“But it was inherent in the very nature of the medium which they had selected for their own self-defence that it could not be reserved for the exclusive use only of their own class. The law, in its forms and traditions, entailed principles of equity and universality which, perforce, had to be extended to all. sorts and degrees of men”.

The extent to which the motives of providers and recipients (of care) diverge can be seen in the nursing home market – nominally under regulation, but at the worst deteriorating into a real estate market with revenue generating aged persons attached to the property like serfs to the manor.

The profit making people in the nursing homes know full well how to be quite ruthless and brutal in trying to mobilize emotional responses in the community against a government so that they can exploit the taxpayer by forcing a government into paying out more money … when it suited the private commercial nursing home people, patients were moved on litters out of their nursing homes to the edge of the footpaths of the street outside the homes. It was arranged for the media, particularly the visual media, to cover the whole exercise. All sorts of emotional displays were indulged in.

I shall begin with a riddle, in fact three riddles:

1. 1 What sort of interest in land is held as an estate in fee simple but is inalienable?

2. 2 What sort of interest in land is held by a registered proprietor who has no power to make decisions relating to it, except with the consent of another, and who must act at the direction of that other?

3. 3 What sort of interest in land does not carry with it ownership of minerals but can preclude mining thereon?

The answer to each of these questions is — Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”).

The purpose of this paper is not to trace the course of judicial history in this country, from the robust assertion of the Privy Council that the colony of New South Wales “consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions” to the judgment of Blackburn J in Milirrpum v Nabalco Ply Ltd.

On 26 February 1982, the Government of the Commonwealth of Australia formally recognised the European Communities (EC) as a subject of public international law and granted accreditation to the Communities’ permanent delegation in Canberra. The delegation had been in place since April 1981. Australian representation in Brussels began in 1960 with a view to maintaining its Commonwealth tariff preference in the United Kingdom upon occasion that the British should decide to join the Common Market. Largely due to concern for the Commonwealth arrangements, the United Kingdom did not join the Common Market until 1973. At this point, the more developed Commonwealth nations were placed behind the Member States of the EC in the line of suppliers of the United Kingdom's import needs. Recognising the mutual desire to minimise the disturbance in an established trade channel, the then Vice-President for External Affairs of the EC Commission, Sir Christopher Soames, visited Canberra and arranged for regular high level consultations to be undertaken to ensure the smooth adaptation and continuation of Australia-EC trade.

In maintaining the distinction between capital and income first instituted by legislation nearly two centuries ago, the courts have occasionally faced intractable problems where pragmatism has necessarily triumphed over analysis. Sir Owen Dixon's famous Sun Newspapers test for distinguishing between revenue and capital outgoings is one example, where in reality a number of unweighted considerations were suggested, with but vague illustrations for their application. The proper manner of apportioning outgoings, and the role of purpose and intention, are others. Yet a fourth, and the subject of this paper is the characterisation of receipts derived from the sale or loss of intangible rights.

Although the Administrative Appeals Tribunal (hereafter referred to as the AAT) does not enjoy an express power to review policy considerations taken into account in reaching a decision under review, such a power has been taken to have been impliedly conferred by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (hereafter referred to as the AAT Act).

Section 43(1) empowers the Trjbunal to exercise all the powers and discretions conferred on the decision-maker whose decision is subject to review. It empowers the Tribunal to affirm, vary or set aside the decision under review, and to make a decision in substitution for the decision so set aside or to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. Section 43(6) provides that the decision made by the AAT in substitution for the decision made by the original decision-maker shall be deemed to be a decision of the original decision-maker.

In any field of law . . . there may arise the rare “landmark” case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law.

The imprecise contours of the… principles [of implication of due process] prevent their easy application. To apply them too sweepingly requires the dilution of due process requirements to accommodate the protection afforded the property interest holder to the inescapable and practical needs of government. To apply them too narrowly requires the sacrifice without due process of many highly valued expectations to accommodate their holders to the only marginally significant needs of government.

When the 1983 amendments were made to the national companies securities legislation, it was stated in the accompanying explanatory memorandum that one of the purposes of the new provisions was to “abolish the doctrine of ultra vires” — an ambitious aim given the tenacity of the doctrine despite widespread criticism on many grounds, perhaps best summed up in the comment, “[u]ltra vires was the expression of a social policy that failed.”

Of course, it has now been realised that the 1983 amending Act did not achieve its stated purpose. It may have achieved a partial elimination of the doctrine but it has left a large area for its continued operation in a different form and in some respects has opened new opportunities for development.

These aspects are explored below but it should be noted here that one curious side of the new provisions is that no explanation was offered of the defects in the previous statutory provisions, ss 67-68 of the Companies Act (Cth) (“the Act”) and its forerunner, s 20 of the State uniform companies legislation, nor was it explained how the new ss 67-68 were intended to remedy those defects. The new regime was simply offered as a better general solution to the ultra vires problem. Unfortunately, in this case, it is not the final solution.

In a federal system there is a constant need to resolve problems created by conflicting provisions of laws enacted by. the federal legislature and those enacted by a state or provincial legislature. In the case of a unitary system it is merely the question of a later statute conflicting with an earlier statute enacted by the same legislature, and in such an instance, the conflict is resolved by regarding the earlier law as having been impliedly repealed by the later law.

In the Australian federal system the conflict is resolved by resorting to the express provisions of s 109 of the Commonwealth Constitution, which reads as follows:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The possibility that an Australian State might one day seek to unilaterally secede from the Commonwealth has always held an ambiguous position in the political and constitutional folklore of Australia. On the one hand, such a notion conjures up visions of rampant political idiosyncrasy so ludicrous as to provoke little more than amused disbelief. On the other, even to pose the conceptual question of the disintegration of the painstakingly constructed and laboriously maintained Australian federal structure is to raise an issue almost too distasteful to contemplate. The status of secession as both a political and constitutional topic has thus essentially been that of a joke, but of a joke which, when fully considered, might be regarded as being in thoroughly bad taste.

A number of questions concerning the construction and application of section 57 of the Constitution have now been determined by the High Court. The purposes of this note are to examine critically some implications of these answers and to direct attention to some other technical questions that could arise in the future. The special interest of the writer in these matters arises from the fact that he was closely involved in the preparation of documents in relation to the double dissolutions of 1974 and 1975 and the joint sitting of 1974.

It is not within the purposes of this article to discuss generally the extent to which the Governor-General may be entitled to exercise a personal judgment or discretion in granting or refusing a double dissolution. That is a matter of constitutional propriety rather than the justiciable constitutional law with which this article is concerned.

Industrial Law (Cth) – Restraint of State industrial commission jurisdiction – Validity of restraining order – Necessity to specify what matter is removed from State jurisdiction – Requirement of interstate industrial dispute for valid restraining order – Relationship between matter and parties – Validity of empowering Commonwealth provision – Conciliation and Arbitration Act 1904 (Cth) s 66

Most High Court decisions which touch upon the Australian Constitution are posthumously examined in academic literature. Some, though too few, have been subjected to more lengthy and detailed analysis. The Franklin Dam case is not an exception. Within eighteen months, it has consumed a substantial number of pages of commentary. Prominent are discussions concerning specific constitutional powers — corporations, race, external affairs and nationhood — and prohibitions — ss 51(xxxi) and 100 and implied restrictions. General premises and themes which underlie the processes of constitutional adjudication have attracted rather less attention. There has been some enunciation of interpretative principles and discussion of the political dimensions of judicial review. Further elaboration would be invaluable. Perhaps, commentators are waiting for the dust to settle before advancing to these, and other, more nebulous aspects of constitutional decision-making. When they do so, the dimensions of Australian constitutional law scholarship could be irretrievably enhanced.

Taxation — Assignment by deed of share in partnership — Effect of assignment on accumulated partnership income — Income Tax Assessment Act 1936 (Cth) ss 92, 95, 102.

Michael Bernard Galland (“the taxpayer”) carried on practice as a solicitor in partnership with his father, under the name of “Bernard L. Galland & Co” (“the partnership”), during the 1979-80 year of income. The partnership agreement provided, inter alia, for the equal division of profits and losses which were to be ascertained in July after the preparation of accounts in respect of the previous financial year.

Industrial law – Victorian award relating to notification and consultation by employers in relation to proposed technological change – Applicability of principles under the Conciliation and Arbitration Act 1904 (Cth) – Current status of traditional dichotomy between industrial matters and managerial prerogative – Commercial Clerks Award Clause 39 – Industrial Relations Act 1979 (Vic) ss 3(1), 34(1) – Conciliation and Arbitration Act 1904 (Cth)