bluuebunny/crossref_metadata_2025 huggingface dataset:
Executive Discretion and the Adequacy of Judicial Remedies to Uphold the Constitution
Authors: Zines Leslie
Published: January 2019

The power of the Commonwealth to confer authority on members of the Executive or Administration is restricted by the Constitution in two major respects—first, by the principle of the separation of powers, and secondly, by the doctrine that no law can give power to any person (other than a court) to determine conclusively any issue upon which the constitutional validity of the law depends. The second doctrine is sometimes metapholically summed up in the maxim “the stream cannot rise above its source”. The separation of powers principle affects a wider range of decision-making than the “source and stream” doctrine; but the latter doctrine, within the area of its operation, appears to be a greater limitation on legislative power.

For example, the principle of the separation of powers seems to prevent an Act from validly conferring power on an administrator to make conclusive determinations of law (and possibly findings of fact). in the course of settling a dispute about existing rights and duties. But where the power confided to the administrator to make findings of existing law or fact is merely preliminary to the creation of new rights and duties, then, in some circumstances at any rate, such power of detennination will not breach the separation of powers principle.
Commonwealth Family Courts: Some Legal and Constitutional Implications
Authors: Finlay H. A.
Published: January 2019

The announcement by the former Attorney-General, Mr. T. E. F. Hughes, at a meeting of Attorneys-General on July 9, 1970 that the Commonwealth Government was investigating the possibility of introducing a system of family courts into Australia and that a senior officer of his Department would visit overseas countries to study the operation of such courts has raised a number of questions as to the possible form that they would be likely to take. Since then, the officer concemed has made his investigation and returned, and there has been a change in the occupancy of the office of Attorney-General. Apart from that slender factual background there can be only speculation. From speculation one turns to a consideration of the legal and constitutional framework within which the Commonwealth's power to manoeuvre is to be found. It is the existence of that framework and the limitations it brings with it that distinguishes Australia's position from that of most overseas countries. That circumstance alone will of necessity influence any action the Commonwealth may be minded to take in the direction of family courts.
Reforming Australian Divorce Law
Authors: Hambly David
Published: January 2019

The inquiry by the Senate Standing Committee on Constitutional and Legal Affairs into “the law and administration of divorce, custody and family matters, with particular regard to oppressive costs, delays, indigates and other injustices” is to be welcomed. This article will discuss as prospects for reforming the law affecting the grounds for divorce, with particular reference to the guidance that might be gained from the Divorce Reform Act 1969 (Eng.). This Act provides support for a member of proposals to amend the Matrimonial Causes Act 1959-1966 (th) which could be implemented imrnediately. The proposed amendents raise none of the controversial issues of principle which dominated the debates on the 1959 Act in Australia and the 1969 Act in England, and their enactment would not prejudice the outcome of the Committes deliberations on the ultimate shape of Australian divorce law. Their beneficial effect on divorce practice, however, would be subnual and would help to pave the way for more fundamental reforms.
The Balancing of Community and National Interests by the European Court
Authors: Zines Leslie
Published: January 2019

Problems similar to those that have, for many years, occupied the courts of the United States, Canada and Australia in interpreting a federal charter now confront the judicial arm of the European Community. Professor Zines develops a comparison between the approach that has found favour in the European Court and the approach of the courts of those Federations, although he admits that such a comparison has innate limitations. From a study of the revelant cases Professor Zines concludes that the European Court, by adopting a functional approach, has strengthened community rather than state interests. He discusses in detail how the Court has achieved this result by relying on the broad economic and political objects which are recognised as underlying the Treaty, rather than by strict legal construction of its provisions.
Reform of Administrative Law Remedies — Method or Madness?
Authors: Mullan David
Published: January 2019

In the past few years, the subject of administrative law remedies has been studied intensively in many common law jurisdictions. In this article, David Mullan examines the various reforms and proposals for reform and concludes that none is completely satisfactory and indeed that some compound previous problems and create new ones as well Nevertheless, he sees some merit in the New South Wales and Nova Scotia solutions which emerged as part of a general reform of the civil procedure rules and not as a separate statutory enactment.
Job Security or Income Support
Authors: Arup Christopher
Published: January 2019

Legal safeguards for individuals of employment or income will be one part of a government’s reaction to fluctuation and change in industries. Mr Arup examines present federal asssurances of security of employment and income and capacities to implement further assurances in line with overall economic rationality. He concludes that there are limitations both in present assurances and capacities which require changes in the law.
The Federal Environment Protection Procedures
Authors: Fisher D. E.
Published: January 2019

The two investigative techniques introduced by the Environment Protection (Impact of Proposals) Act 1974 are the environmental impact statement and the public inquiry. The policy underlying the use of environmental impact statements was not fully achieved until administrative procedures were created under the Act in 1975. It is probably too early to assess the effectiveness of these procedures. This article is limited therefore to considering their legal nature and possible effect. Two principles emerge from this exercise: the procedures are almost entirely discretionary in nature and the policy of reducing judicial involvement to a minimum is likely to succeed. Protection of the environment is thus a matter for political decision.
Fundamental Law and the Processes of Constitutional Change in Australia
Authors: Lumb R. D.
Published: January 2019

This article explores the concept of “fundamental law” as it relates to the Australian legal system. Concentrating in particular on constitutional law and the special place in that body of law of the doctrines relating to amendment of the Federal and State constitutions, Dr Lumb examines the source of the power to amend the constitution, the limitations on that power and the aspects of our legal system which may be beyond the power to amend. It attempts to discover those elements of our constitutional systems which are so fundamental that they may not be materially altered by any form or process of constitutional alteration.
Time, Uranium and the Legislative Process
Authors: Maher Laurence W.
Published: January 2019

On the evening of 18 November 1976 the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 passed through both Houses of Federal Parliament in less than three hours. The Federal Government claimed that the Act was urgently needed to protect the Australian national interest, which was said generally to be threatened by attempts being made to gather evidence in Australia for use in large-scale litigation in the United States of America arising put of an international uranium cartel The Parliamentary debate did little credit either to the Government or the Opposition. It is necessary to go beyond the Parliamentary Debates to make an informed assessment of the Act. When the facts are examined it becomes clear that the Government's claim that the situation was urgent was unfounded, that the appeal to the national interest was at best highly questionable and that, because of the availability of appropriate judicial process, legislative action was unnecessary. The Act is alarmingly vague and reposes wide discretionary powers in the Attorney-General. Its passage and operation have quite disturbing implications for parliamentary democracy and the principle of open government. Where uranium is concerned the Federal Government is showing an increasing tendency to use the Parliament as a cipher.
The Authority of Privy Council Decisions in Australian Courts
Authors: Geddes Robert S.
Published: January 2019

During 1978, the High Court of Australia and the New South Wales Court of Appeal handed down decisions which announce a departure from the long-standing rule that decisions of the Privy Council bind all Australian Courts. In this article, Mr Geddes analyses these decisions and considers their future impact on the authority of Privy Council decisions in the various courts which make up the Australian judicial hierarchy.
Pendent Jurisdiction in Australia—Section 32 of the Federal Court of Australia Act 1976
Authors: Gummow W. M. C.
Published: January 2019

The Federal Court of Australia has only the jurisdiction conferred on it by statute. However, many disputes falling within that jurisdiction, particularly in trade practices matters, will also involve elements of common law or other State or federal statutory law. Section 32 invests in the Federal Court additional jurisdiction in some such cases in respect of “associated matters”. This may be compared with “pendent jurisdiction” developed by the federal courts in the United States. The object of this article is to analyse the meaning of the term “associated matters” and to consider the bearing it has upon the future relationship between the Federal Court and the various State courts.
“The Commonwealth of Australia”—Constitutional Implications
Authors: Lumb R. D.
Published: January 2019

In this article Dr Lumb refers to the choice of the phrase “Commonwealth of Australia” to designate the new federal body politic established on the Australian continent and surrounding islands by the Constitution Act. He then attempts to show how the term “Commonwealth” appearing alone or in association with other words is used in different ways. He identifies an “instrumental” usage pursuant to which the term is understood as applying to the federal instruments of government, and an “organic” usage under which the term is used to refer to the Australian body politic or community. This ambiguous usage has had a considerable impact on judicial interpretation of the “federal balance” as is to be seen from the Australian Assistance Plan Case. The specific problems of the Territories as “parts of the Commonwealth” are examined in the context of the relationship between relevant sections of Chapter VI and earlier Chapters of the Constitution and some opinions are expressed on the sources of constitutional power relating to the Territories.
Private Information in Public Hands: Confidentiality, Court Disclosure and the Public Interest
Authors: Nettheim Garth
Published: January 2019

Individuals and organisations are frequently required to provide public agencies with information about their affairs which they would not wish disseminated to others. Income tax returns represent one illustration. From time to time attempts are made to compel the recipient public agencies to produce such material as evidence in court proceedings. The agency may resist disclosure on the basis of a statutory secrecy provision and/or a claim to Crown privilege. The court is thus required to resolve a conflict between competing public interests: the public interest in the proper administration of justice, and the public interest in the ability of the agency to maintain the confidentiality of information entrusted to it. Professor Nettheim considers a number of decided cases and concludes that, on the whole, the courts have failed to develop a body of principles adequate to deal with the situation. In particular, established Crown privilege doctrines about waiver and secondary evidence are inappropriate in this context. The author puts forward a suggested model of principles and procedures, and notes that similar issues may arise for adjudication under Freedom of Information legislation, particularly in the form of the “reverse FOIA lawsuit”.
Judicial Review in the Australian Federal System: Its Origin and Function
Authors: Galligan B.
Published: January 2019

Dr Galligan examines the origin of judicial review under the Australian Constitution through an catalysis of the Conventions and Conferences preceding its drafting. A political scientist, he disputes the claim that there is no basis for judicial review in the Australian federal system and argues that the intention of the founders, influenced by Inglis Clark, was to create a powerful American-style court primarily to interpret the Constitution in the resolution of federal disputes. As a case study of the founders' intentions he considers the debates and “solution” of the question of control of Australia's inland river system.
The Nature of Inconsistency under Section 109 of the Constitution
Authors: Rumble Gary A.
Published: January 2019

In a recent article in this Review Mr Murray-Jones considered the state of the law of inconsistency. Mr Rumble takes issue with some of Mr Murray-Jones' propositions and, in particular, with his interpretation of some of the leading High Court judgments.

Some of the most troubling statements about inconsistency that have emanated from the High Court have been related to the problem of persons who commit both Commonwealth and State offences. This article considers how the provisions of the Crimes Act, the Acts Interpretation Act, the Judiciary Act and the Commonwealth Prisoners Act interact in such circumstances.

The article also offers an analysis of the nature of inconsistency. The basic proposition of the analysis is that, no matter how many different guidelines are developed to indicate the presence of inconsistency, ultimately there is only one category of inconsistency.
Church of Scientology Inc. V. Mr Justice Woodward
Authors: Glick Leslie
Published: January 2019

Constitutional law — Australian Security Intelligence Organization — Executive power in relation to collection of information in the interests of security — Constitutional law — Constitution s. 116 — No religious test shall be required as a qualification for any office or public trust under the Commonwealth
Colonial and Federal Admiralty Jurisdiction
Authors: Ying C. A.
Published: January 2019

Notwithstanding the inclusion of “Admiralty and maritime jurisdiction” within the constitutional grant of federal judicial power, current Admiralty jurisdiction in Australia is based solely on a nineteenth century Imperial statute, the Colonial Courts of Admiralty Act 1890. That this has remained the case for so long is regrettable, and reflects in part a traditional deference to Imperial control over international shipping (although lately there have been indications of greater legislative assertiveness over maritime matters generally), and in part a reluctance to interfere with the present allocation of jurisdiction among State courts.

A concerted effort is now under way to lay the foundation for the creation of a modern indigenous Admiralty jurisdiction, and with this in mind, the author sets out to examine the nature and extent of the current colonial jurisdiction, its interrelationship with the federal jurisdiction under section 76(iii) of the Constitution, and the desirability of abandoning the rigid nineteenth century base of the former to realise the full twentieth century promise of the latter.
Custody Jurisdiction in the Family Court
Authors: Jessep Owen , Chisholm Richard
Published: January 2019

Considerable confusion and difference of opinion exists as to the precise boundaries of jurisdiction in custody matters between Federal and State courts. This Article examines the main cases in which the scope of the Family Court's custody jurisdiction has been in issue, and reviews suggestions made to remedy the problems resulting from the division of jurisdiction. The authors argue for an interpretation of the relevant provisions of the Family Law Act 1975 (Cth) which is consistent with the trend of High Court authority as to the scope of the marriage power (section 51(xxi) of the Constitution), and which would remove much of the uncertainty concerning the Family Court's jurisdiction.
In the Marriage of Stowe
Authors: Lynch Philippa
Published: January 2019

Family Law — Property settlements — Companies own matrimonial assets — Interim injunctions — Whether the position of third party shareholders is a relevant consideration — Family Law Act 1975 (Cth) s. 114
Constitutional Confusion in the Cocos Islands: The Strange Deliverance of LIM Keng
Authors: Kelly G M
Published: January 2019

When, in 1902, a murder was committed in the Cocos Islands and a resident native of the Islands was brought to trial at Singapore, the Supreme Court of the Straits Settlements ruled unexpectedly that it had no jurisdiction.

That decision threw doubt upon the validity of Letters Patent of 1886 which were to remain the constitutional foundation of British rule in the Cocos until the transfer of sovereignty to Australia in 1957. The doubt necessarily extended to matters of long-term practical importance, including the special position in the Cocos held by the Clunies-Ross family until 1978.

This article considers the validity of those Letters Patent—question peremptorily closed off by British authorities in the aftermath of the 1902 affair. Fundamental doctrines of colonial law in relation to territorial acquisition, and their application to British annexation of the Cocos Islands, are examined. The continuing relevance of those doctrines—eg to the recent line of land rights cases in Australia—is incidentally pointed out.

The Letters Patent are also tested against the maxim omnia praesumuntur rite esse acta and in terms of evolving judicial acceptance of severance. For that purpose, illustration of legal principle is drawn from Australian cases as from English law.
Exemptions under the Freedom of Information Act 1982
Authors: Bayne Peter
Published: January 2019

The opening words of s 3(1) of the Freedom of Information Act 1982 (Cth) (“FOI Act”) state that the object of the Act is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth”. Paragraphs (a) and (b) of s 3(1) indicate that this object is to be achieved in two main ways, that stated in s 3(1)(b) being:

[B]y creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.
Exemptions under the Freedom of Information Act: An Official's Viewpoint
Authors: Rose A D
Published: January 2019

Mr Bayne in addressing the topic of the exemptions under the Freedom of Information Act 1982 (“FOI Act“) has concentrated his analysis on and dealt at some length with, the provisions of Part IV - Exempt Documents.

To achieve a balanced understanding of the role and significance of the exemptions I believe one needs in addition to see how the FOI Act fits into the broader context of arrangements for access to official information.

There are other qualifications and limits set on the application of the “legally enforceable right” in s II which might also be considered usefully in the context of exemptions.

It is in addition important as Mr Bayne has indicated in dealing with, for example, s 36 to take account of the requirements of ss 8 and 9 of the FOI Act if the application of Part IV is to be seen in proper context.

I propose therefore to address these matters before commenting on selected issues raised by Mr Bayne with respect to particular exemptions in Part IV.
Commentaries
Authors: Volker D
Published: January 2019

The availability of reasons for decisions is an important part of recent developments in Commonwealth administration. As Mrs Burnett’s scholarly analysis shows, these developments have not been without their uncertainties. I would like to pursue a few of the issues raised in her paper and mention some issues associated with providing reasons for decisions in the Repatriation area.

There is much to be said for a person affected by a decision having a right to obtain full written reasons for the decision. This enables the person affected to find out why the particular decision has been made. It may also provide a possible basis for challenge to the decision. As Mrs Burnett notes, the need to give reasons has also been described as encouraging consistency and better quality in decision-making.
Summing Up: Foi in Australia — First Term Report
Authors: Kirby MD
Published: January 2019

This is the fourth in the series which the Faculty of Law of the Australian National University has organised around the theme “Australian Lawyers and Social Change”. At the outset, I should congratulate the Faculty and especially Professor Pearce for the persistence with the series. Anything done to confront lawyers in Australia with the consequences and implications of a time of rapid social change is to be applauded. I speak for all participants in thanking the lead speakers and commentators. Theirs have been valuable and timely contributions. Especially, I would wish to thank Professor Glen Robinson (University of Virginia, United States) and Mr Stephen Skelly QC (Department of Justice, Ottawa, Canada) for enlivening the proceedings with insights from the two great English-speaking Federations, with whose legal systems we have so much in common.
Comment on the External Affairs Power
Authors: Crommelin Michael
Published: January 2019

My comment on Professor Sawer’s paper is confined to three matters: the executive power of the Commonwealth to conclude treaties on behalf of Australia; the relevance of the subject matter of a treaty to the scope of Commonwealth legislative power to implement the provisions of the treaty; and the concept of federalism inherent in the High Court’s decision in the Franklin Dam case.
Galland v Federal Commissioner of Taxation
Authors: Steel Tony
Published: January 2019

Taxation — Assignment by deed of share in partnership — Effect of assignment on accumulated partnership income — Income Tax Assessment Act 1936 (Cth) ss 92, 95, 102.

Michael Bernard Galland (“the taxpayer”) carried on practice as a solicitor in partnership with his father, under the name of “Bernard L. Galland & Co” (“the partnership”), during the 1979-80 year of income. The partnership agreement provided, inter alia, for the equal division of profits and losses which were to be ascertained in July after the preparation of accounts in respect of the previous financial year.
Aboriginal Land
Authors: Toohey John
Published: January 2019

I shall begin with a riddle, in fact three riddles:

1

What sort of interest in land is held as an estate in fee simple but is inalienable?

2

What sort of interest in land is held by a registered proprietor who has no power to make decisions relating to it, except with the consent of another, and who must act at the direction of that other?

3

What sort of interest in land does not carry with it ownership of minerals but can preclude mining thereon?

The answer to each of these questions is — Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”).

The purpose of this paper is not to trace the course of judicial history in this country, from the robust assertion of the Privy Council that the colony of New South Wales “consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions” to the judgment of Blackburn J in Milirrpum v Nabalco Ply Ltd.
From the inside Looking Out: Comparing the External Capacities, Powers and Functions of the Commonwealth of Australia and the European Communities
Authors: Knoll David D.
Published: January 2019

On 26 February 1982, the Government of the Commonwealth of Australia formally recognised the European Communities (EC) as a subject of public international law and granted accreditation to the Communities’ permanent delegation in Canberra. The delegation had been in place since April 1981. Australian representation in Brussels began in 1960 with a view to maintaining its Commonwealth tariff preference in the United Kingdom upon occasion that the British should decide to join the Common Market. Largely due to concern for the Commonwealth arrangements, the United Kingdom did not join the Common Market until 1973. At this point, the more developed Commonwealth nations were placed behind the Member States of the EC in the line of suppliers of the United Kingdom's import needs. Recognising the mutual desire to minimise the disturbance in an established trade channel, the then Vice-President for External Affairs of the EC Commission, Sir Christopher Soames, visited Canberra and arranged for regular high level consultations to be undertaken to ensure the smooth adaptation and continuation of Australia-EC trade.
Queensland Electricity Commission and Others v Commonwealth of Australia
Authors: Tappere Chris
Published: January 2019

Constitutional law—Commonwealth—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Invalidity of law—Commonwealth Constitutions 51(xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).

Industrial law—Commonwealth—Conciliation and arbitration—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Extent to which discrimination authorised—Commonwealth Constitution s 51 (xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).
Contemporary Challenges in the American Courts
Authors: Seitz Collins J
Published: January 2019

It is a real pleasure for Mrs Seitz and me to come to Melbourne, one of the truly great cities of the world. I am especially gratified to be speaking in the city where Prime Minister Robert Menzies resided.

I express my gratitude to the University of Virginia for affording me the opportunity and honour of delivering the first Menzies lectures in Australia. By the same token, I thank the Australian National University and the Sir Robert Menzies Memorial Trust for their support of a lecture program designed to further enhance the understanding of our legal systems.

I have read a good deal of material about your country over the past few months. Much of it stressed that we share the English language. That is certainly true but, if Australia is anything like the United States, while we share the same general vocabulary, the younger generation has its own unique language. Fortunately, our legal language is largely interchangeable.
State Courts and Federal Administrative Law: Problems of Federal Jurisdiction
Authors: Baker Clifton
Published: January 2019

From the time a Federal Court was first proposed, questions about its jurisdiction, and its relationship with state courts have dominated discussion. While it is not proposed to review this extensive literature in detail, it is apposite to draw on some insights from an article by Sir Garfield Barwick published in 1964 at an early stage of this debate. First, it was suggested that the matters in which a Federal Court should have jurisdiction be in some way special. This special element could, it was said, consist of either a distinctive and separate body of law, a desire for uniformity in the interpretation of Commonwealth law, or the character of a party involved in a matter (eg the Commonwealth or a State). Secondly, and of major importance to the present consideration of the exclusive jurisdiction of Federal Courts, Barwick stated:

My own preference for a new federal court rests on a view that most of these matters present characteristics sufficiently ‘special’ to make a Federal Court the most appropriate forum. Whenever it can, therefore, I think the Parliament should make the jurisdiction it gives any such new federal court, exclusive.
Foundations of Australian Federalism and the Role of Judicial Review
Authors: Gageler Stephen
Published: January 2019

The High Court . . . is properly termed the “keystone of the federal arch”.

— Alfred Deakin

take it as an incontrovertible axiom that responsible government is to be the keystone of this federal arch.

— Isaac Isaacs
Section 79 Judiciary Act 1903 — How Widely Does it Travel?
Authors: Cook Catriona
Published: January 2019

A re-examination of the application and effect of s 79 of the Judiciary Act 1903 (Cth) — that “tangled and technical” topic — is called for by three developments: the institution, in 1976, of the procedure which the High Court has used to remit all diversity suits to other courts; the establishment of the seat of the High Court in the Australian Capital Territory; and the enactment of cross-vesting legislation in all Australian jurisdictions.

Those events have raised problems as to the law applicable when a court is exercising federal jurisdiction. A related question, to which no consistently satisfactory answer has been given, is: which is the most appropriate court to which to remit any particular case? That problem will be discussed below, although it is likely to arise less frequently with the coming into force of the new legislation on the cross-vesting of jurisdiction.
Realistic ‘Realism’ and the High Court’s Political Role
Authors: Galligan Brian
Published: January 2019

I welcome the opportunity to respond to Jeffrey Goldsworthy’s article, “Realism about the High Court”, in which he criticises aspects of my account of the High Court’s political role in interpreting the Australian Constitution. My book, Politics of the High Court, sets out the functions that the Founders intended the Court to play — interpreting the Constitution and adjudicating high level disputes involving governments — and examines, within a historical context, how the Court has actually carried out those functions in major decisions and lines of interpretation of key sections of the Constitution. As I pointed out in the book, this is the stuff of ‘high’ politics: authoritatively determining the meaning of the Constitution which is the basic instrument of government; and in particular disputes deciding whether to overrule democratically elected governments.
Would the Abolition of the States be an Alteration of the Constitution under Section 128?
Authors: Craven Gregory
Published: January 2019

It could hardly be disputed that the fundamental issue in Australian constitutional law and theory is federalism. Federalism is the keystone of the Australian constitutional system, and is the battleground over which most of the great conflicts in Australian constitutional law have been fought. Nor could it plausibly be denied that the absolute basis of Australian federalism is the continued existence of the States. What makes Australia ‘federal’ is the presence of two separate spheres of government, each with its own organs, powers and functions, the Commonwealth and the States. Whatever other features of the Australian constitutional system might safely be dispensed with without endangering the title ‘federal’, there can be little doubt that the abolition of the States would involve the termination of federalism within Australia.

The present article, then, is concerned with an issue which goes to the heart of Australian federalism — the abolition of the States which collectively go to make up the federation itself.
Re-Enacting the Constitution in an Australian Act
Authors: Moshinsky Mark
Published: January 2019

The Australian Constitution was drafted by the ‘founding fathers’ at several Constitutional Conventions in the 1890s and submitted to the people for approval. Following a Premiers’ Conference at which some further changes were made, and submission of the document again to the people, a delegation was sent in 1900 to present the new document to the British Government. After the British Colonial Office had made some minor changes, the Parliament of Westminster passed the Commonwealth of Australia Constitution Act 1900 (UK) on 9 July 1900. The preamble and enacting clause of the Act read as follows ...

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:- ....
Queensland Wire Industries: A Breath of Fresh Air
Authors: Lee Stephen J
Published: January 2019

The passing of the 1988-1989 third financial quarter will probably be viewed by the BHP Group with mixed emotions. On the one hand BHP was recently reported to be “on course for [a] record $1 bn profit” for this current financial year, having in the first nine months lifted its profits to $768 million, a 5.8 per cent increase on the $725.8 million for the equivalent period in the 1987–1988 financial year. On the other hand however it was in this third quarter that the High Court, at the expense of BHP, was given its first opportunity to consider s 46 of the Trade Practices Act 1974 (Cth) in Queensland Wire Industries Pty Ltd v Broken Hill Pty Ltd and Australian Wire Industries Pty Ltd. In a decision shedding some much needed light on the section, the Court unanimously held that BHP misused its substantial degree of power in the steel products market by refusing to supply Y-bar to Queensland Wire Industries Pty Ltd (QWI), albeit in continued adherence to its policy of committing that product to manufacturing processes within the BHP group.
The Privacy Act 1988 (CTH): A Study in the Protection of Privacy and the Protection of Political Power
Authors: Bygrave Lee A
Published: January 2019

The issue of the protection of privacy sums up a congeries of public anxieties about the standing of individuals in relation to those who exercise governmental and economic power. The issue has impinged increasingly on governmental and legal processes but it is one which these processes have had difficulty assimilating. At a general level, this article attempts to provide some insights into this difficulty, taking the Privacy Act 1988 (Cth) as its main focus.

Until now, analyses of the Privacy Act have tended to concentrate quite narrowly upon its provisions. Although a number of shortcomings have been identified as a consequence, no detailed or systematic explanations for these shortcomings have been advanced. This article seeks both to outline the deficiencies in the Act and to explain them. It takes as its point of departure the premise that the Act's deficiencies cannot be explained adequately by looking only at its provisions or formal legislative history.
Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia
Authors: McQueen Rob
Published: January 2019

The recent High Court case on the Corporations Act and the reliance therein by the majority on ‘history’ to support their reading of s 51(xx) raises the question of what were prevailing community attitudes to uniform national legislation on corporations in the late nineteenth and early twentieth century. Whilst the views of the delegates to the Conventions and the views of the justices in the High Court in the Huddart, Parker & Co Pty Ltd v Moorehead have been selectively dusted off and resuscitated by the majority justices in the Corporations Act case the broader spectrum of opinion in relation to such matters, both at the time of federation and subsequently, is less well known. Nevertheless such views are also important in arriving at a proper understanding of the meaning of placitum (xx) of s 51.
Tax: A Look at Some of Labor's Changes
Authors: Passant John
Published: January 2019

The period of the Hawke Labor Governments has been one of considerable economic change. That change reflects two basic and interrelated factors. First, capital accumulation itself is a continually revolutionising process. Competition forces capitalists to search for new and cheaper ways of producing their products in order to gain an advantage over their rivals. Secondly, the international economic system has been in crisis since the mid-1970s. That crisis can be seen in Australia in the tendency of the rate of profit to decline over the last twenty years or so. The strategy underpinning the Hawke Government's actions, and this is as true of the taxation field as any other area, has been to adopt measures that will facilitate capital accumulation and improve profit rates for Australian based capitalists. This article will examine how some of the tax law changes that have been made have been affected by this strategy, in particular the internationalisation of the Australian economy. In the first place however, these changes have to be seen as part of the more general process of change itself.
Parallel Importing: Unlawful Use of Trade Marks
Authors: Davison Mark J
Published: January 2019

There has recently been considerable discussion of the law concerning parallel importing of copyright materials. Yet the legality of parallel importing of trade marked products has still to be decided at an appellate level in Australia despite a number of Australian single judge decisions2 on the issue.

The term ‘parallel importing’ can be applied to a number of different activities. However, it usually involves the application in an overseas country of an Australian trade mark (Australian in the sense of being physically identical to the Australian mark) to products manufactured overseas. The application of the mark and the subsequent sale of the product in the overseas country is undoubtedly lawful but some of the marked products are then imported into Australia without the express consent3 of the Australian registered proprietor. This importation in competition with the Australian registered proprietor is parallel importing.
Overcoming the Adversarial Bias in Tribunal Procedures
Authors: Dwyer Joan
Published: January 2019

I have had an interest in inquisitorial procedures and a lack of conviction to the often claimed superiority of adversarial procedures as long as I have have any interest in the law. Until recently however I found it difficult to engage other Australian lawyers in discussions which questioned whether the adversarias system is necessarily the best. It seems that my experience reflected the strength of the “Anglo-American legal culture”.

The decision of the Court of Appeal of New South Wales in Government Insurance Office of New South Wales v Glasscock demonstrates both th traditional view that a trial should be adversarial and a more open approach to the question. One submission of counsel for the appellant was that the trial hal miscarried because of the extent of judicial intervention, which was summed u by saying that the adversarial basis of the trial had been lost as a result of the judge's intervention.
The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge
Authors: Brown A J
Published: January 2019

The Constitution of Australia embodies a liberal political theory that the freedom of the citizen is dependent on the separation and distribution of the powers of the state between different institutions - legislative, executive and judicial. With the possible exception of a democratically elected legislature, none of these institutions should dominate the way in which the powers of the remainder are exercised. For the safeguard of personal liberty, each should act as a check and balance against the over-exercise of power by the remainder, and especially by the executive government of the day.

This principle - the separation of powers - was inherited originally from England but developed considerably in the United States. It has been regarded as a fundamental element of the Constitution since the act of federation in 1901. Recognition of the principle reputedly reached a high point in Boilermakers, a decision of the High Court of Australia in 1956.
Public Choice: The Economic Analysis of Public Law
Authors: Gunningham Neil
Published: January 2019

Law students, served a standard helping of textbook or case method analysis, could be forgiven for thinking that the “law” consists mainly of common law rather than legislation, and that cases, not statutes, are the central repository of legal knowledge. Even those who study legislation often end up with a court-centred view of law. For while legislators enact laws, it is the judiciary which actually interprets, and in some respects, enforces them.

Such a view is essentially inaccurate. Australia, like most other advanced western democracies, is an administrative state, shaped by explicitly adopted policies, incorporated in legislation and implemented by a large array of large regulatory agencies. The economy, the health and safety of the public and the work force, the environment, and a multiplicity of other social goals are all regulated (with varying degrees of success) by this means.
Controlling Pathology Expenditure under Medicare — A Failure of Regulation?
Authors: Wheelwright Karen
Published: January 2019

Health is one of the major areas of public expenditure in Australia. In 1991–1992, Australian governments spent $22.5 billion of the total health expenditure of $33.2 billion. A substantial part of Commonwealth expenditure subsidises patient access to private medical services through Medicare, which operates within the fee-for-service system with no cap on the number of services or on the total budget outlays for them.
Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law — Part One
Authors: Barnes Jeffrey W
Published: January 2019

[I]n order to begin to understand public law we must first try to make it strange.

The law of statutory interpretation is often wrongly thought of as a “quiet backwater”. The myth that it is a dry, formal subject containing simple rules persists despite high-level seminars devoted to it, law reform reports, sweeping statutory reforms, mammoth texts, sophisticated judicial descriptions, and, in the last decade, numerous scholarly articles and works emanating particularly from North America.
WCP LTD V Gambotto: An Opportunity for the High Court to Set Some Corporate Law Norms
Authors: Fridman Saul
Published: January 2019

The High Court has recently heard argument in the case of WCP Ltd v Gambotto. The case is on appeal from the New South Wales Court of Appeal. Although the facts of the case are relatively simple, the issues they raise are rather more complex. WCP Ltd is a company, the shares of which are almost entirely owned by Industrial Equity Ltd.
Retrospective Legislation in Australia: Looking Back at the 1980s
Authors: Palmer Andrew , Sampford Charles
Published: January 2019

Nothing is more certain to cause explosions of fear and loathing among some lawyers than the mention of the word “retrospectivity”. Few topics can be better guaranteed to produce conflict without resolution, heat without light. The term “retrospectivity” is used in the loosest possible way to refer to just about any change that affects a client's interests, and while debate may seem to resemble philosophical disputation, terms like “human rights”, “justice”, “democracy” and “the rule of law” are used for effect rather than argument. But despite the lack of rigour with which the public debate is conducted, the issues do reflect and exemplify genuine philosophical and theoretical problems.
Gendered Assumptions in Family Law Decision-Making
Authors: Graycar Regina
Published: January 2019

As the work of feminist legal scholars has convincingly demonstrated, gendered assumptions underpin much of our law, including areas such as tort, property, tax or company law, where women are not so readily apparent. As the field of law that most overtly involves women, and deals extensively with relationships between women and men, family law shares, perhaps only with the law of sexual assault, the high visibility of women as parties or participants. It is therefore particularly susceptible to a gender analysis. However, any such analysis must take place against the background of the Family Law Act 1975 (Cth), legislation written in a gender-neutral fashion, though it operates in the context of a highly gendered world with all its consequences.The purpose of this article is to suggest some of the ways in which gender might operate under the Family Law Act to disadvantage women.
Preparation and properties of thermally conductive PLA/PA 610 biomass composites
Authors: Pai Fang-Cheng , Chu Hou-Hsein , Lai Sun-Mou
Published: January 2019

Thermally conductive biomass composites were prepared using poly(lactic acid) (PLA)/polyamide 610 (PA 610) blends as the matrix and a hexagonal boron nitride (BN) as the thermally conductive filler via a melt-blending process. The experimental results showed that BN was dispersed in the blends as the flake type morphology. Tg (glass transition temperature) and Tm (melting temperature) of both PLA and PA 610 remained unchanged, but the thermal degradation temperature increased up to 30°C with the addition of 50 phr BN in the blends. The tensile strength and tensile modulus increased with the incorporation of BN in the blends. The thermal conductivity of the blends could be improved with the addition of BN, reaching the highest level of 0.86 W m−1·K−1 for the 50 phr-filled composite. The thermal conductivities of the composites were successfully predicted via a semi-theoretical mathematical model proposed by Lewis and Nielsen.