bluuebunny/crossref_metadata_2025_split huggingface dataset:
Geographic Market Definition in Competition Law
Authors: Walker G de Q 
Published: January 2019

The notion of the relevant market, together with the process for identifying it, is a construct used in competition law in order to determine whether competition exists between two or more producers for the purposes of Part IV of the Trade Practices Act 1974 (Cth).This legislation confers upon the courts and the Trade Practices Tribunal the duty to decide whether certain courses of conduct have the purpose, or have (or are likely to have) the effect, of substantially lessening competition in a market. The market delineation process provides the first in a set of stepping-stones which enable the courts to discharge this task in the principled and certain manner that is required by the doctrine of the rule of law. The procedures comprised within it enable the court (or other trier of fact) to organise complex fact situations and classify them in such a way as to enable competition policy, as embodied in legislation such as the Trade Practices Act, to be intelligently applied. It permits a degree of quantitative evaluation which in practice would not be possible if the lessening-of-competition issue were attacked directly.
Commentaries
Authors: Hughes Colin 
Published: January 2019

Let me start on a note of consensus, if not reconciliation. I am certain that we all agree that there would be no one else as well equipped to give the opening paper for this seminar as is Lindsay Curtis. He is well equipped by direct experience, by close knowledge, by personal commitment, and at the same time not least by an ability to stand back from the unfolding of a complicated bit of business and assess what has been going on. His paper is the ideal source of ideas, but in speaking to it I will be able to pursue only one or two.As this is a seminar arranged by the Law School, it would only be appropriate to start with a text from WS Gilbert. In Act One of that understandably neglected work, “Utopia Limited”, there enters a character named Tarara who explains his constitutional function thus:[B]y our Constitution we are governed by a Despot who, although in theory absolute — is, in practice, nothing of the kind — being watched day and night by two Wise Men whose duty it is, on his first lapse from political or social propriety, to denounce him to me, the Public Exploder, and it then becomes my duty to blow up His Majesty with dynamite ... and as some compensation to my wounded feelings, I reign in his stead.
Commentaries
Authors: McMillan John 
Published: January 2019

Back in 1972-1973 when the idea of freedom of information legislation was first floated in Australia, a decision was made — and never seriously challenged — that our legislation should be modelled on the United States Freedom of Information Act. The result, as Professor Robinson points out, is that a remarkable parallel exists between the Australian and United States legislation.In another respect too United States experience became relevant to Australia at an early date. Proponents of FOI in Australia learned from a close study of United States experience that legislation might not be received enthusiastically nor readily by some key Ministers and public servants. Legislation, particularly strong and workable legislation, would be enacted only if a vigorous and unyielding public campaign was undertaken. Indeed, the fact that an Act exists in Australia owes much to the campaign waged or supported by groups like the Freedom of Information Legislation Campaign Committee, Rupert Public Interest Movement. the Australian Council of Social Services, the Library Association of Australia, the Administrative and Clerical Officers’ Association, the Australian Consumers’ Association, and by a small number of parliamentarians and sympathetic senior public servants.
Comment on the External Affairs Power
Authors: Rose Dennis 
Published: January 2019

I want to mention one implication of the views of the minorities in Koowarta and the Franklin Dam case.Suppose that a State had agreed to the Commonwealth incurring an international obligation (or had even requested it to do so) on a matter such as racial discrimination or the natural heritage. Suppose that, after Australia had incurred the obligation, the State refused to enact legislation needed to fulfil Australia’s international obligation. Or suppose that the State repealed legislation already enacted for that purpose. If the Commonwealth lacked power to implement the international obligation, such State action would result in Australia being left “high and dry” in breach of that obligation.This possibility of a “backsliding” State, leaving the nation in breach of treaties entered into with State agreement, would be a totally unacceptable position. No doubt the High Court majority in the Franklin Dam case saw this implication of the States’ arguments. The majority’s wide view ofthe external affairs power was the only course available, by means of judicial interpretation, to prevent this from happening.
The National Implied Power and Implied Restrictions on Commonwealth Power
Authors: Saunders Cheryl 
Published: January 2019

The purpose of this paper is to examine the significance of the Franklin Dam case for the use of implications in the interpretation of the Commonwealth Constitution.Implications of various kinds, derived from various sources, are regularly made in the interpretation of the Constitution. The necessity for them has been frequently acknowledged. In West's case, for example, Dixon J said:Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ Case meant to propound such a doctrine.'
The State of Constitutional Interpretation
Authors: Zines Leslie 
Published: January 2019

The emphasis given in the Engineers’ case to the express terms of the Constitution, the application ofthe “golden rule” of construction and the exclusion of broad implications (stigmatised as political) had the effect of enhancing national power. This effect was reinforced by the application of the principle referred to by O'Connor J in a now much quoted passage in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association:… it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.
“Inconsistent” Commonwealth and State Laws: Centralizing Government Power in the Australian Federation
Authors: Hanks Peter 
Published: January 2019

The history of Australian federalism is one of the steady accretion of power to the central institutions of government, in particular the Commonwealth Parliament. The continuing shift from the States to the Commonwealth of effective power to regulate so many aspects of Australia’s economic and social life has, in general, been accepted and encouraged by the justices of the High Court – at least since the critical Engineers’ decision.This acceptance and encouragement has been most conspicuous on those occasions when the High Court has endorsed the Commonwealth’s adventurous exploration of its legislative powers; when, for example, the Court decided that the defence and taxation powers would allow the Commonwealth to assume an effective monopoly over income taxation, that the overseas trade and commerce power would allow the Commonwealth to discourage sand mining in Queensland, or that the external affairs power would allow the Commonwealth to proscribe acts of racial discrimination inside Australia.
Section 90 of the Constitution and the Problem of Precedent
Authors: Opeskin Brian 
Published: January 2019

Section 90 of the Australian Constitution provides that:On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive.On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight. hundred and ninety-eight, and not otherwise.
Coutts v Commonwealth of Australia
Authors: O'Neil Allan 
Published: January 2019

Natural justice — Judicial review — Armed forces — Air force officer — Power to dismiss where appointment held at pleasure — Governor-General in Council — Air Force Regulations 1927 (Cth) regulations 72(1), 628(1)Flight Lieutenant Coutts was an officer in the Royal Australian Air Force. In 1980 the Governor-General in Council terminated his appointment on medical grounds in accordance with Regulations 72(1) and 628(1) of the Air Force Regulations, 1927 (Cth). Regulation 72(1) reads:An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause.
Parliamentary Disallowance and the Problem of Revival
Authors: O'Keeffe Peter 
Published: January 2019

Under the provisions of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), the Seat of Government (Administration) Act 1910 (Cth) (the Administration Act) and other Acts which contain parallel provisions, either House of the Commonwealth Parliament can disallow virtually any delegated legislative instrument laid on the table. Originally however, there were no disallowance provisions in the 1901 version of the Interpretation Act although, even then, disallowance machinery had been introduced into specific Bills, particularly those of a fiscal nature.The principle that all federal regulations be subject to disallowance by resolution of either Chamber originated in the Senate and it was eventually achieved by a Senate amendment to the Interpretation Act in 1904. The rationale was simple and compelling – without such a procedure, a Minister who can make regulations obtains a larger power of legislation in that respect than the Senate itself possesses.
Deportation, the Immigration Power, and Absorption into the Australian Community
Authors: Wood David 
Published: January 2019

John Locke defined political power·in part as “a Right of making Laws with Penalties of Death, and consequently all less Penalties ... ”. Capital punishment, and a wide range of barbaric penalties, are no longer with us. Of the forms of punishment that remain, imprisonment is generally recognized as the most serious. Although generally overlooked deportation must rank not far behind. Like imprisonment, deportation can result in considerable hardship and suffering, not only to the person subjected to the measure, but to his or her family and friends. Losing the right to live in what one regards as one’s homeland can be seen as even more serious a deprivation than losing one’s liberty.Given the significance of the measure, it is necessary to consider not just the specific conditions under which the state is entitled to deport someone, but more fundamentally, who it is entitled to deport. As a constitutional issue, debate in Australia has centred on the question of how the Commonwealth’s immigration power is to be interpreted.
Standing to Sue under Federal Administrative Law
Authors: Mack Kathleen M 
Published: January 2019

“Generalizations about standing to sue are largely worthless as such.”This paper will examine the principles governing standing to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and administrative review under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), with particular emphasis on standing problems in actions brought by individuals and organizations seeking to raise broad or non-traditional claims of public interest.Even though the tests for standing under the ADJR Act and the AAT Act are formulated in different terms than the common law rules and were specifically drafted to broaden restrictive common law requirements, a review of decisions by the Federal Court and the Administrative Appeals Tribunal (AAT) shows that each has often limited itself to familiar common law concepts of standing, without clearly exploring whether such limits and the doctrines or policies which support them are appropriate to the form of review being exercised.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
Authors: Wentworth Paul 
Published: January 2019

Aboriginals – Land Rights – Administrative Law – Inquiry by Aboriginal Land Commissioner – Party not disclosing information to inquiry – Ex parte representations to Minister by party detrimentally affected – Failure to take into account relevant considerations – Obligation of Minister to have regard to exparte representation – Constructive knowledge of Minister of matters within his departmenrs knowledge – Aboriginal Land Rights (Northern Territory) Act 1976 (C’th) ss 11, 50Administrative Decisions (Judicial Review) Act 1977 (C’th) s 5(2)(b).
Justice Windeyer and the Constitution
Authors: Burmester H 
Published: January 2019

The proper approach to constitutional interpretation, and the role of the High Court in that interpretation, have recently begun to be widely debated, not just in legal circles but also in the wider community. This debate has been stimulated in part by significant decisions like the Franklin Dam case, and proposals to give judges jurisdiction to interpret a Bill of Rights. In the United States a never ending debate continues on the question of judicial review of the Constitution without any consensus being apparent on what is the proper role of the Supreme Court. Nor should one expect any similar debate in Australia necessarily to lead to agreement on what is a proper approach to constitutional interpretation.As part of the debate, a study of the approach taken by individual judges can, it is suggested, help to illuminate recurring issues, illustrate an approach that has in fact been followed and provide a contrast with the approach of other present or past judges.
The Separation of Powers — A Comparison
Authors: Gibbs Harry 
Published: January 2019

It is a great privilege for me to be here today at this College, which had become distinguished as a seat of learning long before my own country had first been settled by English-speaking people. The occasion for my presence is to deliver one of a series of lectures given in honour of Sir Robert Gordon Menzies, who was Prime Minister of Australia from 1949 to 1966 and who, more relevantly for today’s occasion, was both a distinguished constitutional lawyer and a lover of Virginia.The theory of Montesquieu, that to secure liberty it is necessary to separate the three main functions of the state — the legislative, the executive and the judicial — has had a profound and lasting influence on political thought. James Madison, who expounded the theory with such effect in No. 47 of The Federalist papers, regarded the separation of powers as the most sacred principle of the United States Constitution.
New States in Australia: The Nature and Extent of Commonwealth Power under Section 121 of the Constitution
Authors: Tappere Chris 
Published: January 2019

The campaign being waged by the Government of the Northern Territory to have the Territory granted statehood, if successful, should result in the first use of s 121 of the Australian Constitution. The section reads:The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament as it thinks fit.
Realism about the High Court
Authors: Goldsworthy Jeffrey 
Published: January 2019

Ever since Bentham attempted to “pluck the mask of Mystery from the face ofjurisprudence”, courts have been accused of legitimating their decisions by hiding their real grounds, which are necessarily subjective and partisan, behind a smokescreen of artificial and esoteric ratiocination. Such iconoclasm has, in our century, been a staple of American realism, Marxism and more recently the critical legal studies ‘movement’, all of which have inevitably influenced Australian legal theory.It has sometimes been argued that in constitutional cases the High Court has used ‘legalism’ to confer on essentially political decisions a speciously apolitical appearance. This argument is made most carefully and thoroughly by Brian Galligan, a political scientist, in his recent study of the High Court. His argument deserves to be carefully assessed, especially if he is right to predict that a more ‘realistic’ account of judging is destined to supplant ‘legalism’ in academic and legal circles, and in the public mind.
Enforcing the Rules of Criminal Procedure: An American Perspective
Authors: Bradley Craig M 
Published: January 2019

A recent submission to the Senate Standing Committee on Constitutional and Legal Affairs said this about the Australian law of criminal procedure:The recent law of criminal investigation is governed by a confusing “amalgam of common law, statutory law, court-directed practices and internal police regulations” .... A policeman’s non-observance of [a citizen’s rights] may lead to internal disciplinary procedures, but it does not constitute an offence nor give the suspect a cause of action [or, necessarily lead to exclusion of the evidence].Several months of studying the law of criminal investigation in Australia have led me to agree with this conclusion. It is the purpose of this article to discuss what that law is, but to do so in the only context that has any meaning in the real world of law enforcement. That is, in the context of remedies, specifically exclusionary remedies, for police misconduct.
Democracy, the Rule of Law and Judicial Review
Authors: Feldman David 
Published: January 2019

Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them.The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers.
The American Constitutional War Powers from Afar — Another Look
Authors: Spong William B 
Published: January 2019

This is the sixth in the annual Menzies Lecture Series. This lecture was delivered at the Australian National University in October 1990.The allocation of war powers between the President and Congress under the Constitution of the United States and the problems that have flowed therefrom for two centuries, are subjects perhaps too remote to inflict upon an Australian audience. Nevertheless, I do so, mindful that the vast nuclear capability of my country, as well as its present deployment of significant forces on land and sea in much of a shrunken world, make decisions of war and peace by the United States a matter of some concern for those living beyond its geographic boundaries, and throughout this planet.
Taking Corporations Seriously: Some Considerations for Corporate Regulation
Authors: Bottomley Stephen 
Published: January 2019

Corporate regulation is front-page news in Australia. In recent years we have witnessed the unedifying debate between the Federal and State governments about how the responsibility for, and benefits of regulating companies and securities law should be allocated. Federal Parliamentary committees have conducted inquiries into the law relating to directors' duties, insider trading, and (currently) minority shareholders' rights. The chairman of the National Companies and Securities Commission and the Australian Securities Commission, Mr Tony Hartnell, has gained frequent publicity and support for his concern to “deal with the excesses of the past”.As this brief survey indicates, the renewed concern about corporate regulation has tended to focus on the task of defining and controlling the conduct of some company personnel (directors, managers, and their advisers) in order to protect the interests of other corporate players (particularly shareholders and creditors). This focus is not surprising, but where does it leave the corporation?
Mediation and Adjudication: Friends or Foes at the Administrative Appeals Tribunal
Authors: De Maria William 
Published: January 2019

The crucial problem arises when we ask, not what role mediation should play: in creating law, but how far and in what respects should it enter into the administration of laws.Leon Fuller, Carter Professional General Jurisprudence, Harvard University.Over the next generation, I predict that society's greatest opportunities will live in tapping human inclinations towards collaboration and compromise rather tha stirring our proclivities for competition and rivalry.Dr Derek Bok, President, Harvart University, 1982 Cardozo Lecture.
Common Law Native Title in Australia — An Analysis of Mabo v Queensland [No 2]
Authors: Wheeler Fiona 
Published: January 2019

Mabo v Queensland [No 2] is a landmark decision. The High Court held, by a six to one majority, that the common law of Australia recognises a form of native land title which survived the Crown's acquisition of sovereignty over Australia. The effect of the Crown's acquisition of sovereignty, according to the High Court, was simply to expose common law native title to the possibility of extinguishment by a valid exercise of inconsistent sovereign power.The judgments in Mabo [No 2] range widely across issues of constitutional law and the law of real property. These issues are explored below in a description and analysis of the case. In addition, mention is made of the techniques of legal reasoning adopted by the majority judges.