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.

The non-justiciability of certain executive decisions is based upon a number of notions including that of ‘polycentricity’, the unsuitability of certain types of power for review, deference to executive judgment, and the question of the judicially enforceable limits to power. In this article, it is argued that the concept is redundant. It is sufficient to consider whether a ground of review, invoked with an appropriate regard for the legalities merits distinction, is available. There is no further question of ‘justiciability’.

It is questionable whether it has ever really made sense to talk of ‘justiciability’ as a discrete notion, rather than justiciability upon this or that ground. Historically, it is trite to observe that questions of the existence and limits of the prerogative powers have been justiciable since at least the upheavals of the 17th century, even while courts would steadfastly refuse to examine the manner in which those powers were exercised. Thus, even prior to the decision in Council of Civil Service Unions v Minister for the Civil Service (‘CCSU’), non-justiciability in relation to prerogative powers meant simply the non availability of grounds of review other than the simplest form of ultra vires. CCSU itself established the potential availability of review of such powers for denial of procedural fairness, leaving open the question of whether the various abuse of power grounds might also be available. In short, the issue appears to be whether a decision is justiciable upon this or that ground of review, rather than the blanket availability or non availability of review. Once this point is grasped the inchoate concept of ‘justiciability’ becomes problematic at best. One need simply ask whether one or more grounds of review can be made out.

On 26 February 1982, the Government of the Commonwealth of Australia formally recognised the European Communities (EC) as a subject of public international law and granted accreditation to the Communities’ permanent delegation in Canberra. The delegation had been in place since April 1981. Australian representation in Brussels began in 1960 with a view to maintaining its Commonwealth tariff preference in the United Kingdom upon occasion that the British should decide to join the Common Market. Largely due to concern for the Commonwealth arrangements, the United Kingdom did not join the Common Market until 1973. At this point, the more developed Commonwealth nations were placed behind the Member States of the EC in the line of suppliers of the United Kingdom's import needs. Recognising the mutual desire to minimise the disturbance in an established trade channel, the then Vice-President for External Affairs of the EC Commission, Sir Christopher Soames, visited Canberra and arranged for regular high level consultations to be undertaken to ensure the smooth adaptation and continuation of Australia-EC trade.

The period of the Hawke Labor Governments has been one of considerable economic change. That change reflects two basic and interrelated factors. First, capital accumulation itself is a continually revolutionising process. Competition forces capitalists to search for new and cheaper ways of producing their products in order to gain an advantage over their rivals. Secondly, the international economic system has been in crisis since the mid-1970s. That crisis can be seen in Australia in the tendency of the rate of profit to decline over the last twenty years or so. The strategy underpinning the Hawke Government's actions, and this is as true of the taxation field as any other area, has been to adopt measures that will facilitate capital accumulation and improve profit rates for Australian based capitalists. This article will examine how some of the tax law changes that have been made have been affected by this strategy, in particular the internationalisation of the Australian economy. In the first place however, these changes have to be seen as part of the more general process of change itself.

Aboriginals – Land Rights – Administrative Law – Inquiry by Aboriginal Land Commissioner – Party not disclosing information to inquiry – Ex parte representations to Minister by party detrimentally affected – Failure to take into account relevant considerations – Obligation of Minister to have regard to exparte representation – Constructive knowledge of Minister of matters within his departmenrs knowledge – Aboriginal Land Rights (Northern Territory) Act 1976 (C’th) ss 11, 50

Administrative Decisions (Judicial Review) Act 1977 (C’th) s 5(2)(b).