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.

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.

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:

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’.