The relationship of the King to the persons who actually perform the work of government has changed profoundly over the last 250 years. The purpose of this article is to analyse those changes and to analyse how the common law reacted (or failed to react) to them.

For this purpose I propose first to consider the structure of English government in about 1750. Although the structure was already evolving into a more modern form, in 1750 it was still a relatively simple governmental structure based upon a sovereign Monarch and upon public officers, many of them in regional areas.

At that time the common law clearly distinguished between the Monarch and his officers. Although the extent and importance of the various legal powers and immunities of the Monarch are now often overstated, the Monarch did possess special powers and immunities which reflected or, at least, were derived from his sovereignty.

On 10 April 2005 Justice Bradley Selway died. He was 50. For those who knew and worked with Brad, as he was universally known, this was crushing news. Like many I came across Brad through a shared interest in public law, an area in which he excelled, and like many a professional interaction it turned into a cherished friendship.

My first meeting with Brad was when he agreed to chair a continuing legal education seminar in Adelaide on section 90 of the Constitution. As an inexperienced academic I was nervous and clearly portrayed that lack of confidence. He, as was his way, calmed the situation by reminding all that he should be the nervous one having just lost the States $5 billion with the High Court’s decision in Ha v New South Wales.

Patents are growing in importance. Patenting rates worldwide have increased significantly in recent years: between 1992 and 2002, the number of patent applications in Europe, Japan and the US increased by more than 40 per cent. Patent coverage has also been extended to include new kinds of inventions, like genetic technologies, software, and business methods. A wider range of participants are also using patents, with universities being encouraged to increase their patenting activity. And there has been a dramatic increase in patent litigation, at least in the US. These facts have given rise to international debate on the costs and benefits of the patent system and how its effectiveness in encouraging innovation might be improved.

To inform these debates, policymakers have called for more hard data on how the system is actually working in practice. Enforcement forms an important part of how the patent system ‘works’. Patents are designed to encourage innovation by providing innovators with legal protection against expropriation of their innovative products and processes by third parties.

Much is made of Australia’s isolation as the only nation in the common law world without a comprehensive statutory or constitutional scheme for human rights protection. Yet, for all their paucity in Australian legislation, human rights seem, at times, to be everywhere in contemporary Australian legal and political discourse. According to two commentators writing in 1999, ‘the [Australian] judiciary [has become] more conscious of rights, and more willing to give effect to them where possible.’ The same commentators went on to urge ‘reconsideration’ of ’the training and patterns of thought of [Australian] lawyers … so that they may be better equipped to think, reason and argue in terms of rights.’ In April 2004, Australia’s Human Rights Commissioner, Dr Sev Ozdowski, sounded a familiar note in contending: ‘if Australian courts were able to interpret a domestically developed code of civil rights, in time this Australian jurisprudence would contribute to better international understanding of our way of life’.

This article provides an overview of the developments in 2004 regarding the constitutional freedom of political communication. This will be done through a discussion of the cases of Coleman v Power and Mulholland v Australian Electoral Commission. These two cases have confirmed the validity of the general propositions in Lange v Australian Broadcasting Corporation, regarding the existence of a freedom of political communication implied from the Australian Constitution, and provide the basis for some observations with respect to that implication. In this article an overview is given of the basic principles in Lange, followed by a detailed discussion of relevant parts of the judgments in Coleman and Mulholland. This article ends with analysis of some of the issues raised by the cases.