Since its creation by the Family Law Act in 1975 the Family Court of Australia has relied on various measures which have been implemented from time to time to overcome the deficits in its jurisdiction in relation to children. These deficits emanate from insufficiencies in constitutional power. Those measures include the addition in 1983 of the jurisdiction in relation to the welfare of a child by the Family Law (Amendment) Act 1983 (Cth) and the reference by the Australian States, between 1986 and 1990, of substantial powers by the Commonwealth Powers (Family Law Children) Acts. These substantially extended the jurisdiction of the Family Court in respect of ex-nuptial children. Remaining gaps in jurisdiction were filled by the enactment of the State and Federal Jurisdiction of Courts (Cross-Vesting) Acts 1987 which conferred on the Court the jurisdiction of the State Supreme Courts. The Court has thus been in the happy position since 1987 of hearing State matters in association with children's issues which were instituted in the Family Court; and it has received and heard State matters involving State law which were transferred to it by State Supreme Courts.

The nature of the Australian Consitution is usually described as eiher monarchic and parliamentary, or republican and federal. However, more than succinct expressions of the key political concepts behind the Australian Constitution, the two metaphors are the products of particular forms of analysis. Essentially, the terms parliamentary or consitutional monarchy and federal republic are the products of either revisionist or institutional interpretations of the Australian Constitution. The institutional interpretation focuses on tie practical function of the Constitution's federal and parliamentary institutions, and the origins of these devices within the British and American Constitutions. For example, as the Australian Constitution embraces the institutions of both Anerican federalism and British parliamentary government, institutionalists interpret its nature by relating the strucure and operation of Australia's federal and parliamentary institutions to the function of sinilar devices within the British and American Constitutions.

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.

The Commonwealth grants power refers to the legislative power conferred by section 96 of the federal Constitution. Section 96 provides that:

There is no exact counterpart of this section in the United States Constitution, though Congress has authority to make grants to States under the so-called General Welfare clause—section 8 of Article I—which declares that:

The right of petitioning Parliament is a fimdamental right of the citizen, allowing any individual or body of individuals to take grievances directly before Parliament. It is one of the most direct means of communication between the people and the Parliament. It is by this means that people can voice their concerns to the House on matters ofpublic interest.

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.

In this article, the author honours three former Deans of Law of The Australian National University: Jack Richardson, Harry Whitmore, and Michael Coper. His remarks are derived from three speeches he gave in 2012: the 2012 Harry Whitmore Memorial Lecture, the 2012 Jack Richardson Memorial Lecture, and an address to The Australian National University's 2012 Law Alumni Dinner on the occasion of the retirement from the Deanship of Michael Coper. Jack Richardson and Harry Whitmore were pioneers of Australian administrative law. Michael Coper, a constitutional lawyer whose views were shaped by his family's direct experience of Nazism, served as Dean for a record term of 15 years. The author reflects on the life stories of these three Law Deans, and derives some conclusions on the nature of the office of Dean of Law in a modern Australian University.

A central tenet of the High Court of Australia's account of statutory interpretation is that the aim when interpreting a statutory provision is to ascertain the meaning of the words contained in that provision. The goal of this article is to challenge that tenet, which I call “the meaning thesis”. I argue that the High Court's acceptance of the meaning thesis leaves it unable to account for important features of the practice of statutory interpretation. In particular, it struggles to account for the ways in which statutory provisions interact with other legal norms (including other statutory provisions), especially when those other norms are introduced into the law after the statutory provisions with which they interact. This, I argue, provides a powerful reason to abandon the meaning thesis. I conclude by briefly suggesting how we might begin to develop a more satisfactory account of statutory interpretation.

Much has been written about the general justifications for providing legal protection for trade marks — for example, it has been said that trade marks help to reduce consumer search costs, that they protect against the misappropriation of other traders’ labour and investment, and that they may provide traders with incentives to invest in the development of new marks. However, it is important not to conflate these justifications with the reasons for having registered trade mark systems. To the extent that this issue has been considered, the principal justification for registration that has been put forward is that trade mark registers act as an important source of public information. More specifically, trade mark registers provide information as to the signs that are protected in a given commercial sphere and as to matters such as initial ownership of trade marks and subsequent assignments thereof. Consequently, in order for a trade mark register to perform its function effectively, it is essential that it reflect as accurately as possible the marks that enjoy legal protection and that those consulting the register are able to rely on the information it conveys.

For centuries the superior courts have wielded a judicial big stick labelled ‘jurisdictional error’ in order to control and supervise the activities of administrators and inferior tribunals; moreover the stick has been brandished in the face of parliaments which have indicated fairly clearly that they intended the particular inferior body to be free of judicial interference. The doctrine of review for jurisdictional error is well established; but there is widespread criticism of its operation. The distinction between findings of inferior bodies which are ‘collateral’ to the merits and thus reviewable and those which are not, a distinction which is basic to the doctrine, has been described as one of the ‘apparently meaningless categories’ of legal reference. Particularly effective and persistent criticism has been mounted by D. M. Gordon. In his view the distinction between jurisdictional facts and other facts cannot be maintained. He is completely opposed to any acceptance of the idea that the courts should be free to manipulate jurisdictional error to control the activities of inferior bodies on policy grounds alone; arbitrariness and uncertainty have no place in the law of judicial review.

The relationship between law and history has long been the subject of academic interest. Both disciplines have occasion to turn to the past, yet their purposes and methods for doing so often vary. Some commentators have noted the similarities between the two disciplines, describing them as ‘intellectual cousins’ who share a ‘natural affinity'. Yet, equally, commentators have noted the tensions between the two disciplines, depicting them not as allies but as strangers or enemies. These scholars have painted a picture of competing logics, suggesting that the clash between the law's ‘logic of authority’ and the historian's ‘logic of evidence’ creates an uneasy relationship.

Although capturing the attention of both judges and commentators, the intersection between law and history continues to elude precise definition.

As is well known, the High Court held in Re Wakim; Ex parte McNally that federal courts can only exercise the judicial power of the Commonwealth, and cannot exercise State judicial power. In this article I ask whether the Court would ever take a similar approach to Chapter II of the Constitution, and hold that the Commonwealth executive can only exercise the executive power of the Commonwealth, and not State executive power. If it did, it would probably follow that the executive power of the Commonwealth could only be exercised by the Commonwealth executive, and not by a State executive. Obviously, these twin conclusions would have major implications for existing Commonwealth–State cooperative legislative schemes.

I should stress immediately that I do not think that this is the preferable view. However, for reasons that I explain in Part 2 below, there is an undercurrent in recent decisions that could be taken to suggest that the Commonwealth executive government is limited to performing functions within the scope of Commonwealth legislative power, and cannot be given additional functions.

The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.

Law students, served a standard helping of textbook or case method analysis, could be forgiven for thinking that the “law” consists mainly of common law rather than legislation, and that cases, not statutes, are the central repository of legal knowledge. Even those who study legislation often end up with a court-centred view of law. For while legislators enact laws, it is the judiciary which actually interprets, and in some respects, enforces them.

Such a view is essentially inaccurate. Australia, like most other advanced western democracies, is an administrative state, shaped by explicitly adopted policies, incorporated in legislation and implemented by a large array of large regulatory agencies. The economy, the health and safety of the public and the work force, the environment, and a multiplicity of other social goals are all regulated (with varying degrees of success) by this means.