Between 1990 and 1993, the Australian High Court handed down an amazing series of judgments. Twelve cases were involved. Six of them were primarily concerned with curbing the power of tile executive or modifying the rule of law doctrine. The remaining six focused on the protection of the rights of individuals. It is suggested that these decisions, four of which were unanimous and only two of which had as many as three Justices in dissent, reveal a major, and possibly a long-term, shift in the orientation of the Court. Using its own and British jurisprudence as a springboard, the Court is rejuvenating the traditional doctrine of the rule of law by applying it not only to rights against the state — the traditional view of civil and political rights — but also to claims upon the state, which some theorists consider are non-rights and only programmatic in their nature. It has begun to extend the concept of the rule of law into the area of substantive, as distinct from formal, equality. Finally, it has elevated certain rights to the status of a new and potent “common law of the Constitution”.

The Tang dynasty is the only period of Chinese history to which the word ‘cosmopolitan’ is now routinely applied in Western-language historical writing. This article traces the origins of this glamorous image of the Tang to the 1950s and 1960s, but also links its current popularity to a more recent increase in the appeal of the concept of cosmopolitanism, as well as the idea of a ‘cosmopolitan empire’ among Western intellectuals since the end of the Cold War. The article then proposes a less presentist and more critical and holistic reading of Tang ‘cosmopolitanism’ as part of a larger, interconnected, multi-centred, and changing medieval world of numerous coexisting cosmopolitanisms, and argues for recognizing the existence of a different but equally important mode of ‘cosmopolitanism’ in the Song.

Recent assertions by the Australian States of a right to participate in the foreign policy process, in particular by the conclusion of international agreements and by the establishment of relations with foreign governments, are examined in the light of constitutional and international law. Some reference is made to Canadian and United States precedents.

The author concludes that the Federal Government has, to a large extent, an exclusive executive and legislative competence in matters of foreign relations. However, the States also have certain legitimate concerns and aspirations in such matters. The way in which these State interests can be met, while maintaining a unified Australian voice, is discussed, with particular reference to the new arrangements for co-operation between the Commonwealth and the States in treaty-making, agreed to at the Premiers’ Conference in 1977. The way in which the Commonwealth uses its constitutional powers, as well as the responsibility which the States show in the exercise of their powers in relation to treaty implementation, is likely to determine the course of future constitutional development in this area.

In a recent work dealing with Dr Evatt, the politician, he is described in the title as an “enigma”. Perhaps there is some enigmatic quality in Evatt, the High Court judge and constitutional lawyer. In the ten years he was on the High Court (1930-1940) a number of dominant themes can be detected in his judgments on constitutional law which at first sight seem to be not fully consistent with each other. In many cases they show a concern to prevent the undermining of State executive and legislative authority and a tendency to restrict Commonwealth power. In other cases, his judgments propound a rather broad interpretation of Commonwealth powers.

Judicial biographies in Australia are rare. Even famous judges, who have led interesting and varied lives, pass without a proper record of their decisions and intellectual and personal struggles. So it is with the Right Honourable Sir Frank Kitto AC KBE, Justice of the High Court of Australia from 1950 to 1970. He settled in the Armidale District after the conclusion of his service on the High Court. He served as the Chancellor of the University of New England from 1970 until 1981. With his wife Eleanor he devoted his time (apart from working a small grazing property), as he put it, to “a mass of reading that I had had to put aside through the years of my professional life”. He described this reading as ranging over subjects “from history and biography … and philosophy to fiction, both light and classical”. He even spoke of the enjoyment of selected programmes on television. One suspects that his viewing was probably connected with his duties in late years as foundation Chairman of the Australian Press Council rather than a quest for enlightenment—generally elusive on the small screen.

The decision to centralise, or to decentralise, the responsibility for law-making in relation to a subject of shared legislative competence is a fundamental dilemma for the polities of a federation. The advantages and disadvantages of both are well known. Amongst other things, centralisation promotes national unity, it decreases regulatory “arbitrage”, it may reduce search and compliance costs, and it capitalises on economies of scale in administration and law-making. By contrast, decentralisation is more receptive to local conditions, and offers the advantages that derive from interjurisdictional competition.

Australian corporate law has seen its share of the debate. That debate has been undeniably directional-there has been, over the past forty years, considerable momentum towards centralisation. Each legislative step taken in that period has been one closer to centralised national laws and administration. The only real opposition came to the Commonwealth's attempt to arrogate legislative power to itself in the Corporations Act 1989 (Cth), which the High Court struck down as unconstitutional.

This paper argues that there is a fundamental concept implicit in the interpretation of the Australian Constitution which postulates that that document should be approached from the perspective of what I have called for convenience “One Australia”. It is a concept which suggests that the Australian courts should, where appropriate, take into account that Australia is one nation and one people operating under a “unitary” system of Australian domestic laws. It arises from the evolution of Australian nationhood and from the increasingly interdependent nature of Australian society. It is suggested that this concept is already exerting an influence on judicial decision-making in this country, to be balanced with other constitutional fundamentals, including that of the federal system. However it is also asserted that the full implications of “One Australia” have not as yet been determined. This is particularly so in relation to Commonwealth territories and their residents. The latter have in the past been generally regarded as being of little importance, both constitutionally and otherwise.

Questions relating to the Torres Strait Islands and the rights of their inhabitants have come before the High Court in the last decade. In one of these cases the High Court examined the constituent instruments by which the islands were annexed to Queensland in the nineteenth century. That case, Wacando v Commonwealth, established that Damley Island, which is situated about 92 miles north-east of Cape York Peninsula, was part of the Colony of Queensland and therefore within its boundaries at federation. The ratio of Wacando centred on the validating provisions of the Colonial Boundaries Act 1895 (Imp). There was however disagreement between various Justices in that case as to the effect of Imperial letters patent and local legislation passed in 1878 and 1879 which raised questions as to British constitutional law and practice relating to the annexation of new territory and the modification of colonial boundaries. These issues will be examined below.

In current times, most executive action affecting individuals involves the exercise of powers conferred by or under statute. Administrative lawyers are familiar with the use of judicial review in order to enforce limits placed on such powers by the empowering legislation. Indeed, the development of the modern principles of administrative law over the latter half of the 20th century has largely taken place in a statutory setting. As recent history demonstrates, however, there are circumstances in which an executive government may seek to rely on non-statutory sources of power. The exercise of non-statutory powers will often raise distinct issues in the context of judicial review. The review of non-statutory powers may involve questions concerning the extent to which governmental actions are justiciable, that is, suitable to be examined by the courts. Further, the application of many of the traditional grounds of judicial review can be problematic without the touchstones of validity that are usually provided by statute.

This article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.

[I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should turn to constitution making.

In most Australian jurisdictions there are limitations on the time within which proceedings for judicial review of governmental acts (or for particular remedies) are to be commenced. Some such limitations are imposed by statute, some by rules of court. In some cases the relevant court of supervisory jurisdiction is authorised to extend the time. But in other cases there is no discretion to extend the time.

This article examines the justifications which have been offered for imposition by legislation of limits on the time within which applications for judicial review are to be made. It surveys Australian legislation on the subject and examines the legal effects of such legislation. The article also considers reasons why it may be thought desirable to give courts authority to extend prescribed time limits and the associated question of whether exercise of that authority should be regulated by legislative standards. The article also examines the factors which the Federal Court has considered relevant in the exercise of its discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act‘), a section which is substantially reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).

This digest covers the period 26 March 1963 to 30 October 1963, 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 first Session of the Twenty-fourth Parliament, third and fourth periods.

In July 2006, the Family Law (Shared Parental Responsibility) Act 2006 (Cth) ('the SPA’) came into operation, effecting wide-sweeping reforms to the Australian family law system. The reforms included amendments to Part VII of the Family Law Act 1975 (Cth) ('the FLA’) that seek to promote parental involvement with children and arrangements for equal or substantial shared care. While these changes apply to new orders made on or after the commencement of the legislation, in the case of applications for variation of existing orders, the changes only apply if the applicant can show some significant change in circumstance since the time of the making of the original order. This threshold requirement of changed circumstances is known as the rule in Rice and Asplund ('the Rule’). This Rule has been in operation for more than 25 years and its continued application has been expressly provided for in Schedule 1 Part 2 of the SPA. In this way the Government, acting upon concerns expressed by the Family Court, hopes to contain any increase in applications for variation.

Australia’s second chief justice has generally received a bad press. Perhaps this is due in part to the circumstances of his departure, which did nothing to enhance the prestige of the office. But it may be worthwhile to revisit the decade of his stewardship, for it marks the commencement of a centralist approach to the interpretation of our Constitution. It may also be fruitful to examine the extent to which the justices under his leadership collaborated in preparing their judgments, for that question has a contemporary relevance.

The power of the Commonwealth to confer authority on members of the Executive or Administration is restricted by the Constitution in two major respects—first, by the principle of the separation of powers, and secondly, by the doctrine that no law can give power to any person (other than a court) to determine conclusively any issue upon which the constitutional validity of the law depends. The second doctrine is sometimes metapholically summed up in the maxim “the stream cannot rise above its source”. The separation of powers principle affects a wider range of decision-making than the “source and stream” doctrine; but the latter doctrine, within the area of its operation, appears to be a greater limitation on legislative power.

For example, the principle of the separation of powers seems to prevent an Act from validly conferring power on an administrator to make conclusive determinations of law (and possibly findings of fact). in the course of settling a dispute about existing rights and duties. But where the power confided to the administrator to make findings of existing law or fact is merely preliminary to the creation of new rights and duties, then, in some circumstances at any rate, such power of detennination will not breach the separation of powers principle.

The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first recognition at law of the traditional ownership of land in Australia by Aborigines. It provides means whereby Aborigines claiming to have a traditional land claim to certain types of land in the Northern Territory can demonstrate that ownership to the Aboriginal Land Commissioner. If he finds that there are traditional Aboriginal owners of the land he reports that finding to the Commonwealth Minister for Aboriginal Affairs and may recommend a grant of it to a Land Trust. Sometimes problems in ascertaining which, if any, Aboriginals are the traditional Aboriginal owners of the land claimed arise from the difficulty inherent in expressing the land tenure system of one culture in the language of another. The author illustrates this with examples from one land claim hearing and argues that the use of interpreters is desirable to enable the claimants to put their case clearly and for the Commissioner to understand more fully the intricacies of Aboriginal land tenure systems.