It is common for courts interpreting words in Commonwealth statutes to invoke State law to clarify the meaning of those words. For example, if a Commonwealth statute uses the word “shareholder” without adequate definition, reference will be made to State law as to the meaning of that word.

How is this approach to be justified? Part of the answer is that reference to State law was intended by the Commonwealth Parliament: but where is that intention to be found? Specifically, are sections 79 and 80 of the Judiciary Act 1903-1969 (Cth) relevant?

On the evening of 18 November 1976 the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 passed through both Houses of Federal Parliament in less than three hours. The Federal Government claimed that the Act was urgently needed to protect the Australian national interest, which was said generally to be threatened by attempts being made to gather evidence in Australia for use in large-scale litigation in the United States of America arising put of an international uranium cartel The Parliamentary debate did little credit either to the Government or the Opposition. It is necessary to go beyond the Parliamentary Debates to make an informed assessment of the Act. When the facts are examined it becomes clear that the Government's claim that the situation was urgent was unfounded, that the appeal to the national interest was at best highly questionable and that, because of the availability of appropriate judicial process, legislative action was unnecessary. The Act is alarmingly vague and reposes wide discretionary powers in the Attorney-General. Its passage and operation have quite disturbing implications for parliamentary democracy and the principle of open government. Where uranium is concerned the Federal Government is showing an increasing tendency to use the Parliament as a cipher.

The Copyright Law Review Committee (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the “digital revolution”, permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission.

In his Hamlyn Lectures Lord Scarman ventured to suggest that the common law as developed by the judiciary had, by reason of its preoccupation with the defence of private property and distributive justice as between individuals, and its relative lack of concern with public law (meaning the law governing the rights and obligations of the state), come to play a diminishing role in the governance of society. He condemned what he described as “an influential body of legal opinion which would confine the role of the courts and the general law to the interpretation of the statutes and the statutory instruments which are the legal framework of the system”; and which would exclude those courts “from reviewing the merits of a decision”.

Although the basic test for apprehended bias is now well-established in Australian law, its application continues to present difficulties. The basic test is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial or administrative decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand. It is equally well-established that, while the same objective test applies to judges as to tribunal members and other public decision-makers, the application and content of that test varies depending on the context, including differences in decision-making roles, functions, powers and processes.

The application of the test can be problematic and somewhat unpredictable. For example, despite the unqualified terms of the relevant parts of the High Court’s decision in Ebner, it now appears that, at least in the context of curial decision-making, the Ebner two-step test is not universal in its application.

Capital exporting countries have attempted to protect the overseas investments of their multinational corporations (MNC) against host nation governments expropriating these investments, limiting the right to repatriate profits, or subjecting the withdrawal of their investments to heavy penalties. The aborted Multilateral Agreement on Investment (MAI) of the mid-1990s was an attempt at transferring these concerns to a settled legal framework between nations. Some limited expression of this is found in the provisions of the World Trade Organisation (WTO) Dispute Settlement Understanding, while more substantive assertions are found in the investor-state dispute settlement (ISDS) provisions of bilateral trade and investment agreements entered into between developed and developing economies. However, recent legal challenges and associated public relations campaigns by MNC directed at Public Law and Health measures have caused governments to reassess the situation. A classic example of this has been the challenge by tobacco companies against the plain cigarette packaging legislation introduced by the Canadian and Australian governments. The Australian Government's response to this through its statement of position in respect of future bilateral agreements and its Tobacco Plain Packaging Act 2011 (Cth) is equally path breaking. This article examines the dramatic turnaround in perspective of States in respect of Investor-State arbitration, and its impact on the Trans-Pacific Partnership Agreement (TPP) currently being negotiated.

Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.

When the 1983 amendments were made to the national companies securities legislation, it was stated in the accompanying explanatory memorandum that one of the purposes of the new provisions was to “abolish the doctrine of ultra vires” — an ambitious aim given the tenacity of the doctrine despite widespread criticism on many grounds, perhaps best summed up in the comment, “[u]ltra vires was the expression of a social policy that failed.”

Of course, it has now been realised that the 1983 amending Act did not achieve its stated purpose. It may have achieved a partial elimination of the doctrine but it has left a large area for its continued operation in a different form and in some respects has opened new opportunities for development.

These aspects are explored below but it should be noted here that one curious side of the new provisions is that no explanation was offered of the defects in the previous statutory provisions, ss 67-68 of the Companies Act (Cth) (“the Act”) and its forerunner, s 20 of the State uniform companies legislation, nor was it explained how the new ss 67-68 were intended to remedy those defects. The new regime was simply offered as a better general solution to the ultra vires problem. Unfortunately, in this case, it is not the final solution.

In 1955 the Commonwealth Government passed the Courts-Martial Appeals Act 1955 setting up in Australia a Tribunal to be known as the Courts-Martial Appeal Tribunal. This gave the ultimate review of courts-martial (save that of 'pardon') to civilian lawyers, whereas previously it had been exercised bythe Service concerned itself. The principles to be applied in determining appeals were set out in the Act and are similar to those set out in the Criminal Appeal Act 1912 (N.S.W.)

Literature on the necessity for reform of Australia‘s federal division of government continues to blossom, reflecting the assessment of a leading expert in the area that the system is now at a ‘cross-road’ between delivering a vibrant and beneficial federalism to the Australian public or ‘merely a mask for the effective centralisation of power’. Although the solutions advanced by many commentators towards ensuring the first of these outcomes over the second are many and various, it is notable that none looks exclusively to constitutional amendment as the silver bullet of reform. The notorious difficulty of attaining a successful referendum result – particularly on federal issues which have traditionally been amongst the most contentious proposals –as well as the difficulty of encapsulating all that might be done in the way of federal reform within a single suite of proposed amendments, has ensured that sub-constitutional institutions and mechanisms have been looked to as a simpler, more effective way to achieve change.

As Barrett's case1long ago demonstrated, a provision in a Commonwealth Act may perform the “double function” of conferring both a jurisdiction upon a court to grant a remedy, and a “substantive statutory right or duty” upon a litigant by means of “providing that in certain circumstances a person may take proceedings in a particular court to obtain a specified remedy”. The difficulty is in divining when the Parliamentary Counsel has intended that this double function be performed. Under s 76(ii) of the Constitution, Parliament may confer jurisdiction upon a federal court in “any matter arising under any laws made by the Parliament” (emphasis added). How is one to tell if “Parliament has been too sparing in the exercise of its powers and has made only a bare grant of jurisdiction without enacting a substantive law to which the exercise of jurisdiction is referable”?