferation in Australia of statutory authorities, which appear to be, to some extent, independent of government control. The Australian Constitution requires responsible government, and this article attempts to determine the extent to which the Constitution permits the establishment of statutory authorities outside the traditional organisational structure of ministerial departments of state, and to what extent such authorities may be independent of ministerial and parliamentary control. On the assumption that responsible government requires some measure of accountability of all parts of the executive government of the Commonwealth, the article examines the extent to which statutory authorities are accountable in accordance with the provisions of the Constitution, and also whether any other areas of law, especially administrative law, may provide some measure of accountability of statutory authorities.
Australian Conservation Foundation Incorporated v. Commonwealth of Australia and Others
Authors: Byrnes Andrew C.
Published: January 2019

Administrative law — Environmental law — Standing to sue — Corporation — Environmental Protection (Impact of Proposals Act) 1974 (Cth) — Violation of public right — Boyce v. Paddington Borough Council
Administrative Review: Beyond the Frontier Marked “Policy—Lawyers Keep Out”
Authors: Kirby M. D.
Published: January 2019

By a review of a series of comparable decisions in the Administrative Appeals Tribunal (AAT) some of the problems that may arise as the jurisdiction and role of the AAT continues to expand in the review on the merits of Commonwealth administrative decisions are identified. The problems include first, the apparent difficulty for democratic theory of unelected tribunal members (including persons who are also judges) reviewing policy determined by elected Ministers; secondly, the creation of a dichotomy between decisions made by the AAT and decisions of public servants faithfully and more consistently applying Ministerial policy; thirdly, the limitation upon the membership and procedures of the AAT which restrict any truly effective wide-ranging review of government policy; and, fourthly, the potential damage to community confidence in the judiciary, by the involvement of judges in the frank determination of controversial matters of public policy. The role of policy-making in the courts is acknowledged and similarities and differences in the function of the courts and the AAT in the review of policy issues are indicated. It is concluded that the AAT will require all arms of government in Australia to face more precisely the role of policy in adjudicative decision-making.
Legal Language Across Cultures: Finding the Traditional Aboriginal Owners of Land
Authors: Neate Graeme J.
Published: January 2019

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first recognition at law of the traditional ownership of land in Australia by Aborigines. It provides means whereby Aborigines claiming to have a traditional land claim to certain types of land in the Northern Territory can demonstrate that ownership to the Aboriginal Land Commissioner. If he finds that there are traditional Aboriginal owners of the land he reports that finding to the Commonwealth Minister for Aboriginal Affairs and may recommend a grant of it to a Land Trust. Sometimes problems in ascertaining which, if any, Aboriginals are the traditional Aboriginal owners of the land claimed arise from the difficulty inherent in expressing the land tenure system of one culture in the language of another. The author illustrates this with examples from one land claim hearing and argues that the use of interpreters is desirable to enable the claimants to put their case clearly and for the Commissioner to understand more fully the intricacies of Aboriginal land tenure systems.
Re Roy Edward Hegarty and ORS; Ex Parte the Corporation of the City of Salisbury
Authors: Weber Robert
Published: January 2019

Constitutional Law—Separation of Judicial Power—Constitution s. 51(xxxv)—Dispute as to classification of employee under Commonwealth Award—Whether dispute extends beyond the limits of any one State
Antitrust Fall-Out: Tensions in the Australian-American Relationship
Authors: Maher Laurence W
Published: January 2019

This article examines the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) (“the 1979 Act“). It was the second legislative response of the Australian Government to steps taken by the Westinghouse Electric Corporation (“Westinghouse“) in its international uranium cartel antitrust suit in the United States District Court in Chicago. That suit and other legislation attributable to the uranium cartel which operated between 1972 and 1975 proceeded for more than four years and, until a recent spate of settlements mentioned later in the article, had been expected to continue well into the 1980s. At the outset it is necessary to say something of the events which provoked the District Court suit and related litigation.

In September 1975 Westinghouse announced in the United States that it was unable to fulfil its contractual obligations for the supply of uranium oxide (U3O2). Westinghouse's primary involvement in the nuclear energy industry is as a manufacturer of nuclear power plants (“reactors“) and not as a uranium miner. In the late 1960s reactor sales soared and Westinghouse offered electric utilities low price reactor fuel over long terms as an inducement to capture reactor sales.
Inquisitorial Procedure in the Administrative Appeals Tribunal — A Comparative Perspective
Authors: Osborne Gillian
Published: January 2019

Tribunals and specialised courts with inquisitorial powers are now fairly common in Australia and appellate courts have begun to insist that in certain circumstances the powers be used. By “inquisitorial powers” is meant powers which enable the adjudicator to take the initiative in eliciting evidence and formulating legal arguments, and to control the way in which a case is presented. The Australian Committee on Administrative Discretions believed that it would be appropriate for their proposed administrative review tribunal to make use of an “investigative or inquisitorial process in most cases”. There have even been calls for the use of some inquisitorial procedures in ordinary courts of law. A radical change in the ordinary courts seems at present to be impracticable. On the other hand the Administrative Appeals Tribunal is still in a position to set its own pattern of development. It has been given almost carte blanche as to procedure and some wide inquisitorial powers. For the last six years it has been experimenting with the use of these powers, and some of its pre-trial procedures have already aroused interest. The Federal Court in its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is given power to exert far greater control over the conduct of proceedings than is normal in an adversary system.
Property Disputes between the Parties to a Marriage: Problems of Dual Jurisdiction
Authors: Kovacs Dorothy
Published: January 2019

When a marriage breaks down if the parties are unable to agree as to how their assets are to be divided their disputes may currently be heard in two different court hierarchies applying two disparate sets of legal principles. Inevitably this position leads to forum shopping and to the proliferation of legal proceedings which are not directed at resolving the substantive issue between the parties. It produces uncertainty, duplication, expense and delay. Although the problems associated with dual jurisdiction in matrimonial property disputes arise both before and after divorce, neither the Family Court nor the Supreme Courts have yet, it seems, formulated policies which ought to be pursued. Nor have they been consistent in their choice or application of the legal mechanisms that they enlist to break the deadlock. It is suggested here that both the federal and state courts should aspire to the centralisation of matrimonial property disputes, so far as is constitutionally feasible, within the Family Court. With that objective in mind the various legal devices currently invoked to resolve disputes about jurisdiction are critically reviewed. Some techniques are suggested to overcome problems which recur in the case law and a general approach is proposed which, it is hoped, will achieve consistency in the aims and in the legal principles adhered to by the courts in the future.
Geographic Market Definition in Competition Law
Authors: Walker G de Q
Published: January 2019

The notion of the relevant market, together with the process for identifying it, is a construct used in competition law in order to determine whether competition exists between two or more producers for the purposes of Part IV of the Trade Practices Act 1974 (Cth).

This legislation confers upon the courts and the Trade Practices Tribunal the duty to decide whether certain courses of conduct have the purpose, or have (or are likely to have) the effect, of substantially lessening competition in a market. The market delineation process provides the first in a set of stepping-stones which enable the courts to discharge this task in the principled and certain manner that is required by the doctrine of the rule of law. The procedures comprised within it enable the court (or other trier of fact) to organise complex fact situations and classify them in such a way as to enable competition policy, as embodied in legislation such as the Trade Practices Act, to be intelligently applied. It permits a degree of quantitative evaluation which in practice would not be possible if the lessening-of-competition issue were attacked directly.
Altering the Constitution: Some Aspects of Section 128
Authors: Thomson James A
Published: January 2019

Can the formal amendment process embodied in s 128 of the Commonwealth Constitution be utilised to patriate the Constitution, to make Australia a republic, to establish a Bill of Rights, to abolish State Constitutions or Parliaments and to alter s 128 itself or provide a completely new amendment procedure? What is the ambit of s 128? This article considers the history, scope and interpretation of s 128.