Australian law regulating the use and disclosure of official information is in a far from satisfactory state. It suffers from both obscurity and untoward complexity … [and i]t is ill-suited both to contemporary conditions of government and to prevailing constitutional and democratic norms … Notwithstanding the progressive introduction of Freedom of Information regimes in Australia, we have by no means reached — or sought to reach the position where … the free use and disclosure of information is the norm and secrecy the exception … While the balance is now changing, and desirably so, secrecy endures as the primary obligation and openness the exception …

This paper asks whether much State taxation is currently avoiding proper constitutional scrutiny, including the issue of its compliance with s 90 of the Commonwealth Constitution. That provision gives sole power to the Commonwealth to levy duties of customs and excise. The second part of the paper argues that the current interpretation of s 90 is in any event not capable of a sensible application to State laws.

Substantial changes resulting from the interaction of environmental and dietary factors contribute to an increased risk of obesity, while their specific associations with obesity remain unclear. Identify inflammation-related dietary patterns (DPs) and explore their associations with obesity among urbanized Tibetan adults under significant environmental and dietary changes.Totally, 1826 subjects from the suburbs of Golmud City were enrolled in an open cohort study, of which 514 were followed up. Height, weight, and waist circumference were used to define overweight and obesity. DPs were derived using reduced rank regression with 41 food groups as predictors and hs-CRP and prognostic nutritional index as inflammatory response variables. Altitude was classified as high or ultra-high. Two DPs were extracted. DP-1 was characterized by having high consumptions of sugar-sweetened beverages, savory snacks, and poultry, and a low intake of tsamba. DP-2 had high intakes of poultry, pork, animal offal, and fruits, and a low intake of butter tea. Participants in the highest tertiles (T3) of DPs had increased risks of overweight and obesity (DP-1: OR=1.37, 95% CI: 1.07, 1.77; DP-2: OR=1.48, 95% CI: 1.18, 1.85) than those in the lowest tertiles (T1). Participants in T3 of DP-2 had an increased risk of central obesity (OR=2.25, 95% CI: 1.49, 3.39) than those in T1. The positive association of DP-1 with overweight and obesity was only significant at high altitudes, while no similar effect was observed for DP-2. Inflammation-related DPs were associated with increased risks of overweight and/or obesity.

In the latter half of 1979 the Supreme Court of Papua New Guinea delivered judgment in two cases in which it was called upon to decide a number of issues of fundamental significance to the interpretation of that country’s Constitution. In the course of this litigation, several of the Justices of the Court became embroiled in confrontation with the Government. The potential for such conflict had been foreseen by the makers of the Constitution, who took the view that conflict would be ameliorated if the Court adopted an autochthonous interpretation based on the social philosophy of the Constitution and on its legislative history. This article surveys the legal issues raised in these cases and evaluates the modes of interpretation employed by the Court by contrasting an “absolutist” with a “purposive” mode, with the latter expressing the intention of the Constitution’s makers. It concludes that for the most part the Court adopted the absolutist mode, and that thereby the autochthonous nature of the Constitution has been undermined.

In Breavington v Godleman, Deane J stated: Basic to the jurisprudence of this country is the notion that the courts apply, as distinct from make, the law, that is to say, that the law operates contemporaneously to regulate lawfulness and consequences of conduct independently of judicial proceedings. In that context, it would be to substitute the bedlam of a Babel for an ordered system of law to recognise the right of each of the country's court systems, notwithstanding the place of this Court inall of them, to speak at the same time but in conflicting terms about the lawfulness, consequences or attributes of a particular act or thing in a particular place at a particular time.

Judges often describe their courts as an arm of government. The very arrangement of the Constitution provides some justification for this claim, and it furthermore guarantees a role to the High Court in the review of administrative action. The discharge of this role manifests another dimension of the governmental role of the courts: what they do by way of review has a direct and sometimes profound effect on the business of politics and the administration of government. This is perceived by the judges, who are often at pains to distinguish their role from that of the executive. It is also understood by the politicians, who often criticise the judges for overstepping the mark. All this is not of course solely or even primarily a consequence of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), but in some respects the Act has thrown into sharper relief the tension between judges and politicians which flows from the exercise of judicial review.

Law students, served a standard helping of textbook or case method analysis, could be forgiven for thinking that the “law” consists mainly of common law rather than legislation, and that cases, not statutes, are the central repository of legal knowledge. Even those who study legislation often end up with a court-centred view of law. For while legislators enact laws, it is the judiciary which actually interprets, and in some respects, enforces them.

Such a view is essentially inaccurate. Australia, like most other advanced western democracies, is an administrative state, shaped by explicitly adopted policies, incorporated in legislation and implemented by a large array of large regulatory agencies. The economy, the health and safety of the public and the work force, the environment, and a multiplicity of other social goals are all regulated (with varying degrees of success) by this means.

There is a growing awareness in Australia that current laws are inadequate to protect the increasing industrial application of biotechnology. To overcome these difficulties there is a need for co-operation both nationally and internationally. The Biological Control Act 1984 (Cth) and the Patents Amendment Act 1984 (Cth) are indicative of a trend towards this end.

The Biological Control Act 1984 (Cth) involves co-operation between the Commonwealth and the States to overcome gaps in the Commonwealth's power, while the Patents Amendment Act 1984 (Cth) involves international co-operation under the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedures 1977. Whereas the Patents Amendment Act 1984 (Cth) extends and secures the patent protection available for biotechnological inventions, the Biological Control Act 1984 (Cth) aims to protect certain scientific endeavours from undue interference from the law itself.

‘Lawyers are not disposed to look behind the immediate constitutional framework to the ultimate sources of legal authority’: Lord Lloyd, The Idea of Law (1987) 173.

In spite of Lord Lloyd's observation, the centenary of federation has given many Australian lawyers the impetus to do just that, to consider the ‘ultimate source’ of authority for the Australian Constitution. The general aim of this article is to assess the legal basis of the Australian Constitution and, more specifically, how ‘autochthony’ for the Constitution might be achieved. Part I notes that as a result of the Australia Acts, some members of the High Court have instigated a move away from the traditional basis of the Constitution, the United Kingdom Parliament, to a new basis in popular sovereignty. However, as it could be said that the Australia Acts only dealt unequivocally with ‘autonomy', and not ‘autochthony', this move is dubious. Whether Australia's evolutionary achievement of autonomy means that both the political and legal sources of Australian constitutional authority now lie in some concept of popular sovereignty, is a next step. Part I further argues against the necessity for the judiciary alone to take this next step. This Part concludes by suggesting that, if the traditional legal basis is to be judicially discarded, and a local legal source found, the federal compact is the most historically correct interpretation of federation.

A re-examination of the application and effect of s 79 of the Judiciary Act 1903 (Cth) — that “tangled and technical” topic — is called for by three developments: the institution, in 1976, of the procedure which the High Court has used to remit all diversity suits to other courts; the establishment of the seat of the High Court in the Australian Capital Territory; and the enactment of cross-vesting legislation in all Australian jurisdictions.

Those events have raised problems as to the law applicable when a court is exercising federal jurisdiction. A related question, to which no consistently satisfactory answer has been given, is: which is the most appropriate court to which to remit any particular case? That problem will be discussed below, although it is likely to arise less frequently with the coming into force of the new legislation on the cross-vesting of jurisdiction.

This Digest is intended to provide lawyers with a key to those questions and Ministerial Statements in the Commonwealth Parliament in which they are most likely to be interested, and it is, of course, selective. It covers the period 12 March to 28 November 1968, and is compiled from the published debates of the Parliament of the Commonwealth of Australia.

The page references to Parliamentary Debates (“S.Deb.” and “H.R. Deb.”) are to the published debates of the Senate and the House of Representatives, for the second Session of the Twenty-sixth Parliament, first and second periods.

Administrative law — Environmental law — Standing to sue — Corporation — Environmental Protection (Impact of Proposals Act) 1974 (Cth) — Violation of public right — Boyce v. Paddington Borough Council

A Freedom of Information (FOI) barometer would indicate a significant shift in the prevailing attitudinal responses to access to government held information at the state level in Australia in recent years. The responses would vary between jurisdictions but only in terms of details not substance. What began as a few recitations of concern about delays, application of exemptions and fees has now metamorphosed into a strong phalanx of information commissioners, parliamentary committees, ombudsman and others seeking fundamental reforms. In 1994 Spencer Zifcak argued that the history of FOI in Victoria could be seen as proceeding through three phases - optimism, pessimism, revisionism. The Zifcak typology could be expanded Australia-wide with a fourth stage being added; namely, a return to fundamentals.

In the period up to December 1998 a number of factors had placed state FOI regimes under considerable stress.

Upon reading the Migration Legislation Amendment Bill (No 6) 2001 (Cth) to the House of Representatives for a second time, the Minister for Immigration and Multicultural Affairs ('the Minister’) stated that,

The Migration Legislation Amendment Act (No 6) 2001 (Cth) (the ‘No 6 Act’) became law on 1 October 2001. It was one of a number of amending statutes (passed by both Houses of Parliament in late September 2001) that were intended to fundamentally alter procedural and substantive areas of immigration and refugee law in Australia. This paper discusses aspects of the No 6 Act which amended the Migration Act 1958 (Cth) (the ‘Migration Act’) by inserting a new Subdivision AL into Part 2, Division 3.

Australian case law on infringement of registered trade marks has placed an increasing emphasis on the reputation of the owner of the registered trade mark in determining whether infringement has occurred. Consideration of the trade mark owner’s reputation has been included in determining whether the sign used by the defendant is deceptively similar to the registered trade mark and, more recently, in determining whether the defendant has used its allegedly infringing sign ‘as a trade mark’. Neither development is consistent with either the law relating to registered trade marks or the underlying policy reasons for the system of registration. This article discusses the case law which has introduced the tendency of the courts to consider the reputation associated with an owner of a registered trade mark in determining infringement proceedings, the reasons why such an approach is not consistent with the legislation nor with the rationale underlying our registered trade mark system.