bluuebunny/crossref_metadata_2025 huggingface dataset:
Bucculatrix crataega sp. nov. (Lepidoptera: Bucculatricidae), a leaf miner on Crataegus, representing the first formally named species of the family from mainland China
Authors: LIU TENGTENG , WANG HU
Published: January 2019

A new leaf-mining species of the genus Bucculatrix Zeller, 1839, B. crataega Liu, sp. nov., feeding on Crataegus pinnatifida Bunge is described herein, representing the first formally named species of Bucculatricidae from mainland China. Adult and genitalia of both sexes are described and illustrated. Host plant, leaf mine and cocoon are also illustrated. DNA barcode analysis supports the separation of B. crataega from related species.
Pycnogonida (Arthropoda) from Uruguayan waters (Southwest Atlantic):
annotated checklist and biogeographic considerations
Authors: SCARABINO FABRIZIO , LUCENA RUDÁ AMORIM , MUNILLA TOMÁS , SOLER-MEMBRIVES ANNA , ORTEGA LEONARDO , SCHWINDT EVANGELINA , LÓPEZ GUZMÁN , ORENSANZ JOSÉ MARÍA , CHRISTOFFERSEN MARTIN LIDSEY
Published: January 2019

Records of pycnogonids from Uruguayan waters (south-western Atlantic) include 26 species cited from precise locations, and at least five other species based on unconfirmed records. Nearly half of the species in that fauna belong to the genus Nymphon (12 spp.). Most species (22) come from deep-water and were recorded and described by C. A. Child. Of these, at least twelve species have an extended Antarctic and Subantarctic distribution, showing the influence of these cold waters in the area; three others have a wide deep-sea distribution pattern. Five species are known only from the lower slope and abyssal basin off La plata river: Mimipallene Atlantis and four species of Nymphon. Records from coastal and shelf areas (four species) are poorly documented and should be the focus of future research. Of these, Colossendeis geoffroyi is considered endemic in the Southwest Atlantic between 34ºS and 40ºS, but presents clear Antarctic affinities. A small-sized species living in shallow waters, Pycnogonum cessaci, is here considered as cryptogenic.
Rhythms of Prediction in South Australian Water Resource Management
Authors: Rayner Steve
Published: January 2019

In the complex institutional and physical infrastructure nexus of South Australia, weather and climate information is highly valued by freshwater managers and users. But different users focus on very different time scales. Recent changes in water rights and technology, driven by the Millennium Drought, enable agricultural users to focus on real-time monitoring and relatively short-term forecasts (3–5 days ahead). A wide range of users make extensive use of the full 7-day weather forecasts and there is awareness of, but not reliance on, seasonal outlooks. These are widely viewed as providing “background” indications and are seldom directly used in decision-making. While concern about climate change is driving scientific research on downscaling climate impact models for the region, there are different views among decision-makers about the usefulness of these for adaptation. All forms of weather and climate information appear to be best integrated into decision-making when incorporated into sector-specific models and decision-support tools alongside other relevant variables. However, there remains something of a mismatch between scientific aspirations to improve the skill of seasonal and long-term climate forecasting and the temporal rhythms of water-resource decision-making.
IDEA’s Double Bind: A Synthesis of Disproportionality Policy Interpretations
Authors: Sullivan Amanda L. , Osher Daniel
Published: January 2019

Disproportionality research has been subject to multiple reviews, but there has been less critical examination of the policy dimension of this enduring educational problem. Given the relevance of federal policies, and interpretations thereof, to educators’ and scholars’ conceptualization of disproportionality and schools’ resultant policies and practices, we provide a brief overview of disproportionality scholarship before focusing on its policy dimensions. We describe the role of federal policy and resultant interpretations to how disproportionality is addressed and our approach to identifying and synthesizing these interpretations. We then analyze the themes apparent in these interpretations: requirements for states’ numerical analysis of “significant disproportionality,” parameters for school systems’ allocation of resources for early intervening services when significant disproportionality is found, and schools’ obligations for nondiscriminatory application of policies and procedures. Finally, we distill implications for school policies, practices, and procedures. We close with discussion of implications for how disproportionality is conceptualized and studied.
Effectiveness of Psycholinguistic Training: A Response to Kavale
Authors: Larsen Stephen C. , Parker Randall M. , Hammill Donald D.
Published: January 2019

The effectiveness of psycholinguistic training is a topic that has initiated much interest and research. In 1974, Hammill and Larsen published a review of 38 studies that had attempted to foster psycholinguistic skills in children while using the Illinois Test of Psycholinguistic Abilities as the criterion for improvement. The conclusion reached by Hammill and Larsen was that psycholinguistic training was essentially nonvalidated. In an article published in the April 1981 issue of Exceptional Children, Kavale used meta-analysis of many of the studies reported by Hammill and Larsen and concluded that the effectiveness of psycholinguistic training has indeed been verified. The present article seeks to demonstrate that when using meta-analysis on all studies available on this topic, psycholinguistic training remains nonvalidated.
A Rationale for the Merger of Special and Regular Education
Authors: Stainback William , Stainback Susan
Published: January 2019

The purpose of this article is to provide a rationale for the merger of special and regular education into one unified system structured to meet the unique needs of all students. The rationale for merger is based on two major premises. The first is that the instructional needs of students do not warrant the operation of a dual system. The second is the inefficiency of operating a dual system. The basic reasons for each premise are outlined and discussed, and some possible implications of merger are considered.
Integration of Severely Handicapped Students and the Proportion of IEP Objectives Achieved
Authors: Brinker Richard P. , Thorpe Margaret E.
Published: January 2019

The study investigated the educational impact of integration of severely handicapped students in regular public schools. Thirteen school districts and one residential institution were selected on the basis of their efforts to integrate severely handicapped students. Six of these sites were federally funded model programs for integrating these students. Degree of integration was defined through systematic observation of the rate of integration between severely handicapped students and nonhandicapped students. Information on severely handicapped students’ functional level and rates of interaction with nonhandicapped students and other severely handicapped students was used to predict their achievement of Individual Education Plan (IEP) objectives. Findings revealed that over and above functional level, degree of integration, as measured by interaction with nonhandicapped students, was a significant predictor (p < .025) of educational progress, as measured by the proportion of IEP objectives met. Integration was discussed as an important aspect of curricula for severely handicapped students.
The 1984 Annual Report to Congress: Are we Better Off?
Authors: Greenburg David E.
Published: January 2019

The U.S. Department of Education 1984 Annual Report to Congress on progress in achieving the intent of P.L. 94-142 gives cause for thought and questions in the minds of local special education practitioners. Questions concern the extent to which there has been locally perceived progress in improving services to handicapped children, meaningfully characterizing that progress for critical audiences, and major initiatives yet to be addressed. In the opinion of the author, there have been both substantive and substantial improvements in local special education programs and services, in part attributable to the provisions in P.L. 94-142. Stability in local, state, and federal funding for programs and services remains a major area demanding attention.
How the Courts have Interpreted the Related Services Mandate
Authors: Osborne Allan G.
Published: January 2019

Since the Education for All Handicapped Children Act became effective in 1977, several aspects of the law have been subject to much litigation. One of the most controversial provisions of the law, in terms of litigation, is the related services mandate. The controversy centers on whether or not school systems are required to provide services such as psychotherapy, certain health services, physical plant accessibility, parent training and counseling, and extra-curricular activities. The author has examined how the courts have interpreted the related services mandate and has offered some guidelines as to what is and is not required.
Social Skills and Self-Efficacy for Exceptional Children
Authors: Gresham Frank M.
Published: January 2019

Personal competence, or an individual's sense of mastery over the environment, is a primary motivator of human behavior. The special education enterprise thrives on the discovery of personal incompetence in children so this incompetence can be remediated. This article suggests that mainstreaming efforts have been largely unsuccessful because of the faulty assumptions underlying such efforts, the focus on academic attainment for handicapped children, and the failure to reasonably consider the social development of handicapped children. Self-efficacy theory is used as a basis to support the above argument, as a basis for the refocusing of the mainstreaming process, and as a basis for teaching positive social behaviors to mainstreamed handicapped children.
Staff Ratios and Allocated Instructional Time for Multihandicapped Students
Authors: Snart Fern , Hillyard Alex
Published: January 2019

Examinations of ecologically relevant variables within diverse educational settings have produced evidence that allocated instructional time is one modifiable variable clearly related to student achievement. The present study compared the amount of instructional time available in classrooms for severely/multiply handicapped children when student/staff ratios ranged from 10:3 to 5:3. Results suggest a turning point at which instructional and noninstructional (or caretaking) time are approximately equal, at a 2:1 student/staff ratio. Thereafter, the gains in instructional time may become less pronounced.
The Fiscal and Human Costs of Life Without Parole
Authors: Leigey Margaret E. , Schartmueller Doris
Published: January 2019

In recent decades, the United States has increasingly relied on life-without-parole (LWOP) sentences. Due to its indeterminacy, such a sentence involves tremendous fiscal and human costs. This study first examines the use of LWOP in Louisiana, Pennsylvania, and Massachusetts, which have high percentages of LWOP inmates in their prison populations. After a comparison of what type of convictions trigger LWOP, we discuss the impact the LWOP population has had on the states’ correctional systems. We then assess the human costs of LWOP by problematizing the indeterminacy of the sentence and comparing how international and domestic courts have restricted its use.
Contempt of Parliament in Papua and New Guinea
Authors: McNamara P. A.
Published: January 2019

Proceedings in some Australian legislatures in recent years in relation to alleged contempts of Parliament and breaches of Parliamentary privilege have been followed by a similar episode in the House of Assembly of the Territory of Papua and New Guinea. The proceedings in the Territory are noteworthy not only because they were the first of their kind there, but also because they drew attention to substantial and unforeseen difficulties in attempts to transfer the power to deal with contempts and breaches of privilege from Parliament to the courts. The House of Assembly of the Territory of Papua and New Guinea, along with the Legislative Council of the Northern Territory, has effected through legislation an abdication of its powers to punish those persons found guilty of contempts. This transfer of power from Parliament to the courts has been shown to be of uncertain extent by the proceedings in the House of Assembly. The fact that even a partial delegation of this power has been achieved in these two jurisdictions distinguishes the two territorial legislatures from those of all the Australian States and from the House of Representatives of the Parliament of the Commonwealth, which have generally preserved to themselves the power to deal with alleged breaches of privilege. As will be seen, this transfer of power presents the two territorial legislatures with novel and distinctive problems, no solution to which has yet been reached.
The 1958 United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards and the Australian Constitution
Authors: Goldring John
Published: January 2019

There are indications that Australia may shortly accede to and ratify the United Nations 1958 (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This Convention, which has recently been the subject of a study by UNCITRAL, provides for the contracting parties to recognize and enforce awards made in the course of arbitration in foreign countries. Should the Government decide to ratify the Convention the manner of putting it into effect in Australia may pose some constitutional problems, and this comment discusses some alternatives open to the Government, bearing in mind the requirements of the Australian Constitution.
Proceeds of Life Assurance Policies and the Estate Duty Assessment Act 1914–1974 (Cth)
Authors: Lindgren K. E.
Published: January 2019

Section 8(4)(f) of the Estate Duty Assessment Act 1914–1974 (Cth) subjects to the charge for federal estate duty certain categories of proceeds of life assurance policies. It has proved to be the most litigated provision in the Act. In this article Professor Lindgren examines the anomalies and uncertainty which characterize the section. He suggests that the comparable provisions in the death duty legislation of the States are to be preferred and concludes that the federal provision should be amended along certain lines.
Judicial Legislation and the Rationalisation of Section 260 of the Income Tax Assessment Act 1936
Authors: Sappideen Razeen
Published: January 2019

Section 260 is a general anti-avoidance provision found in the Income Tax Assessment Act 1936. Together with sections 25(1) and 51(1), it is one of the most important sections of the Act. To the “tax planner” section 260 spells anathema: to the Revenue it is an invaluable aid to prevent tax avoidance and preserve tax equity. Judges have tended to differ in their attitudes towards section 260. This article examines the treatment of the section in the hands of the judiciary, its interpretation and misinterpretation. In addition, the article seeks to highlight a significant point, namely, that the alternative to a general anti-avoidance provision is anti-avoidance legislation of a specific nature which would add tremendous complexity to an already complex Act. The plea therefore is that the judiciary should re-assess the situation they have helped bring about before it is too late, and that judicial common sense be substituted for the growing complexity of the Income Tax Assessment Act.
Legislative Reform of Judicial Review of Commonwealth Administrative Action
Authors: Griffiths John
Published: January 2019

Over the last three years the Commonwealth has enacted four statutes with the aim of overcoming some of the deficiencies which exist at common law in the reviewing of administrative action. These are the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Appeals Tribunal Amendment Act 1977 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). This article examines in detail the Administrative Decisions (Judicial Review) Act 1977 (Cth) in order to determine whether the common law rights and remedies have been improved.
Effect on Competition of Corporate Acquisitions as a Factor in Authorisation Applications to the Trade Practices Commission
Authors: Pierce William
Published: January 2019

In this article the author exhaustively examines the decisions of both the Trade Practices Commission and Tribunal and abstracts from them a number of general conclusions which are of invaluable assistance in interpreting section 50 of the Trade Practices Act. This discussion is particularly apposite in the present economic climate when the merger is increasingly popular, especially as the Act has only been recently amended. The author concentrates on “market definition” in all its permutations and discusses the various indicia of altered competition levels and the consequent likelihood of success of a merger application. As the author points out in his conclusion, attention to such details amply repays the effort involved when viewed against the backdrop of sanctions which the Act contains against those who infringe it.
Judges and Teachers
Authors: Heuston R. F. V.
Published: January 2019

In this article Professor Heuston reminisces on the distinctive functions of the judge and of the teacher of law. Each has a contribution to make and each is dependent on the other to a greater extent than either may be prepared to admit.
The Negligence Liability of Statutory Bodies: Dutton Reinterpreted
Authors: Seddon Nicholas
Published: January 2019

The relationship between ultra vires and negligence in a statutory body has become important as a result of recent House of Lords decisions. In this article this relationship is examined and found to contain some serious difficulties. A solution to these difficulties is proposed.
Matrimonial Property and the Disponor Spouse
Authors: Walker Gordon
Published: January 2019

The author first discusses the statutory framework which has led to the divided jurisdiction over matrimonial property in Australia. This is followed by an examination of the problems that this division creates, such as delay in settling property disputes, jurisdictional conflict when one spouse unilaterally seeks a “State” remedy, and evasion of the intention behind the legislation to divide matrimonial property equitably between the parties. Some of the mechanisms like gifting and trust arrangements by which a spouse may rearrange his affairs to insulate himself from the jurisdictional reach of the Family Court are examined. The limitations of the injunction power under s. 114 of the Family Law Act 1975 (Cth) are exposed and following this the author speculates about the scope of s. 85 of the Act which attempts to empower the Court to set aside transactions designed to avoid the provisions of the Act. He concludes that the powers of the Family Court are uncertain and limited and that the only real solution would lie in a reference of power in this area to the Commonwealth by the States.
The Tests for Inconsistency under Section 109 of the Constitution
Authors: Murray-Jones Allan
Published: January 2019

Mr Murray-Jones is concerned to re-examin,e the rules which have developed with respect to the interpretation of s. 109 of the Constitution. He looks first at the “cover-the-field” test enunciated by Isaacs J. and its subsequent application by the High Court. He moves on to discuss a second test propounded by Dixon J. which would strike down State laws which altered, detracted or impaired the operation of a Commonwealth law. These tests are, of themselves, insufficient to meet the difficulties and a number of subsidiary tests for direct inconsistency, some of doubtful validity, are critically scrutinized. The position seems clear when the conclusion can be reached that the Commonwealth intended to provide a single, nation-wide code to regulate a particular area. When criminal proceedings for an offence which contravenes both State and Commonwealth law are considered, complications with respect to differing offences and penalties can frequently arise and the author concludes that the difficulties still require satisfactory resolution. One suggestion is that the CourtS' should more clearly articulate the various factors }vhich they take into account when reaching th,eir decisions.
Marriages of Convenience in Australia
Authors: Wade J. H.
Published: January 2019

Several recent cases in Australia have raised once again the recurrent historical problem of marriages of convenience. A “marriage of convenience”, or “sham marriage”, or “limited purpose marriage” occurs when a man and a woman enter a full status legal marriage and yet at that time one or both of them do not intend to fulfil some or all of the important legal and social duties culturally expected of a normal marriage. That is, although the parties consent to the ceremony or commencement of the marriage, they do not fully consent to its cultural and legal functions. Examples include marriages where at the time of the ceremony one or both parties have reservations about sexual intercourse, cohabitation, procreation, or intend to marry solely or predominantly for the purposes of satisfying immigration or emigration laws, acquiring money, Tertiary Education Assistance Scheme grants or minimising taxation.
Drake V. Minister for Immigration and Ethnic Affairs
Authors: Robertson A.
Published: January 2019

Administrative law — Administrative Appeals Tribunal — Function of Tribunal in relation to ministerial policy — Application of ministerial policy — Administrative Appeals Tribunal Act 1975 (Cth)
Can the Commonwealth Parliament Enact “Manner and Form” Legislation?
Authors: Winterton George
Published: January 2019

The author considers whether the Commonwealth can enact “manner and form” legislation, especially provisions enabling the House of Representatives to enact laws which are the subject of a deadlock between the Houses, and legislation entrenching civil liberties. He argues that the legislative power of the Commonwealth has the same properties as that of the United Kingdom Parliament, which can impose “manner and form” limitations on itself; parliamentary supremacy is procedurally self-embracing. Hence, the Commonwealth Parliament can do likewise, except in so far as the Commonwealth Constitution provides to the contrary. The Constitution does prevent Parliament requiring legislation to be enacted by specified majorities in Parliament, or substituting a new legislature for the present Parliament. But the Commonwealth Parliament can enact provisions requiring legislation to be enacted in a specified form, and can establish an additional legislature for the enactment of legislation, including appropriation laws. Such legislation may be enacted pursuant to the procedure in section 57 of the Constitution, and could provide a method of avoiding a Supply crisis like that of 1975.
China Ocean Shipping Co. and Others v. South Australia
Authors: Weeks Phillipa C.
Published: January 2019

Constitutional law—Applicability of Imperial law in Australia—Whether Merchant Shipping Act 1894-1900 (U.K.) extends to South Australia—Whether U.K. Act applies to the Crown of its own force or by virtue of Judiciary Act 1903 (Cth) — Merchant Shipping Act 1894 (U.K.) Merchant Shipping (Liability of Shipowners and Others) Act 1900 (U.K.) — Judiciary Act 1903 (Cth)
The Commonwealth Ombudsman’s Power to Compel Testimonial Activity for the Purpose of an Investigation
Authors: Katz Leslie
Published: January 2019

For the purpose of reaching a decision about potentially defective administrative action into which he is conducting an investigation, the Ombudsman may wish to compel people to engage in various sorts of testimonial activity—the furnishing of information in writing, the production of documents, the answering of questions orally. This article examines the Ombudsman’s powers in that regard, pointing to matters which may give rise to difficulties in the exercise of such powers and suggesting a number of changes to the relevant provisions. Some of the matters discussed are relevant to the information-gathering powers of other Commonwealth agencies, for example, the Taxation Commissioner and the Trade Practices Commission. Not discussed in the article is the question of excuses which can be made to avoid complying with a valid request once made, a subject which deserves its own treatment separately.
Federal Commissioner of Taxation v. Westraders PTY LTD
Authors: Erskine Christopher
Published: January 2019

Taxation law — Principles of interpretation of tax Acts — Form and substance — Partnerships — Change in ownership — Disposals other than in the ordinary course of business — Election by partnership to value trading stock at cost price — Dividend stripping — Income Tax Assessment Act 1936 (Cth) — Ss. 36, 36A
The Act of Settlement and the Employment of Aliens
Authors: Booker Keven , Winterton George
Published: January 2019

Following recent disagreement between the Commonwealth and Victorian Solicitors-General over whether the States have power to employ aliens in public offices in view of section 3 clause 5 of the Act of Settlement 1701 (U.K.), this Article considers whether that clause applies in the States and, if it does, whether they or the Commonwealth can amend or repeal it. These issues are examined in light of the common law on the employment of aliens in public office, the reasons for the enactment of the Act of Settlement, and the question whether, and to what extent, the doctrine of paramount force applies to legislation enacted prior to the establishment of a colony.

The Article concludes that section 3 clause 5 did not apply in Australia, either by reception or by paramount force, although the common law on the employment of aliens applied by reception; and the common law did not disqualify naturalized persons from holding public office. The authors argue that in any event, Commonwealth legislation, validly enacted under the “Naturalization and aliens” power (section 51(xix)) has removed any disabilities the Act of Settlement might have imposed on the employment of naturalized persons. Moreover, pursuant to section 51(xxxviii), the Commonwealth could authorize the States, or any of them, to pass legislation repugnant to Imperial legislation extending to the State by paramount force.
Monopolization and Price Fixing—Good Cases Making Bad Law; Australian-United States Parallels and a Suggested Solution
Authors: Ransom Alan
Published: January 2019

The Australian Industries Preservation Act 1906 (Cth) was modelled closely on the United States Sherman Act. Early United States criminal monopolization cases were not very successful, and the statutory language was read down by a judiciary oriented toward common law contract analysis. The same thing is happening in current Australian cases. One of the finest monopolization opinions ever written is that of Mr Justice Isaacs in the 1911 Coal Vend case. It should be resurrected and used as the foundation for the development of Australian restrictive trade practices law.
Property Law following Dissolution of Marriage: Is There a Future for Judicial Discretion?
Authors: Goodman Ellen
Published: January 2019

In response to a recommendation of the Joint Select Committee on the Family Law Act, the Government has announced the appointment of an ad hoc committee of enquiry to study the implications of introducing a full matrimonial property regime in Australia. This committee will recommend whether there should be a fixed set of rules determining the ownership of property of married persons. Such a set of rules could apply during the subsistence of marriage, upon dissolution of marriage or both. Adoption of a set of rules governing property rights during the subsistence of marriage would displace the ordinary law of property and the special doctrines developed by the courts of equity as applicable to married persons. Adoption of fixed rules governing re-allocation of property upon dissolution of marriage would displace the discretionary system as applied by courts exercising jurisdiction under the Family Law Act 1975 (Cth). Since there is a world-wide movement away from fixed rules determining property interests during marriage, legislation to this effect is unlikely.
Australian Parliamentary Practice Documented
Authors: Solomon David
Published: January 2019

Erskine May's Parliamentary Practice, the procedural bible of the House of Commons, is about to lose its place as the inevitable reference guide for Australian parliamentarians. At the end of 1981 the House of Representatives Practice was published, joining the long established Australian Senate Practice to provide the first complete Australian guide to the procedures of both Houses of the Commonwealth Parliament. The old editions of May's Parliamentary Practice, reciting the procedure of the Commons at the turn of the century, have some residual importance for the Federal Parliament (of which more later) but that too is likely to disappear. Within a few years, May's will disappear from the shelves of parliamentary clerks in Canberra and be relegated to library shelves for the benefit of students of British politics and parliamentary affairs.

The Australian replacement of May's has been a long time coming. Mr JR Odgers produced his first edition of Australian Senate Practice in 1953. Revised editions followed fairly regularly, the fourth appearing in 1972 and the fifth (and still current) edition in 1976. But it was not until 1975 that the House of Representatives decided that it was proper to begin working on an equivalent and to put on record some of its answers to Mr Odgers.
Exemptions under the Victorian Freedom of Information act 1982
Authors: Proust Elizabeth
Published: January 2019

Victoria was the first and, to date, the only Australian State to enact freedom of information legislation. The Freedom of Information Act (“FOI Act”) was passed by the Victorian Parliament in late 1982 and came into operation on 5 July 1983. The legislation was a major part of the Australian Labor Party's 1982 Victorian election platform and an early law reform initiative of the new Government.

Before examining the exemptions in the Act, I will outline the background of the Victorian legislation. This will indicate the various influences on the final form of the legislation and explain both the similarities and divergences between the Commonwealth and Victorian Acts.
Commentaries
Authors: Gyles Roger
Published: January 2019

It has been a very polite seminar so far and the reasonableness of the public servants who have spoken has been noteworthy. May I just inject a slight note of scepticism, based probably upon the number of years one has sought access to information on behalf of clients, and been refused; and sought to challenge decisions when there have been no reasons given. Perhaps more importantly I have been involved in cases where either the other side or my own side has made claims for Crown privilege. I think those of us who have been involved in cases where Crown privilege was claimed in pre Sankey v Whitlam days will appreciate that those claims were very often very poorly based. I am not speaking simply of Commonwealth authorities, my greater experience is with the various State authorities. I think it is also fair to say that Sankey v Whitlam has not received universal approval at all levels of the public service both Commonwealth and State. We now sometimes have the opportunity of actually seeing the documents that have been withheld because of the high public interest involved. This cannot help but make us rather sceptical because they are often very routine in their nature.
The External Affairs Power
Authors: Sawer Geoffrey
Published: January 2019

It is a tenable view of Commonwealth v Tasmania that as a matter of ratio decidendi it added nothing to the judicial construction of the Commonwealth's external affairs powers (Constitution ss 51(xxix) and 61) which was not already adumbrated in R v Burgess; ex parte Henry (in 1936) and clearly established in Koowarta v Bjelke-Petersen (in 1982). In this range of cases, attention is concentrated on circumstances in which the Commmonwealth claims power to enact and implement laws having a domestic application within Australia which would not be valid unless they were made in pursuance of an international agreement to which the Commonwealth is a party. There are other circumstances in which the external affairs power will support Commonwealth laws, and these are mentioned in all the Franklin Dam and Koowarta opinions, but hitherto the case illustration of such valid laws has been minimal. It has been hitherto assumed, though not explicitly stated, that international agreements and their implementation in Australia constitute a distinct subdivision or aspect of the legal rules in question.
Comment
Authors: Byers Maurice
Published: January 2019

That such a power now exists is indisputable. Its ambit alone must yet be resolved. Its restrictions, that is, activities denied to an exercise of the power, must be those that apply generally to legislative powers. A noncoercive power is no power – an absurd proposition – and no reason exists to confine the power to one extending only to permit Commonwealth funds to be drawn from its Treasury. The true rule is stated by Mason J.

Every implied power arises from constitutional language, history or political reality. Thus, in the United States, powers over aliens, the Indian tribes, foreign relations and the compulsory requisition of private property derive from implication based on history and political reality. This is explained in the Curtiss-Wright case. Australia differs from the United States in three relevant respects: it is not a union of states; Commonwealth powers were not granted to it by the States; and there is, and there never was, dual Commonwealth-State citizenship.
The High Court and the World of Policy
Authors: Coper Michael
Published: January 2019

Being the last speaker of the day I suppose has advantages and disadvantages. One disadvantage is that, as I had anticipated, much of what I would have wished to say about the Franklin Dam case has been said — and well said — by earlier speakers. One advantage, however, is that I may now speak substantially without fear of contradiction — perhaps the “infallibility offinality”, as it has sometimes been called, is not the exclusive province of the High Court! In any event, I will confine myself to some very general remarks — not so general, I hope, as to be trite, but general enough, at least, to put some of the points we have heard earlier today into perspective.
Nursing Home Fee Determinations: Judicial Supervision of Departmental Procedure
Authors: Dreyfus Mark
Published: January 2019

The extent to which the motives of providers and recipients (of care) diverge can be seen in the nursing home market – nominally under regulation, but at the worst deteriorating into a real estate market with revenue generating aged persons attached to the property like serfs to the manor.

The profit making people in the nursing homes know full well how to be quite ruthless and brutal in trying to mobilize emotional responses in the community against a government so that they can exploit the taxpayer by forcing a government into paying out more money … when it suited the private commercial nursing home people, patients were moved on litters out of their nursing homes to the edge of the footpaths of the street outside the homes. It was arranged for the media, particularly the visual media, to cover the whole exercise. All sorts of emotional displays were indulged in.
Acting under Dictation and the Administrative Appeals Tribunal's Policy-Review Powers — How Tight is the Fit?
Authors: Sharpe Jennifer M.
Published: January 2019

Although the Administrative Appeals Tribunal (hereafter referred to as the AAT) does not enjoy an express power to review policy considerations taken into account in reaching a decision under review, such a power has been taken to have been impliedly conferred by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (hereafter referred to as the AAT Act).

Section 43(1) empowers the Trjbunal to exercise all the powers and discretions conferred on the decision-maker whose decision is subject to review. It empowers the Tribunal to affirm, vary or set aside the decision under review, and to make a decision in substitution for the decision so set aside or to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. Section 43(6) provides that the decision made by the AAT in substitution for the decision made by the original decision-maker shall be deemed to be a decision of the original decision-maker.
Compensation Payments; Commercial Contracts; and the I.T.A.A. 1936: The Gordian Knot Revisited
Authors: Muir Garry A.
Published: January 2019

In maintaining the distinction between capital and income first instituted by legislation nearly two centuries ago, the courts have occasionally faced intractable problems where pragmatism has necessarily triumphed over analysis. Sir Owen Dixon's famous Sun Newspapers test for distinguishing between revenue and capital outgoings is one example, where in reality a number of unweighted considerations were suggested, with but vague illustrations for their application. The proper manner of apportioning outgoings, and the role of purpose and intention, are others. Yet a fourth, and the subject of this paper is the characterisation of receipts derived from the sale or loss of intangible rights.
Retrospective Amendment of Federal Laws and the Inconsistency Doctrine in Australia
Authors: Lee H P
Published: January 2019

In a federal system there is a constant need to resolve problems created by conflicting provisions of laws enacted by. the federal legislature and those enacted by a state or provincial legislature. In the case of a unitary system it is merely the question of a later statute conflicting with an earlier statute enacted by the same legislature, and in such an instance, the conflict is resolved by regarding the earlier law as having been impliedly repealed by the later law.

In the Australian federal system the conflict is resolved by resorting to the express provisions of s 109 of the Commonwealth Constitution, which reads as follows:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Federated Clerks Union of Australia v Victorian Employers Federation
Authors: Giles Penelope
Published: January 2019

Industrial law – Victorian award relating to notification and consultation by employers in relation to proposed technological change – Applicability of principles under the Conciliation and Arbitration Act 1904 (Cth) – Current status of traditional dichotomy between industrial matters and managerial prerogative – Commercial Clerks Award Clause 39 – Industrial Relations Act 1979 (Vic) ss 3(1), 34(1) – Conciliation and Arbitration Act 1904 (Cth)
Federalism, Responsible Government and the Protection of Private Rights: A New Interpretation of the Limits of the Legislative Powers of the Commonwealth
Authors: Stokes Michael
Published: January 2019

It has rarely been doubted that the courts, especially the High Court, have jurisdiction over disputes as to the scope of Commonwealth powers. Although the Constitution does not state specifically that these disputes give rise to legal issues or that the courts have jurisdiction over these questions, s 74 of the Constitution, which prevents appeals to the Privy Council from the High Court on inter se questions, which include questions about the scope of Commonwealth powers, without the consent of the High Court, indicates that the High Court at least has jurisdiction over these disputes. However, the Constitution does not set out the basis on which the courts’ jurisdiction over these questions rests, nor does it state who has the standing to raise them. In this paper I wish to consider the theoretical basis of the courts’ jurisdiction over these questions and consider the impact which different justi:fications for that jurisdiction have on standing.
The Aat: “Punitive” Privilege Claims as Reasonable Excuse Defences
Authors: Leffers Jillian
Published: January 2019

The common law “punitive” privileges against self-incrimination and exposure to a penalty have received renewed attention in a series of decisions concerning their application in such highly visible and sensitive contexts as Royal Commissions of Inquiry; investigation of corporate crime; police misconduct and economic regulation. Possibly less dramatic but no less fundamentally at issue is their application to the wider spectrum of rights and interests arising from, and affected by, the extensive administrative and discretionary powers in the hands of the executive and government officials.

Central to “this fertile new province of the law” is the Administrative Appeals Tribunal (henceforth referred to as the “Tribunal”). This appeal mechanism has been established at the Commonwealth level for the purpose of reviewing on the merits, decisions of administrators and thereby promoting fair and equitable decision-making principles.
The High Court’s Power to Grant Certiorari – the Unresolved Question
Authors: Aitken L. J. W.
Published: January 2019

Whether it is within the power of the court to grant certiorari, either at all or in a case such as this, is a more difficult question, and is one to which no definite answer has been supplied by any decision of the court.

It is strange to think that the question whether the High Court of Australia can grant the writ of certiorari may still be characterised as “unresolved”. To judge from the treatment this issue has received from several commentators, it might be asseverated that the matter is “unresolved” because “unimportant”. This article will examine the heads of jurisdiction which might be invoked to sustain the granting of the writ by the High Court.

As well, it will be necessary to consider whether, as a matter of principle, certiorari can or should issue to a superior court of record such as the Federal Court of Australia. The decision in Re Gray; ex parte Marsh casts doubt on the amenability of those tribunals to the writ at all. Since it has always been hitherto blithely assumed that Federal Court judges are susceptible to certiorari for the purpose of s 75(v), the dissentients’ view of Gray’s case, if accepted, would require a fundamental rethink of the entire area.
Extraterritorial State Laws and the Australia Acts
Authors: Gilbert Christopher D
Published: January 2019

In 1971, FA Trindade argued that the doctrine of extraterritorial legislative incompetence (hereafter the doctrine of extraterritoriality) no longer applied to Australian State Parliaments. His general thesis was that the doctrine no longer applied, either because it had virtually ceased to exist at common law after the Privy Council decision in Croft v Dunphy in 1933, or because the doctrine had been impliedly repealed so far as the States were concerned by s 5 of the Colonial Laws Validity Act 1865 (UK) (CLVA). Since 1971, the High Court of Australia has had occasion to consider the extraterritoriality rule several times, and now the topic has received express legislative provision in the Australian Commonwealth and United Kingdom statutes that are collectively known as the Australia Acts 1986. The overall purpose of these statutes is to eliminate any residual legislative, executive, or judicial authority of the United Kingdom over Australia and its States. Part of this legislative plan involves the extraterritoriality doctrine as it applied to the Australian States. It is the aim of this article to examine the impact of the Australia Acts upon the extraterritoriality principle.
Constitutional Human Rights in Australia
Authors: O’Neill NKF
Published: January 2019

Amongst the nations of the South Pacific only Australia and New Zealand have no constitutionally entrenched Bills of Rights. New Zealand has no written Constitution at all, whilst in the Australian Constitution there are a number of provisions which have the potential to guarantee some civil and political rights.

The founding fathers of the Australian Constitution were pragmatic people. Almost all of them were parliamentarians and many of them either were, or had been, Premiers or senior Ministers in the governments of the various Australian colonies. They were not leisured gentlemen who took time to consider philosophy, let alone write any of their own. They were not concerned about the rights of humankind, nor did they see their role as one of creating an Australian federal parliament and a government that was required to guarantee, uphold and preserve the rights of the people. On the contrary their aim was to achieve some hard, practical, political goals.
Commonwealth Liability to State Law — The Enigmatic Case of Pirrie v McFarlane
Authors: Lee H P
Published: January 2019

Pirrie v McFarlane remains an enigmatic case. Decided a few years after the landmark decision of Engineers it reflected an application of the reciprocal nature of the principle applied in that case. The thrust of the decision in Engineers was that the Commonwealth Parliament had power under s 51(xxxv) to make laws binding on the States. In the course of judgment the majority judges had also observed as follows:

The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters, but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of sec. 109.

Coming so soon after Engineers, the decision in Pirrie v McFarlane is clearly consistent with this observation of the majority judges. However, given the subsequent developments in cases such as Cigamatic and Bogle, the authority of Pirrie v McFarlane has been questioned.
Canada and Australia: A Federal Parting of the Ways
Authors: Cullen Richard
Published: January 2019

There is no shortage of comparative articles addressing the legal, political, social and economic similarities between Canada and Australia. This is hardly surprising. Apart from their common British colonial heritage, the two countries share a number of other features conducive to such comparative studies. For example: federal political systems; long standing, national economic affluence; and large, sparsely populated, national territories. Perhaps less common are articles primarily stressing differences between the two countries. This paper is in this latter category.

The thesis advanced is that the real political differences (in a federal structure sense) between Canada and Australia are striking and growing. The aim of this article is to demonstrate that the explanation for this lies, principally, in the significant social, economic, cultural and political variations in each country. In Part 2 of the article, there is a sketch of the extent of some of these underlying, fundamental differences. Part 3 reviews several perspectives on the Constitutions of Canada and Australia.