bluuebunny/crossref_metadata_2025 huggingface dataset:
New species of Sangiorgioichthys Tintori and Lombardo, 2007 (Neopterygii, Semionotiformes) from the Anisian of Luoping (Yunnan Province, South China)
Authors: LÓPEZ-ARBARELLO ADRIANA , SUN ZUO-YU , SFERCO EMILIA , TINTORI ANDREA , XU GUANG-HUI , SUN YUAN-LIN , WU FEI-XIANG , JIANG DA-YONG
Published: January 2019

We report on a new species of the neopterygian genus Sangiorgioichthys Tintori and Lombardo, 2007, from middle Anisian (Pelsonian) deposits in South China (Luoping County, Yunnan Province). Sangiorgioichthys was previously known from a single species, S. aldae, from the late Ladinian of the Monte San Giorgio (Italy and Switzerland). The recognition of the new species helped to improve the diagnosis of the genus, which is mainly characterized by the presence of broad posttemporal and supracleithral bones, one or two suborbital bones occupying a triangular area ventral to the infraorbital bones and lateral to the quadrate, and elongate supramaxilla fitting in a an excavation of the dorsal border of the maxilla. Sangiorgioichthys sui n. sp. differs from the type species in having two pairs of extrascapular bones, the medial pair usually fused to the parietals, maxilla with a complete row of small conical teeth, long supramaxilla, more than half of the length of the maxilla, only two large suborbital bones posterior to the orbit, and flank scales with finely serrated posterior borders. With the discovery of S. sui n. sp., the number of fish genera shared by the Anisian/Ladinian deposits in the Alps and the Anisian deposits in South China increases, including not only the cosmopolitan Birgeria and Saurichthys, but also, among others, the subholosteans Colobodus (so far only in Panxian), Luopingichthys (so far only in Luoping), Peltopleurus, Habroichthys, and the very specialized neopterygians Placopleurus and Marcopoloichthys (only in Luoping). Therefore, although several fish taxa remain to be studied in the Chinese faunas, the so far available evidence indicates close biogeographic relationship between the Middle Triassic marine faunas of the Western Tethys region.
Astyanax pirapuan: a new characid species from the upper Rio Paraguay system, Mato Grosso, Central Brazil (Characiformes, Characidae)
Authors: TAGLIACOLLO VICTOR A. , BRITZKE RICARDO , SILVA GABRIEL S. C. , BENINE RICARDO C.
Published: January 2019

A new characid fish is described herein from tributaries of the Rio Aricá-Mirim, Rio Cuiabá basin, Chapada dos Guimarães, Mato Grosso State, Brazil. Astyanax pirapuan better conforms to the A. scabripinnis species complex and it can be distinguished from other species of this complex by a combination of characters, including 8–9 gill rakers on the upper limb of first branchial arch, 0–1 tooth on the maxillary, 17 to 21 branched anal-fin rays, 35–37 perforated lateral line scales and two humeral spots.
Review of Incadorcus Arnaud & Bomans with the description of three new species from the Yungas of Peru and Bolivia (Coleoptera: Lucanidae: Lucaninae)
Authors: GROSSI PASCHOAL COELHO
Published: January 2019

Three new species of the genus Incadorcus are described from Junín, Peru, and Coroico and Carrasco, Bolivia. The new species are compared with related species and illustrated. Dorsal habitus, head, pronotum, elytra and male genitalia of all species are figured and a distribution map is included. Incadorcus cuzcoensis Arnaud, Noguchi & Bomans is elevated to species status and Incadorcus kirchneri Schenk is synonymized with Incadorcus michellae Arnaud & Bomans. The species Metadorcus rufolineatus Nagel and Aegognathus nigrosuturalis Weinreich are transferred to the genus Onorelucanus.
Mycale (Aegogropila) antiae sp. nov. (Demospongiae; Poecilosclerida; Mycalidae) from Galicia (NW Iberian Peninsula)
Authors: URGORRI VICTORIANO , DÍAZ-AGRAS GUILLERMO
Published: January 2019

A new species of Porifera collected at the Ría de Ferrol (NW Iberian Peninsula), Mycale (Aegogropila) antiae sp. nov., is described. The sponge is apricot-coloured with small sulphur-yellow spots, comprised of one or more conical or cylindrical massive bases, each with a single apical osculum. Long, more or less branched digitiform ramifications emerge from these bases, with one or two oscula in high position. The ectosomal skeleton consists of bundles of interwoven mycalostyles forming a triangular or polygonal tangential reticulation. The choanosomal skeleton shows longitudinal axial tracts, with fan-like feathered plurispicular bundles perpendicular to the surface of the sponge. It is characterized by presenting only mycalostyles as megascleres and three categories of palmate anisochelae as microscleres, the larger forming rosettes, microxeas in dragmata and thin raphides, ornamented at both ends by a fine spine, and grouped in numerous trichodragmata clustered in the subectosomal yellow spots.        This paper is registered in Zoobank under: http://zoobank.org/urn:lsid:zoobank.org:pub:2D668985-001B-4681-8C45-1DA0F804A7F1
Diagnosing the Impacts of Northern Hemisphere Surface Albedo Biases on Simulated Climate
Authors: Thackeray Chad W. , Fletcher Christopher G. , Derksen Chris
Published: January 2019

Many Earth system models contain substantial biases in the magnitude and seasonal cycle of the albedo of snow-covered surfaces. Various structural and parametric deficiencies have been identified as potential causes of these albedo biases, related to vegetation distribution and abundance, snow albedo, and the representation of snow interception by forest canopies. There is, however, little understanding of how the albedo biases directly influence simulated climate because of difficulties in isolating them from other complex processes and feedbacks. In this study, we conduct a number of novel simulations using the National Center for Atmospheric Research Community Earth System Model (CESM), replacing the model’s internal surface albedo calculation with values prescribed from observations or from other model simulations. Results show that while biases in surface albedo are largest in winter, those during spring have the greatest impact on surface climate because incoming solar radiation is much stronger. Correcting biases in the seasonal cycle of albedo in CESM reduces climatological temperature biases across the boreal region in spring and partially corrects Arctic sea level pressure biases, but due to compensating errors, overall climate biases are not always reduced. Additionally, we impose albedo patterns extracted from other climate models with large positive and negative albedo biases to illustrate the climate responses that can result. Prescribed surface albedo produces significant impacts on surface radiation, near-surface land temperatures, and, more rarely, atmospheric circulation. This is important because small changes to mean climate during spring can have major implications for the snow and surface radiation regimes.
The Global Radiative Energy Budget in MERRA and MERRA-2: Evaluation with Respect to CERES EBAF Data
Authors: Hinkelman Laura M.
Published: January 2019

The representation of the long-term radiative energy budgets in NASA’s MERRA and MERRA-2 reanalyses has been evaluated, emphasizing changes associated with the reanalysis system update. Data from the CERES EBAF Edition 2.8 satellite product over 2001–15 were used as a reference. For both MERRA and MERRA-2, the climatological global means of most TOA radiative flux terms agree to within ~3 W m−2 of EBAF. However, MERRA-2’s all-sky reflected shortwave flux is ~7 W m−2 higher than either MERRA or EBAF’s, resulting in a net TOA flux imbalance of −4 W m−2. At the surface, all-sky downward longwave fluxes are problematic for both reanalyses, while high clear-sky downward shortwave fluxes indicate that their atmospheres are too transmissive. Although MERRA-2’s individual all-sky flux terms agree better with EBAF, its net flux agreement is worse (−8.3 vs −3.3 W m−2 for MERRA) because MERRA benefits from cancellation of errors. Analysis by region and surface type gives mixed outcomes. The results consistently indicate that clouds are overrepresented over the tropical oceans in both reanalyses, particularly MERRA-2, and somewhat underrepresented in marine stratocumulus areas. MERRA-2 also exhibits signs of excess cloudiness in the Southern Ocean. Notable discrepancies occur in the polar regions, where the effects of snow and ice cover are important. In most cases, MERRA-2 better represents variability and trends in the global mean radiative fluxes over the period of analysis. Overall, the performance of MERRA-2 relative to MERRA is mixed; there is still room for improvement in the radiative fluxes in this family of reanalysis products.
Talking to the Shameless?: Sexual Violence and Mediation in Intrastate Conflicts
Authors: Nagel Robert Ulrich
Published: January 2019

To what extent, does sexual violence influence the likelihood of conflict management in intrastate conflicts? Despite a growing body of research that explores conflict-related sexual violence, the literature presents little insight on its effects on conflict resolution. Extending feminist international relations (IR) theory to intrastate conflicts and applying a gender lens to the power to hurt argument, I argue that when rebel sexual violence is public knowledge, the likelihood of conflict management increases because the state perceives it as a threat to its masculinity. I systematically test this argument on all intrastate conflict years from 1990 to 2009 using the Sexual Violence in Armed Conflict and the Civil War Mediation data set. The results provide robust support for the argument. This presents an important refinement of traditional rationalist conflict bargaining theories and opens new avenues for the research and practice of conflict management.
One Way That Meaning Is Created: A Phenomenology of Meaningful Events for Young Adults
Authors: Bargdill Richard W. , Marasco-Kuhn Jennifer L. , Muron Anthony P. , Chung Lisa
Published: January 2019

In this qualitative study, six college-age participants (three males and three females) provided written and narrative accounts about an event in their lives they found to be personally meaningful. The accounts were analyzed using an existential-phenomenological framework. The results suggest that a meaningful life event is often experienced as uncanny or completely unexpected. The participants believed that circumstances proceeding and following the event included actions both by others and their selves that were not forthright. The resulting conflict in this meaningful event will require authentic actions from the participants. Those authentic actions helped participants reaffirm their identity, revitalize vulnerable relationships, and expand their sense of purpose. Participants eventually felt gratitude toward the difficult but meaningful event.
Delayed death due to traumatic dissection of the common carotid artery after attempted suicide by hanging
Authors: Kibayashi Kazuhiko , Shimada Ryo , Nakao Ken-ichiro
Published: January 2019

Traumatic dissection of the carotid arteries is a rare cause of delayed death due to hanging. We report a case of delayed death two and a half months following attempted suicide by hanging where the patient was able to talk after being released from neck compression. The cause of death was aspiration pneumonia due to cerebral infarction secondary to traumatic dissection of the left common carotid artery due to attempted suicide by hanging. Carotid artery injuries should be examined in patients who were able to talk after an unsuccessful suicide attempt by hanging but who later died.
Habitus and reflexivity in tandem? Insights from postcolonial Sri Lanka
Authors: Wimalasena Lakshman , Marks Abigail
Published: January 2019

This article contributes to the unresolved concern about the relationship between habitus and reflexivity. Using Sri Lanka, a postcolonial social context, as the research ground, the article provides a contemporary interpretation of individuals’ reflexive and habitual behaviour that displaces Bourdieu’s concept of habitus as inappropriate for the representation of 21st-century social dynamics. While Sri Lanka is often labelled a traditional society, where habitual, routine, pre-reflexive action is thought to be more common, studies that question this generalised view appear to be largely absent. Therefore, based on a critical realist morphogenetic perspective that offers the analytical possibility of both routine and conscious action, this article investigates the role of habitus and reflexivity through 75 work and life histories gathered from Sri Lanka. The findings suggest that even the reproduction of traditional practices has increasingly become a reflexive task; thus, this work supports the position that habitus fails to provide reliable guidance to understand social action, even within a society labelled as traditional.
Circular cities
Authors: Williams Joanna
Published: January 2019

A circular approach to the way in which we manage the resources consumed and produced in cities – materials, energy, water and land – will significantly reduce the consumption of finite resources globally. It will also help to address urban problems including resource security, waste disposal, greenhouse gas emissions, pollution, heating, drought and flooding. Taking a circular approach can also tackle many other socio-economic problems afflicting cities, for example, providing access to affordable accommodation, expanding and diversifying the economic base, building more engaged and collaborative communities in cities. Thus it has great potential to improve our urban living environments. To date, the industrial ecologists and economists have tended to dominate the circularity debate, focusing on closed-loop industrial systems and circular economy (circular businesses and systems of provision). In this paper I investigate why the current state-of-the-art conceptualisation for circular economy (RESOLVE) is inadequate when applied to a city. Through this critique and a broader review of the literature I identify the principles and components which are lacking from the circular economy (CE) conceptualisation when applied to a city. I then use this to develop my own definition and conceptualisation of a circular approach to urban resource management.
The political economy of transit value capture: The changing business model of the MTRC in Hong Kong
Authors: Aveline-Dubach Natacha , Blandeau Guillaume
Published: January 2019

The mechanism of land value capture (LVC) for financing urban transport, which supports the cost of transit infrastructure through the revenues of land and property, has generated a substantial body of research. However, the literature on transit-related LVC has paid little attention to the politics and strategies of value capture. This article intends to shift the focus towards the governance of LVC, based on the case study of the Mass Transit Railway Corporation (MTRC) in Hong Kong. It argues that the evolving balance of power within Hong Kong’s growth coalition has entailed a transformation of the MTRC’s business model, prompting the transit agency to shift from the development of new real estate projects to the management of existing property assets. This work provides empirical evidence of an emerging ‘management-based’ value capture strategy, which is adapted to steady or slow growing urban contexts.
The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited
Authors: Wait Michael
Published: January 2019

"The Common Law abhors infiniteness"
Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective
Authors: McConvill James , Smith Darryl
Published: January 2019

[C]o-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. ... Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Common-wealth can constitutionally do, the subject matter is beyond the reach of the legislature.

Co-operative federalism is the process by which the Commonwealth and the States organise for their overlapping constitutional powers to be exercised concurrently in order to achieve national outcomes through consensual processes. Beginning with Re Wakim, the controversial cross-vesting case, from which the opening statement above by Justice McHugh was taken, the High Court has applied a restrictive approach to interpreting constitutional and statutory provisions when cooperative arrangements have been challenged.
The Common Law in Australia: Its Nature and Constitutional Significance
Authors: Zines Leslie
Published: January 2019

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.
Can Parliament Confer Plenary Executive Power? the Limitations Imposed by Sections 51 and 52 of the Australian Consitution
Authors: Crawford Lisa Burton
Published: January 2019

Plenary executive power seems repugnant to the rule of law. It is often said that such power cannot exist: that all executive power must have legal limits. Yet, it remains unclear which principle or principles of Australian constitutional law would prevent the federal Parliament from conferring plenary executive power. The High Court has suggested that a federal statute purporting to confer an entirely open-ended discretion on a Minister would simply not be a ‘law’, or else lack the requisite connection to a head of power found in ss 51 or 52 of the Australian Constitution. This article examines the latter claim. It explains the nature of the limitations imposed by ss 51 and 52 and the role of the High Court in ensuring that those limitations are complied with. It concludes that the scope of executive power that Parliament may confer is constrained by ss 51 and 52, but not to the extent that has been suggested by the High Court.
Older Workers and Requests for Flexibility: A Weak Right in the Face of Entrenched Age Discrimination
Authors: MacDermott Therese
Published: January 2019

In 2013, the right to request flexible work arrangements was extended to include employees who are 55 years or older, with a refusal by an employer of such a request in theory available only on the basis of ‘reasonable business grounds.’ This expansion of the right to request is one of a number of different strategies implemented with a view to enhancing the workforce participation of older Australians. This paper examines the scope of the right to request and how it operates with respect to older workers as part of the National Employment Standards in the Fair Work Act 2009 (Cth). The paper also examines the gender dimension in the making of requests and in the utilisation of flexible work practices. Since the ‘right’ exists as merely the subject for negotiation at a workplace level, rather than an enforceable claim, this paper contends that it is unable to overcome persistent and prevalent age discrimination in employment. The paper argues that a review process and independent oversight are required in order to bring about the attitudinal change necessary if the right to request flexible work arrangements is to operate as a viable means of providing constructive opportunities for older workers to maintain their workforce participation.
Non-Military Space Testing in the Woomera Prohibited Area: Opportunities for the Australian Space Industry?
Authors: de Zwart Melissa , Stephens Dale
Published: January 2019

The Australian Civil Space Industry is poised at a crucial moment in its history. Careful strategic decisions need to be made regarding whether Australia will continue to take a back seat in the space race or whether it will join the growing space technology industry, providing major opportunities for Australian innovators. This cannot occur if the current legal and regulatory frameworks do not facilitate research activities and investment. The Australian Government is currently reviewing the Space Activities Act 1998 (Cth) and the Space Activities Regulations 2001 (Cth). This article will consider the unique role played by the Woomera Prohibited Area in the development and testing of launch technology and undertake an assessment of whether the Woomera Range (and by extension Australia) may once again play an important role in the research, development and testing of space technology. The article will place the legal restrictions regarding access to and use of the Woomera Range within the context of the proposed revision of the Australian legislation regulating civil space activities.
Australian Inter-State Common Law
Authors: Renard Ian
Published: January 2019

No doubt when a jurisdiction is conferred like that given by sec. 75(iii) and (iv) the source whence the substantive law is to be derived for determining the duties of the governments presents difficulties …

By section 75(iii) and (iv) of the Commonwealth Constitution, the High Court is granted original jurisdiction to hear “matters” between the various Australian governments. As yet, most inter-governmental cases heard by the High Court have been disposed of by interpretation and application of the Constitution, but it is clear that the High Court must have recourse to legal sources outside the Constitution. A study of the cases so far heard by the High Court, the types of disputes that might arise, application of the common law in other areas of law and experience in other federations reveals that the common law is applicable to Australian inter-governmental cases. Not only this, but there exists a body of “inter-state common law” specifically referable to intergovernmental disputes. Strands of this inter-state common law are to be found in the law covering rights of governments and their Attorneys General to sue other governments on behalf of their residents, intergovernmental agreements, nuisance and inter-State water disputes.
The Commonwealth Places (Application of Laws) Act 1970
Authors: Rose Dennis J.
Published: January 2019

When Mr Cyril Worthing fell and suffered InjUrieS during his inspection of building work at the Richmond Air Force Base there was not only an alleged gap in the scaffolding but also a very significant gap in the law. For when he sued the defendant contractors for damages for breach of alleged statutory duty under the Scaffolding and Lifts Act, 1912-1965 of New South Wales, the High Court held in Worthing v. Rowell and Muston Pty Ltd and Others that the State scaffolding regulations, made after the Commonwealth's acquisition, did not apply in “places acquired by the Commonwealth for public purposes” within the meaning of section 52(i.) of the Constitution.

Section 52(i.) of the Constitution provides as follows:

52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to—

(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes.
Social Welfare in Australia: The Constitutional Framework
Authors: Sackville Ronald
Published: January 2019

In an examination of the Commonwealth Government's power to enact social welfare legislation, Professor Sackville explores the tendency toward federal control of this field since 1901 and the judicial reaction to it. His conclusion is that although certain of the restrictions imposed upon Commonwealth freedom of action by the High Court have been removed by constitutional amendment, the trend towards a wider concept of Commonwealth involvement in community welfare schemes may well exceed the present limits upon Commonwealth legislative competence; and he looks to the Constitutional Convention now in progress as the possible prelude to an era in which extension of these limits might more readily take place.
“And Hast Thou Slain The Jabberwock?” The Law Relating to Demonstrations in the A.C.T.
Authors: Brown Roger A.
Published: January 2019

In an examination of the existing limitations of freedom of assembly and demonstration in the A.C.T., Mr Brown first deals with the common law and various statutory provisions as they stood in 1971. He then examines the Public Order (Protection of Persons and Property) Act 1971 (Cth) in some depth. His conclusion, after a brief discussion of rights of peaceful assembly in the present law, is that the current legal position in the A.C.T. is unsatisfactory in that it does not give sufficient guarantees to civil rights but rather embodies repressive laws to prevent threats of public disorder that may be more imaginary than real.
Give up your Claim or Give up your Billet: Legal Redress for Victimised Trade Unionists in Australia
Authors: O'Donovan James
Published: January 2019

An objective of all industrial legislation in Australia is that employees victimised because of their participation in the industrial relations system should be able to obtain legal redress. Thus it is sought to give remedies for conduct which Isaacs J. pithily described as amounting to a demand by an employer to an employee of “give up your claim or give up your billet”. Dr O'Donovan exhaustively analyses how the legislation of the Commonwealth and each of the States protects employees from victimisation on account of their union or industrial activities. Differences between the protection and redress given by each piece of legislation are detailed, while the Commonwealth provisions and cases concerning them are highlighted. The article concludes by suggesting matters for reform in this important area of industrial law.
From Co-Operative to Coercive Federalism and Back?
Authors: Cranston Ross
Published: January 2019

In this article Ross Cranston discusses the changing nature of Federalism, tracing its development and examining possible characterizations of its basis. After reviewing the elements of “co-operative” and “coercive” Federalism, the author turns to “New Federalism” and what that means in terms of the Fraser government. He concludes that disputes over financial and other intergovernmental agreements are best left to the political sphere with the High Court acting in a supplementary role because of the inherent untidiness of a Federal system of government.
The Liability of Manufacturers and Importers under the Trade Practices Amendment Act 1978
Authors: Gregg Gary M. , Tzovaras Ted D.
Published: January 2019

The introduction of Division 2A into Part V of the Trade Practices Act has brought Australia firmly into line with current thinking in the Western world on the liability of manufacturers. The new Division has two aspects. First, it provides consumers, and in some cases their successors in title, with a statutory right to compensation from manufacturers and importers in specified circumstances. Secondly, it grants to sellers of goods a right to indemnity from a manufacturer (or importer) where the latter is liable to compensate the consumer under this Division.

This article examines the likely effect that the introduction of Division 2A will have on the liability of manufacturers and importers of goods. The article commences by outlining the liability of manufacturers in Australia prior to the recent amendments. The operation and scope of Division 2A are then described. The article concludes by focusing on certain practical difficulties and problems of interpretation inherent in the new Division.
The Attorney-General and Cabinet: Some Australian Precedents
Authors: Plehwe R.
Published: January 2019

In Britain the Attorney-General is free from Cabinet control in deciding whether or not to initiate prosecutions or to terminate criminal proceedings. This article discusses the question whether the British rule applies in Australia. It examines the Mercantile Bank case (Victoria, 1893), the termination by federal authorities of the proceedings against John Brown in 1929, and evidence provided by federal Cabinet minutes before 1946. It seems that the British rule was not established in Australia before World War II. If Australian Attorneys-General are now regarded as exercising an independent authority, this is probably a case of importing a British convention after it had evolved in the United Kingdom. When the federal Attorney-General, Mr Ellicott, resigned in 1977, both he and the Prime Minister stated that Cabinet should not interfere with decisions to start or discontinue criminal proceedings. It would, however, be premature to regard this as a firmly established convention and it is clear that there were grave differences between Mr Ellicott and his colleagues as to some practical implications of the rule.
The Choice between Judicial and Administrative Tribunals and the Separation of Powers
Authors: Campbell Enid
Published: January 2019

In his Hamlyn Lectures Lord Scarman ventured to suggest that the common law as developed by the judiciary had, by reason of its preoccupation with the defence of private property and distributive justice as between individuals, and its relative lack of concern with public law (meaning the law governing the rights and obligations of the state), come to play a diminishing role in the governance of society. He condemned what he described as “an influential body of legal opinion which would confine the role of the courts and the general law to the interpretation of the statutes and the statutory instruments which are the legal framework of the system”; and which would exclude those courts “from reviewing the merits of a decision”.
The Judicial Libertine-Jurisdictional and Non-Jurisdictional Error of Law in Australia
Authors: Bath Vivienne
Published: January 2019

It cannot be that Legislatures, being rational, seek to break down the fences they have erected around individual tribunals and let them roam at large by the simple expedient of a privative clause. The clause must be read in the context of the statute. It cannot be intended to transform tribunals into judicial libertines.

The decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission was hailed as a landmark, permitting almost unlimited judicial review into the activities of administrative bodies and inferior courts. De Smith commented

is not the practical effect of the decision [in Anisminic] … to obliterate the distinction between reviewable errors on matters going to jurisdiction and errors which are normally unreviewable (otherwise than on appeal) because they “go to the merits” of the decision?

Yet the decisions which have followed Anisminic even in England have revealed that the case has contributed little certainty to an area in which apparently irreconcilable decisions proliferate.
The Presumption of Constitutionality
Authors: Burmester Henry
Published: January 2019

The presumption of constitutionality has been frequently invoked in recent judgments of Murphy J in the High Court. The article examines the use of the presumption in the United States and Canada. It then considers the way in which the presumption has been applied in Australia and the justification given for it. It is suggested that although the presumption does not have a clearly recognised place in Australian constitutional theory, the presumption is important and it should be given much greater prominence. For this to happen will require changes in judicial attitude. It also requires Parliament to reassert its role in the determination of constitutional questions.
Commentaries
Authors: Harders Clarrie
Published: January 2019

My first and quite unnecessary comment is that if anyone can speak with authority about Freedom of Information (“FOI”) in Australia and about the origins of the Commonwealth’s Freedom of Information Act in particular it surely is Mr Lindsay Curtis. I recall many of the events of 1973 onwards into 1979 when I retired from the Public Service. Especially I recall the long haul that was commenced in 1973 with the assistance of Mr Tony Mondello, the legal adviser to the United States Civil Service Commission, and that eventually reached fruition in 1982 with the passage of the FOI Act. All through that period Lindsay Curtis was more closely associated than any other public servant with the project. He has given us the benefit of that experience in an interesting, able and fluent paper.

My second and equally obvious comment is that the FOI Act is here to stay. Lindsay Curtis has said we are undergoing a revolution. I believe the revolution has already taken place. Some of us may find it rather difficult to live with the consequences.
Access to Government Information: The American Experience
Authors: Robinson Glen O
Published: January 2019

Enactment of the United States Freedom of Information Act (“FOI Act”) in 1966 was a landmark event in the history of American administrative law. Among the most important of American administrative law reforms, the FOI Act has engendered a veritable cottage industry devoted to securing access to government-held information. In the sixteen-plus years since the Act went into effect Congress has twice amended the Act and is currently considering yet another round of amendments. Each occasion has engendered a new round of studies and commentaries on the Act, its purposes and effects.

The attention given to the subject by Congress pales in comparison to the attention given it by the courts. A September 1981 list shows more than 1300 decisions construing the FOI Act, and companion laws: the Privacy Act, Sunshine Act and Federal Advisory Committee Act.
The Corporations and Races Powers
Authors: Lindell G J
Published: January 2019

The legislation enacted to prevent the construction of the Franklin Dam relied on a number of federal legislative powers which included the corporations power and the races power in ss 51(xx) and 51(xxvi) of the Constitution respectively. In contrast to most of the other sections in the Constitution which confer legislative power on the Commonwealth Parliament those sections refer to persons or institutions. In a well-known passage in Stenhouse v Coleman, Dixon J (as he was then) said:

In most of the paragraphs of s.51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object.
Natural Justice and Legitimate Expectations in Australia
Authors: Johnson Graeme
Published: January 2019

The imprecise contours of the… principles [of implication of due process] prevent their easy application. To apply them too sweepingly requires the dilution of due process requirements to accommodate the protection afforded the property interest holder to the inescapable and practical needs of government. To apply them too narrowly requires the sacrifice without due process of many highly valued expectations to accommodate their holders to the only marginally significant needs of government.
Gosford Mea Ts PTY LTD v New South Wales
Authors: Udechuku I. A.
Published: January 2019

Constitutional law — Commonwealth — Excise duties — Tax on production — Licence to slaughter animals — Fee based on number of animals slaughtered in period prior to licence period — Whether invalid as tax on goods produced or valid as tax on business generally — Whether governed by Dennis Hotels2 case — Constitution (Cth) s 90 — Meat Industry Act 1978 (NSW) s 11C — Meat Industry (Licensing) Regulations (1980) (NSW) cl 41.
A Hard Look at Holism and Consequentialism in Hard Cases
Authors: McNicol Suzanne B
Published: January 2019

In any field of law . . . there may arise the rare “landmark” case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law.
Recent Changes to Corporate Capacity and Agency
Authors: Gates Stephen J.
Published: January 2019

When the 1983 amendments were made to the national companies securities legislation, it was stated in the accompanying explanatory memorandum that one of the purposes of the new provisions was to “abolish the doctrine of ultra vires” — an ambitious aim given the tenacity of the doctrine despite widespread criticism on many grounds, perhaps best summed up in the comment, “[u]ltra vires was the expression of a social policy that failed.”

Of course, it has now been realised that the 1983 amending Act did not achieve its stated purpose. It may have achieved a partial elimination of the doctrine but it has left a large area for its continued operation in a different form and in some respects has opened new opportunities for development.

These aspects are explored below but it should be noted here that one curious side of the new provisions is that no explanation was offered of the defects in the previous statutory provisions, ss 67-68 of the Companies Act (Cth) (“the Act”) and its forerunner, s 20 of the State uniform companies legislation, nor was it explained how the new ss 67-68 were intended to remedy those defects. The new regime was simply offered as a better general solution to the ultra vires problem. Unfortunately, in this case, it is not the final solution.
Constitution, Section 57 – Further Questions
Authors: Comans C K
Published: January 2019

A number of questions concerning the construction and application of section 57 of the Constitution have now been determined by the High Court. The purposes of this note are to examine critically some implications of these answers and to direct attention to some other technical questions that could arise in the future. The special interest of the writer in these matters arises from the fact that he was closely involved in the preparation of documents in relation to the double dissolutions of 1974 and 1975 and the joint sitting of 1974.

It is not within the purposes of this article to discuss generally the extent to which the Governor-General may be entitled to exercise a personal judgment or discretion in granting or refusing a double dissolution. That is a matter of constitutional propriety rather than the justiciable constitutional law with which this article is concerned.
Judicial Review of Discretionary Prohibitions - A New Basis?
Authors: Kneebone Susan
Published: January 2019

The effect of a recent decision of the High Court of Australia in Foley v Padley is to severely curtail the extent of judicial review of the exercise of discretionary prohibitions. In the light of this decision, the Question of the nature of a prohibition contained in subordinate legislation when coupled with a dispensing power becomes of more than academic interest. In Foley v Padley, the effect of an empowering provision referable to the opinion of the subordinate legislator (a municipal council) was considered in relation to a broad unfettered discretion to dispense with a prohibition. Thus this decision brought directly into issue the role of the administrator/ policy-maker as against the rights of an individual.

In brief, Foley v Padley decided that a dispensing power attached to a power to prohibit in a by-law was a valid condition of the power to prohibit, thus following the decision in Country Roads Board v Neale Ads. As the decision of the High Court in Swan Hill Corporation v Bradbury was the last occasion on which this issue had been fully considered by the High Court one can only lament the passing of an opportunity to re-open the debate as to dispensing powers.
Oligopolistic Conscious Parallelism under the Competition Law of the USA
Authors: Aldor Leslie
Published: January 2019

One of the most crucial and yet challenging problems which faces Australian competition lawyers is the definition of the scope of the terms “contract”, “arrangement” and “understanding” in ss 45 and 45A of the Trade Practices Act 1974. Section 45 proscribes contracts, arrangements or understandings which have the purpose or effect of substantially lessening competition in a market. Section 45A then expands on s 45 by providing that contracts, arrangements and understandings which “fix” prices are deemed, for the purposes of s 45, to have the purpose or effect of substantially lessening competition in a market.

The terms “contract”, “arrangement”, and “understanding” are not defined in the TPA and thus the legislature has left the matter of interpretation “at large”. Determining the boundaries of concepts such as “arrangements” and “understandings” is no easy task, especially when the focus of the enquiry is on the parallel behaviour of participants in concentrated markets.
Biotechnology and the Law: Co-Operation Nationally and Internationally
Authors: Whalan Douglas J , Kaney Keith F
Published: January 2019

There is a growing awareness in Australia that current laws are inadequate to protect the increasing industrial application of biotechnology. To overcome these difficulties there is a need for co-operation both nationally and internationally. The Biological Control Act 1984 (Cth) and the Patents Amendment Act 1984 (Cth) are indicative of a trend towards this end.

The Biological Control Act 1984 (Cth) involves co-operation between the Commonwealth and the States to overcome gaps in the Commonwealth's power, while the Patents Amendment Act 1984 (Cth) involves international co-operation under the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedures 1977. Whereas the Patents Amendment Act 1984 (Cth) extends and secures the patent protection available for biotechnological inventions, the Biological Control Act 1984 (Cth) aims to protect certain scientific endeavours from undue interference from the law itself.
Gosford Meats PTY LTD v New South Wales
Authors: Udechuku I. A.
Published: January 2019

Constitutional law — Commonwealth — Excise duties — Tax on production — Licence to slaughter animals — Fee based on number of animals slaughtered in period prior to licence period — Whether invalid as tax on goods produced or valid as tax on business generally — Whether governed by Dennis Hotels case — Constitution (Cth) s 90 — Meat Industry Act 1978 (NSW) s 11C — Meat Industry (Licensing) Regulations (1980) (NSW) cl 41.
Extra-Constitutional Notions in Australian Constitutional Law
Authors: Winterton George
Published: January 2019

Australia has, mercifully, been spared from revolutionary changes of grundnorm or “rules of recognition”, with their consequential appeals to “necessity”, of the sort which have plagued courts in Pakistan, lJganda, Ghana, Nigeria, Zimbabwe, the Seychelles and Grenada, among others. But that has not meant that arguments based upon extra-constitutional powers and prohibitions have been absent from Australian constitutional jurisprudence. Human ingenuity being what it is, commentators and even judges, undaunted by the absence of a tenable constitutional argument, have occasionally resorted to extra-constitutional notions.

This paper explores the boundary between constitutional rules and principles and extra-constitutional political notions. That boundary is, of course, indistinct because the constitution includes implied powers and prohibitions. Hence, opinions will inevitably differ as to whether a particular power or prohibition is implied in the Constitution and, thus, is constitutionally conferred or imposed, or alternatively arises (if at all) extra-constitutionally.
Trade Marks
Authors: Byrne Suzanne C Betink
Published: January 2019

Subject to this Act, the registration of a trade mark in Part A or Part B of the register, if valid, gives to the registered proprietor of the trade mark the right to exclusive use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

The Australian scheme of Intellectual Property Law includes the registration and protection of trade marks pursuant to the Trade Marks Act I955 (Cth) (the Act).

Section 58(1) of the Act, reproduced above, grants the right to exclusive use of the registered trade mark to the registered proprietor. Section 62(1) deems that such a trade mark is infringed as follows:

A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user of the trade mark using by way of permitted use, uses a mark which is substantially identical with, or deceptively similiar to, the trade mark, in the course of trade, in relation to the goods or services in respect of which the trade mark is registered.
Reply to Galligan
Authors: Goldsworthy Jeffrey
Published: January 2019

Brian Galligan says that I have misread or misunderstood the whole thrust of his argument. I suggest that the shoe is on the other foot. Readers will have to decide who has misunderstood whom.
Section 92 of the Constitution and the European Court of Justice
Authors: Staker Christopher
Published: January 2019

Section 92 of the Australian Constitution contains a terse statement that “trade, commerce, and intercourse among the States ... shall be absolutely free”. The High Court's troubled search since Federation to give that statement a clear and certain interpretation is well known and requires no reiteration here. Michael Coper has identified 32 different phases in the history of the interpretation of s 92 between 1909 and 1980. When the latest phase was ushered in with the High Court's 1988 decision in Cole v Whitfield, it was accompanied by predictions by some commentators that it would be the last Professor Lane, for instance, said that “The decision descended as a deus ex machina, providing an uncomplicated solution for those who write and advise on the kind of freedom of interstate trade and commerce that is now guaranteed by s 92 of the Constitution”. The more pessimistic might wonder whether the Cole v Whitfield interpretation will in fact prove more durable than any of its predecessors.
Justiciability of Decisions in the Criminal Process: Review of Committal Proceedings in the Federal Court
Authors: Naylor Bronwyn
Published: January 2019

Justiciability is a central concept in administrative law. It is used to define the limits of judicial review, limits drawn in terms of “judicial conceptions of the proper relationship between the cowts and the executive”. This paper examines the limits on judicial review of one part of the criminal process.

Decisions made at a criminal trial can be challenged by statutory avenues of appeal ort less usuallyt by judicial review. Decisions earlier in the criminal process, however, are generally unreviewable at common law. For a variety of reasons, they have “enjoyed a special immunity from judicial review.” The discretions to prosecute, or to discontinue a prosecution, have been regarded as non-reviewable exercises of prerogative powers. Where equivalent powers have been conferred by statute, the unlimited terms in which they are granted has similarly meant they are unreviewable. Even with moves to greater review of prerogative powers in Australia and overseas prosecution decisions continue to be regarded as unreviewable. As they involve a wide and unstructured discretion, with a large policy component, they are said to be more appropriately accountable to Parliament than to the courts.