The Australian National University, the Sir Robert Menzies Memorial Trust and the University of Virginia Law School have established an annual Menzies Lecture Series. The Lectures are held in honour of Sir Robert Menzies and mark his contribution to the law and public life. The Lectures are given in alternate years at the Law Schools of the University of Virginia and the Australian National University. The Lectures will be published in the “Federal Law Review”. The first Menzies Lecturer was The Honourable Sir Anthony Mason of the High Court of Australia who visited the University of Virginia in October 1985. The following article is based on Sir Anthony’s lecture.

The enactment of legislation to sever the remaining constitutional links between the United Kingdom and Australia makes it desirable to address the question as to why Australia's Federal Constitution should be regarded as an instrument of higher law and thus legally binding. The answer which one gives to that question may be significantly different to the answer which a lawyer is likely to have given when the Commonwealth of Australia Constitution Act 1900 (UK) was enacted.

A possible answer to the question was suggested by Sir Owen Dixon in a well known lecture delivered by him:

The effect of a recent decision of the High Court of Australia in Foley v Padley is to severely curtail the extent of judicial review of the exercise of discretionary prohibitions. In the light of this decision, the Question of the nature of a prohibition contained in subordinate legislation when coupled with a dispensing power becomes of more than academic interest. In Foley v Padley, the effect of an empowering provision referable to the opinion of the subordinate legislator (a municipal council) was considered in relation to a broad unfettered discretion to dispense with a prohibition. Thus this decision brought directly into issue the role of the administrator/ policy-maker as against the rights of an individual.

In brief, Foley v Padley decided that a dispensing power attached to a power to prohibit in a by-law was a valid condition of the power to prohibit, thus following the decision in Country Roads Board v Neale Ads. As the decision of the High Court in Swan Hill Corporation v Bradbury was the last occasion on which this issue had been fully considered by the High Court one can only lament the passing of an opportunity to re-open the debate as to dispensing powers.

One of the most crucial and yet challenging problems which faces Australian competition lawyers is the definition of the scope of the terms “contract”, “arrangement” and “understanding” in ss 45 and 45A of the Trade Practices Act 1974. Section 45 proscribes contracts, arrangements or understandings which have the purpose or effect of substantially lessening competition in a market. Section 45A then expands on s 45 by providing that contracts, arrangements and understandings which “fix” prices are deemed, for the purposes of s 45, to have the purpose or effect of substantially lessening competition in a market.

The terms “contract”, “arrangement”, and “understanding” are not defined in the TPA and thus the legislature has left the matter of interpretation “at large”. Determining the boundaries of concepts such as “arrangements” and “understandings” is no easy task, especially when the focus of the enquiry is on the parallel behaviour of participants in concentrated markets.

There is a growing awareness in Australia that current laws are inadequate to protect the increasing industrial application of biotechnology. To overcome these difficulties there is a need for co-operation both nationally and internationally. The Biological Control Act 1984 (Cth) and the Patents Amendment Act 1984 (Cth) are indicative of a trend towards this end.

The Biological Control Act 1984 (Cth) involves co-operation between the Commonwealth and the States to overcome gaps in the Commonwealth's power, while the Patents Amendment Act 1984 (Cth) involves international co-operation under the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedures 1977. Whereas the Patents Amendment Act 1984 (Cth) extends and secures the patent protection available for biotechnological inventions, the Biological Control Act 1984 (Cth) aims to protect certain scientific endeavours from undue interference from the law itself.