Members of the executive in Australia and other Westminster nations are traditionally appointed only from the ranks of parliamentarians, ostensibly to protect the principle of responsible government. However, there is a growing international trend in nations such as the United Kingdom for the appointment of ministers from outside of Parliament. This article examines the extent to which Australia's constitutional system can accommodate unelected members of a Commonwealth, State or Territory executive. This question is analysed from the perspective of the principle of responsible government and the text of Australia's various constitutional documents. The article also reviews existing practice in comparative jurisdictions and Australian law and practice in order to determine the form that such appointments might take.

The presumption of constitutionality has been frequently invoked in recent judgments of Murphy J in the High Court. The article examines the use of the presumption in the United States and Canada. It then considers the way in which the presumption has been applied in Australia and the justification given for it. It is suggested that although the presumption does not have a clearly recognised place in Australian constitutional theory, the presumption is important and it should be given much greater prominence. For this to happen will require changes in judicial attitude. It also requires Parliament to reassert its role in the determination of constitutional questions.

The concept of discrimination has been assuming a greater role in various aspects of constitutional interpretation. It has been prominent for many decades in the area of implied federal restrictions on Commonwealth power to bind the States, which received some revitalisation in the Queensland Electricity Commission v Commonwealth. It has, more recently, become the central core of the operation of s 92 of the Constitution (Cole v Whitfield). It has been given new life and prominence in the application of s 117 of the Constitution in Street v Queensland Bar Association. Four judges in Philip Morris Ltd v Commissioner of Business Franchises (Dawson, Toohey, Gaudron and McHugh JJ) suggested that there were something to be said for the view - earlier supported by Fullagar and Murphy JJ - that the test for an excise duty should be whether a tax discriminated against goods manufactured in the State in which the tax is levied. This, however, must await a complete judicial review of the operation of s 90.

There is no shortage of comparative articles addressing the legal, political, social and economic similarities between Canada and Australia. This is hardly surprising. Apart from their common British colonial heritage, the two countries share a number of other features conducive to such comparative studies. For example: federal political systems; long standing, national economic affluence; and large, sparsely populated, national territories. Perhaps less common are articles primarily stressing differences between the two countries. This paper is in this latter category.

The thesis advanced is that the real political differences (in a federal structure sense) between Canada and Australia are striking and growing. The aim of this article is to demonstrate that the explanation for this lies, principally, in the significant social, economic, cultural and political variations in each country. In Part 2 of the article, there is a sketch of the extent of some of these underlying, fundamental differences. Part 3 reviews several perspectives on the Constitutions of Canada and Australia.

Problems similar to those that have, for many years, occupied the courts of the United States, Canada and Australia in interpreting a federal charter now confront the judicial arm of the European Community. Professor Zines develops a comparison between the approach that has found favour in the European Court and the approach of the courts of those Federations, although he admits that such a comparison has innate limitations. From a study of the revelant cases Professor Zines concludes that the European Court, by adopting a functional approach, has strengthened community rather than state interests. He discusses in detail how the Court has achieved this result by relying on the broad economic and political objects which are recognised as underlying the Treaty, rather than by strict legal construction of its provisions.

In recent years the Commonwealth Government has passed legislation implementing international conventions on diplomatic and consular relations. Australia now has a legislative framework regulating the grant of privileges and immunities to diplomatic missions, consular posts, international organizations and the personnel of all of them. In this article Mr O'Keefe describes this legislation, explains how it operates and examines the relationship between the various Acts.

A central question in family property law in Australia is how to place a value on the homemaker contribution in comparison with other kinds of contribution. The problem is especially difficult where the property largely consists of assets owned before marriage, acquired by inheritance, or received after separation. This article explores the relevance of the homemaker contribution to property division both in marriages and de facto relationships, challenging the popular assumption that living together per se justifies significant wealth transfers. It is argued that parenthood provides the most important justification for property alteration, and that withdrawal from workforce participation due to the care of children or other family members is the primary concern in evaluating the homemaker contribution. The article then goes on to explore what the homemaker contribution meant when the Family Law Act 1975 (Cth) (‘the Family Law Act’) was enacted, and how that conceptual coherence has become lost over time. There are now two different approaches which have emerged to the quantification of the homemaker contribution in the context of pre-marital property, inheritances, damages awards and property acquired after separation. These approaches are irreconcilable. The approach which is now finding favour in the Full Court of the Family Court is one which makes it impossible for the Court to explain how it has reached its decision on the quantification of the parties' proportionate shares. Furthermore, it is founded on an interpretation of the homemaker contribution that Parliament never intended and has not since authorised. This raises important questions about the legitimacy of the Court's approach to property division under s 79 of the Family Law Act. The article concludes by offering a new interpretation of the role which the homemaker contribution should play in the division of property on relationship breakdown which is consistent with the overall framework of s 79. It involves two distinct considerations of the homemaker contribution. The first is to examine how homemaker contributions should be rewarded. The second is to consider how they should be compensated.

One of the most crucial and yet challenging problems which faces Australian competition lawyers is the definition of the scope of the terms “contract”, “arrangement” and “understanding” in ss 45 and 45A of the Trade Practices Act 1974. Section 45 proscribes contracts, arrangements or understandings which have the purpose or effect of substantially lessening competition in a market. Section 45A then expands on s 45 by providing that contracts, arrangements and understandings which “fix” prices are deemed, for the purposes of s 45, to have the purpose or effect of substantially lessening competition in a market.

The terms “contract”, “arrangement”, and “understanding” are not defined in the TPA and thus the legislature has left the matter of interpretation “at large”. Determining the boundaries of concepts such as “arrangements” and “understandings” is no easy task, especially when the focus of the enquiry is on the parallel behaviour of participants in concentrated markets.

In Australian competition law, the notion of collusion between competitors is encapsulated in the concepts of ‘contract’, ‘arrangement’ and ‘understanding’ under the Trade Practices Act 1974 (Cth) (‘TPA’). These concepts have been integral to the civil prohibitions on cartel conduct under s 45(2) of the TPA since 1974. The same concepts are used in the new cartel offences and civil per se prohibitions which took effect in July 2009 as a result of amendments made by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2008 (Cth).

In 2007, the Australian Competition and Consumer Commission (‘ACCC’) recommended amendments to the TPA in connection with the interpretation of ‘understanding’ in the wake of its largely unsuccessful cases against petrol retailers for alleged price fixing in Ballarat and Geelong and its subsequent petrol pricing inquiry. In this article it is argued that the proposed amendments should be rejected.

In this article Professor Heuston reminisces on the distinctive functions of the judge and of the teacher of law. Each has a contribution to make and each is dependent on the other to a greater extent than either may be prepared to admit.

In Burge v Swarbrick, the High Court of Australia delivered an important decision on the most elusive of works protected by copyright: the work of artistic craftsmanship ('WAC’). Drawing on the history and reasons for that protection, and adopting the analysis of Lord Simon in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd, the Court affirmed the orthodox view that such works have ‘special status’ in law on account of their ‘real artistic quality'. In its judgment, whether a work has that quality depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently ‘unconstrained by functional considerations'.

In the discussion below I consider that view, and other aspects of the Court's decision. I suggest the requirement for artistic quality is simply a requirement for a WAC ‘not imaginary, unreal or apparent only'. Further, the properties of this type of work are better conceived in historical terms than the formal aesthetic terms of the Court. On this view, whether an object is a WAC depends on both its properties of form and the history of its individual production, meaning the (subjective) intent of its individual author and view of society with respect to its nature.

We consider stochastic differential equations (SDEs) driven by a fractional Brownian motion with a drift coefficient that is allowed to be arbitrarily close to criticality in a scaling sense. We develop a comprehensive solution theory that includes strong existence, path-by-path uniqueness, existence of a solution flow of diffeomorphisms, Malliavin differentiability and $\rho $-irregularity. As a consequence, we can also treat McKean-Vlasov, transport and continuity equations.

One of the difficult issues liberal democracies face is how to distinguish allowable government action from the protected sphere of human activity. Rights have become increasingly important as a critical standard for evaluating the justification of policy. Yet no consensus exists on the best institutional methods for defining the scope of rights or for ensuring that rights are adequately and appropriately considered in the formulation of policy. Since the Second World War, many countries have shown an increasing interest in utilising a bill of rights against which to evaluate state action. Even parliamentary systems, founded on Dicey's precepts that the rule of law and parliamentary sovereignty are a superior way for respecting rights, have departed from, or have been pressured to alter, this institutional framework.

However, a bill of rights, which accords a more authoritative role for judges in resolving citizen-state conflicts, is not without its critics. Proposals for bills of rights attract a wide range of concerns that judicial review of codified rights will reify rights, distort the way political issues are dealt with, assign priority to a different range of values, and result in elected officials reneging on their political responsibility to undertake controversial political decisions.

When a defendant is asked to plead to a criminal charge, he is not restricted to the pleas of guilty and not guilty. Other pleas well known to lawyers include autrefois acquit and the plea to the jurisdiction. Some older pleas such as benefit of clergy have been abolished.

The plea of non vult contendere cum domina Regina et posuit se in gratiam curiae is unfamiliar to Australian lawyers. The last reported use of the plea in England was in 1702 in The Queen v. Telnpleman. The report of this case is unfortunately brief:

After pleading guilty to an indictment, the defendant may give evidence that justifies the fact in mitigation oj punishment—S.C. 3 Danv. 253. S.C. 1 Salk. 55.

After pleading guilty to an indictment, you may give anything in evidence that justifies the fact, or proves him not guilty of the fact; for the entry is non vult contendere cum dominâ Reginâ, sed ponit se in gratiam Curiae. And it is not like the case where one is found guilty by verdict.

My comment on Professor Sawer’s paper is confined to three matters: the executive power of the Commonwealth to conclude treaties on behalf of Australia; the relevance of the subject matter of a treaty to the scope of Commonwealth legislative power to implement the provisions of the treaty; and the concept of federalism inherent in the High Court’s decision in the Franklin Dam case.