I want to mention one implication of the views of the minorities in Koowarta and the Franklin Dam case.

Suppose that a State had agreed to the Commonwealth incurring an international obligation (or had even requested it to do so) on a matter such as racial discrimination or the natural heritage. Suppose that, after Australia had incurred the obligation, the State refused to enact legislation needed to fulfil Australia’s international obligation. Or suppose that the State repealed legislation already enacted for that purpose. If the Commonwealth lacked power to implement the international obligation, such State action would result in Australia being left “high and dry” in breach of that obligation.

This possibility of a “backsliding” State, leaving the nation in breach of treaties entered into with State agreement, would be a totally unacceptable position. No doubt the High Court majority in the Franklin Dam case saw this implication of the States’ arguments. The majority’s wide view ofthe external affairs power was the only course available, by means of judicial interpretation, to prevent this from happening.

Several recent cases have seen the courts approving ASIC's employment of a ‘stepping stone’ approach that applies directors‘ statutory duty of care as well as their other statutory duties in a novel context. The first ‘stepping stone‘ involves an action against a company for contravention of the Corporations Act 2001 (Cth). The establishment of corporate fault may then step stone to a finding that by exposing their company to the risk of criminal prosecution, civil liability or significant reputational damage, directors contravened one or more of their statutory duties in ss 180-2 of the Corporations Act, particularly their statutory duty of care, with the attendant civil penalty consequences. The effect of the ‘stepping stone’ approach is that directors may face a type of derivative civil liability for corporate fault. In this paper we analyse the stepping stone approach and assess the justification for imposing civil liability on directors for their company's misbehaviour. This paper also examines whether an extension of the stepping stone approach could make directors liable for their company's contraventions of non-Corporations Act laws as well as open the floodgates to make directors personally liable to shareholders, creditors, employees, or others affected by corporate fault.

Taxation — Assignment by deed of share in partnership — Effect of assignment on accumulated partnership income — Income Tax Assessment Act 1936 (Cth) ss 92, 95, 102.

Michael Bernard Galland (“the taxpayer”) carried on practice as a solicitor in partnership with his father, under the name of “Bernard L. Galland & Co” (“the partnership”), during the 1979-80 year of income. The partnership agreement provided, inter alia, for the equal division of profits and losses which were to be ascertained in July after the preparation of accounts in respect of the previous financial year.

I begin by reminding you that in 1964 Sir Anthony was appointed Commonwealth Solicitor-General and that he continued in that office until 1969. This is a matter of some importance in charting his legacy in administrative law.

The Solicitor-General Act 1916 (Cth) (the 1916 Act) provided in s 2 for the appointment by the Governor-General of a person to be the Solicitor-General of the Commonwealth and to have such duties and functions as prescribed by or under any statute or as were delegated to him by the Attorney-General. The 1916 Act was repealed by the Law Officers Act 1964 (Cth) (the 1964 Act). This provided for the reconstitution of the office of Solicitor-General as the second Law Officer of the Commonwealth and made detailed provisions with respect to that office.

Subject to this Act, the registration of a trade mark in Part A or Part B of the register, if valid, gives to the registered proprietor of the trade mark the right to exclusive use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

The Australian scheme of Intellectual Property Law includes the registration and protection of trade marks pursuant to the Trade Marks Act I955 (Cth) (the Act).

Section 58(1) of the Act, reproduced above, grants the right to exclusive use of the registered trade mark to the registered proprietor. Section 62(1) deems that such a trade mark is infringed as follows:

For more than fifty years, Australian governments used a variety of legal powers to harass revolutionary organisations, and in particular the Communist Party of Australia (the CPA). After an historical review of these policies, this article examines Commonwealth's attempt between 1921–29 and 1932–37, to use its power under the Customs Act to prohibit the importation of seditious literature.

Between 1920 and 1950, the Commonwealth passed a number of Acts and made several Regulations to deal with the threats apparently posed by the CPA and other revolutionary bodies. Amendments to the Crimes Act 1914 (Cth) in 1920 made the uttering and publication of seditious words a Commonwealth offence. (These activities were already offences under state law.) Proclamations under the Customs Act 1901 (Cth) had the effect of prohibiting the importation of revolutionary literature. In 1926 and 1932, the Crimes Act was further amended. Bodies that advocated violent revolution became unlawful associations, and criminal sanctions were attached to a variety of acts by and on behalf of unlawful associations.

[C]o-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. ... Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Common-wealth can constitutionally do, the subject matter is beyond the reach of the legislature.

Co-operative federalism is the process by which the Commonwealth and the States organise for their overlapping constitutional powers to be exercised concurrently in order to achieve national outcomes through consensual processes. Beginning with Re Wakim, the controversial cross-vesting case, from which the opening statement above by Justice McHugh was taken, the High Court has applied a restrictive approach to interpreting constitutional and statutory provisions when cooperative arrangements have been challenged.

My subject is the extent to which the federal features of the Constitution restrict the power of Parliaments in Australia to legislate to confer discretionary powers on executive and administrative officers. I shall also examine the relevance of the ayailability and scope of administrative law remedies to that issue.

By “the federal features of the Constitution” I mean the distribution of powers between the Commonwealth and the States and provisions that deal with the relationship of the several States with each other and with the Commonwealth, such as ss 92 and 117; and those limitations on federal powers designed to prevent State favouritism, for example ss 99 and 51(ii), (iii).

I will not be dealing with the effect of the separation of the judicial power of the Commonwealth on the administration, under Chapter III of the Constitution. While an independent and separate central judiciary may be regarded as an essential ingredient of a federal state, its role and function extend further, providing a guarantee of the rule of law, which is, of course, just as applicable to non-federal states.

In a recent article in this Review Mr Murray-Jones considered the state of the law of inconsistency. Mr Rumble takes issue with some of Mr Murray-Jones' propositions and, in particular, with his interpretation of some of the leading High Court judgments.

Some of the most troubling statements about inconsistency that have emanated from the High Court have been related to the problem of persons who commit both Commonwealth and State offences. This article considers how the provisions of the Crimes Act, the Acts Interpretation Act, the Judiciary Act and the Commonwealth Prisoners Act interact in such circumstances.

The article also offers an analysis of the nature of inconsistency. The basic proposition of the analysis is that, no matter how many different guidelines are developed to indicate the presence of inconsistency, ultimately there is only one category of inconsistency.