The Australian High Court has in general rejected the use of extrinsic historical material in the interpretation of the Constitution. Though it has consistently claimed that in interpreting a Constitutional provision it is giving effect to the intentions of the founders, it has not been prepared to turn to the convention debates, draft constitutional bills or other primary records in order to ascertain the founders' intentions. The intention is to be ascertained from the ordinary and natural meaning of the words themselves, relying on the proper legal methods of construction and interpretation. However, even when this rule was considered to be settled doctrine there were exceptions. In those cases where the words were ambiguous the Court could turn to the drafts of the Constitution “as a matter of history of legislation”. As well, convention debates could be referred to “for the purpose of seeing what was the subject matter of discussion, what was the evil to be remedied, and so forth”.

Invented by Thomas Edison, the electric light bulb was the subject-matter of United States Patent Number 223,898 granted on 27 January 1880. The electric light bulb has come to be recognised universally as the symbol of invention. Patent claims providing for a compact fluorescent light bulb have, over one hundred years later in the N. V. Philips Gloeilampenfabrieken and Another v Mirabella International Pty Ltd litigation, been held by a court at first instance and two appeal courts to be not claims for a “patentable invention” under s 18 of the Patents Act 1990 (Cth).

Anglo-Australian patent law has been vigilant to deny patentability where, on the face of the specification, a claim is “nothing but a claim for the use of a known material in the manufacture of known articles for a purpose of which its known properties make that material suitable” — referred to herein as an “analogous use” claim.

The legislative prohibitions on the parallel importation of copyright material should not survive the new technological developments in the transmission of that material. Australian copyright law should come to grips with that reality and remove the existing prohibitions. Yet the adoption of current proposals for the amendment of copyright law may lead to a situation in which copyright owners could effectively prevent parallel importing. This could be done by copyright owners even if the existing statutory provisions specifically aimed at preventing parallel importing were repealed.

This article looks at the justifications for prohibiting parallel importing and the strength of those justifications in the light of new or developing means of distributing copyright material. Those justifications have been seriouslr questioned in recent years by a series of reports of the Prices Surveillance Authority (PSA) which has criticised the continuing prohibition of parallel importing. The criticisms in these reports have not made any detailed reference to the effects that changes in technology will have on the means of distributing copyright material. Those criticisms, combined with the impact of new technology, tip the balance of the debate concerning parallel importing in favour of permitting parallel importing.

This paper argues that there is a fundamental concept implicit in the interpretation of the Australian Constitution which postulates that that document should be approached from the perspective of what I have called for convenience “One Australia”. It is a concept which suggests that the Australian courts should, where appropriate, take into account that Australia is one nation and one people operating under a “unitary” system of Australian domestic laws. It arises from the evolution of Australian nationhood and from the increasingly interdependent nature of Australian society. It is suggested that this concept is already exerting an influence on judicial decision-making in this country, to be balanced with other constitutional fundamentals, including that of the federal system. However it is also asserted that the full implications of “One Australia” have not as yet been determined. This is particularly so in relation to Commonwealth territories and their residents. The latter have in the past been generally regarded as being of little importance, both constitutionally and otherwise.

These exasperated words were uttered by John Quick on Wednesday, 2nd March, 1898, in the concluding stages of the Australasian Federal Convention Debates that led to the formation of the Australian Constitution. Quick wanted a definition of citizenship in the Constitution. The Commonwealth, he argued, should have power to deal with Commonwealth citizenship, and membership of the Commonwealth; he advocated a “common citizenship for the whole of the Australian Commonwealth”. His proposals were rejected.

Story was there commenting on Art 1 § 5 CI 1 of the United States Constitution which provides that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members”. In the United States, the Supreme Court has held that in exercising the power to judge elections, returns and qualifications of its members, the Senate acts as a judicial tribuna1. In Buckley v Valeo, it was noted that Art 1 § 5 CI 1 conferred power judicial in character, rather than legislative.

McGinty v Western Australia is a significant indicator of present and prospective attitudes of the High Court to major issues of representative democracy, such as electoral representation and equality. In affirming by a majority that substantial numerical voter inequality in Western Australian state electorates did not infringe a concept of representative democracy in either the Commonwealth or the Western Australian constitutions, the court went beyond a refusal to overturn AG (Cth); Ex Rel McKinlay v Commonwealth of more than twenty years earlier.

In McKinlay, a voter had sought a declaration that s 19 of the Commonwealth Electoral Act 1918 (Cth), which permitted a variation of 10 per cent of the number of electors above or below the quota for a state's seats in the House of Representatives, was invalid on the grounds that it offended the first paragraph of s 24 of the Commonwealth Constitution. The High Courts held that s 24 did not require that the number of people or the number of electors in electoral divisions be equal. In other words, it was found that the Commonwealth Constitution did not mandate a principle of one vote, one value.