The history of Australian federalism is one of the steady accretion of power to the central institutions of government, in particular the Commonwealth Parliament. The continuing shift from the States to the Commonwealth of effective power to regulate so many aspects of Australia’s economic and social life has, in general, been accepted and encouraged by the justices of the High Court – at least since the critical Engineers’ decision.

This acceptance and encouragement has been most conspicuous on those occasions when the High Court has endorsed the Commonwealth’s adventurous exploration of its legislative powers; when, for example, the Court decided that the defence and taxation powers would allow the Commonwealth to assume an effective monopoly over income taxation, that the overseas trade and commerce power would allow the Commonwealth to discourage sand mining in Queensland, or that the external affairs power would allow the Commonwealth to proscribe acts of racial discrimination inside Australia.

Australia has, mercifully, been spared from revolutionary changes of grundnorm or “rules of recognition”, with their consequential appeals to “necessity”, of the sort which have plagued courts in Pakistan, lJganda, Ghana, Nigeria, Zimbabwe, the Seychelles and Grenada, among others. But that has not meant that arguments based upon extra-constitutional powers and prohibitions have been absent from Australian constitutional jurisprudence. Human ingenuity being what it is, commentators and even judges, undaunted by the absence of a tenable constitutional argument, have occasionally resorted to extra-constitutional notions.

This paper explores the boundary between constitutional rules and principles and extra-constitutional political notions. That boundary is, of course, indistinct because the constitution includes implied powers and prohibitions. Hence, opinions will inevitably differ as to whether a particular power or prohibition is implied in the Constitution and, thus, is constitutionally conferred or imposed, or alternatively arises (if at all) extra-constitutionally.

The Australian National University, the Sir Robert Menzies Memorial Trust and the University of Virginia Law School have established an annual Menzies Lecture Series. The Lectures are held in honour of Sir Robert Menzies and mark his contribution to the law and public life. The Lectures are given in alternate years at the Law Schools of the University of Virginia and the Australian National University. The Lectures will be published in the “Federal Law Review”. The first Menzies Lecturer was The Honourable Sir Anthony Mason of the High Court of Australia who visited the University of Virginia in October 1985. The following article is based on Sir Anthony’s lecture.

This paper will examine the principles governing standing to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and administrative review under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), with particular emphasis on standing problems in actions brought by individuals and organizations seeking to raise broad or non-traditional claims of public interest.

Even though the tests for standing under the ADJR Act and the AAT Act are formulated in different terms than the common law rules and were specifically drafted to broaden restrictive common law requirements, a review of decisions by the Federal Court and the Administrative Appeals Tribunal (AAT) shows that each has often limited itself to familiar common law concepts of standing, without clearly exploring whether such limits and the doctrines or policies which support them are appropriate to the form of review being exercised.

The common law “punitive” privileges against self-incrimination and exposure to a penalty have received renewed attention in a series of decisions concerning their application in such highly visible and sensitive contexts as Royal Commissions of Inquiry; investigation of corporate crime; police misconduct and economic regulation. Possibly less dramatic but no less fundamentally at issue is their application to the wider spectrum of rights and interests arising from, and affected by, the extensive administrative and discretionary powers in the hands of the executive and government officials.

Central to “this fertile new province of the law” is the Administrative Appeals Tribunal (henceforth referred to as the “Tribunal”). This appeal mechanism has been established at the Commonwealth level for the purpose of reviewing on the merits, decisions of administrators and thereby promoting fair and equitable decision-making principles.

Opening the Federal Government’s National Conference on Legislative and Award Restrictions to Women’s Employment in October 1986, the Prime Minister, Mr Hawke, reaffirmed the government’s commitment to equal employment opportunity, based on the belief that merit should be the major principle in determining employment and promotion. Yet he recognised that at present there are many obstacles to the achievement of that goal. One particular obstacle which limits women’s opportunities to participate fully in the workforce is the existence of a range of Federal and State legislative, regulatory and award provisions, which exclude women from certain occupations or industrial processes, prevent their advancement and contribute to a concentration of women at the bottom end of the labour market.

Occupational health and safety legislation in particular, is littered with discriminatory provisions. They relate to such matters as the handling of heavy weights, shiftwork, the provision of special amenities and facilities, lead processing, industrial processes, underground mining, and apprenticeship.

It has rarely been doubted that the courts, especially the High Court, have jurisdiction over disputes as to the scope of Commonwealth powers. Although the Constitution does not state specifically that these disputes give rise to legal issues or that the courts have jurisdiction over these questions, s 74 of the Constitution, which prevents appeals to the Privy Council from the High Court on inter se questions, which include questions about the scope of Commonwealth powers, without the consent of the High Court, indicates that the High Court at least has jurisdiction over these disputes. However, the Constitution does not set out the basis on which the courts’ jurisdiction over these questions rests, nor does it state who has the standing to raise them. In this paper I wish to consider the theoretical basis of the courts’ jurisdiction over these questions and consider the impact which different justi:fications for that jurisdiction have on standing.

The enactment of legislation to sever the remaining constitutional links between the United Kingdom and Australia makes it desirable to address the question as to why Australia's Federal Constitution should be regarded as an instrument of higher law and thus legally binding. The answer which one gives to that question may be significantly different to the answer which a lawyer is likely to have given when the Commonwealth of Australia Constitution Act 1900 (UK) was enacted.

A possible answer to the question was suggested by Sir Owen Dixon in a well known lecture delivered by him:

It is strange to think that the question whether the High Court of Australia can grant the writ of certiorari may still be characterised as “unresolved”. To judge from the treatment this issue has received from several commentators, it might be asseverated that the matter is “unresolved” because “unimportant”. This article will examine the heads of jurisdiction which might be invoked to sustain the granting of the writ by the High Court.

As well, it will be necessary to consider whether, as a matter of principle, certiorari can or should issue to a superior court of record such as the Federal Court of Australia. The decision in Re Gray; ex parte Marsh casts doubt on the amenability of those tribunals to the writ at all. Since it has always been hitherto blithely assumed that Federal Court judges are susceptible to certiorari for the purpose of s 75(v), the dissentients’ view of Gray’s case, if accepted, would require a fundamental rethink of the entire area.

Section 90 of the Australian Constitution provides that:

Under the provisions of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), the Seat of Government (Administration) Act 1910 (Cth) (the Administration Act) and other Acts which contain parallel provisions, either House of the Commonwealth Parliament can disallow virtually any delegated legislative instrument laid on the table. Originally however, there were no disallowance provisions in the 1901 version of the Interpretation Act although, even then, disallowance machinery had been introduced into specific Bills, particularly those of a fiscal nature.

The principle that all federal regulations be subject to disallowance by resolution of either Chamber originated in the Senate and it was eventually achieved by a Senate amendment to the Interpretation Act in 1904. The rationale was simple and compelling – without such a procedure, a Minister who can make regulations obtains a larger power of legislation in that respect than the Senate itself possesses.

The effect of a recent decision of the High Court of Australia in Foley v Padley is to severely curtail the extent of judicial review of the exercise of discretionary prohibitions. In the light of this decision, the Question of the nature of a prohibition contained in subordinate legislation when coupled with a dispensing power becomes of more than academic interest. In Foley v Padley, the effect of an empowering provision referable to the opinion of the subordinate legislator (a municipal council) was considered in relation to a broad unfettered discretion to dispense with a prohibition. Thus this decision brought directly into issue the role of the administrator/ policy-maker as against the rights of an individual.

In brief, Foley v Padley decided that a dispensing power attached to a power to prohibit in a by-law was a valid condition of the power to prohibit, thus following the decision in Country Roads Board v Neale Ads. As the decision of the High Court in Swan Hill Corporation v Bradbury was the last occasion on which this issue had been fully considered by the High Court one can only lament the passing of an opportunity to re-open the debate as to dispensing powers.

John Locke defined political power·in part as “a Right of making Laws with Penalties of Death, and consequently all less Penalties ... ”. Capital punishment, and a wide range of barbaric penalties, are no longer with us. Of the forms of punishment that remain, imprisonment is generally recognized as the most serious. Although generally overlooked deportation must rank not far behind. Like imprisonment, deportation can result in considerable hardship and suffering, not only to the person subjected to the measure, but to his or her family and friends. Losing the right to live in what one regards as one’s homeland can be seen as even more serious a deprivation than losing one’s liberty.

Given the significance of the measure, it is necessary to consider not just the specific conditions under which the state is entitled to deport someone, but more fundamentally, who it is entitled to deport. As a constitutional issue, debate in Australia has centred on the question of how the Commonwealth’s immigration power is to be interpreted.

Aboriginals – Land Rights – Administrative Law – Inquiry by Aboriginal Land Commissioner – Party not disclosing information to inquiry – Ex parte representations to Minister by party detrimentally affected – Failure to take into account relevant considerations – Obligation of Minister to have regard to exparte representation – Constructive knowledge of Minister of matters within his departmenrs knowledge – Aboriginal Land Rights (Northern Territory) Act 1976 (C’th) ss 11, 50

Administrative Decisions (Judicial Review) Act 1977 (C’th) s 5(2)(b).

Natural justice — Judicial review — Armed forces — Air force officer — Power to dismiss where appointment held at pleasure — Governor-General in Council — Air Force Regulations 1927 (Cth) regulations 72(1), 628(1)

Flight Lieutenant Coutts was an officer in the Royal Australian Air Force. In 1980 the Governor-General in Council terminated his appointment on medical grounds in accordance with Regulations 72(1) and 628(1) of the Air Force Regulations, 1927 (Cth). Regulation 72(1) reads:

One of the most crucial and yet challenging problems which faces Australian competition lawyers is the definition of the scope of the terms “contract”, “arrangement” and “understanding” in ss 45 and 45A of the Trade Practices Act 1974. Section 45 proscribes contracts, arrangements or understandings which have the purpose or effect of substantially lessening competition in a market. Section 45A then expands on s 45 by providing that contracts, arrangements and understandings which “fix” prices are deemed, for the purposes of s 45, to have the purpose or effect of substantially lessening competition in a market.

The terms “contract”, “arrangement”, and “understanding” are not defined in the TPA and thus the legislature has left the matter of interpretation “at large”. Determining the boundaries of concepts such as “arrangements” and “understandings” is no easy task, especially when the focus of the enquiry is on the parallel behaviour of participants in concentrated markets.

There is a growing awareness in Australia that current laws are inadequate to protect the increasing industrial application of biotechnology. To overcome these difficulties there is a need for co-operation both nationally and internationally. The Biological Control Act 1984 (Cth) and the Patents Amendment Act 1984 (Cth) are indicative of a trend towards this end.

The Biological Control Act 1984 (Cth) involves co-operation between the Commonwealth and the States to overcome gaps in the Commonwealth's power, while the Patents Amendment Act 1984 (Cth) involves international co-operation under the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedures 1977. Whereas the Patents Amendment Act 1984 (Cth) extends and secures the patent protection available for biotechnological inventions, the Biological Control Act 1984 (Cth) aims to protect certain scientific endeavours from undue interference from the law itself.

Constitutional law—Commonwealth—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Invalidity of law—Commonwealth Constitutions 51(xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).

Industrial law—Commonwealth—Conciliation and arbitration—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Extent to which discrimination authorised—Commonwealth Constitution s 51 (xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).

Constitutional law — Commonwealth — Excise duties — Tax on production — Licence to slaughter animals — Fee based on number of animals slaughtered in period prior to licence period — Whether invalid as tax on goods produced or valid as tax on business generally — Whether governed by Dennis Hotels case — Constitution (Cth) s 90 — Meat Industry Act 1978 (NSW) s 11C — Meat Industry (Licensing) Regulations (1980) (NSW) cl 41.