I shall begin with a riddle, in fact three riddles:

1. 1 What sort of interest in land is held as an estate in fee simple but is inalienable?

2. 2 What sort of interest in land is held by a registered proprietor who has no power to make decisions relating to it, except with the consent of another, and who must act at the direction of that other?

3. 3 What sort of interest in land does not carry with it ownership of minerals but can preclude mining thereon?

The answer to each of these questions is — Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”).

The purpose of this paper is not to trace the course of judicial history in this country, from the robust assertion of the Privy Council that the colony of New South Wales “consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions” to the judgment of Blackburn J in Milirrpum v Nabalco Ply Ltd.

The exclusion of judicial review of assessment decisions by the Federal Commissioner of Taxation (the Commissioner) through the privative clause ins 177 of the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) was challenged and found wanting in David Jones Finance Investments Pty Ltd and Adsteam Finance & Investments Pty Ltd v Federal Commissioner of Taxation (David Jones Finance). The decision has affected the interpretation of the effectiveness of the privative clause and has potentially opened up a new mechanism for appeaiing against decisions of the Commissioner.

One hundred percent pasture-fed beef production has been suggested as a promising approach for sustainable ruminant farming, due to the potential benefits that can accrue across a range of sustainability domains. This study aimed to investigate the impacts across the four domains of sustainability of a wholesale switch from conventional to 100% pasture-fed beef production in the UK. We used fuzzy cognitive mapping (FCM) as a method for extracting knowledge from multiple stakeholders to create representative systems models of both conventional and pasture-based beef production systems. We then conducted a scenario analysis to assess how a switch to a pasture-fed system could affect components of sustainability in the UK beef sector. The FCMs indicated that vegetation quality, grass use efficiency, and soil health were central components of the pasture-fed approach, while economic and regulatory aspects, and climate change targets were more central to mainstream production approaches. The most marked changes under the 100% conversion scenario were an increase in income from subsidies (27.3%) in line with ‘public money for public goods’, a decrease in ability to export beef (unless advice to reduce consumption of animal protein is followed) (23.5%), a decrease in land used for farming vs other uses (e.g., natural capital) (11.23%), and a decrease in the use of feed from agricultural co/byproducts (7.5%), freeing up these feed sources for more sustainable monogastric production. Therefore, the mapping and scenario analysis suggests that while upscaling the pasture-fed approach may reduce productivity, it would likely increase public goods provision and reduce feed–food competition in the UK.

The relationship between courts and social change can be viewed from at least two perspectives. The first, frequently explored in the literature, invites consideration of how courts respond to social change, real or apparent. The second directs attention to whether the courts themselves can bring about social change.

Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. On this view, for example, copyright is shorthand for the legal rules and practices which make up the law of copyright.

In every freedom on information (FOI) law there is a tension in the opposition between, on the one hand, the expression of a “right” to information accompanied by objects provisions which promote a generous interpretation of this right, and, on the other, the depth and breadth of the grounds for exemption which government is permitted to claim as reasons to resist disclosure of a document.

Dispute between applicants and agencies at the external review stage most often concerns a question (or a number of questions) about whether a document is exempt. The external review body must adjudicate in a manner typical of any application of the law. The body will take a view of the facts, isolate the relevant legal principle or rule (being the relevant exemption provisions), apply that principle or rule to the facts and then decide whether or not the document is exempt. Of course, the process is not so straight-forward as this suggests.

Reflecting on the involvement of High Court judges in extra-judicial activity, former Chief Justice Murray Gleeson recently observed that ‘[w]ar seems to create special cases’. The historical record confirms this assessment. While High Court judges have, in peacetime, periodically engaged in government work outside the courtroom, most instances of extra-judicial service by our top judges have occurred during war. Thus, it is only during World War I that members of the Court have conducted Royal Commissions. In 1915, Justice George Rich inquired into the controversy – long forgotten today, but a source of much public concern at the time – over conditions at the Liverpool Military Camp, near Sydney. More surprisingly, in 1918 – only months after the Australian people had, for the second time in little over a year, rejected conscription at referendum – Chief Justice Sir Samuel Griffith inquired into the recruitment levels needed to sustain the Australian Imperial Force. By contrast, between the wars, the Court received many requests from the Commonwealth Government for a judge to serve as Royal Commissioner. These requests were uniformly refused.

There was a time when Australia, in common with New Zealand, provided a lead to the world in formulating new and constructive legislative measures; the statutes relating to the system of Torrens title, testators family maintenance and industrial arbitration were the expression of a legislative spirit which was anxious to grasp difficult problems and solve them with an imaginative and practical approach. It may be said that this legislation was primarily social in character and that it was the distinctive contribution of the democratic and egalitarian society which had emerged in this part of the world towards the end of the nineteenth century. The substantial accuracy of this observation may be admitted, except in its application to the Torrens title legislation, but the comment should not be allowed to obscure the very considerable legislative activity which took place contemporaneously and which was of domestic significance.

In Fishwick v. Cleland, one of the contentions put by counsel for the plaintiff was that the Papua and New Guinea Act 1949-1957 was invalid as inconsistent with the Charter of the United Nations and the Trusteeship Agreement—

The power of the Commonwealth to pass [the Act] depends either upon s. 51 (xxix) of the Constitution or upon s. 122.3 Section 51 (xxix) does not grant power to pass legislation inconsistent with or contrary to a validly existing treaty.... Even if s. 122 does apply, the powers granted by that section are limited by the purposes and prohibitions of the Trusteeship Agreement in the same way as those granted by s. 51 (xxix).... [I]f the Commonwealth relies upon the external affairs power, and relies upon a treaty as feeding that power, it must confine itself, broadly, to carrying the treaty into effect.

The traditional function of the judicial process in adjudicating upon the existence of rights and obligations between defined persons or classes of persons will continue to be discharged by the judiciary. There are risks involved in an extension of the role of judges beyond that traditional function. Mr Justice Brennan argues that these risks must in appropriate cases be accepted, otherwise the judiciary itself may become irrelevant to the community which it serves.

Procedure is at the heart of administrative law, just as it is at the heart of public administration. The development of administrative law is rooted historically in questions of the availability of remedies, and the related question of standing. Delivering the Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 in the House of Representatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform - indeed, it could be said to be medieval - and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.

‘State courts’ can be understood in at least two ways. Their ‘attributes’ are the characteristics that define them as ‘courts’. Their ‘attribution’ is the extent to which they are regarded as emanations of a ‘state’ in its constitutional conception as a constituent unit of the federation. The principle first articulated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ensures the institutional integrity of state courts by protecting from legislative impairment their defining characteristics as ‘courts’. It therefore understands state courts almost exclusively by their ‘attributes’. This article examines the significance to the Kable principle of also understanding state courts by their ‘attribution‘. There are different conceptions of the proper attribution of state courts, coincident with different visions of how to accommodate simultaneous constitutional commitments to autonomous states and integrated courts. Those conceptions influence the content and application of the Kable principle in ways that are insufficiently appreciated. This insight permits a new perspective on the Kable principle as a doctrine of federalism, and its recent applications in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; and Wainohu v New South Wales (2011) 243 CLR 181. It also prompts an analysis of a contemporaneous evolution in the constitutional policy of the Commonwealth, whose Attorney-General typically intervened in Kable cases in support of the states, until recently seeking to extend to them certain Chapter III limitations.

At the National Australasian Convention held in Sydney in 1891, Andrew Inglis Clark observed:

Inglis Clark was quoting Edward Augustus Freeman, Regius Professor of Modern History at Oxford University, whose History of Federal Government in Greece and Italy, first published in 1863, was the ‘classic nineteenth century exposition’ of the city-state leagues of ancient Greece, and is still cited today by specialists in the field.

Freeman, who succeeded William Stubbs to the Regius Chair, profoundly shaped nineteenth century conceptions of federalism, although studies of Australian federalism have tended to neglect his influence. While Freeman's reputation suffered in later years, his earlier career was celebrated and revered.

Say theism is the view that an omnipotent, omniscient, perfectly loving, and perfectly good being exists. And say pointless atheism occurs just in case there’s an atheist who isn’t resistant to belief in God, and no greater good comes about on account of this atheist’s non-belief. In this article, I show that if two prominent views about evil and divine hiddenness are accepted, theism is compatible with pointless atheism – a result hitherto unnoticed. Furthermore, not only is theism compatible with pointless atheism, it entails pointless atheism. This is significant because many objections to the argument from divine hiddenness have tried to show that all instances of non-resistant atheism are required for a greater good. But if I’m right, given theism, there need not be a point to non-resistant atheism. Indeed, we should expect there to be pointless atheism.

Section 90 of the Commonwealth Constitution provides, inter alia, that:

on the imposition of Wlifonn duties of customs the power of the Parliament to impose duties of customs and of excise and to grant bounties on the production or export of goods shall become exclusive.

With the possible exception of s 92, no constitutional provision has created as much division in the High Court as has s 90. The difficulty surrounding the interpretation of s 92 was alleviated by the unanimous decision in Cole v Whitfield, from which emerged a clear principle to assist the Court in future decisions. The problems besetting the Court in the interpretation of s 90 have yet to be resolved.

This paper considers the impact of the Administrative Decisions (Judicial Review) Act 1977 (eth) (“the Act”) in the area of personnel management in the Australian Public Service (the“APS”). It is written from the perspective of a lawyer, rather than that of a public administrator.

The paper is in four parts, dealing with: the place of personnel management in the “new administrative law”; developments in the area of review of personnel decisions since the Act came into force; the reasons for these developments, and the extent to which they may be attributed to different aspects of the Act; and assessment of the changes that have occurred.

The Australian Industries Preservation Act 1906 (Cth) was modelled closely on the United States Sherman Act. Early United States criminal monopolization cases were not very successful, and the statutory language was read down by a judiciary oriented toward common law contract analysis. The same thing is happening in current Australian cases. One of the finest monopolization opinions ever written is that of Mr Justice Isaacs in the 1911 Coal Vend case. It should be resurrected and used as the foundation for the development of Australian restrictive trade practices law.

Mr Hamilton's examination' of the Australian Government's power under s. 51 (xxxi.) of the Constitution begins with an analysis of judicial interpretation of the conceptsof “property” and “acquisition”. After drawing comparisons with the law relating to compulsory acquisition in the United States and Britain, he proceeds to suggest certain extensions of the definitions arrived at and to propose a test for “acquisition”, viz, whetherthe taking is for the “use and service of the Crown”. He concludes with awarning that some development of the law is required to combat any possible tendency toward “back door” acquisition by regulation.