It is a great pleasure to contribute to a festschrift devoted to celebrating the 80th anniversary of our friend and colleague, Emeritus Professor Leslie Zines. His contribution to the study of Australian constitutional law is too well known to require any reinforcement from us. It spans a period of five decades. His principal book The High Court and the Constitution has been and continues to be at the forefront of constitutional scholarship since it was first published. That book and his other writings represent the distilled essence of much of his valuable and incisive understanding of the way the High Court interprets and should interpret, the Constitution – something which has held a life-long fascination for him. In his publications as in his many years of teaching, he displays not only a mastery of the technical and analytical aspects of public law, but a social and functional awareness that goes well beyond deriving the meaning and application of many provisions of the Constitution by the mere contemplation of the language used or by the canons of construction.

There are indications that Australia may shortly accede to and ratify the United Nations 1958 (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This Convention, which has recently been the subject of a study by UNCITRAL, provides for the contracting parties to recognize and enforce awards made in the course of arbitration in foreign countries. Should the Government decide to ratify the Convention the manner of putting it into effect in Australia may pose some constitutional problems, and this comment discusses some alternatives open to the Government, bearing in mind the requirements of the Australian Constitution.

Economic and technological developments suggest that the Commonwealth will again be pressed to consider the enactment of a scheme to guarantee universally either a minimum income or a job opportunity. In this article, Mr Arup examines the debate over the efficacy of the two guarantees, concentrating upon their structural problems and operational difficulties as these result from doubts about constitutional power. He concludes that support for either guarantee lies in a combination of heads of constitutional power.

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.

This treatise, possibly written between 541 and 557 (1147–1162), illuminates the perspectives of a subaltern group persecuted by the Nizari Ismaili hierarchy for agitating to bring about the manifestation (ẓuhūr) of their imam. Ismailis in Iran awaited the manifestation of a descendant of Nizār b. al-Mustanṣir who was killed in Cairo in 488/1095 after a failed attempt to succeed his father as the Fatimid imam-caliph. In 559/1164, the fourth ruler of the Nizari polity proclaimed the Qiyāmat-i buzurg (the Great Resurrection) and was subsequently recognized as the Nizari imam. This text records how its author construed the transference of imamate from Egypt to Iran. It structured continuities between the Fatimid and Nizari daʿwa (summons) and between communities of followers of Nāṣir-i Khusraw and Ḥasan-i Ṣabbāḥ, the founder of the Nizari Ismaili polity. If the dating is correct, then the Ḥikāyat is one of the earliest known Nizari texts and is a very early exemplar of the Nizari appropriations of the poet, philosopher, and Fatimid dāʿī (summoner), Nāṣir-i Khusraw.

The central purpose of this article is to test the assumption that constitutional cases generally produce a heightened level of disagreement amongst the members of the High Court. In addition to extra-judicial statements indicating that is so, there are a number of theoretical and pragmatic reasons why we would expect greater individuality in the delivery of constitutional judgments than might be observed in other areas. However, there has not been an empirical study of the Court’s behaviour in these cases which is of sufficient longitudinal scope so as to verify this suspicion, no matter how compelling the arguments or anecdotal impressions.

This study attempts to overcome that deficiency. In order to do so, it adopts the following structure. In Part II, the hypothesis under examination will be stated with consideration of the reasons currently given for its acceptance. In Part III, the methodology employed to test the hypothesis will be set out. In Part IV, results of the study will be presented with accompanying analysis. In the concluding Part, the findings of the study will be summed up and possible directions for future research will be suggested.

Although some concept of a “market” is inherent in all systems of competition law, the Trade Practices Act 1974 (Cth) is striking in that it expressly makes liability under most of its substantive sections (sections 45, 46, 47, 49 and 50, but not section 48) depend in one way or another on the identification of a market or markets in which competition has been injured by the impugned conduct. This is because at the time when the Trade Practices Act 1974 came to be drafted, the concepts of market definition and market control had evolved to a high level in other jurisdictions, particularly in the United States.

Now, however, after five years’ experience with market definition under the 1974 Act, the Australian doctrine should have its own contribution to make. It should be rewarding, therefore, to attempt to state the principles that have so far emerged, in light also of cases and writings in the major overseas antitrust systems, those of the European Common Market and the United States. Since market definition often determines the outcome of suits or applications under the Trade Practices Act, these principles have practical as well as conceptual importance.

Australia has announced the need to review the distribution of responsibility among individuals, businesses and governments, as a consequence of the move to digital citizenship. Australia has formally framed the issues in these terms and has opened dialogue between government and citizens regarding responsibilities for the use and protection of digital identity.

This article examines digital citizenship in Australia and considers the implications for individuals, government and the private sector of the requirement for an individual to use his/her digital identity for transactions. The features and functions of digital identity are examined, and the consequences for individuals, business and government of system failure are considered. The analysis shows that, while there are consequences for all, individuals are most affected.

The author argues that the traditional approach of relying on privacy for protection is inadequate in these circumstances. Privacy, by its nature, cannot adequately protect the part of digital identity which is required for transactions. The argument presented is that, unlike privacy, the right to identity can protect the set of digital information required for transactions. Considering the new system is literally being imposed by government, the inherent vulnerabilities of the system, and the consequences of system failure for individuals, formal recognition of the right to identity is an essential element of accountable and responsible governance. Whilst in time the right to identity in this context may be recognised by the courts, the author argues that legislative recognition and protection of an individual's right to digital identity is needed now as a key component of the distribution of responsibility in this new digital era.

Although lacking an express mandate, since Federation courts have declared legislation ultra vires if they find it contrary to the Australian Constitution. This article undertakes an historical examination in four parts, to determine whether this judicial review of legislation is legitimate.

First, objections to the institution are identified. Second, the justifications for judicial review of legislation developed in the United States, and expressed in the seminal 1803 decision of Marbury v Madison, are examined. Having identified the twin justifications as the supremacy of the Constitution and the primacy of the judiciary in its interpretation, the third section analyses Australian Federation records to see if these justifications are supported, and whether they rebut the objections raised. Finally, the persistence of these justifications after Federation is demonstrated.

It is concluded that evidence of the supremacy of the Constitution, and the primacy of the judiciary in its interpretation, is sufficient to justify judicial review of legislation under the Australian Constitution.

Australia in the 1990s, like most other industrialised countries, is characterised by its high level of technological development, the increased automation of transactions between businesses and their customers and the reversal of pre-existing trends towards large government. These factors have combined to create an environment in which the issue of privacy and, in particular, the need for a private sector regime to protect privacy has begun to feature on the political agenda.

The need to regulate personal information became a matter of concern for the first time in Australia in the context of the controversy generated by an unsuccessful attempt to introduce a national identity card, the Australia Card. The main concern at that time focussed on the need to regulate the activities of the government; the Privacy Act 1988 (Cth), which was enacted in conjunction with initiatives to extend the use of the tax file number as a de facto identifier, covered only the activities of the Commonwealth public sector.

In any field of law . . . there may arise the rare “landmark” case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law.

In 1995 I wrote a short piece entitled ‘The Forgotten “Trust”: The People and the State’. Its premise was the simple proposition that the most fundamental of fiduciary relationships in our society is that which exists between the State (and its officers and agencies) and the community (the people). I do not intend here to revisit the justifications for that proposition. My primary concern when I wrote was with two quite different legal manifestations of that proposition. The first was its use in informing and justifying the imposition of legally enforceable standards of conduct on public officers and agencies. The second was how trust and fiduciary ideas have been, and could be, invoked to circumscribe and channel the exercise of public power for the benefit or protection of the public or a section of it. It is the second – and much more problematic – of these that I wish to revisit in this article. I do so not simply to satisfy Leslie Zines that I have reconsidered a ‘heresy’ into which he believed I was misguidedly lured.

Constitutional systems of Westminster heritage are increasingly moving towards fixed-term parliaments to, amongst other things, prevent the Premier or Prime Minister opportunistically calling a ‘snap election’. Amongst the Australian states, qualified fixed-term parliaments currently exist in New South Wales, South Australia and Victoria. Queensland, Tasmania and Western Australia have also deliberated over whether to establish similar fixed-term parliaments. However, manner and form provisions in those states' constitutions entrench the Parliament's duration, Governor's Office and dissolution power. In Western Australia and Queensland, unlike Tasmania, such provisions are doubly entrenched. This article considers whether these entrenching provisions present legal obstacles to constitutional amendments establishing fixed-term parliaments in those two states. This involves examining whether laws fixing parliamentary terms fall within section 6 of the Australia Acts 1986 (Cth) & (UK). The article concludes by examining recent amendments to the Electoral Act 1907 (WA) designed to enable fixed election dates in Western Australia without requiring a successful referendum.

In a recent article Andrew Lokan has suggested that the courts are faced with political choices as they deal with native title. The purpose of this paper is to consider the history of the recognition of Aboriginal customary rights to land in Australia, assess the extent to which policy and political issues have thus far been relevant in those developments and then to consider the extent to which such policy and political issues may be relevant in the future. Possible limitations upon the policies that might be considered by the courts are discussed. The discussion also affords an opportunity to look back over the development of the law of native title and to review how and why we have come to where we now are.

Hypertensive heart disease and hypertrophic cardiomyopathy both lead to left ventricular hypertrophy despite differing in aetiology. Elucidating the correct aetiology of the presenting hypertrophy can be a challenge for clinicians, especially in patients with overlapping risk factors. Furthermore, drugs typically used to combat hypertensive heart disease may be contraindicated for the treatment of hypertrophic cardiomyopathy, making the correct diagnosis imperative. In this review, we discuss characteristics of both hypertensive heart disease and hypertrophic cardiomyopathy that may enable clinicians to discriminate the two as causes of left ventricular hypertrophy. We summarise the current literature, which is primarily focused on adult populations, containing discriminative techniques available via diagnostic modalities such as electrocardiography, echocardiography, and cardiac MRI, noting strategies yet to be applied in paediatric populations. Finally, we review pharmacotherapy strategies for each disease with regard to pathophysiology.