Although the basic test for apprehended bias is now well-established in Australian law, its application continues to present difficulties. The basic test is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial or administrative decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand. It is equally well-established that, while the same objective test applies to judges as to tribunal members and other public decision-makers, the application and content of that test varies depending on the context, including differences in decision-making roles, functions, powers and processes.

The application of the test can be problematic and somewhat unpredictable. For example, despite the unqualified terms of the relevant parts of the High Court’s decision in Ebner, it now appears that, at least in the context of curial decision-making, the Ebner two-step test is not universal in its application.

Capital exporting countries have attempted to protect the overseas investments of their multinational corporations (MNC) against host nation governments expropriating these investments, limiting the right to repatriate profits, or subjecting the withdrawal of their investments to heavy penalties. The aborted Multilateral Agreement on Investment (MAI) of the mid-1990s was an attempt at transferring these concerns to a settled legal framework between nations. Some limited expression of this is found in the provisions of the World Trade Organisation (WTO) Dispute Settlement Understanding, while more substantive assertions are found in the investor-state dispute settlement (ISDS) provisions of bilateral trade and investment agreements entered into between developed and developing economies. However, recent legal challenges and associated public relations campaigns by MNC directed at Public Law and Health measures have caused governments to reassess the situation. A classic example of this has been the challenge by tobacco companies against the plain cigarette packaging legislation introduced by the Canadian and Australian governments. The Australian Government's response to this through its statement of position in respect of future bilateral agreements and its Tobacco Plain Packaging Act 2011 (Cth) is equally path breaking. This article examines the dramatic turnaround in perspective of States in respect of Investor-State arbitration, and its impact on the Trans-Pacific Partnership Agreement (TPP) currently being negotiated.

Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.

When the 1983 amendments were made to the national companies securities legislation, it was stated in the accompanying explanatory memorandum that one of the purposes of the new provisions was to “abolish the doctrine of ultra vires” — an ambitious aim given the tenacity of the doctrine despite widespread criticism on many grounds, perhaps best summed up in the comment, “[u]ltra vires was the expression of a social policy that failed.”

Of course, it has now been realised that the 1983 amending Act did not achieve its stated purpose. It may have achieved a partial elimination of the doctrine but it has left a large area for its continued operation in a different form and in some respects has opened new opportunities for development.

These aspects are explored below but it should be noted here that one curious side of the new provisions is that no explanation was offered of the defects in the previous statutory provisions, ss 67-68 of the Companies Act (Cth) (“the Act”) and its forerunner, s 20 of the State uniform companies legislation, nor was it explained how the new ss 67-68 were intended to remedy those defects. The new regime was simply offered as a better general solution to the ultra vires problem. Unfortunately, in this case, it is not the final solution.

In 1955 the Commonwealth Government passed the Courts-Martial Appeals Act 1955 setting up in Australia a Tribunal to be known as the Courts-Martial Appeal Tribunal. This gave the ultimate review of courts-martial (save that of 'pardon') to civilian lawyers, whereas previously it had been exercised bythe Service concerned itself. The principles to be applied in determining appeals were set out in the Act and are similar to those set out in the Criminal Appeal Act 1912 (N.S.W.)

Literature on the necessity for reform of Australia‘s federal division of government continues to blossom, reflecting the assessment of a leading expert in the area that the system is now at a ‘cross-road’ between delivering a vibrant and beneficial federalism to the Australian public or ‘merely a mask for the effective centralisation of power’. Although the solutions advanced by many commentators towards ensuring the first of these outcomes over the second are many and various, it is notable that none looks exclusively to constitutional amendment as the silver bullet of reform. The notorious difficulty of attaining a successful referendum result – particularly on federal issues which have traditionally been amongst the most contentious proposals –as well as the difficulty of encapsulating all that might be done in the way of federal reform within a single suite of proposed amendments, has ensured that sub-constitutional institutions and mechanisms have been looked to as a simpler, more effective way to achieve change.

As Barrett's case1long ago demonstrated, a provision in a Commonwealth Act may perform the “double function” of conferring both a jurisdiction upon a court to grant a remedy, and a “substantive statutory right or duty” upon a litigant by means of “providing that in certain circumstances a person may take proceedings in a particular court to obtain a specified remedy”. The difficulty is in divining when the Parliamentary Counsel has intended that this double function be performed. Under s 76(ii) of the Constitution, Parliament may confer jurisdiction upon a federal court in “any matter arising under any laws made by the Parliament” (emphasis added). How is one to tell if “Parliament has been too sparing in the exercise of its powers and has made only a bare grant of jurisdiction without enacting a substantive law to which the exercise of jurisdiction is referable”?

This article considers the YouMeUnity Report proposal for the inclusion of new language provisions in the Australian Constitution as part of a package of reforms for the constitutional recognition of Aboriginal and Torres Strait Islander people. The article outlines the important symbolic and substantive effects of recognising language rights in the Constitution. The article explains how the recognition of a national language and the recognition of minority languages are conceptually distinct — promoting a national language is aimed at promoting national unity and enhancing the political and economic participation of individuals in the state, whereas protecting minority languages is aimed at recognising linguistic diversity, enriching the cultural life of the State, maintaining connections with other nations, and recognising language choice as a basic human right. The article argues that there is a strong case for minority language recognition, and in particular, the recognition of Aboriginal and Torres Strait Islander languages, in the Australian Constitution, but warns against the recognition of English as the national language.

In the past fifty years the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of “judicial power”, there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine.

Australia has recently acceded to the Vienna Convention on Treaties, one of the major codifying treaties concluded under United Nations auspices. Mr Brazil who was a member and later Leader of the Australian Delegation to the Conference that drew up the Convention, examines its scope, including its answer to the question—should the Convention cover the topic of treaty-making capacity of parts of federal States? Mr Brazil suggests that the Convention's rules on reference to preparatory materials as interpretative aids should be adopted by Australian courts. Its restatement of the topic of reservations and its reception of the notion of international public order (jus cogens) are evaluated. The themes of good faith and due process are seen to run through the Convention, which though not yet in force, has already gained wide acceptance.

The 5th International Polar Year (IPY-5) in 2032–2033 represents an important next step in the legacy of the oldest continuous climate research program created by humanity, which intentionally began during a Solar Maximum with IPY-1 in 1882–1883, following the Little Ice Age. Current IPY-5 planning by the International Arctic Science Committee (IASC) and Scientific Committee on Antarctic Research (SCAR) is “From IPY-4 to IPY-5” with scope since 2007–2008, considering relevant large-scale polar process, international activities and UN decades. Additionally, there are essential features to incorporate into IPY-5 planning with Indigenous knowledge as well as next-generation leadership along with international science connections across the United Nations, involving core integration of data system and Earth–Sun system research, which accelerated with the International Geophysical Year (IGY) in 1957–1958 that was renamed from IPY-3. As memorialized in the 1959 Antarctic Treaty: “the International Geophysical Year accords with the interests of science and the progress of all mankind.” Importantly, at the height of the Cold War with “forever” legacy, the 1959 Antarctic Treaty became the first nuclear arms agreement, applying science diplomacy among allies and adversaries alike based on “matters of common interest.” Recognizing current challenges to enable inclusive dialogues – especially in the Arctic – planning for IPY-5 is far enough into the future to be imaginative and hopeful but close enough to be practical, especially to produce synergistic outcomes that inspire and empower next-generation leaders across the International Decade of Sciences for Sustainable Development from 2024 to 2033. Planning “From IPY-3 to IPY-5” – this invited Cambridge Prisms Perspective extends and amplifies the IASC-SCAR concept with its visionary principles – “striving for holistic, systemic, transdisciplinary research approaches” – for the benefit of all on Earth across generations.

Section 260 is a general anti-avoidance provision found in the Income Tax Assessment Act 1936. Together with sections 25(1) and 51(1), it is one of the most important sections of the Act. To the “tax planner” section 260 spells anathema: to the Revenue it is an invaluable aid to prevent tax avoidance and preserve tax equity. Judges have tended to differ in their attitudes towards section 260. This article examines the treatment of the section in the hands of the judiciary, its interpretation and misinterpretation. In addition, the article seeks to highlight a significant point, namely, that the alternative to a general anti-avoidance provision is anti-avoidance legislation of a specific nature which would add tremendous complexity to an already complex Act. The plea therefore is that the judiciary should re-assess the situation they have helped bring about before it is too late, and that judicial common sense be substituted for the growing complexity of the Income Tax Assessment Act.