In this article Ross Cranston discusses the changing nature of Federalism, tracing its development and examining possible characterizations of its basis. After reviewing the elements of “co-operative” and “coercive” Federalism, the author turns to “New Federalism” and what that means in terms of the Fraser government. He concludes that disputes over financial and other intergovernmental agreements are best left to the political sphere with the High Court acting in a supplementary role because of the inherent untidiness of a Federal system of government.

Individuals and organisations are frequently required to provide public agencies with information about their affairs which they would not wish disseminated to others. Income tax returns represent one illustration. From time to time attempts are made to compel the recipient public agencies to produce such material as evidence in court proceedings. The agency may resist disclosure on the basis of a statutory secrecy provision and/or a claim to Crown privilege. The court is thus required to resolve a conflict between competing public interests: the public interest in the proper administration of justice, and the public interest in the ability of the agency to maintain the confidentiality of information entrusted to it. Professor Nettheim considers a number of decided cases and concludes that, on the whole, the courts have failed to develop a body of principles adequate to deal with the situation. In particular, established Crown privilege doctrines about waiver and secondary evidence are inappropriate in this context. The author puts forward a suggested model of principles and procedures, and notes that similar issues may arise for adjudication under Freedom of Information legislation, particularly in the form of the “reverse FOIA lawsuit”.

The Federal Court of Australia has only the jurisdiction conferred on it by statute. However, many disputes falling within that jurisdiction, particularly in trade practices matters, will also involve elements of common law or other State or federal statutory law. Section 32 invests in the Federal Court additional jurisdiction in some such cases in respect of “associated matters”. This may be compared with “pendent jurisdiction” developed by the federal courts in the United States. The object of this article is to analyse the meaning of the term “associated matters” and to consider the bearing it has upon the future relationship between the Federal Court and the various State courts.

The author first discusses the statutory framework which has led to the divided jurisdiction over matrimonial property in Australia. This is followed by an examination of the problems that this division creates, such as delay in settling property disputes, jurisdictional conflict when one spouse unilaterally seeks a “State” remedy, and evasion of the intention behind the legislation to divide matrimonial property equitably between the parties. Some of the mechanisms like gifting and trust arrangements by which a spouse may rearrange his affairs to insulate himself from the jurisdictional reach of the Family Court are examined. The limitations of the injunction power under s. 114 of the Family Law Act 1975 (Cth) are exposed and following this the author speculates about the scope of s. 85 of the Act which attempts to empower the Court to set aside transactions designed to avoid the provisions of the Act. He concludes that the powers of the Family Court are uncertain and limited and that the only real solution would lie in a reference of power in this area to the Commonwealth by the States.

In this article the author examines the expanding rôle which public interest groups can play in decision making in our society. He discusses the proposals of the Law Reform Commission to ease the present rigid locus standi requirements and points out that the main issue is not access to the courts but to government itself, and that various matters which he then investigates control public access. He concludes by suggesting several ways in which the present situation may be modified and improved.

Mr Murray-Jones is concerned to re-examin,e the rules which have developed with respect to the interpretation of s. 109 of the Constitution. He looks first at the “cover-the-field” test enunciated by Isaacs J. and its subsequent application by the High Court. He moves on to discuss a second test propounded by Dixon J. which would strike down State laws which altered, detracted or impaired the operation of a Commonwealth law. These tests are, of themselves, insufficient to meet the difficulties and a number of subsidiary tests for direct inconsistency, some of doubtful validity, are critically scrutinized. The position seems clear when the conclusion can be reached that the Commonwealth intended to provide a single, nation-wide code to regulate a particular area. When criminal proceedings for an offence which contravenes both State and Commonwealth law are considered, complications with respect to differing offences and penalties can frequently arise and the author concludes that the difficulties still require satisfactory resolution. One suggestion is that the CourtS' should more clearly articulate the various factors }vhich they take into account when reaching th,eir decisions.

Dr Galligan examines the origin of judicial review under the Australian Constitution through an catalysis of the Conventions and Conferences preceding its drafting. A political scientist, he disputes the claim that there is no basis for judicial review in the Australian federal system and argues that the intention of the founders, influenced by Inglis Clark, was to create a powerful American-style court primarily to interpret the Constitution in the resolution of federal disputes. As a case study of the founders' intentions he considers the debates and “solution” of the question of control of Australia's inland river system.

Mr Partlett is concerned to review the theoretical and practical place of government programs which positively discriminate in favour of groups on racial lines. He reviews the justification of this benign discrimination in relation to the notion of equality. He finds that the justification of benign discrimination depends upon its social realities. With reference to recent United States constitutional law developments he concludes that programs of benign discrimination must be closely justified to ensure that they do not trespass on certain fundamental rights and freedoms of the individual.

Australian government initiatives are then reviewed together with an appraisal of their legal standing under the various pieces of anti-discrimination legislation in Australia.

The author attempts to synthesise out of this discussion a strategy under which benign programs may be encouraged for the promotion of equality for aborigines, while at the same time the individual human rights of others are protected.

In this article Mr Justice Kirby outlines a number of important legal themes in the career of the former Prime Minister. Several issues were identified by him soon after Mr Whitlam entered Parliament and persisted with in Opposition and Government. Some of them led to important legislative reforms. The abolition of appeals to the Privy Council was achieved in part. The establishment of a new Federal Court, long predicted, has now been achieved. Major reform of family law and the establishment of a special Family Court was pioneered with the support of Mr Whitlam. The expansion of Commonwealth interests in commercial and business law coincided with facultative decisions of the High Court. The achievement of a single corporation law and of national compensation eluded the Whitlam Government but may yet be secured. The identification of the need for a new administrative law is instanced as the most original of Mr Whitlam's law reform preoccupations. The new body of Commonwealth administrative law was initiated during his Administration. This paper is a history not an evaluation. But it identifies a number of themes important for continuing law reform in Australia and illustrates Mr Whitlam's persistence, and in some cases successful action, towards achieving reform of the law.

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.

In this article Dr Lumb refers to the choice of the phrase “Commonwealth of Australia” to designate the new federal body politic established on the Australian continent and surrounding islands by the Constitution Act. He then attempts to show how the term “Commonwealth” appearing alone or in association with other words is used in different ways. He identifies an “instrumental” usage pursuant to which the term is understood as applying to the federal instruments of government, and an “organic” usage under which the term is used to refer to the Australian body politic or community. This ambiguous usage has had a considerable impact on judicial interpretation of the “federal balance” as is to be seen from the Australian Assistance Plan Case. The specific problems of the Territories as “parts of the Commonwealth” are examined in the context of the relationship between relevant sections of Chapter VI and earlier Chapters of the Constitution and some opinions are expressed on the sources of constitutional power relating to the Territories.

The introduction of Division 2A into Part V of the Trade Practices Act has brought Australia firmly into line with current thinking in the Western world on the liability of manufacturers. The new Division has two aspects. First, it provides consumers, and in some cases their successors in title, with a statutory right to compensation from manufacturers and importers in specified circumstances. Secondly, it grants to sellers of goods a right to indemnity from a manufacturer (or importer) where the latter is liable to compensate the consumer under this Division.

This article examines the likely effect that the introduction of Division 2A will have on the liability of manufacturers and importers of goods. The article commences by outlining the liability of manufacturers in Australia prior to the recent amendments. The operation and scope of Division 2A are then described. The article concludes by focusing on certain practical difficulties and problems of interpretation inherent in the new Division.