The introduction of ‘no-fault divorce’ in Australia in 1976 promised unhappy spouses a ‘dignified’ way to end their marriage without the need to assign responsibility for the relationship's demise. But in 1989, Richard Ingleby's study of matrimonial breakdown hinted that the reformers of the 1970s had failed to appreciate the non-mutuality of the uncoupling process, and that the Family Law Act 1975 (Cth) ('Family Law Act’) had not been ‘able to prevent divorcing parties feeling the need to consider issues of fault'. Since that time a growing body of research evidence has revealed that blame and recrimination remain salient issues for divorcing couples, and academic commentators have suggested that battles over children and property are often proxies for unresolved relationship grievances. In this climate, legal scholarship has witnessed a renewed interest in the issue of spousal conduct, with radical proposals to construct ‘disloyalty’ in marriage as a legally relevant matter in divorce settlements, and consumers of the family law system have called for the law to pay greater heed to the moral dimensions of intimate relationships.

In July 2006, the Family Law (Shared Parental Responsibility) Act 2006 (Cth) ('the SPA’) came into operation, effecting wide-sweeping reforms to the Australian family law system. The reforms included amendments to Part VII of the Family Law Act 1975 (Cth) ('the FLA’) that seek to promote parental involvement with children and arrangements for equal or substantial shared care. While these changes apply to new orders made on or after the commencement of the legislation, in the case of applications for variation of existing orders, the changes only apply if the applicant can show some significant change in circumstance since the time of the making of the original order. This threshold requirement of changed circumstances is known as the rule in Rice and Asplund ('the Rule’). This Rule has been in operation for more than 25 years and its continued application has been expressly provided for in Schedule 1 Part 2 of the SPA. In this way the Government, acting upon concerns expressed by the Family Court, hopes to contain any increase in applications for variation.

Sometime after 1992, I first learned that the High Court of Australia had discovered that the Australian Constitution contained something that sounded very much like a freedom of speech guarantee. And the reasoning that supported that discovery sounded like the philosophy of Alexander Meiklejohn which I had been teaching in a seminar on Free Speech for several years.

Although Meiklejohn was talking about the United States Constitution, he was not emphasising the words of the First Amendment thereto. Drawing upon pre-Bill of Rights commitments recorded in various historical documents, Meiklejohn's view was that the framers of the United States Constitution had made a covenant with each other to build a democracy in which the people were both the governors and the governed. Freedom of speech, according to Meiklejohn, was necessary to make a democracy, and that was all that freedom of speech was designed to do.

From the time of the Statute of Monopolies 1623, 21 Jac 1, c 3 ('Statute of Monopolies’), the flexible concept of a ‘manner of manufacture’ was understood to involve some form of limitation which was expressed in the statute as being ‘mischievous to the State … or hurt of trade, or generallie inconvenient'. Years of judicial consideration resulted in various classes of subject matter being carved out as unpatentable. Apart from non-contentious material such as discoveries, ideas and principles of nature, these classes included methods of medical treatment for humans, horticultural and agricultural methods, computer programs, presentations of information, plans and business schemes. The classes were relatively clear by 1959 when the High Court in National Research Development Corporation v Commissioner of Patents was asked to judge the patentability of an invention in an excluded class, namely a horticultural method. The trouble was that there were no consistent rationales to justify the excluded classes and to distinguish patentable from non-patentable subject matter.