The Australian High Court has in general rejected the use of extrinsic historical material in the interpretation of the Constitution. Though it has consistently claimed that in interpreting a Constitutional provision it is giving effect to the intentions of the founders, it has not been prepared to turn to the convention debates, draft constitutional bills or other primary records in order to ascertain the founders' intentions. The intention is to be ascertained from the ordinary and natural meaning of the words themselves, relying on the proper legal methods of construction and interpretation. However, even when this rule was considered to be settled doctrine there were exceptions. In those cases where the words were ambiguous the Court could turn to the drafts of the Constitution “as a matter of history of legislation”. As well, convention debates could be referred to “for the purpose of seeing what was the subject matter of discussion, what was the evil to be remedied, and so forth”.

In this article I will discuss two questions concerning “originalism” in Australian constitutional law. The questions are, first, the extent to which the contemporary meanings of constitutional provisions, express or implied, are the same as their original meanings in 1900, when the Constitution was created; and secondly, the extent to which those original meanings are determined by the intentions of the people responsible for creating it (whom I will call “the founders”). These two questions are distinct. Almost all literary critics would agree that the language in Shakespeare's plays should be understood in its original sixteenth century sense, but many would deny that any other evidence of Shakespeare's intentions is relevant in interpreting it. Similarly, a literalist, who believes that the meaning of the Constitution is exhausted by the meanings of its words, could hold that their original literal meanings are critical, but reject the relevance of any other evidence of the founders' intentions.

Invented by Thomas Edison, the electric light bulb was the subject-matter of United States Patent Number 223,898 granted on 27 January 1880. The electric light bulb has come to be recognised universally as the symbol of invention. Patent claims providing for a compact fluorescent light bulb have, over one hundred years later in the N. V. Philips Gloeilampenfabrieken and Another v Mirabella International Pty Ltd litigation, been held by a court at first instance and two appeal courts to be not claims for a “patentable invention” under s 18 of the Patents Act 1990 (Cth).

Anglo-Australian patent law has been vigilant to deny patentability where, on the face of the specification, a claim is “nothing but a claim for the use of a known material in the manufacture of known articles for a purpose of which its known properties make that material suitable” — referred to herein as an “analogous use” claim.

To say that managers should be accountable to the market only begins the analysis. The problematic downside to this glib norm is that a volatile market can be a fickle master who may regularly override the superior judgment of his manager-servant. Thus, the central question from a public law perspective is how much accountability is too much.

John C Coffee, Jr

The last two decades of corporate law scholarship in the United States have been marked by the ascendancy of law-and-economics research, the centrepiece of which is the contractarian theory of the corporation and the corporate law. Contractarians seek to explain the corporation as the focal point for a process of contracting between various constituencies. Contractarians explain corporate law as a corpus of “default rules” which fills gaps where these contracts are less than fully specified, but which can be excluded by the parties.

In recent years, the High Court has given increased attention to the nature and extent of constitutional limitations on Commonwealth legislative powers, both those limitations contained in express provisions and those implied from the text or structure of the Constitution. The issue inevitably arises as to the extent to which these limitations restrict the Commonwealth Parliament in the exercise of its power to make laws for the government of its territories under s 122 of the Constitution. Section 122 of the Constitution provides as follows:

• The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

The legislative prohibitions on the parallel importation of copyright material should not survive the new technological developments in the transmission of that material. Australian copyright law should come to grips with that reality and remove the existing prohibitions. Yet the adoption of current proposals for the amendment of copyright law may lead to a situation in which copyright owners could effectively prevent parallel importing. This could be done by copyright owners even if the existing statutory provisions specifically aimed at preventing parallel importing were repealed.

This article looks at the justifications for prohibiting parallel importing and the strength of those justifications in the light of new or developing means of distributing copyright material. Those justifications have been seriouslr questioned in recent years by a series of reports of the Prices Surveillance Authority (PSA) which has criticised the continuing prohibition of parallel importing. The criticisms in these reports have not made any detailed reference to the effects that changes in technology will have on the means of distributing copyright material. Those criticisms, combined with the impact of new technology, tip the balance of the debate concerning parallel importing in favour of permitting parallel importing.

Whilst the European Union (EU) does not compare easily with any other political/legal entity, including the Australian federation, both are concerned with the designation of powers and responsibilities to appropriate political institutions at various levels. In both the EU and Australia, environmental law can potentially be generated at two levels at least: national and supra-national, or State and Commonwealth, respectively. Whilst the legislative competence of the EU and the Commonwealth, with respect to certain defined environmental matters, has been confirmed beyond doubt,4 debate is still focused on the desirability or otherwise of an expansion of environmental competence for the central authority.

This paper argues that there is a fundamental concept implicit in the interpretation of the Australian Constitution which postulates that that document should be approached from the perspective of what I have called for convenience “One Australia”. It is a concept which suggests that the Australian courts should, where appropriate, take into account that Australia is one nation and one people operating under a “unitary” system of Australian domestic laws. It arises from the evolution of Australian nationhood and from the increasingly interdependent nature of Australian society. It is suggested that this concept is already exerting an influence on judicial decision-making in this country, to be balanced with other constitutional fundamentals, including that of the federal system. However it is also asserted that the full implications of “One Australia” have not as yet been determined. This is particularly so in relation to Commonwealth territories and their residents. The latter have in the past been generally regarded as being of little importance, both constitutionally and otherwise.

In 1994 the New South Wales Parliament passed an extraordinary piece of legislation, the demise of which one is hard-pressed to mourn. Be that as it may, the means by which that demise was achieved are hardly to be celebrated, as the High Court decision which accomplished the task represents a further entrenchment of the unfortunate doctrine of “incompatibility” introduced the previous year in Grollo v Palmer and Others. In short, the decision in Kable v Director of Public Prosecutions (NSW) extends the doctrine of incompatibility to State courts so that State parliaments, although they remain entitled to usurp the functions of those courts, cannot assign to those courts any powers whose exercise is incompatible with the judicial power of the Commonwealth vested in those courts by Commonwealth legislation. In this respect, the decision represents the worst of both worlds by placing severe limitations on State courts without any corresponding limitations on State parliaments (except to the extent they may wish to confer powers on the courts in question). The result is that the States have judiciaries which are half-independent, and that half is the less important half.

These exasperated words were uttered by John Quick on Wednesday, 2nd March, 1898, in the concluding stages of the Australasian Federal Convention Debates that led to the formation of the Australian Constitution. Quick wanted a definition of citizenship in the Constitution. The Commonwealth, he argued, should have power to deal with Commonwealth citizenship, and membership of the Commonwealth; he advocated a “common citizenship for the whole of the Australian Commonwealth”. His proposals were rejected.

The previous Australian government's aim was to remove the hereditary office of the monarch with only minor changes to the Australian system of government. Former Prime Minister Paul Keating stated that the proposed “republican” changes would have limited implications for the design and operation of Australian democracy. But his quest, and the quest of those who support the republican movement, may represent a more momentous shift in Australian political values and political sensibility than is widely admitted. This shift might lead to the enhancement of democratic participation. Indeed, the debate surrounding the republican initiative has already caused both a revised understanding of Australian political philosophy and a renewed appreciation of certain strong democratic threads in the history of Australia as a nation.

Story was there commenting on Art 1 § 5 CI 1 of the United States Constitution which provides that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members”. In the United States, the Supreme Court has held that in exercising the power to judge elections, returns and qualifications of its members, the Senate acts as a judicial tribuna1. In Buckley v Valeo, it was noted that Art 1 § 5 CI 1 conferred power judicial in character, rather than legislative.

McGinty v Western Australia is a significant indicator of present and prospective attitudes of the High Court to major issues of representative democracy, such as electoral representation and equality. In affirming by a majority that substantial numerical voter inequality in Western Australian state electorates did not infringe a concept of representative democracy in either the Commonwealth or the Western Australian constitutions, the court went beyond a refusal to overturn AG (Cth); Ex Rel McKinlay v Commonwealth of more than twenty years earlier.

In McKinlay, a voter had sought a declaration that s 19 of the Commonwealth Electoral Act 1918 (Cth), which permitted a variation of 10 per cent of the number of electors above or below the quota for a state's seats in the House of Representatives, was invalid on the grounds that it offended the first paragraph of s 24 of the Commonwealth Constitution. The High Courts held that s 24 did not require that the number of people or the number of electors in electoral divisions be equal. In other words, it was found that the Commonwealth Constitution did not mandate a principle of one vote, one value.