When an employee sexually harasses a fellow employee away from the workplace or outside work hours, such as at a bar or a private party, difficult questions arise as to whether the employer should be held vicariously liable. Conversely, difficult questions arise as to the extent to which an employer might legitimately seek to supervise or regulate the conduct of its employees outside of work.

This article traces the key decisions that have considered this issue of sexual harassment away from the workplace or outside normal work hours (for convenience, I have referred to such conduct as ‘off-duty sexual harassment’).

As the discussion in Part Two illustrates, the leading decisions in the Australian federal jurisdiction considering the scope of vicarious liability for off-duty sexual harassment have taken a consistently broad approach to the requisite nexus with the employment. This culminated in the watershed decision of the Federal Magistrates Court last year in Lee v Smith, where an employer was held vicariously liable when an employee raped a fellow employee at a private residence following a social dinner party.

The origin of the Commonwealth's Bills of Exchange Act 1909 is a guarantee of its efficiency. By the 1870's the merchants of the United Kingdom had worked out for themselves, with the help (and occasionally subject to the hindrance) of the courts and Parliament, a remarkably effective system of conducting commercial transactions by means of bills of exchange, cheques and promissory notes.

Sir Garfield Barwick prepared this article some considerable time ago. It was in the hands of the publishers well before Sir Owen Dixon's retirement as Chief Justice of the High Court. The Review, including the article, was in course of printing when Sir Garfield's appointment as Chief Justice was announced on 23 April, 1964.

“The Official Secrets Act stiffens the spine of the secretive bureaucrat and softens the vertebrae of the press”1

Andrew Fraser has made a valuable contribution to the debate over the role of republicanism in Australia. He has raised an important, and generally ignored, question: would Keating's model for an Australian republic achieve a republican republic? A corollary of this is a further question: is it in any event desirable that an Australian republic be based upon the strong republicanism favoured by Fraser? On the former question, I would agree with Fraser that Keating's model would not imbue the Australian nation with Fraser's version of republicanism and that, if Fraser's version of republicanism were to be accepted, Australia would remain an unrepublican republic. However, as to the latter question, we would disagree. Fundamentally, I do not see Fraser's version of strong republicanism as being viable.

Fraser has significantly broadened the discussion of republicanism and has widened perceptions of what the ideology, for want of a better word, might encompass. However, while much of his criticism of my article, “A Republicanism Tradition for Australia?”, is explicable on the basis that he and I obviously share very different starting-points and approaches, I feel that he has misconstrued my argument in some respects.

This Article inquires into the aftermath of judgments by the CJEU under the preliminary ruling procedure under article 267 TFEU in cases of strategic litigation. As the principal objective of strategic litigants is to effectively achieve broader societal, political, economic, or legal change, the afterlife of a judgment is crucial for them. While excellent scholarship exists on strategic litigation in EU law, much remains unclear on what happens to a case after the Court of Justice of the EU (CJEU) has given its judgment. Does the referring court and other national courts faithfully comply with the judgment of the CJEU? Do governments implement the ruling? This Article takes the decision of the CJEU in Landespolizeidirektion Steiermark, which concerns the reintroduction of internal border controls, as case study to inquire into the different factors that affect the implementation of a preliminary ruling that is the outcome of strategic litigation. The main argument in this Article is that the implementation of preliminary rulings is determined by the interplay between three different factors: The role of strategic litigants to initiate follow-up litigation, the receptivity of national courts to comply with a preliminary ruling, and the European Commission’s willingness to enforce a preliminary ruling.

The many problems relating to Commonwealth power to make laws for a Territory have arisen because the power itself was a constitutional afterthought. The late Professor Ross Anderson described the Commonwealth of Australia as ‘the child of as hard-headed a mariage de convenance as was ever arranged in the salons of France ’. The marriage was, however, between the self-governing colonies which later became the States. Those who arranged the marriage were concerned primarily with the health and prosperity of the parties to, and the issue of, the union. Whether they were in favour of granting large powers to the Commonwealth or were staunch believers in ‘State Rights’ or whether they were for or against Federation, the chief issue was whether and to what extent each of the colonies should voluntarily reduce its own governmental power by giving some of it to a new self-governing colony which would in area and population embrace all the existing colonies.

The decision of the High Court in Capital T.V. and Appliances Pty Ltd v. Falconer makes a further contribution to the step by step effort of the Court to develop a coherent doctrine with respect to the place of the Commonwealth Territories in the federal system. It goes some way towards answering the questions that arise with respect to the jurisdiction that may be exercised by territorial courts on the one hand, and on the other hand, the jurisdiction that may be exercised by federal courts, and State courts invested with federal jurisdiction, in respect of matters having a relationship with a Territory.

The matters decided were simply that the Supreme Court of the Australian Capital Territory is not a federal court, but is a territorial court established by virtue of the powers of the Parliament under section 122 of the Constitution, nor is it a court exercising federal jurisdiction. The Court did not find it necessary to decide whether the tenure of office of the judges of the Supreme Court met the requirements of section 72 of the Constitution with respect to federal courts. It held that, even assuming that those requirements were met, the Supreme Court was not a federal court. This conclusion was based on the intention of Parliament, as appearing from the words used to create the Court and the scope of the jurisdiction conferred on it. Further, it was held that the only courts “exercising federal jurisdiction”, apart from federal courts, are State courts invested with federal jurisdiction.

The crucial problem arises when we ask, not what role mediation should play: in creating law, but how far and in what respects should it enter into the administration of laws.

Leon Fuller, Carter Professional General Jurisprudence, Harvard University.

Over the next generation, I predict that society's greatest opportunities will live in tapping human inclinations towards collaboration and compromise rather tha stirring our proclivities for competition and rivalry.

Dr Derek Bok, President, Harvart University, 1982 Cardozo Lecture.

Let me start on a note of consensus, if not reconciliation. I am certain that we all agree that there would be no one else as well equipped to give the opening paper for this seminar as is Lindsay Curtis. He is well equipped by direct experience, by close knowledge, by personal commitment, and at the same time not least by an ability to stand back from the unfolding of a complicated bit of business and assess what has been going on. His paper is the ideal source of ideas, but in speaking to it I will be able to pursue only one or two.

As this is a seminar arranged by the Law School, it would only be appropriate to start with a text from WS Gilbert. In Act One of that understandably neglected work, “Utopia Limited”, there enters a character named Tarara who explains his constitutional function thus:

“Universities occupy a central position in a national innovation system” and the benefits of their research extend to having better educated students, developing a body of knowledge and effective transfer of that knowledge to users. This knowledge may generate intellectual property with, not only educational and research value for the university itself, but also commercial or applied potential.

Australian universities recognise the need to protect, allocate and exploit these intellectual property rights and have policies or statutes that govern the management of their intellectual property resources. They face at least three challenges in the process. The first is to formulate a policy that clarifies ownership and limits misunderstandings between the originators of intellectual property and the university Establishing the appropriate mix of rights is fundamental to the success of their intellectual property management programs and their reputation. If they claim too much, the originators may produce an inferior product or seek employment or studies elsewhere. If they are too generous and considerate of originators’ rights, they may fail to provide adequate protection for both university interests and those of the wider community.

It is common for courts interpreting words in Commonwealth statutes to invoke State law to clarify the meaning of those words. For example, if a Commonwealth statute uses the word “shareholder” without adequate definition, reference will be made to State law as to the meaning of that word.

How is this approach to be justified? Part of the answer is that reference to State law was intended by the Commonwealth Parliament: but where is that intention to be found? Specifically, are sections 79 and 80 of the Judiciary Act 1903-1969 (Cth) relevant?

On the evening of 18 November 1976 the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 passed through both Houses of Federal Parliament in less than three hours. The Federal Government claimed that the Act was urgently needed to protect the Australian national interest, which was said generally to be threatened by attempts being made to gather evidence in Australia for use in large-scale litigation in the United States of America arising put of an international uranium cartel The Parliamentary debate did little credit either to the Government or the Opposition. It is necessary to go beyond the Parliamentary Debates to make an informed assessment of the Act. When the facts are examined it becomes clear that the Government's claim that the situation was urgent was unfounded, that the appeal to the national interest was at best highly questionable and that, because of the availability of appropriate judicial process, legislative action was unnecessary. The Act is alarmingly vague and reposes wide discretionary powers in the Attorney-General. Its passage and operation have quite disturbing implications for parliamentary democracy and the principle of open government. Where uranium is concerned the Federal Government is showing an increasing tendency to use the Parliament as a cipher.

The Copyright Law Review Committee (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the “digital revolution”, permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission.

In his Hamlyn Lectures Lord Scarman ventured to suggest that the common law as developed by the judiciary had, by reason of its preoccupation with the defence of private property and distributive justice as between individuals, and its relative lack of concern with public law (meaning the law governing the rights and obligations of the state), come to play a diminishing role in the governance of society. He condemned what he described as “an influential body of legal opinion which would confine the role of the courts and the general law to the interpretation of the statutes and the statutory instruments which are the legal framework of the system”; and which would exclude those courts “from reviewing the merits of a decision”.