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.

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.

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 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.