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.

The privative clause is dead, but there are other ways of reducing meaningful judicial scrutiny of government illegality. Pushed to the extreme, these threaten to hollow out judicial review's much-vaunted promise of protecting the rule of law, even on such a basic issue as the interpretation of an Act of Parliament. Other mechanisms for judicial supervision have also become more fragile. These include collateral challenge, and the potential for holding public officers to account through tort liability and criminal responsibility. ASIO officers, for example, have prospective immunities from tort law and criminal responsibility. Courts can act upon government evidence kept entirely secret from the opposing party. This article asks whether there is any stopping point for Acts that effectively remove government officers from legal controls.

The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?

This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading ‘originalist’ case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.

An objective of all industrial legislation in Australia is that employees victimised because of their participation in the industrial relations system should be able to obtain legal redress. Thus it is sought to give remedies for conduct which Isaacs J. pithily described as amounting to a demand by an employer to an employee of “give up your claim or give up your billet”. Dr O'Donovan exhaustively analyses how the legislation of the Commonwealth and each of the States protects employees from victimisation on account of their union or industrial activities. Differences between the protection and redress given by each piece of legislation are detailed, while the Commonwealth provisions and cases concerning them are highlighted. The article concludes by suggesting matters for reform in this important area of industrial law.

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.

This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism’—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal’s federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal’s federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.

Reflecting on the involvement of High Court judges in extra-judicial activity, former Chief Justice Murray Gleeson recently observed that ‘[w]ar seems to create special cases’. The historical record confirms this assessment. While High Court judges have, in peacetime, periodically engaged in government work outside the courtroom, most instances of extra-judicial service by our top judges have occurred during war. Thus, it is only during World War I that members of the Court have conducted Royal Commissions. In 1915, Justice George Rich inquired into the controversy – long forgotten today, but a source of much public concern at the time – over conditions at the Liverpool Military Camp, near Sydney. More surprisingly, in 1918 – only months after the Australian people had, for the second time in little over a year, rejected conscription at referendum – Chief Justice Sir Samuel Griffith inquired into the recruitment levels needed to sustain the Australian Imperial Force. By contrast, between the wars, the Court received many requests from the Commonwealth Government for a judge to serve as Royal Commissioner. These requests were uniformly refused.

This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.

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.

This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action.

Not so long ago, Australian electoral law was described as being in a Cinderella state, a neglected but promising field of inquiry. Some years down the track, it is clear that Australian electoral law is beginning to shed its Cinderella-status with scholars paying increasing attention to the legal regulation of elections.

In this burgeoning field, political finance laws assume critical importance. Indeed, it has been said that such laws probably pose ‘perhaps the central issue facing electoral law’. Arguably for this reason, this aspect of Australian electoral law, more so than any other, has been the subject of sustained scholarship. It is even showing signs of maturing into a distinct area of electoral law.

Section 75(v) of the Australian Constitution gives the High Court original jurisdiction to hear ‘all matters … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.’ This is said to guarantee the Court's ability to ensure that officers of the Commonwealth act within the law. Yet the s 75(v) jurisdiction is clearly limited. The Court is not authorised to hear all matters in which it is alleged that an officer of the Commonwealth has acted unlawfully; it is only given jurisdiction to hear matters in which a (somewhat surprising) selection of remedies are sought. This is confusing in itself, and it has caused broader confusion about the purpose and scope of this important constitutional provision. This article examines the historical ambit of the judicial review remedies and evidence from the Constitutional Convention Debates in order to determine why s 75(v) only gives the High Court jurisdiction to hear matters in which mandamus, prohibition and injunction are sought, and the significance of this for judicial review under the Australian Constitution.

In recent years, the Australian Securities and Investments Commission has placed considerable emphasis on the stepping stone approach as a device to establish officers’ liability in respect of corporate contraventions of the law. The approach represents a novel interpretation of the general duties of officers under the Corporations Act 2001 (Cth) (‘CA’). Despite the seriousness of the consequences for an officer that may follow from a finding of liability, the content and boundaries of the approach remain undefined. Critically, the courts’ heightened receptiveness to the approach and the judicial expansion of its scope departs from earlier judicial statements of caution sounded against using the general statutory duties as a mechanism to secure corporate compliance with the law. At a more fundamental level, it is doubtful whether the approach represents a legitimate interpretation of the general statutory duties, to the extent that it subverts several existing routes to officers’ liability and remedies under the CA. It is incumbent on the legislature to correct these inconsistencies by recalibrating the role envisaged for officers under the CA in line with contemporary expectations.

For a time, the discipline of Australian military forces provided an interesting study in the application of Imperial legislation. That feature of the system has fallen away at least since the enactment of the Defence Force Discipline Act 1982 (Cth) ('Discipline Act’). Since then, attention has been directed to the consequences of a tension between the necessary (or at least universally accepted) nature of military discipline and the values embedded in Chapter III of the Constitution.

Beginning a discussion of the Constitution and military justice in 2005, Mr Tracey observed:

Is fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal decentralisation, agreed to as part of a peace agreement signed in 2001 following a decade-long civil war in Bougainville, provided the opportunity for national consolidation. However, tensions surrounding the implementation of arrangements for budgetary support of Bougainville are forcing further fracturing. A definitive answer to the question of whether fiscal decentralisation helped or hindered nation-building will be provided by the referendum, due by mid-2020, when the people of Bougainville will have the option to vote for independence from Papua New Guinea.

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.

That conclusion was reached in the 1560 case of Stradling v Morgan, and may be taken to correctly state the law at that time. In its context, it is clear that the phrase ‘foreign circumstances’ was intended to refer not to the state of international relations, but rather to the use of extrinsic material in statutory interpretation.

Despite this early acceptance by the English courts of the use of extrinsic material in statutory interpretation, strident restrictions on the use of extrinsic material were later to be introduced into the common law. In discussing the principle that, ‘Parliament speaks only through an Act of Parliament,’ Dicey stressed the point that, ‘the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment.’