The High Court's judgment in Minister for Immigration and Ethnic Affairs v Teoh is perhaps the most controversial judgment handed down by the Court this year, for both legal and political reasons. On the political side it has added further fuel to the fire about the significance of the ratification of treaties and the roles of the Executive and the Parliament in the process of ratification and implementation of treaties. On the legal side, it has developed the law on “legitimate expectations” and provided interesting obiter dicta on sleeping issues such as the use of treaties and international law in the interpretation of statutes and the development of the common law. It has also left open questions about the status of treaties which form schedules to legislation but which are not directly implemented by that legislation. This note will address the legal, rather than the political, aspects of the Teoh case, starting with the development of the law on “legitimate expectations”, and then considering issues concerning the use of unincorporated treaties to develop and affect the law in other ways.

This article considers the publication in 1879 of the Moral Philosophy of Aristotle, a book aimed at Oxford University undergraduates studying for the Classics degree course known as Literae Humaniores. This book is of contemporary interest. It takes us to the heart of the question of whether the work of Aristotle is meant for everyone or just for a select few. In principle, whatever we have inherited from Antiquity (whether materially or intellectually) belongs to us all. Therefore, there is an educational requirement to make it accessible to everyone and this should apply to Aristotle’s Nicomachean Ethics. But Aristotle is famously obscure and so in practice the study of Aristotle is confined to a small elite. Hatch’s The Moral Philosophy of Aristotle tries to overcome the problem of Aristotle’s obscurity by paraphrasing the Nicomachean Ethics in a popularising fashion and in sharp contrast to the way Aristotle is usually presented. To bring out the distinctive qualities of the Hatch approach this article compares The Moral Philosophy of Aristotle with the translations published in the modern Clarendon Aristotle series, which are intended for a readership made up largely of professionals working in universities. The article contrasts Hatch’s goals of readability and dogmatic clarity with the insistence on semantic fidelity which is the hallmark of the Clarendon series. The article concludes that there is a greater risk of distorting Aristotle’s meaning on the Hatch approach, but that this is compensated for by its pedagogic merits, and suggests that ideally teachers will use both Hatch and Clarendon together.

The notion of the relevant market, together with the process for identifying it, is a construct used in competition law in order to determine whether competition exists between two or more producers for the purposes of Part IV of the Trade Practices Act 1974 (Cth).

This legislation confers upon the courts and the Trade Practices Tribunal the duty to decide whether certain courses of conduct have the purpose, or have (or are likely to have) the effect, of substantially lessening competition in a market. The market delineation process provides the first in a set of stepping-stones which enable the courts to discharge this task in the principled and certain manner that is required by the doctrine of the rule of law. The procedures comprised within it enable the court (or other trier of fact) to organise complex fact situations and classify them in such a way as to enable competition policy, as embodied in legislation such as the Trade Practices Act, to be intelligently applied. It permits a degree of quantitative evaluation which in practice would not be possible if the lessening-of-competition issue were attacked directly.

Australia has, mercifully, been spared from revolutionary changes of grundnorm or “rules of recognition”, with their consequential appeals to “necessity”, of the sort which have plagued courts in Pakistan, lJganda, Ghana, Nigeria, Zimbabwe, the Seychelles and Grenada, among others. But that has not meant that arguments based upon extra-constitutional powers and prohibitions have been absent from Australian constitutional jurisprudence. Human ingenuity being what it is, commentators and even judges, undaunted by the absence of a tenable constitutional argument, have occasionally resorted to extra-constitutional notions.

This paper explores the boundary between constitutional rules and principles and extra-constitutional political notions. That boundary is, of course, indistinct because the constitution includes implied powers and prohibitions. Hence, opinions will inevitably differ as to whether a particular power or prohibition is implied in the Constitution and, thus, is constitutionally conferred or imposed, or alternatively arises (if at all) extra-constitutionally.

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

“But it was inherent in the very nature of the medium which they had selected for their own self-defence that it could not be reserved for the exclusive use only of their own class. The law, in its forms and traditions, entailed principles of equity and universality which, perforce, had to be extended to all. sorts and degrees of men”.

Mr Bayne in addressing the topic of the exemptions under the Freedom of Information Act 1982 (“FOI Act“) has concentrated his analysis on and dealt at some length with, the provisions of Part IV - Exempt Documents.

To achieve a balanced understanding of the role and significance of the exemptions I believe one needs in addition to see how the FOI Act fits into the broader context of arrangements for access to official information.

There are other qualifications and limits set on the application of the “legally enforceable right” in s II which might also be considered usefully in the context of exemptions.

It is in addition important as Mr Bayne has indicated in dealing with, for example, s 36 to take account of the requirements of ss 8 and 9 of the FOI Act if the application of Part IV is to be seen in proper context.

I propose therefore to address these matters before commenting on selected issues raised by Mr Bayne with respect to particular exemptions in Part IV.

The refusal of the High Court in Cooney v. Ku-ring-gai Municipal Council to follow Attorney-General (ex rei. Lumley) v. T. S. Gill & Son Ply Ltd should be received enthusiastically by public lawyers and others who consider that individuals should be restrained from breaking the law if their activities operate to the disadvantage of members of the public living in the vicinity. The long reign of Attorney-General v. Gill has ended. In Gill’s case in 1927 the Full Court of the Supreme Court of Victoria declined to grant the Victorian Attorney-General an injunction to restrain the defendant from continuing with the erection of a factory on land situated in a residential area contrary to a by-law of the City of Prahran. The Attorney-General had sought the injunction on the relation of Lumley, a ratepayer of the municipality, who alleged he was injuriously affected by the defendant’s acts which, according to the allegation, also amounted to an invasion of the rights of the ratepayers generally and of the public. The municipality had made no attempt to enforce its own by-law although an offence against the by-law could be punished by fines and continuing penalties.

The primary problem in attempting a resume of recent developments concerning tribunals in Australia is one of classification and proliferation. What constitutes a “tribunal” is a much debated and fuzzy conceptual issue. Even if one settles on an acceptable definition, the problem remains of the vast variety of bodies throughout Australia that would require survey. Although this paper addresses some recent legislative proposals concerning particular tribunals, both at State and Commonwealth levels, it concentrates on conceptual developments about certain kinds of tribunals. It is concerned with the underlying pressures and intentions that are driving such proposals. It also takes into account the legal environment, namely specific judicial and executive decisions, which are shaping them.

This article critically examines the law concerning dismissal on grounds of redundancy as it applies to the Australian Public Service (‘APS’). Such an examination is timely, given the newly elected Coalition government's stated intention to reduce the APS by 12 000 employees through natural attrition.

The article argues that a reduction of 12 000 employees through natural attrition alone is unlikely, and that redundancies are almost inevitable. Against this backdrop, the article considers recent legislative developments concerning dismissal on grounds of redundancy. Its focus is the genuine redundancy exclusion contained in s 389 of the Fair Work Act 2009 (Cth) (‘FW Act’) and its application to APS employment. The genuine redundancy exclusion precludes unfair dismissal claims if the redundancy is genuine, the employer complies with any consultation obligations in a modern award or enterprise agreement and it would not have been reasonable in all the circumstances to redeploy the affected employee within the employer's enterprise or that of an associated entity.

The article argues that, prior to the FW Act, redundancy obligations were predominantly dealt with in collective agreements, and did not require consultations or redeployment of redundant employees beyond the individual agency. However the FW Act fundamentally changed the law in this area. The article contends that a failure to comply with consultation obligations in an agency enterprise agreement will increase the prospects of a dismissal being found to be unfair. In the APS this is problematic, given the convoluted nature of many consultation clauses in enterprise agreements. The article also argues that the redeployment obligations in s 389(2) are extremely broad and, contrary to past practice under the Public Service Act 1999 (Cth) (‘PS Act’), encompass redeployment across the APS. The obligation to redeploy across the APS creates tensions in the law between the provisions of the FW Act and the devolution of managerial powers under the PS Act.

Enforcement of patents is a pivotal factor in determining whether or not the patent system performs its public role of stimulating innovation. Without the means to exclude imitators, the party who pays for the original idea or invention will, in many cases, not be able to recoup their outlays, with the result that such parties are likely to direct their investment elsewhere and invest less in research and development. Enforceability matters even if the invention embodied in a patent is not being directly commercialised by the inventing organisation. Intellectual property (‘IP’) owners will not, for example, be able to license, cross-license, or sell their IP rights, or enter into joint ventures based on those rights, if the licensee, buyer or joint venture partner has no confidence that their IP rights confer effective exclusivity over brands, ideas or creations. Furthermore, IP owners will be reticent to disclose their ideas to prospective partners if they have doubts about their ability to prevent the other party from expropriating their proposal. Direct enforcement of each and every patent does not have to occur for the patent system to be effective. All that is required for incentives to work is that people believe that infringement will be stopped if necessary.

An objective of all industrial legislation in Australia is that employees victimised because of their participation in the industrial relations system should be able to obtain legal redress. Thus it is sought to give remedies for conduct which Isaacs J. pithily described as amounting to a demand by an employer to an employee of “give up your claim or give up your billet”. Dr O'Donovan exhaustively analyses how the legislation of the Commonwealth and each of the States protects employees from victimisation on account of their union or industrial activities. Differences between the protection and redress given by each piece of legislation are detailed, while the Commonwealth provisions and cases concerning them are highlighted. The article concludes by suggesting matters for reform in this important area of industrial law.

The Australian Constitution was drafted by the ‘founding fathers’ at several Constitutional Conventions in the 1890s and submitted to the people for approval. Following a Premiers’ Conference at which some further changes were made, and submission of the document again to the people, a delegation was sent in 1900 to present the new document to the British Government. After the British Colonial Office had made some minor changes, the Parliament of Westminster passed the Commonwealth of Australia Constitution Act 1900 (UK) on 9 July 1900. The preamble and enacting clause of the Act read as follows ...

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:- ....

Amid considerable public controversy, the Australian Labor Party combined with the Government of Prime Minister John Howard to pass military call-out legislation through both houses of the Commonwealth Parliament on 7 September 2000. Less than three months after it was first announced and introduced in the House of Representatives on 28 June, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) came into force on 12 September, when it received royal assent by the Governor-General.

Under the amended Defence Act 1903 (Cth) (the Act), the Federal Government now has the power to call out the armed forces on domestic soil against perceived threats to ‘Commonwealth interests', with or without the agreement of a state government. Once deployed, military officers can order troops to open fire on civilians, as long as they determine that it is reasonably necessary to prevent death or serious injury. Soldiers will have greater powers than the police in some circumstances, including the right to shoot to kill someone escaping detention, search premises without warrants, detain people without formally arresting them, seal off areas and issue general orders to civilians.

Both European Union law and the European Convention on Human Rights offer an opportunity structure for a broad array of interests to pursue their objectives through strategic litigation. The spectrum of rights that litigants can claim is sufficiently broad that no consensus has emerged on the general consequences of such litigation. While much research has emphasized European law as a resource for civil society groups, EU law in particular has also been identified as a boon for businesses who challenge cornerstones of coordinated capitalism. This paper sets out to provide a better empirical basis for a normative evaluation of the consequences of strategic litigation in European law by asking who engages in it and who does not. It draws on data from a large-scale survey among interest groups in eight European countries. While results show significant differences in country-level litigation rates, the focus of this analysis is on the impact of group characteristics on the choice of litigation as a strategy. The findings confirm that litigation requires specific resources but highlight that groups with a prior interest in European affairs and those with antagonistic relations to national authorities are the most likely to turn to strategic litigation based in European law.

Past work on closed-ended survey responses demonstrates that inferring stable political attitudes requires separating signal from noise in “top of the head” answers to researchers’ questions. We outline a corresponding theory of the open-ended response, in which respondents make narrow, stand-in statements to convey more abstract, general attitudes. We then present a method designed to infer those attitudes. Our approach leverages co-variation with words used relatively frequently across respondents to infer what else they could have said without substantively changing what they meant—linking narrow themes to each other through associations with contextually prevalent words. This reflects the intuition that a respondent may use different specific statements at different points in time to convey similar meaning. We validate this approach using panel data in which respondents answer the same open-ended questions (concerning healthcare policy, most important problems, and evaluations of political parties) at multiple points in time, showing that our method’s output consistently exhibits higher within-subject correlations than hand-coding of narrow response categories, topic modeling, and large language model output. Finally, we show how large language models can be used to complement—but not, at present, substitute—our “implied word” method.

Drug use is a matter of substantial public interest in Australia, and penalties for drug offences were greatly increased in all States in 1976. This article examines the degree to which the Commonwealth can intervene in the field of drug-control law, a field presently governed mainly by State criminal law. Current Federal involvement is mostly confined to Customs legislation, passed under the interstate and overseas trade and commerce power in section 51(i) of the Constitution. This placitum has been expansively interpreted by the High Court in the customs context, but the trade and commerce power has some limitations, and those who have proposed comprehensive national drug legislation suggest that it could be supported by the Commonwealth's power over external affairs. These possibilities are considered, and the author concludes that comprehensive legislation would survive constitutional challenge in the High Court. Some suggestions are also made as to penalties for drug use and dealing.