With the development and widespread use of computer technology difficult questions relating to the legal protection which may be given to computer “software” must be considered. In this article Mr Lahore examines the existing law relating to intellectual property and discusses whether the Patents Act 1952 (Cth) and the Copyright Act 1968 (Cth), as they have been and may be inter-preted and applied, provide suitable and adequate protection for this computer software.

Looking at Italy, the article argues that government serves as an intervening variable that can mediate the implication of federalism and social division. Its overall argument is that the Italian state maintained its unity through a governmental practice of configuring social division so as not to align on the North/South divide, while engaging in a comprehensive devolution of competencies to the subnational level. Through readings of Carlo Cattaneo and Guiseppe Mazzini, the first part of the article considers the conjunctural factors that allowed for the creation, against all odds, of Italy as a unitary state. The second part considers by what strategies the political parties colluded in preserving the unity of the national territory, and by what forms of devolution power was transferred to the subnational level. In conclusion, the article considers the rise of federalism in Italian politics from the 1990s.

The Australian Charities and Not-for-Profits Commission Act 2012 and Australian Charities and Not-for-Profits Commission Regulation 2013 have established a comprehensive regulatory framework for the charities and not-for-profit sector at a federal level. When making the Act and Regulation the Commonwealth relied upon several heads of legislative power in section 51 of the Constitution, the most important of which is the taxation power. This article develops and assesses three arguments why the relevant provisions of the legislative scheme are not supported by the taxation power. These arguments are, firstly, that the Act and Regulations do not have a sufficient connection to the subject matter of taxation, secondly, that they are not reasonably capable of being considered appropriate and adapted to achieving a legitimate purpose or object that falls within the taxation power and, thirdly, that in combination with the Income Tax Act 1986 and Income Tax Assessment Act 1997, they impose an obligation to pay money in a manner that is so arbitrary that they cannot be characterised as laws with respect to the subject matter of taxation. It is concluded that these three lines of argument provide strong reasons why the Act and Regulations are not supported by the taxation power.

On 5 October 2000, the High Court handed down its latest decision on the scope of s 80 of the Commonwealth Constitution. This note provides an overview of the decision and its importance, and offers a critique of the reasoning employed in the majority judgments.

Section 80, variously described but commonly referred to as the trial by jury provision, “has led to some of the sharpest divisions of opinion in the history of this Court”. Whilst the decision in Cheng v The Queen (hereafter Cheng) confirms the interpretation given to s 80 in Kingswell v The Queen—which involved a challenge to the same provisions of the Customs Act 1901 (Cth)—some of the judges making up the majority in Cheng admitted to reservations about that interpretation. In addition, Kirby J and Gaudron J were vociferous in their disagreement with much of the majority's reasoning, which suggests that fundamental differences over the meaning of s 80 will continue to plague the Court into the future.

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.

There is an assumption that government affects community action and implements its policy primarily through legal rules backed by sanctions. Reality however dictates that policy implementation occurs in a number of ways, one of the more significant being through the lure of money. Money has been utilised over the course of Australia’s history to impact a dramatic redistribution in federal and State power without constitutional amendment. Spending is also, by its very nature, less transparent than legislative regulation. There is growing disquiet about the unchecked and unaccountable nature of government spending which this article seeks to explore.

In 1888 the social wing of the Salvation Army in Britain had begun an ambitious program for social reform and spiritual revival focusing on the disciplining and retraining of the unemployed. City workshops in London gave unemployed workmen board and lodgings in return for eight hours work a day. Efficiency, deportment and cleanliness were rewarded by increases in food rations and eventually men were given a cash allowance. Attached to the workshops was a labour bureau which would put men in touch with potential employers. In 1905 the Liberal Magazine suggested that the Army be given a government contract to deal with the unemployed and, four years later, the Minority Report of the Poor Law Commission recommended that public authorities work in conjunction with religious organisations in training and reforming the recalcitrant unemployed.

Although lacking an express mandate, since Federation courts have declared legislation ultra vires if they find it contrary to the Australian Constitution. This article undertakes an historical examination in four parts, to determine whether this judicial review of legislation is legitimate.

First, objections to the institution are identified. Second, the justifications for judicial review of legislation developed in the United States, and expressed in the seminal 1803 decision of Marbury v Madison, are examined. Having identified the twin justifications as the supremacy of the Constitution and the primacy of the judiciary in its interpretation, the third section analyses Australian Federation records to see if these justifications are supported, and whether they rebut the objections raised. Finally, the persistence of these justifications after Federation is demonstrated.

It is concluded that evidence of the supremacy of the Constitution, and the primacy of the judiciary in its interpretation, is sufficient to justify judicial review of legislation under the Australian Constitution.

New Zealand’s political landscape experienced a seismic shift in 1993, when the country replaced the First-Past-The-Post (FPTP) voting system it had inherited from its British colonial past with a new Mixed Member Proportional (MMP) voting system. The move had immediate and deep ramifications for a whole range of issues: the range of interests represented in Parliament; the way that governments are formed and function; how the country’s public sector agencies operate; the manner in which its electoral participants conduct their campaigns; and so on. Indeed, it is not too much of an exaggeration to say that every area of New Zealand’s public and political life was touched in some fashion by the general ‘systems change’ produced by the country’s decision to embrace MMP.5 These changes have effected shifts in what may be termed the ‘political culture’ of New Zealand; re-alignments in the relationships between various public and political institutions and bodies; as well as alterations to the formal legal rules that govern these institutions and bodies.

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.

The Commonwealth has since federation formed and controlled many corporations, both statutory and those created under companies legislation. In this article we explore the constitutional basis for the Commonwealth forming and controlling a Corporations Law company. This is a topic which has received little attention but it is becoming increasingly clear that a proper understanding of the Commonwealth's constitutional position, when it forms and controls companies, is necessary because of the increased emphasis on commercialisation and entrepreneurialism and the sometimes drawn-out process of privatisation of Commonwealth bodies.

It is generally assumed in this article that the Commonwealth will make use of a company for some commercial purpose, but we acknowledge this is not always the case. It is possible, and quite common, for the Commonwealth to use a company for the implementation of a policy or for some other governmental purpose not directly related to commercial activity. The use of the company form by the Commonwealth in any situation raises important questions about government responsibility and accountability. While we do not address these questions directly in this paper, our underlying concern nevertheless is that the use of a company by the Commonwealth for ordinary commercial purposes has the potential to erode the notion of governmental responsibility.

In this article Dr Lumb refers to the choice of the phrase “Commonwealth of Australia” to designate the new federal body politic established on the Australian continent and surrounding islands by the Constitution Act. He then attempts to show how the term “Commonwealth” appearing alone or in association with other words is used in different ways. He identifies an “instrumental” usage pursuant to which the term is understood as applying to the federal instruments of government, and an “organic” usage under which the term is used to refer to the Australian body politic or community. This ambiguous usage has had a considerable impact on judicial interpretation of the “federal balance” as is to be seen from the Australian Assistance Plan Case. The specific problems of the Territories as “parts of the Commonwealth” are examined in the context of the relationship between relevant sections of Chapter VI and earlier Chapters of the Constitution and some opinions are expressed on the sources of constitutional power relating to the Territories.

Instruction on the Great Depression used to come from our parents, our grandparents, and the History Channel. Now everyone has something to say about it. Economists tell us that the global financial crisis is the biggest economic reversal since the Great Depression, and governments in Washington, London and Canberra are likening their resolve to that displayed by President Roosevelt in the early days of the New Deal. If they were even half-way right, then these would be busy times indeed for administrative lawyers. Although they are wrong, the legislative and administrative responses to the current crisis include measures that should rekindle some of administrative law's deepest concerns about the democratic legitimacy of the administrative state. New banking laws, in particular, have transferred enormous discretionary powers to central government's regulatory authorities, and these pose real issues about protection from arbitrary power, and about the very process of making laws and holding the administration to account. In other areas, we are likely to see a more hands-on style of market and corporate regulation, but probably nothing so radical as to require us to dig out the history books.

The Independent Contractors Act 2006 (Cth) ('IC Act’) and the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth) ('Amendment Act’) implement further key aspects of the federal government's workplace relations policy, following the passage of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices Act’). The Work Choices Act substantially amended the Workplace Relations Act 1996 (Cth) ('WR Act’), introducing a national workplace relations system for employers who are (in the main) ‘constitutional corporations’ or federal public sector departments or agencies, and their employees. Through the Work Choices Act, the government also: transferred responsibility for minimum wage-setting from the Australian Industrial Relations Commission ('AIRC’) to a new body, the Australian Fair Pay Commission; provided five minimum statutory employment conditions for all workers covered by the national system; removed much of the procedural regulation relating to workplace agreements and substantive requirements such as the ‘no disadvantage’ test; and exempted businesses with 100 employees or less from unfair dismissal regulation.

“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”.

Whilst the European Union (EU) does not compare easily with any other political/legal entity, including the Australian federation, both are concerned with the designation of powers and responsibilities to appropriate political institutions at various levels. In both the EU and Australia, environmental law can potentially be generated at two levels at least: national and supra-national, or State and Commonwealth, respectively. Whilst the legislative competence of the EU and the Commonwealth, with respect to certain defined environmental matters, has been confirmed beyond doubt,4 debate is still focused on the desirability or otherwise of an expansion of environmental competence for the central authority.

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”.