In Australia, decisions about the post-separation relocation of a parent (usually a mother) with children where the other parent (usually a father) has opposed this are increasingly controversial, and have attracted both media and academic attention, including in the pages of this journal. Unlike in the United Kingdom where restrictions even on international relocations appear from analyses of the reported case law to be relatively rare, decisions in Australia restraining relocations are quite common. There has, as yet, been no Australian legislative reform specifically addressing decision-making on the issue of relocation. The decisions are made under the general provisions dealing with post-separation parenting (Part VII of the Family Law Act 1975 (Cth), hereinafter referred to as the ‘FLA‘).

This article is about the interpretation of legal texts. Its immediate aim is to defend, against a certain sort of originalist objection, the well-known cases that hold that the Australian Constitution, by implication, guarantees certain political freedoms and entitlements. That is not to say that the article intends to vindicate the outcome of every one of those cases – rather, it intends to vindicate the general methodology and orientation of those cases as stated by the High Court in Lange v Australian Broadcasting Corporation.

The general character of the originalist objection I have in mind is that no implication (other than perhaps a strictly logical implication) can be drawn from a legal text which is at odds with the actual intentions of the authors of that text.

Enforcement of patents is a pivotal factor in determining whether or not the patent system performs its public role of stimulating innovation. Without the means to exclude imitators, the party who pays for the original idea or invention will, in many cases, not be able to recoup their outlays, with the result that such parties are likely to direct their investment elsewhere and invest less in research and development. Enforceability matters even if the invention embodied in a patent is not being directly commercialised by the inventing organisation. Intellectual property (‘IP’) owners will not, for example, be able to license, cross-license, or sell their IP rights, or enter into joint ventures based on those rights, if the licensee, buyer or joint venture partner has no confidence that their IP rights confer effective exclusivity over brands, ideas or creations. Furthermore, IP owners will be reticent to disclose their ideas to prospective partners if they have doubts about their ability to prevent the other party from expropriating their proposal. Direct enforcement of each and every patent does not have to occur for the patent system to be effective. All that is required for incentives to work is that people believe that infringement will be stopped if necessary.

Though at times inconvenient for lawyers and their clients, the use by the Commonwealth of delegated legislation to fill lacunae in statutes is hardly remarkable, and the constitutional validity of provisions authorising that use even less a matter of controversy. Nonetheless, there may be reason to doubt whether the same can so readily be said of the inclusion in Commonwealth statutes of so-called ‘Henry VIII’ clauses – that is, statutory provisions purporting to authorise the promulgation of subordinate legislation that either amends or is inconsistent with the relevant principal statute. In particular, one might ask to what extent such provisions may, regardless of their width, be accommodated within the distribution of power contemplated by the text and structure of the Constitution.

The task of answering this question requires, as a first step, that fresh consideration be given to the limits, if any, upon Parliament’s ability to confer on other institutions some part of the legislative power of the Commonwealth.

In Australian competition law, the notion of collusion between competitors is encapsulated in the concepts of ‘contract’, ‘arrangement’ and ‘understanding’ under the Trade Practices Act 1974 (Cth) (‘TPA’). These concepts have been integral to the civil prohibitions on cartel conduct under s 45(2) of the TPA since 1974. The same concepts are used in the new cartel offences and civil per se prohibitions which took effect in July 2009 as a result of amendments made by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2008 (Cth).

In 2007, the Australian Competition and Consumer Commission (‘ACCC’) recommended amendments to the TPA in connection with the interpretation of ‘understanding’ in the wake of its largely unsuccessful cases against petrol retailers for alleged price fixing in Ballarat and Geelong and its subsequent petrol pricing inquiry. In this article it is argued that the proposed amendments should be rejected.

This essay addresses two related questions: is participation by citizens in administrative decision-making constitutionally regulated? And if so, to what extent and in what circumstances? Obviously, answers to these questions may vary from one constitutional system to another. The limited aim of the essay is briefly to survey some of those answers and suggest how they might be explained. I will not attempt to state comprehensively the relevant law of any jurisdiction, but I will draw illustrations and examples from several. Nor (for reasons of space) will I tackle any of the underlying theoretical, empirical and practical questions about the functions, effects, costs and benefits of participation and its constitutional regulation. Nevertheless, the essay’s modest objective is worth pursuing in order to provide a clear analytical framework for consideration of such questions. Much of the very large literature on participation does not expressly advert to its constitutional regulation.

Australian case law on infringement of registered trade marks has placed an increasing emphasis on the reputation of the owner of the registered trade mark in determining whether infringement has occurred. Consideration of the trade mark owner’s reputation has been included in determining whether the sign used by the defendant is deceptively similar to the registered trade mark and, more recently, in determining whether the defendant has used its allegedly infringing sign ‘as a trade mark’. Neither development is consistent with either the law relating to registered trade marks or the underlying policy reasons for the system of registration. This article discusses the case law which has introduced the tendency of the courts to consider the reputation associated with an owner of a registered trade mark in determining infringement proceedings, the reasons why such an approach is not consistent with the legislation nor with the rationale underlying our registered trade mark system.

Human-induced climate change is an issue of unparalleled scale and gravity. There are calls for rapid, dramatic action on this issue, including declaration of a ‘climate emergency’. While this term has been used as a political call to action, the phrase has an obvious legal tenor. It invokes a particular category of state conduct – the ‘state of emergency’. What this article is concerned to do is to explore how a ‘climate emergency’ might assume a legal character and whether ‘climate emergency’ laws could sustain constitutional legitimacy in the Australian context. At present ‘mainstream’ political opinion in Australia, as represented by either the Labor or Coalition Parties, clearly does not favour such a course of action. Yet legal analysis of the concept is not intended as entirely speculative. If a ‘climate emergency’ – or policies intended to pursue comparably rapid social and economic change – is to be posed seriously, the term needs to be subject to critical analysis. This article hopes to contribute to that task.

In an increasingly global economy, foreign anti-competitive practices pose just as much of a threat to the economic wellbeing of Australians as domestic anti-competitive practices. Multinationals which transcend national boundaries are now major players in many different markets. Furthermore, continuing globalisation means that the number of commercial activities with transnational implications will rise.

The Trade Practices Act 1974 (Cth) (‘TPA’) contains a provision that expressly gives the Act extraterritorial operation. Section 5(1) provides that the competition law prohibitions contained in Part IV extend to conduct engaged in outside Australia by bodies corporate incorporated, or carrying on a business, in Australia. With the exception of the prohibitions against cartel conduct, the extraterritorial operation of the prohibitions against the major forms of anti-competitive conduct is even broader. Since the Act’s inception, the prohibitions against price and non-price vertical restraints have extended to the engaging in conduct outside Australia by persons and bodies corporate (whether incorporated, or carrying on a business, in Australia or not) in relation to the supply of goods or services to persons within Australia.

In 1995 I wrote a short piece entitled ‘The Forgotten “Trust”: The People and the State’. Its premise was the simple proposition that the most fundamental of fiduciary relationships in our society is that which exists between the State (and its officers and agencies) and the community (the people). I do not intend here to revisit the justifications for that proposition. My primary concern when I wrote was with two quite different legal manifestations of that proposition. The first was its use in informing and justifying the imposition of legally enforceable standards of conduct on public officers and agencies. The second was how trust and fiduciary ideas have been, and could be, invoked to circumscribe and channel the exercise of public power for the benefit or protection of the public or a section of it. It is the second – and much more problematic – of these that I wish to revisit in this article. I do so not simply to satisfy Leslie Zines that I have reconsidered a ‘heresy’ into which he believed I was misguidedly lured.

In the Australian liberal democratic tradition, the expectation that government be accountable to the people is a product of the electorate’s grant of power to government. As government becomes more complex due to the expansion of human activity it regulates there is increased reliance upon official means of facilitating democratic accountability. Indicative of this development is the 20th century supplementation of traditional Westminster mechanisms of accountability with administrative law institutions such as the Commonwealth Ombudsman. These supplementary review processes and institutions of ‘new administrative law’ aim to render the application of discretionary decision-making by government administrators transparent and fair to the individual citizen. This was the primary vision of the Kerr and Bland Committees which framed the need for administrative review agencies against the background of the protection and promotion of individual citizen rights.

In 2009, Australia experienced a record ‘high’ of 36 487 personal insolvencies. The magnitude of this figure, which represents all bankruptcies, debt agreements, and personal insolvency agreements in that financial year, is augmented when placed in the context of the 300 per cent increase seen in the number of Australian personal insolvencies between 1990 and 2009. This growth far exceeded the 28 per cent increase in the Australian population during that period. It is indisputable that personal insolvency is affecting a growing number of Australians.

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.

The well known writings and other contributions of Professor Zines on the High Court's interpretation of Australia’s Constitution and public law generally have justly earned him the admiration and deep respect of eminent jurists both within Australia and abroad. His interests extended to courts in other western liberal democracies.

In a book based on a series of lectures delivered at the University of Cambridge under the auspices of the Smuts Memorial Fund, Professor Leslie Zines ventured into a comparative study of, inter alia, the role of the courts in the United Kingdom, Canada, Australia and New Zealand. He noted that Canada, Australia and New Zealand share the common feature of the perplexing difficulty of pin-pointing an exact date when these countries obtained their independence from Britain. In other countries which were former British colonies, the date of independence could largely be identified by the date when the Union Jack was lowered and a new national flag was unfurled.

It is a great pleasure to contribute to a festschrift devoted to celebrating the 80th anniversary of our friend and colleague, Emeritus Professor Leslie Zines. His contribution to the study of Australian constitutional law is too well known to require any reinforcement from us. It spans a period of five decades. His principal book The High Court and the Constitution has been and continues to be at the forefront of constitutional scholarship since it was first published. That book and his other writings represent the distilled essence of much of his valuable and incisive understanding of the way the High Court interprets and should interpret, the Constitution – something which has held a life-long fascination for him. In his publications as in his many years of teaching, he displays not only a mastery of the technical and analytical aspects of public law, but a social and functional awareness that goes well beyond deriving the meaning and application of many provisions of the Constitution by the mere contemplation of the language used or by the canons of construction.

Constitutional theory and doctrine are important to our understanding and experience of government. No description of Australian government is complete without reference to representative democracy, responsible government, separation of powers and the rule of law. Those and other theories also have substantial practical impact. Courts refer to them in developing legal principle and deciding cases. Legislators are reminded of them in framing laws. They structure transactions between the different institutions of government. The community is also influenced by them in evaluating the performance of the institutions of government.

The most important doctrine in analysing government legal accountability is the separation of powers. The essence of the doctrine is that parliament makes law, the executive administers it and the judiciary – in the context of adjudicating individual disputes – decides whether the law has been correctly construed and applied. This three-way division of functions avoids the undue concentration of power in any one branch of government, enables each branch to counterbalance the others, and ensures that legal disputes about government power are conclusively resolved by an independent judiciary.

The rule of law is fundamental to our society. Certainty about what the law is, is important to the rule of law.

Those whose activities may be affected both by Commonwealth laws and by State laws need certainty about whether the Commonwealth law overrides, or is subject to, State law. Those who administer Commonwealth law or State law need certainty about the relationship between the two. To participate in law-making on an informed basis, law-makers need certainty about what will be the legal effect of legislation which they enact.

The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. This area of law has recently undergone an extensive restatement by the American Law Institute (‘ALI’) and been the subject of legislative attention in all Australian states. In the light of these developments this essay sketches some essential issues relevant to factual causation which apply not only to the tort of negligence but throughout the law.