Only a few years ago, the future of tax policy seemed clear to all. The rhetoric, and to some extent the reality, of tax policy were dominated by the image of “levelling the playing field”, and the much-touted phenomenon of “globalisation” was taken to mean that the field was likely to be levelled somewhere close to a common denominator. Governments were no longer growing, the “welfare state” was increasingly seen as obsolete, and only the occasional out-of-touch crank seemed at all concerned about the redistributive consequences of reducing taxes on wealth and high incomes.

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

Among various possible options, a theme for the 1993 Menzies Lecture quite naturally emerged for an American whose special field is freedoms of expression' protected by the Constitution. A clear and easy choice was that of an American perspective on issues of free speech and press in light of the High Court judgments in Australian Capital Television Pty Ltd v Commonwealth of Australia (hereinafter ACTV) and Nationwide News Pty Ltd v Wills (hereinafter Nationwide News). The challenge of this assignment was daunting, since I realised that most who would hear and would later read these remarks would be far more conversant than I with these cases and their portent. Yet I took on the task with much enthusiasm, recognising an exceptional opportunity for international comparison and understanding.

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

The Administrative Appeals Tribunal (the AAT), which was established by the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), has now been functioning for more than 16 years. From very modest beginnings (see the 25 jurisdictions conferred pursuant to the Schedule to the original AAT Act), the Tribunal has had conferred upon it an increasingly wide range of review jurisdictions (presently in excess of 240), encompassing major areas of governmental decision-making.

The purpose of this paper is to pose one question — should the Australian income tax system of the twenty-first century belong to the descendants of Henry Simons or to those of Frank Ramsey? Put another way, my topic is whether future tax policy should continue to be framed according to notions of comprehensive income tax or, instead,should be directed towards the goal of an optimal income tax.

The adequacy of the legal protection given to fundamental rights and freedoms is a topic of concern in both Australia and Britain, two jurisdictions which share a common legal heritage. Both have witnessed extensive debates in recent times about the desirability or otherwise of a Bill of Rights designed to protect human rights.

There is agreement that the tax law is very complex and needs improvement. At that level of generality it is not easy to attract an argument. However once one cuts below that layer of broad agreement there has not been the same level of understanding or concord on what can be done to put things right.It is good to see positive signs that these issues deserve serious public debate so that we can reach common ground on what is achievable by the Tax Law Improvement Project.

Australia acceded to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) on 21 January 1954 and acceded to the 1967 Protocol relating to the Status of Refugees (the Refugee Protocol) on 13 December 1973. The prohibition on refoulement is the key provision of the Refugee Convention. Article 33(1) provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(2) provides that the benefit of article 33(1) cannot be invoked by a refugee “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

Health is one of the major areas of public expenditure in Australia. In 1991–1992, Australian governments spent $22.5 billion of the total health expenditure of $33.2 billion. A substantial part of Commonwealth expenditure subsidises patient access to private medical services through Medicare, which operates within the fee-for-service system with no cap on the number of services or on the total budget outlays for them.

The effectiveness of the tax system is crucial to the funding of government. The tax administration is given exceptional powers to enable it to enforce tax laws and thus achieve revenue outcomes acceptable to government. The performance of the tax administration affects the efficiency of the national economy. But though it is crucial to the functioning of government and the economy and though it raises major questions as to the application of public law values, tax administration has not been a major field of study for lawyers. However, that may be changing and, co-incidentally, substantial governmental reviews of tax administration in Australia and New Zealand have recently been published. For ease of reference they will be referred to as the Australian Report and the New Zealand Report respectively.

For some time, universities have appreciated the commercial significance of ownership of patents and inventions produced during employment and address this both in contracts and university statutes. However, one cannot say the same about copyright. Until relatively recently, there were few contractual or internal university statutory provisions for copyright ownership so statute and common law principles governed the position. This absence of contractual provisions, combined with the general lack of institutional concern for testing and enforcing copyright ownership rights, resulted in uncertainty as to where ownership rights reside. In recent years, this uncertainty has become a major concern for institutions which are now anxious to know the extent to which they can enforce copyright ownership rights. Universities generally have begun to take a more active interest in the economic benefits of exploiting intellectual property in academic works and, in particular, in exploiting copyright. There are many factors responsible for this change in attitude.

In 1989 the Commonwealth Government released a policy statement entitled “New Directions in Commonwealth Fisheries Management”. Its aim was to establish a regulatory framework which would encourage the biologically sustainable exploitation of Australia's fisheries while increasing economic efficiency in the industry and facilitating the introduction of a resource rent. Heeding economists' arguments that the introduction of greater property rights for individual fishermen would meet these ends, the policy statement identified as central to its proposed reforms the introduction of Individual Transferable Quotas (ITQs). Most Australian fisheries achieve restrictions on catch by limiting the size and fishing capacity — that is, the efficiency — that is, the efficiency — of boats in a fishery. Alternatively, they limit fishing hours, thus encouraging over-development of fishing capacity by fishermen seeking maximum catches in the available time. ITQs, by comparison, grant to their owners the right to take a specified quantity of fish, at any time and with the most suitable equipment, thus avoiding wasteful use of costly fishing gear. Being a direct measure of productivity, they also lend themselves to the collection of a resource rent.

This paper asks whether much State taxation is currently avoiding proper constitutional scrutiny, including the issue of its compliance with s 90 of the Commonwealth Constitution. That provision gives sole power to the Commonwealth to levy duties of customs and excise. The second part of the paper argues that the current interpretation of s 90 is in any event not capable of a sensible application to State laws.

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

The law of statutory interpretation is often wrongly thought of as a “quiet backwater”. The myth that it is a dry, formal subject containing simple rules persists despite high-level seminars devoted to it, law reform reports, sweeping statutory reforms, mammoth texts, sophisticated judicial descriptions, and, in the last decade, numerous scholarly articles and works emanating particularly from North America.

In Breavington v Godleman, Deane J stated: Basic to the jurisprudence of this country is the notion that the courts apply, as distinct from make, the law, that is to say, that the law operates contemporaneously to regulate lawfulness and consequences of conduct independently of judicial proceedings. In that context, it would be to substitute the bedlam of a Babel for an ordered system of law to recognise the right of each of the country's court systems, notwithstanding the place of this Court inall of them, to speak at the same time but in conflicting terms about the lawfulness, consequences or attributes of a particular act or thing in a particular place at a particular time.

The recent High Court decision of FCT v Peabody has raised once again the question of tax avoidance and how to deal with it. This article is a contribution to the discussion. The first part of the paper looks at the history of the judicial treatment of s 260, the old general anti-avoidance provision in the Income Tax Assessment Act 1936 (Cth) (the Assessment Act). There is then an analysis of Part IV A, s 260's bastard child, and the Peabody decision. I apply some of the historical lessons that come from the examination of s 260 to Part IV A. I am, if you like, looking back to look forward.

The exclusion of judicial review of assessment decisions by the Federal Commissioner of Taxation (the Commissioner) through the privative clause ins 177 of the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) was challenged and found wanting in David Jones Finance Investments Pty Ltd and Adsteam Finance & Investments Pty Ltd v Federal Commissioner of Taxation (David Jones Finance). The decision has affected the interpretation of the effectiveness of the privative clause and has potentially opened up a new mechanism for appeaiing against decisions of the Commissioner.

Constitutional commentators have long been troubled by the question as to whether the notion of the rule of law operates, on the one hand, as a conduit for the expression of the supreme legislative authority of Parliament, or, on the other (at least to some degree) independently of, and thereby potentially in conflict with, parliamentary supremacy. As an alternative to both of these suggestions it might be held that according to the circumstances, the notion of the rule of law is capable of portraying both of these characteristics. Curiously, relatively little has been written on this specific issue in relation to Australia. The attention directed towards the vexed questions of the nature and extent of the federal division of powers in Australia (admittedly, themselves issues not unrelated to the present concern) has marginalised interest in the nature of legislative authority in Australia. “The one legal doctrine”, it has been recently proclaimed, “that Australian and other Commonwealth lawyers are never taught to question (or perhaps are taught never to question) is A V Dicey's theory of parliamentary omnipotence”.

The High Court has recently heard argument in the case of WCP Ltd v Gambotto. The case is on appeal from the New South Wales Court of Appeal. Although the facts of the case are relatively simple, the issues they raise are rather more complex. WCP Ltd is a company, the shares of which are almost entirely owned by Industrial Equity Ltd.