Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.

In most Australian jurisdictions there are limitations on the time within which proceedings for judicial review of governmental acts (or for particular remedies) are to be commenced. Some such limitations are imposed by statute, some by rules of court. In some cases the relevant court of supervisory jurisdiction is authorised to extend the time. But in other cases there is no discretion to extend the time.

This article examines the justifications which have been offered for imposition by legislation of limits on the time within which applications for judicial review are to be made. It surveys Australian legislation on the subject and examines the legal effects of such legislation. The article also considers reasons why it may be thought desirable to give courts authority to extend prescribed time limits and the associated question of whether exercise of that authority should be regulated by legislative standards. The article also examines the factors which the Federal Court has considered relevant in the exercise of its discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act‘), a section which is substantially reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).

In Ghaidan v Mendoza, the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights. The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant ‘as his or her wife or husband’, should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case. Section 2(2) was interpreted as applying to a person living with a tenant ‘as if they were his or her wife or husband’, despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.

During 1999 and 2000 considerable attention was focused on an inquiry conducted by the broadcasting regulator, the Australian Broadcasting Authority (‘ABA’), into the commercial arrangements of a number of commercial radio presenters associated with talkback radio. In May 1999, an Australian Broadcasting Corporation (‘ABC’) program, Media Watch, alleged that, John Laws, a presenter with Sydney Radio Station 2UE, had financial arrangements in place with an organisation representing the major Australian banks, the Australian Bankers' Association. It was alleged that the effect of these arrangements was that Laws would broadcast positive comments about the banks. These comments were independent of any paid advertising run by the station for the banks or the Bankers' Association. Following the Media Watch revelations, the ABA announced that it would conduct an inquiry into the allegations in order to determine whether there had been any breach of the Broadcasting Services Act 1992 (Cth) (‘BSA’) or the licence conditions or codes of practice to which Radio 2UE was subject.

Recognising the importance of species diversity in conserving and exploiting plant genetic resources for food and agriculture, international and domestic arrangements have attempted over the decades in situ conservation, ex situ germplasm collections and germplasm exchange mechanisms. These initiatives established valuable resources for the development of new crop and forage plant varieties but there were no uniform or binding arrangements for conserving and accessing these resources. A more formal and uniform arrangement to both facilitate the conservation and exchange of some crop and forage plant genetic materials and share the benefits is now addressed in the International Treaty on Plant Genetic Resources for Food and Agriculture (‘PGRFA Treaty’). The Food and Agriculture Organization of the United Nations (‘FAO’) adopted the PGRFA Treaty in 2001, although it has not yet entered into force. A separate and distinct PGRFA Treaty was the culmination of the re-negotiation of the United Nations' International Undertaking on Plant Genetic Resources for Food and Agriculture recognising ‘the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions’.