This article examines the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) (“the 1979 Act“). It was the second legislative response of the Australian Government to steps taken by the Westinghouse Electric Corporation (“Westinghouse“) in its international uranium cartel antitrust suit in the United States District Court in Chicago. That suit and other legislation attributable to the uranium cartel which operated between 1972 and 1975 proceeded for more than four years and, until a recent spate of settlements mentioned later in the article, had been expected to continue well into the 1980s. At the outset it is necessary to say something of the events which provoked the District Court suit and related litigation.

In September 1975 Westinghouse announced in the United States that it was unable to fulfil its contractual obligations for the supply of uranium oxide (U3O2). Westinghouse's primary involvement in the nuclear energy industry is as a manufacturer of nuclear power plants (“reactors“) and not as a uranium miner. In the late 1960s reactor sales soared and Westinghouse offered electric utilities low price reactor fuel over long terms as an inducement to capture reactor sales.

An Australian lawyer seeking to identify the basic differences between the Australian and American constitutional systems is immediately struck by certain features of the latter system. The differences in that system flow from the break between the American colonies and England embodied in the Declaration of Independence of 1776 and are reflected in the changes to the individual State Constitutions which were made after the Revolution.

The major changes which were made to those Constitutions over a period of time were basic and fundamental: the replacement of the gründnorm of British parliamentary supremacy with the principle that sovereignty is derived from the people and, as a concomitant, the establishment of a Bill of Rights; the replacement of a British appointed Governor by a locally elected Governor; the incorporation of the doctrine of separation of powers pursuant to which the Governor as chief executive officer was not to be a member of the legislature and had no power to dissolve it. Finally, basic changes were made to the methods of constitutional alteration.

When a marriage breaks down if the parties are unable to agree as to how their assets are to be divided their disputes may currently be heard in two different court hierarchies applying two disparate sets of legal principles. Inevitably this position leads to forum shopping and to the proliferation of legal proceedings which are not directed at resolving the substantive issue between the parties. It produces uncertainty, duplication, expense and delay. Although the problems associated with dual jurisdiction in matrimonial property disputes arise both before and after divorce, neither the Family Court nor the Supreme Courts have yet, it seems, formulated policies which ought to be pursued. Nor have they been consistent in their choice or application of the legal mechanisms that they enlist to break the deadlock. It is suggested here that both the federal and state courts should aspire to the centralisation of matrimonial property disputes, so far as is constitutionally feasible, within the Family Court. With that objective in mind the various legal devices currently invoked to resolve disputes about jurisdiction are critically reviewed. Some techniques are suggested to overcome problems which recur in the case law and a general approach is proposed which, it is hoped, will achieve consistency in the aims and in the legal principles adhered to by the courts in the future.

The presumption of constitutionality has been frequently invoked in recent judgments of Murphy J in the High Court. The article examines the use of the presumption in the United States and Canada. It then considers the way in which the presumption has been applied in Australia and the justification given for it. It is suggested that although the presumption does not have a clearly recognised place in Australian constitutional theory, the presumption is important and it should be given much greater prominence. For this to happen will require changes in judicial attitude. It also requires Parliament to reassert its role in the determination of constitutional questions.

In response to a recommendation of the Joint Select Committee on the Family Law Act, the Government has announced the appointment of an ad hoc committee of enquiry to study the implications of introducing a full matrimonial property regime in Australia. This committee will recommend whether there should be a fixed set of rules determining the ownership of property of married persons. Such a set of rules could apply during the subsistence of marriage, upon dissolution of marriage or both. Adoption of a set of rules governing property rights during the subsistence of marriage would displace the ordinary law of property and the special doctrines developed by the courts of equity as applicable to married persons. Adoption of fixed rules governing re-allocation of property upon dissolution of marriage would displace the discretionary system as applied by courts exercising jurisdiction under the Family Law Act 1975 (Cth). Since there is a world-wide movement away from fixed rules determining property interests during marriage, legislation to this effect is unlikely.

It cannot be that Legislatures, being rational, seek to break down the fences they have erected around individual tribunals and let them roam at large by the simple expedient of a privative clause. The clause must be read in the context of the statute. It cannot be intended to transform tribunals into judicial libertines.

The decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission was hailed as a landmark, permitting almost unlimited judicial review into the activities of administrative bodies and inferior courts. De Smith commented

Yet the decisions which have followed Anisminic even in England have revealed that the case has contributed little certainty to an area in which apparently irreconcilable decisions proliferate.

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.

When, in 1902, a murder was committed in the Cocos Islands and a resident native of the Islands was brought to trial at Singapore, the Supreme Court of the Straits Settlements ruled unexpectedly that it had no jurisdiction.

That decision threw doubt upon the validity of Letters Patent of 1886 which were to remain the constitutional foundation of British rule in the Cocos until the transfer of sovereignty to Australia in 1957. The doubt necessarily extended to matters of long-term practical importance, including the special position in the Cocos held by the Clunies-Ross family until 1978.

This article considers the validity of those Letters Patent—question peremptorily closed off by British authorities in the aftermath of the 1902 affair. Fundamental doctrines of colonial law in relation to territorial acquisition, and their application to British annexation of the Cocos Islands, are examined. The continuing relevance of those doctrines—eg to the recent line of land rights cases in Australia—is incidentally pointed out.

The Letters Patent are also tested against the maxim omnia praesumuntur rite esse acta and in terms of evolving judicial acceptance of severance. For that purpose, illustration of legal principle is drawn from Australian cases as from English law.

Can the formal amendment process embodied in s 128 of the Commonwealth Constitution be utilised to patriate the Constitution, to make Australia a republic, to establish a Bill of Rights, to abolish State Constitutions or Parliaments and to alter s 128 itself or provide a completely new amendment procedure? What is the ambit of s 128? This article considers the history, scope and interpretation of s 128.

The common law relating to the tort of passing off is the traditional means by which conduct threatening business reputation may be halted. During the past five years, the Federal Court of Australia has been called upon on many occasions to apply s 52 Trade Practices Act 1974 (Cth) to prevent such conduct. As yet, there has been no clear judicial statement as to the interrelationship and overlap between the two causes of action.

This Article discusses the scope of the two causes of action in the context of an allegation of actual or threatened erosion of goodwill. The types of cases in which such allegation is usually made is then examined and suggestions given as to which cause of action should be relied on.

The passage of the Airlines Agreement Act 1981 (Cth), along with other supporting legislation, represents the culmination of the most detailed public debate on airline regulation in Australia for almost 30 years. During this period, Australia has had an airline system characterised by the presence of essentially only two main carriers on the trunk routes. This system has been maintained by deliberate government protection of the two carriers in accordance with the terms of a series of airlines agreements. This protection is to continue. The 1981 Agreement is, however, significantly different from the earlier airlines agreements. The objective of the new Agreement is to maintain the previous two-airline policy “but with the objective of increasing the level of competition within the industry in a rational and orderly manner”.

The public debate that took place prior to passage of the legislation is not likely to cease. There is to be an inquiry to “undertake an objective assessment of the advantages and disadvantages of deregulating the domestic aviation environment”.

Tribunals and specialised courts with inquisitorial powers are now fairly common in Australia and appellate courts have begun to insist that in certain circumstances the powers be used. By “inquisitorial powers” is meant powers which enable the adjudicator to take the initiative in eliciting evidence and formulating legal arguments, and to control the way in which a case is presented. The Australian Committee on Administrative Discretions believed that it would be appropriate for their proposed administrative review tribunal to make use of an “investigative or inquisitorial process in most cases”. There have even been calls for the use of some inquisitorial procedures in ordinary courts of law. A radical change in the ordinary courts seems at present to be impracticable. On the other hand the Administrative Appeals Tribunal is still in a position to set its own pattern of development. It has been given almost carte blanche as to procedure and some wide inquisitorial powers. For the last six years it has been experimenting with the use of these powers, and some of its pre-trial procedures have already aroused interest. The Federal Court in its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is given power to exert far greater control over the conduct of proceedings than is normal in an adversary system.

Erskine May's Parliamentary Practice, the procedural bible of the House of Commons, is about to lose its place as the inevitable reference guide for Australian parliamentarians. At the end of 1981 the House of Representatives Practice was published, joining the long established Australian Senate Practice to provide the first complete Australian guide to the procedures of both Houses of the Commonwealth Parliament. The old editions of May's Parliamentary Practice, reciting the procedure of the Commons at the turn of the century, have some residual importance for the Federal Parliament (of which more later) but that too is likely to disappear. Within a few years, May's will disappear from the shelves of parliamentary clerks in Canberra and be relegated to library shelves for the benefit of students of British politics and parliamentary affairs.

The Australian replacement of May's has been a long time coming. Mr JR Odgers produced his first edition of Australian Senate Practice in 1953. Revised editions followed fairly regularly, the fourth appearing in 1972 and the fifth (and still current) edition in 1976. But it was not until 1975 that the House of Representatives decided that it was proper to begin working on an equivalent and to put on record some of its answers to Mr Odgers.