bluuebunny/crossref_metadata_2025_split huggingface dataset:
Rhythms of Prediction in South Australian Water Resource Management
Authors: Rayner Steve 
Published: January 2019

AbstractIn 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.
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.
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.
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.
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.
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.
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.
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.
Administrative Review the Experience of the First Twelve Years
Authors: Mason Anthony 
Published: January 2019

My long-standing interest in our federal system of administrative law traces back to 1968. I then suggested to the Attorney-General (now Sir Nigel Bowen, Chief Justice of the Federal Court) that he establish the Commonwealth Administrative Review Committee (of which I became a member). Through the work of that Committee and later committees and the efforts of Mr Ellicott QC, who subsequently became Attorney-General, the system as we know it today came into being.The federal system incorporates features of the review structures of the United Kingdom and the United States. As you know, the four elements in the federal system are:(1)the Administrative Review Council (‘the ARC’);(2)review by the ombudsman;(3)judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’); and(4)review on the merits by the Administrative Appeals Tribunal (‘the AAT’).
Section 57 of the Constitution — The Sixth Double Dissolution
Authors: Carney G.F. 
Published: January 2019

The events leading up to the sixth double dissolution of the Commonwealth Parliament on 2 June 1987 and the subsequent abandonment of the Australia Card Bill 1986 highlight the difficulties any Federal Government faces when negotiating the passage of controversial legislation through a hostile Senate.In the light of the legislative history of the Australia Card Bill, I propose to discuss the requirement of “identical bills” in s 57 of the Constitution, the amendments which ajoint sitting may consider and finally, the disallowance of regulations by the Senate with reference to s 57.
The Limits and the Social Legacy of Guardianship in Australia
Authors: Carney Terry 
Published: January 2019

Guardianship laws either for intellectually disadvantaged people alone, or for anyone with diminished functional capacity (such as victims of brain trauma), are now popular in Australia (other than in Western Australia and the Australian Capital Territory) and New Zealand. These laws are based on North American experience, particularly that of the Dependent Adults Act 1976 (Alberta). The common thread is that it permits a guardian to be appointed to manage the property or the personal affairs of the disadvantaged person, or to make one or more of the multitude of decisions lying within these two broad areas of human living.Contemporary legislation is notable for three things. First, partial orders are permitted (in place of only plenary orders). Indeed they are positively encouraged where any intervention at all is called for (the normalisation principle). Secondly, personal guardianships have been revived (having existed all along under cumbersome equity jurisdictions of – or associated with – superior courts).
Acquired Distinctiveness as a Sole Criterion for the Registration of Trade Marks under Section 25 of the Trade Marks Act 1955 (CTH)
Authors: Agyemang Augustus Asante 
Published: January 2019

The Trade Marks Act 1955 (Cth) (referred to in this article as “the Act”) provides in ss 24-26 various criteria for establishing the registrability of trade marks under the Act Those provisions require a trade mark to be distinctive or if not distinctive, capable of becoming distinctive of goods or services in respect of which registration of the trade mark is sought, before it could be registered.This article examines s 25 of the Act, which provides for the registration of trade marks in Part B of the Trade Marks Register, in the light of some of the decisions of Australian courts. The object is to determine if such decisions conform with the terms of the provision. Some comparisons are made with the relevant provisions of the Trade Marks Act 1938 (UK). The article concludes that given the terms of s 25 of the Act, acquired distinctiveness could be a sole criterion for the registration of trade marks in Part B of the Register. The frrst part of the article considers the background to the section.
Sir Edward McTiernan - A Centenary Reflection
Authors: Kirby Michael 
Published: January 2019

Year by eventful year, a century has passed since the birth of Edward Aloysius McTiernan on 16 February 1892 at Glen Innes, New South Wales. The second of two children of Patrick McTiernan, police constable, and Isabella McTiernan (nee Diamond) came into a world on the brink of great political and legal changes. His life virtually spanned the whole history to date of the Commonwealth of Australia. It saw mighty wars, great scientific and social changes and the apogee and fall of the British Empire. Instructive it is to reflect upon the world he entered and the controversies which were agitating Australia and the mother country at a time young Edward was born.A year before his birth, an event was to take place which affected the course of his life. In 1890, provision was first made for the payment of members of Parliament elected at the next general election in the colony of New South Wales.
Interstate Conflicts and the Enforcement of An Australian State’s “Governmental Interests” Within Australia
Authors: Howard Matthew 
Published: January 2019

It has been clearly established in the common law world for a long time that foreign penal and revenue laws are unenforceable in a forum court. Dicey and Morris state the rule thus: “English courts have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State”. While the first two categories of foreign laws are well established, there is considerable doubtt outside of Australiat as to whether the third residual category of “public laws” can be justified.The High Court in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (which will be referred to in this article as “Spycatcher”), was called on to decide whether it would allow a claim of the British Government to be heard in Australia. One of the arguments raised against allowing the action to go ahead was that it would potentially involve an Australian court enforcing a foreign penalt revenue or other public law. In the course of rendering its decisiont the Court reformulated the principles stated above into a broader principle. The Court stated that Australian courts will not enforce the “governmental interests” of a foreign sovereign. By this, the Court meant “the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government”. This rule or principle will be referred to, in this paper, as the “non-enforcement principle”.
A Radical Tory: Garfield Barwick's Reflections and Recollections (1995)
Authors: Rumble Gary A 
Published: January 2019

Garfield Edward John Barwick, born on 22 June 1903, is undoubtedly one of the most important Australians of the century. As counsel, Barwick had an important role in the landmark cases in the High Court and the Privy Council in the 1940s and the 1950s. As Attorney-General for the Commonwealth through 1958 to 1963, he was involved in initiatives in matrimonial causes, company law and trade practices. Sir Garfield's career also included service as Minister for External Affairs (1961-1964).This book of his recollections and reflections has a clarity and force which come in part from its simplicity of style and in part from the personality of the author. It provides an important historical record of Sir Garfield's view of a number of key events in Australian history — especially Australian legal history. It also provides insight into the philosophy and values of this influential Australian lawyer.