A Constitution cannot be applied without employing some theory of interpretation. An adequate theory—that is, a coherent method or approach—must address two fundamental, connected questions. In what sense are words in the text to be understood? How is ambiguity or uncertainty to be resolved? Resolution of these matters is logically prior to the determination of particular controversies.

Of necessity, judges have provided some answers to these foundational questions. But the issues have only begun to attract significant express attention in recent times, particularly in light of developments relating to implied rights. This new-found concern is not surprising, for the further one moves from considering clear and direct stipulations of particular text, the more important one's interpretational approach becomes. The theory of constitutional interpretation employed affects both one's readiness to recognise implications, and the nature and age of the sources to which reference is made in so doing.

Courts have recognised that the circumstances in which they may receive and make use of evidence of parliamentary proceedings are restricted. The restrictions have been held to be required by Article 9 of the English Bill of Rights 1689. This Article is part of the law of all the Australian polities and it gives expression to one of the most important privileges of parliaments. Article 9 provides

In Prebble v New Zealand Television Ltd the Judicial Committee of the Privy Council, on appeal from New Zealand, held that Article 9 does more than accord to participants in parliamentary proceedings an immunity from liability for statements made by them in the course of those proceedings. It means also “that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross examination, inference or submission) that the action or words were inspired by improper motives or were untrue or misleading”.

I do not understand how, by whatever words that proposition is dressed up, it means anything else except that section 117 does not apply if the Court does not want it to.

“Universities occupy a central position in a national innovation system” and the benefits of their research extend to having better educated students, developing a body of knowledge and effective transfer of that knowledge to users. This knowledge may generate intellectual property with, not only educational and research value for the university itself, but also commercial or applied potential.

Australian universities recognise the need to protect, allocate and exploit these intellectual property rights and have policies or statutes that govern the management of their intellectual property resources. They face at least three challenges in the process. The first is to formulate a policy that clarifies ownership and limits misunderstandings between the originators of intellectual property and the university Establishing the appropriate mix of rights is fundamental to the success of their intellectual property management programs and their reputation. If they claim too much, the originators may produce an inferior product or seek employment or studies elsewhere. If they are too generous and considerate of originators’ rights, they may fail to provide adequate protection for both university interests and those of the wider community.

The latest statement from the High Court on duties of excise poses an interesting question with regard to the fiscal relationship between Commonwealth and State governments. The absence of fiscal accountability in all levels of government in Australia serves to frustrate the objectives of the federal system. While the decision in Ngo Ngo Ha v New South Wales (Ha) brings some clarity to a confusing area, the High Court's adoption of a broad approach to s 90 of the Constitution has the effect of increasing the disparity between the revenue and expenditure of Commonwealth and State governments. In light of the economic and political implications of the decision, it must be asked whether the correct purpose has been attributed to the section.

In the past fifty years the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of “judicial power”, there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine.

Public awareness of the consequences of international law for Australians was highlighted during the battle in the 1980s to save the Franklin River in south-west Tasmania. That battle, which eventually resulted in the Commonwealth Parliament relying upon the provisions of the 1972 Convention for the Protection of the World Cultural and Natural Heritage to enact the World Heritage Properties Conservation Act 1983 (Cth), was finally resolved when the High Court of Australia in the Tasmanian Dain case upheld the validity of the legislation on the basis of the Constitution, s 51(xxix), the Commonwealth's external affairs power. This decision set off a sequence of events which resulted in subsequent High Court decisions that gave further scope to the external affairs power and which also gave the Hawke ALP government great confidence as to its ability to rely upon conventions and treaties, both bilateral and multilateral, as a source of legislative power.