On the evening of 18 November 1976 the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 passed through both Houses of Federal Parliament in less than three hours. The Federal Government claimed that the Act was urgently needed to protect the Australian national interest, which was said generally to be threatened by attempts being made to gather evidence in Australia for use in large-scale litigation in the United States of America arising put of an international uranium cartel The Parliamentary debate did little credit either to the Government or the Opposition. It is necessary to go beyond the Parliamentary Debates to make an informed assessment of the Act. When the facts are examined it becomes clear that the Government's claim that the situation was urgent was unfounded, that the appeal to the national interest was at best highly questionable and that, because of the availability of appropriate judicial process, legislative action was unnecessary. The Act is alarmingly vague and reposes wide discretionary powers in the Attorney-General. Its passage and operation have quite disturbing implications for parliamentary democracy and the principle of open government. Where uranium is concerned the Federal Government is showing an increasing tendency to use the Parliament as a cipher.

In this article Professor Heuston reminisces on the distinctive functions of the judge and of the teacher of law. Each has a contribution to make and each is dependent on the other to a greater extent than either may be prepared to admit.

The traditional function of the judicial process in adjudicating upon the existence of rights and obligations between defined persons or classes of persons will continue to be discharged by the judiciary. There are risks involved in an extension of the role of judges beyond that traditional function. Mr Justice Brennan argues that these risks must in appropriate cases be accepted, otherwise the judiciary itself may become irrelevant to the community which it serves.

Recent assertions by the Australian States of a right to participate in the foreign policy process, in particular by the conclusion of international agreements and by the establishment of relations with foreign governments, are examined in the light of constitutional and international law. Some reference is made to Canadian and United States precedents.

The author concludes that the Federal Government has, to a large extent, an exclusive executive and legislative competence in matters of foreign relations. However, the States also have certain legitimate concerns and aspirations in such matters. The way in which these State interests can be met, while maintaining a unified Australian voice, is discussed, with particular reference to the new arrangements for co-operation between the Commonwealth and the States in treaty-making, agreed to at the Premiers’ Conference in 1977. The way in which the Commonwealth uses its constitutional powers, as well as the responsibility which the States show in the exercise of their powers in relation to treaty implementation, is likely to determine the course of future constitutional development in this area.

In Australia there are nine bodies of legislation; Commonwealth, State and Territorial. The laws within each of these systems may differ from each other in significant ways. Such differences, especially when occurring in areas of “technical law”, may cause considerable inconvenience to Australians and to their legal advisers. In social and economic terms, for many purposes Australia is a single nation, and is not divided by State boundaries. Enactment of uniform laws in each part of Australia could lead to much greater convenience for businesses, individual citizens and lawyers.

This article examines some of the ways in which international organisations and bodies within other federal nations have been working towards the unification and harmonisation of rules of law, in selected areas. From this examination, some parallels are drawn with the situation in Australia. The article also makes some suggestions for greater uniformity of laws in Australia against the political background which may explain why law in Australia has come to be diverse.

With the development and widespread use of computer technology difficult questions relating to the legal protection which may be given to computer “software” must be considered. In this article Mr Lahore examines the existing law relating to intellectual property and discusses whether the Patents Act 1952 (Cth) and the Copyright Act 1968 (Cth), as they have been and may be inter-preted and applied, provide suitable and adequate protection for this computer software.

During 1978, the High Court of Australia and the New South Wales Court of Appeal handed down decisions which announce a departure from the long-standing rule that decisions of the Privy Council bind all Australian Courts. In this article, Mr Geddes analyses these decisions and considers their future impact on the authority of Privy Council decisions in the various courts which make up the Australian judicial hierarchy.

This article explores the concept of “fundamental law” as it relates to the Australian legal system. Concentrating in particular on constitutional law and the special place in that body of law of the doctrines relating to amendment of the Federal and State constitutions, Dr Lumb examines the source of the power to amend the constitution, the limitations on that power and the aspects of our legal system which may be beyond the power to amend. It attempts to discover those elements of our constitutional systems which are so fundamental that they may not be materially altered by any form or process of constitutional alteration.

The relationship between ultra vires and negligence in a statutory body has become important as a result of recent House of Lords decisions. In this article this relationship is examined and found to contain some serious difficulties. A solution to these difficulties is proposed.

Over the last three years the Commonwealth has enacted four statutes with the aim of overcoming some of the deficiencies which exist at common law in the reviewing of administrative action. These are the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Appeals Tribunal Amendment Act 1977 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). This article examines in detail the Administrative Decisions (Judicial Review) Act 1977 (Cth) in order to determine whether the common law rights and remedies have been improved.

In this article, Mr Rumble examines the 1977 amendments to the Trade Practices Act’s definitions of the words “supply”, “corporation” and “consumer” and their relationship to that part of the Act which gives contractual protection to consumers. The definition sections are tested against the policy goals identified by the Swanson Committee and against the general need for simplicity in consumer protection legislation. The verdict is unfavourable. It is demonstrated that the definition sections have some anomalous results. Mr Rumble argues, further, that the definition sections are a quag of ambiguity and specific areas of uncertainty are discussed to illustrate this argument.

Mr Rumble suggests that contract protection be taken out of the Trade Practices Act and incorporated in its own legislative framework.

The author of this article argues that whilst a desire for uniformity and certainty in taxation law is both desirable and necessary, it should not and cannot be achieved simply by extrapolating general property and trust concepts and authorities into taxation law. Conversely taxation authorities cannot mechanically be cited as supporting property and trust principles. The result of simple extrapolation not only inhibits effective judicial response to tax avoidance by by-passing important policy considerations but also creates uncertainty by obscuring the real reason for the decision.

In this article the author exhaustively examines the decisions of both the Trade Practices Commission and Tribunal and abstracts from them a number of general conclusions which are of invaluable assistance in interpreting section 50 of the Trade Practices Act. This discussion is particularly apposite in the present economic climate when the merger is increasingly popular, especially as the Act has only been recently amended. The author concentrates on “market definition” in all its permutations and discusses the various indicia of altered competition levels and the consequent likelihood of success of a merger application. As the author points out in his conclusion, attention to such details amply repays the effort involved when viewed against the backdrop of sanctions which the Act contains against those who infringe it.

The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court’s recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr lustice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.