Australians, it is said, live in a representative democracy. As citizens of that democracy they are ultimately able to hold their political representatives to account via the electoral process. In the interim between electoral episodes they form the views upon which that holding to account will be based. At the same time, they participate in and evaluate governmental processes in a variety of ways, some of them statutory, some of them via the Parliament of the day, and many of them via the media, lobby organisations, interest groups and other proxies.

Informational transparency is central to this holding to account. This was famously recognised by the High Court in the so called ‘freedom of political communication’ cases in 1992. Those cases constituted the first explicit judicial recognition that ‘the sovereign power which resides in the people [and] is exercised on their behalf by their representatives’ was more than simply a political doctrine, but was in fact a constitutional fundamental capable of limiting, as it did in those cases, Commonwealth legislative power.

The introduction of Division 2A into Part V of the Trade Practices Act has brought Australia firmly into line with current thinking in the Western world on the liability of manufacturers. The new Division has two aspects. First, it provides consumers, and in some cases their successors in title, with a statutory right to compensation from manufacturers and importers in specified circumstances. Secondly, it grants to sellers of goods a right to indemnity from a manufacturer (or importer) where the latter is liable to compensate the consumer under this Division.

This article examines the likely effect that the introduction of Division 2A will have on the liability of manufacturers and importers of goods. The article commences by outlining the liability of manufacturers in Australia prior to the recent amendments. The operation and scope of Division 2A are then described. The article concludes by focusing on certain practical difficulties and problems of interpretation inherent in the new Division.

Constitutional law — Australian Security Intelligence Organization — Executive power in relation to collection of information in the interests of security — Constitutional law — Constitution s. 116 — No religious test shall be required as a qualification for any office or public trust under the Commonwealth

P G Sharp's paper entitled ‘The First Paragraph of Section 55' was a valuable and interesting contribution to analysis of one of the more interesting, yet little discussed, sections of the Constitution. He provided a rich historical background to the section and its interpretation, and essentially made the argument that, following Permanent Trustee Australia Ltd v Commissioner of State Revenue (Victoria), there is no further need for legislative drafters to split taxation legislation into a ‘Taxing Act’ and an ‘Assessment Act’.

However, Sharp's argument leaves a great deal unsaid, and I have constructed four questions to set against his article, inviting further comment.

Considerable confusion and difference of opinion exists as to the precise boundaries of jurisdiction in custody matters between Federal and State courts. This Article examines the main cases in which the scope of the Family Court's custody jurisdiction has been in issue, and reviews suggestions made to remedy the problems resulting from the division of jurisdiction. The authors argue for an interpretation of the relevant provisions of the Family Law Act 1975 (Cth) which is consistent with the trend of High Court authority as to the scope of the marriage power (section 51(xxi) of the Constitution), and which would remove much of the uncertainty concerning the Family Court's jurisdiction.

In Plaintiff M61/2010E v Commonwealth (‘Plaintiff M61’), the High Court held in a unanimous joint judgment that the plaintiff asylum seekers on Christmas Island were entitled to procedural fairness and to have their claims for refugee status determined according to law. This decision has significant ramifications for the government’s asylum seeker policy, and it has already been the subject of academic commentary from an immigration perspective. The case also has broader doctrinal significance because it is only the second time that the full bench has considered what this article will call a ‘no-consideration’ clause. The Court held that the legislature can validly confer a power on a decision-maker and at the same time provide that the decision-maker has no duty to consider exercising it. However, on the facts before it, the Minister had decided to consider all requests for asylum and thus had moved beyond the protection of the no-consideration clause.

There is no doubt that the Australian Competition and Consumer Commission ('ACCC’) has provoked very strong opinions among big business in Australia. This criticism reached its height in 2002 and 2003, at the end of Professor Allan Fels’ period as Chairman of the Commission. At this time, the Chief Executive Officers of a number of Australia's biggest companies regularly and publicly criticised the ACCC, and Professor Fels himself, for being ‘unfair, unjust and immoral', and having no ‘line of accountability at all.’ The ACCC's behaviour was criticised for being ‘a corruption of administration of the Trade Practices Act', ‘false and misleading behaviour on the part of the cop', and for using publicity ‘in a way that damages companies before they are proven guilty'. One chief executive said that ‘Fels’ use of the media … smacks of the Gestapo.’ Another called Fels a ‘smiling assassin’ who had inflicted ‘irreparable harm to the Australian economy.’

A court's approach to non-parties, such as the amicus curiae and intervener, reflects its perception of its own larger role. The Supreme Courts of Canada and the United States, as well as the Constitutional Court of South Africa, have welcomed submissions from public interest organisations and others and have drafted Rules of Court to allow their participation in cases raising important issues of public policy. The South African Court has even solicited submissions from strangers to the litigation, such as academics, in order to broaden its perspective on a case arid on the consequences of any decision it might reach. The approach of these courts shows how each has embraced the roles of law-maker arid interpreter of an ambiguous constitution.

The High Court of Australia, on the other hand, frequently denies the amicus curiae and intervener any meaningful function. They are riot even mentioned in the Rules of Court. While it is true that the total number of interventions in the Court has increased over the last decade, the door has often been closed.

If an aircraft’s initial mass, the variation of true airspeed, true rate of climb, wind speed and wind direction with time and the relationship between barometric altitude and local temperature are known, the performance along the entire flight path can be determined. Previously published work has provided the building blocks for a simple, fast, open-source and transparent method to estimate the instantaneous fuel flow rate and the engine overall efficiency, plus several other performance characteristics for turbofan powered, civil transport aircraft. The flight phases of primary interest are the climb, cruise, descent and holding, when the flaps and undercarriage are fully retracted and the engine is providing significant, positive thrust. However, for completeness, an approximate relation is provided for the engine’s ‘flight idle’ condition, together with simple estimates for fuel use during take-off and landing, plus a factor to allow for in-service deterioration. Detailed consideration is also given to the operating limits and relations are developed for the estimation of their location in Mach number and flight level space. To apply the method, a series of characteristic coefficients and constants must be known. Estimates for these quantities have been progressively improved and extended over time. Initially, results were published for 53 aircraft types and variants. The data base has now been extended to 67 entries and this is given in tabular form. Finally, to demonstrate the method’s accuracy, estimates of fuel flow rate are compared with flight data recorder values for 20 complete flights of six different aircraft types.

In 1981 and in following years Australian parliaments embarked upon a novel experiment: statutory reform of the general approaches to statutory interpretation. The best known of these provisions (called here “purpose rules”) is s 15AA of the Acts Interpretation Act 1901 (Cth).

The implied freedom of communication about government and political matters is now firmly entrenched in constitutional jurisprudence, following the High Court decisions in Lange v Australian Broadcasting Corporation and Levy v Victoria. Both its existence and the manner of its implication, namely from the text and structure of the constitution, are “not open to doubt”. Although this more “traditional” approach to the derivation of constitutional implications appears to reduce the likelihood of further implications based upon representative government, the scope and extent of the implied freedom still require considerable elaboration. However, the application of accepted principles to particular areas, even if that leads to an expanded interpretation of the freedom, has a surer foundation than the derivation of new freedoms.

I begin this paper with a disclaimer: it does not pretend to be a definitive study of freedom of information in Australia. Rather, it presents the experience of an official who has been concerned with the development of the Commonwealth freedom of information legislation from the time it first appeared on the political agenda in Australia; who has taken part in hundreds of hours of discussion and debate on the topic by officials; who has shared in much of the academic consideration of the subject; who has drafted a score of Cabinet submissions on the subject for consideration by Ministers; who has worked closely with three Attorneys-General on the matter; who has both formally and informally canvassed a wide range of issues with members of a Senate Committee, and who has spent long hours with one of our best parliamentary counsel in the business of translating concepts into legislation which, it is hoped, is reasonably workable.

Whether words in the singular include the plural or whether words in the plural include the singular is a common problem of statutory interpretation. Acts interpretation legislation of the States and the Commonwealth offer slightly varying presumptions for dealing with the problem. Professor Sawer analyses these presumptions and their application in numerous cases. As well, reforms that would lead to greater clarity and uniformity of such legislation are suggested.

The second part of the article explores the special problems regarding singulars and plurals in the context of the Constitution and, in particular, section 57 which provides for the resolution of deadlocks between the Senate and the House of Representatives with regard to “any proposed law”. The High Court's resolution of some of the problems raised when more than one proposed law is the subject of disagreement between the Houses of Parliament is exhaustively analysed. In addition, solutions are offered to a number of judicially unanswered questions relating to section 57 of the Constitution.

This article examines historical aspects of the convention that Australian judges are precluded from engaging in political activities. That convention is an element of the strict separation of judicial functions and the independence of the judiciary. Apart from the deliberative component which may be carried out in private and the very limited role for closed hearings, the judicial process is essentially acted out in public. However, upon appointment to the bench, a judge is expected to limit involvement in other forms of public life and to conduct his or her private life so as to avoid, as far as is reasonably practicable, involvement in activities which might (or might be seen to) compromise the judge's or a court's independent status or the impartial disposition of specific cases or issues. The less involved a judge is in non-judicial activities the less likely it is that the judge will be confronted with determination of a case or an issue in which he or she has some interest.

Technological developments, particularly the advent of the Internet and the mobile phone, have spawned a vast increase in the volume, type and availability of telecommunications information. Mobile phones are now capable of sending and receiving SMS text messages and emails, accessing and downloading material from the Internet, taking photographs, streaming video and audio content and providing GPS navigation. National security and law enforcement agencies frequently wish to access telecommunications information for national security and law enforcement purposes. The desired information may be ‘telecommunications content’ — that is, the actual substance of a communication — or ‘telecommunications data’ — meaning information about a communication but not the substance of it.