For the last 40 or more years, academic administrative lawyers have advocated an ever-more expansionary role for judicial review of administrative action, and their urgings have usually been well-attuned to similarly expansionist tendencies on the part of the judges. Expansionists grew accustomed to being on the winning side, both in Australia and England, but we in Australia are beginning to learn that nothing lasts forever, even while the English expansions continue at almost break-neck speed. Three High Court cases are especially noteworthy. They are Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ('Lam’); NEAT Domestic Trading Pty Ltd v AWB Ltd ('NEAT Domestic’); and Griffith University v Tang ('Tang’).

Human treatment of other animals has been the subject of intense scholarly and more general public deliberation for many years, especially in the wake of the 1975 publication of Australian philosopher Peter Singer's book Animal Liberation. In the United States, this debate has permeated the discipline of law to the extent that there are now more than 90 animal law courses conducted in universities around the country, a significant and growing scholarly literature, multiple edition textbooks and dedicated law journals. Despite the Australian provenance of a major contributor to the contemporary philosophical debate, the Australian legal academy has shown relatively little interest in this important area. The aim of this article is to contribute to the fledging Australian legal scholarship in animal law by critically analysing the respective roles of the Commonwealth, States and Territories in the regulation of animal welfare, focussing principally on the welfare of companion and farmed animals.

The interaction between national constitutions and transnational sources of law (foreign and international) has generated quite an active disagreement in the United States about what these bodies of law have to do with each other. This paper will explore these debates and the postures towards transnational law and its role in domestic constitutional adjudication which they express. It will identify three postures — of convergence, of resistance, and of engagement — that are manifest in the opinions of different justices of important high courts around the world, and will argue for a posture of ‘engagement’ at least in established constitutional systems like that of the United States.

There is no doubt that the Australian Competition and Consumer Commission ('ACCC’) has provoked very strong opinions among big business in Australia. This criticism reached its height in 2002 and 2003, at the end of Professor Allan Fels’ period as Chairman of the Commission. At this time, the Chief Executive Officers of a number of Australia's biggest companies regularly and publicly criticised the ACCC, and Professor Fels himself, for being ‘unfair, unjust and immoral', and having no ‘line of accountability at all.’ The ACCC's behaviour was criticised for being ‘a corruption of administration of the Trade Practices Act', ‘false and misleading behaviour on the part of the cop', and for using publicity ‘in a way that damages companies before they are proven guilty'. One chief executive said that ‘Fels’ use of the media … smacks of the Gestapo.’ Another called Fels a ‘smiling assassin’ who had inflicted ‘irreparable harm to the Australian economy.’

Much has been written about the general justifications for providing legal protection for trade marks — for example, it has been said that trade marks help to reduce consumer search costs, that they protect against the misappropriation of other traders’ labour and investment, and that they may provide traders with incentives to invest in the development of new marks. However, it is important not to conflate these justifications with the reasons for having registered trade mark systems. To the extent that this issue has been considered, the principal justification for registration that has been put forward is that trade mark registers act as an important source of public information. More specifically, trade mark registers provide information as to the signs that are protected in a given commercial sphere and as to matters such as initial ownership of trade marks and subsequent assignments thereof. Consequently, in order for a trade mark register to perform its function effectively, it is essential that it reflect as accurately as possible the marks that enjoy legal protection and that those consulting the register are able to rely on the information it conveys.

The power of the Commonwealth Parliament to authorise involuntary detention (that is, detention without the consent of the detainee) by the executive government has fallen for consideration by the High Court in a series of recent cases. The Court has also examined the circumstances in which courts may make orders for detention. The aim of this article is to discuss some of the issues which have arisen in these cases, including those over which there has been apparent disagreement between the Justices of the High Court. It argues for a conceptually coherent approach to detention, which favours substance over form while giving effect to the strict separation of judicial power from legislative and executive power required by the Commonwealth Constitution.

In undertaking its responsibility to interpret and construct federalism, the High Court of Australia has frequently considered the Supreme Court of the United States’ treatment of the same subject. The US influence has been particularly pronounced in the area of State immunity. This article considers whether an American constitutional innovation of the 1990s, the anti-commandeering doctrine articulated in the case of Printz v United States, can and should be transplanted to Australia.

'Printz v United States embodies the [Supreme] Court's most emphatic acclamation of state sovereignty since the New Deal'; it is a ‘watershed in the jurisprudence of federalism.' In the lead judgment, written by Scalia J, the Supreme Court expounded a new bright-line rule:

Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. On this view, for example, copyright is shorthand for the legal rules and practices which make up the law of copyright.

In order to advance the ‘unity of the system’ of international law, it is necessary to resolve conflicts of norms and to endeavour to ensure that where tension exists, reconciliation is achieved. The commitment of states to engage in international criminal cooperation has the potential to conflict with many different human rights obligations, such as the prohibition against torture. The recent controversy relating to European states aiding the United States to affect extraordinary renditions is an example of the way in which a state's commitment to international criminal cooperation and a state's commitment to fundamental human rights may potentially conflict.

The introduction of the Human Rights Act 2004 (ACT) (‘the HRA’), although contentious, is indicative of a move towards the introduction of bills of rights at State or Territory level in Australia. The HRA is modelled on the UK Human Rights Act and the New Zealand Bill of Rights Act, and has precipitated discussion in several States on the merits of introducing their own bills of rights, with Victoria enacting the Charter of Human Rights and Responsibilities Act 2006 (Vic).

However, one significant area of uncertainty, which has been given little consideration, is how the HRA (and equivalent legislation at State level) will operate within Australia's constitutional framework. Section 32 of the HRA enables the ACT Supreme Court to issue a ‘declaration of incompatibility’ when a provision of ACT legislation is incompatible with a right enunciated in the HRA. However, this declaration is intended to initiate ‘dialogue’ between the judiciary and the legislature: it does not invalidate the legislation, or affect the rights of the parties in the dispute in which the declaration is made. This article will address the constitutional limits that may be placed on the exercise of this novel ‘remedy’.

In December 2006, the Civil Partnerships Bill 2006 (ACT) was introduced in the ACT Legislative Assembly that would extend to same-sex (and heterosexual) couples who have declared their commitment to each other by entering a ‘civil partnership’ the legal consequences that ACT laws attach to ‘domestic partnerships’ (what other Australian jurisdictions call ‘de facto relationships’). The Bill was introduced in response to the Howard Government's disallowance, in June 2006, of the Civil Unions Act 2006 (ACT) ('Civil Unions Act’), passed by the ACT Legislative Assembly almost exactly one month before. The Civil Unions Act had created an institution paralleling heterosexual marriage but open to both same-sex and different-sex couples. A civil union was similar to marriage both to the extent that a ceremony was required for it to be brought into existence and because a validly contracted civil union was to be treated like marriage for the purposes of all ACT laws.

Pursuant to s 5(1) of the Disability Discrimination Act 1992 (Cth) (“the Act“), an alleged discriminator will have discriminated against a person with a disability if they treat the disabled person less favourably, because of their disability, than they treat or would have treated someone without the disability, ‘in circumstances that are the same or are not materially different'.

A matter crucial to the assessment of whether there has been illegal discrimination for the purposes of the Act, therefore, is what constitutes the circumstances of the aggrieved person's case. In order for there to be a contravention of the Act not only must the alleged discriminator have treated the disabled person less favourably than they would have treated someone without a disability, but the alleged discriminator must have treated the disabled person less favourably than they would have treated someone without a disability who was in the same circumstances as the person with the disability.

In Forge v Australian Securities and Investments Commission the High Court considered whether the appointment of acting judges to a state Supreme Court was constitutionally permissible. By a majority of six to one, the Court found that such appointments were constitutionally valid. The decision is an important illustration of the way that the ‘Kable principle', which works to maintain the institutional integrity of Australia's integrated system of courts, continues to evolve in Australian constitutional law. This casenote examines how the judgments in Forge v ASIC extend the Kable principle to cover the composition and structure of state courts, and seek to link the Kable principle with the text of the Constitution.

Australians, it is said, live in a representative democracy. As citizens of that democracy they are ultimately able to hold their political representatives to account via the electoral process. In the interim between electoral episodes they form the views upon which that holding to account will be based. At the same time, they participate in and evaluate governmental processes in a variety of ways, some of them statutory, some of them via the Parliament of the day, and many of them via the media, lobby organisations, interest groups and other proxies.

Informational transparency is central to this holding to account. This was famously recognised by the High Court in the so called ‘freedom of political communication’ cases in 1992. Those cases constituted the first explicit judicial recognition that ‘the sovereign power which resides in the people [and] is exercised on their behalf by their representatives’ was more than simply a political doctrine, but was in fact a constitutional fundamental capable of limiting, as it did in those cases, Commonwealth legislative power.

In commencing his sprawling collective portrait of 19th century Britain a few years ago, A N Wilson stated simply, ‘[t]he Victorians are still with us.’ The truth of this, he went on to explain, lay in the fact that, though much changed, the world which they created persists. Although we seem to be at a great remove from the concerns, innovations and ideals of that era, Wilson ably demonstrated that the world left to us by the Victorians was immutably different from that which existed beforehand. As such it marked a break with the past and set in place the parameters within which the modern age has continued to develop.

The recent High Court decision of XYZ v Commonwealth (‘XYZ’) has strengthened the aura of uncertainty surrounding the concept of ‘international concern’ and its role in widening the application of s 51(xxix) of the Commonwealth Constitution. This article considers the XYZ decision in light of past judicial exegesis and addresses what may lie ahead for this aspect of the external affairs power.

‘International concern’ has, for some years, hovered as a possible basis for the subject matter of legislation to attract the Commonwealth external affairs power, alongside other grounds such as the implementation of an international convention or recommendation, geographical externality, relations with other countries or customary international law. The head of power relies upon such grounds to colour a piece of Commonwealth legislation with the hue of ‘external affairs'. This ‘colouring’ therefore enables a subject matter to be within the Commonwealth Parliament's legislative competence.

The Independent Contractors Act 2006 (Cth) ('IC Act’) and the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth) ('Amendment Act’) implement further key aspects of the federal government's workplace relations policy, following the passage of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices Act’). The Work Choices Act substantially amended the Workplace Relations Act 1996 (Cth) ('WR Act’), introducing a national workplace relations system for employers who are (in the main) ‘constitutional corporations’ or federal public sector departments or agencies, and their employees. Through the Work Choices Act, the government also: transferred responsibility for minimum wage-setting from the Australian Industrial Relations Commission ('AIRC’) to a new body, the Australian Fair Pay Commission; provided five minimum statutory employment conditions for all workers covered by the national system; removed much of the procedural regulation relating to workplace agreements and substantive requirements such as the ‘no disadvantage’ test; and exempted businesses with 100 employees or less from unfair dismissal regulation.