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In Forge v Australian Securities and Investments Commission the High Court considered whether the appointment of acting judges to a state Supreme Court was constitutionally permissible. By a majority of six to one, the Court found that such appointments were constitutionally valid. The decision is an important illustration of the way that the ‘Kable principle', which works to maintain the institutional integrity of Australia's integrated system of courts, continues to evolve in Australian constitutional law. This casenote examines how the judgments in Forge v ASIC extend the Kable principle to cover the composition and structure of state courts, and seek to link the Kable principle with the text of the Constitution.
The Constitution of Australia embodies a liberal political theory that the freedom of the citizen is dependent on the separation and distribution of the powers of the state between different institutions - legislative, executive and judicial. With the possible exception of a democratically elected legislature, none of these institutions should dominate the way in which the powers of the remainder are exercised. For the safeguard of personal liberty, each should act as a check and balance against the over-exercise of power by the remainder, and especially by the executive government of the day.
This principle - the separation of powers - was inherited originally from England but developed considerably in the United States. It has been regarded as a fundamental element of the Constitution since the act of federation in 1901. Recognition of the principle reputedly reached a high point in Boilermakers, a decision of the High Court of Australia in 1956.
The Constitution of Ceylon2 confers on the Parliament of Ceylon full power ‘ to make laws for the peace, order and good government of the Island ’. Section 29 (4) of the Constitution provides that.
In an increasingly global economy, foreign anti-competitive practices pose just as much of a threat to the economic wellbeing of Australians as domestic anti-competitive practices. Multinationals which transcend national boundaries are now major players in many different markets. Furthermore, continuing globalisation means that the number of commercial activities with transnational implications will rise.
The Trade Practices Act 1974 (Cth) (‘TPA’) contains a provision that expressly gives the Act extraterritorial operation. Section 5(1) provides that the competition law prohibitions contained in Part IV extend to conduct engaged in outside Australia by bodies corporate incorporated, or carrying on a business, in Australia. With the exception of the prohibitions against cartel conduct, the extraterritorial operation of the prohibitions against the major forms of anti-competitive conduct is even broader. Since the Act’s inception, the prohibitions against price and non-price vertical restraints have extended to the engaging in conduct outside Australia by persons and bodies corporate (whether incorporated, or carrying on a business, in Australia or not) in relation to the supply of goods or services to persons within Australia.
The latest statement from the High Court on duties of excise poses an interesting question with regard to the fiscal relationship between Commonwealth and State governments. The absence of fiscal accountability in all levels of government in Australia serves to frustrate the objectives of the federal system. While the decision in Ngo Ngo Ha v New South Wales (Ha) brings some clarity to a confusing area, the High Court's adoption of a broad approach to s 90 of the Constitution has the effect of increasing the disparity between the revenue and expenditure of Commonwealth and State governments. In light of the economic and political implications of the decision, it must be asked whether the correct purpose has been attributed to the section.
Given an irreducible projective variety X, the covering gonality of X is the least gonality of an irreducible curve E\subset X passing through a general point of X. In this paper, we study the covering gonality of the k-fold symmetric product C^{(k)} of a smooth complex projective curve C of genus g\geq k+1. It follows from a previous work of the first author that the covering gonality of the second symmetric product of C equals the gonality of C. Using a similar approach, we prove the same for the 3-fold and the 4-fold symmetric product of C.
A crucial point in the proof is the study of the Cayley–Bacharach condition on Grassmannians. In particular, we describe the geometry of linear subspaces of \mathbb {P}^n satisfying this condition, and we prove a result bounding the dimension of their linear span.
Courts have recognised that the circumstances in which they may receive and make use of evidence of parliamentary proceedings are restricted. The restrictions have been held to be required by Article 9 of the English Bill of Rights 1689. This Article is part of the law of all the Australian polities and it gives expression to one of the most important privileges of parliaments. Article 9 provides
That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament.
In Prebble v New Zealand Television Ltd the Judicial Committee of the Privy Council, on appeal from New Zealand, held that Article 9 does more than accord to participants in parliamentary proceedings an immunity from liability for statements made by them in the course of those proceedings. It means also “that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross examination, inference or submission) that the action or words were inspired by improper motives or were untrue or misleading”.
Corporate regulation is front-page news in Australia. In recent years we have witnessed the unedifying debate between the Federal and State governments about how the responsibility for, and benefits of regulating companies and securities law should be allocated. Federal Parliamentary committees have conducted inquiries into the law relating to directors' duties, insider trading, and (currently) minority shareholders' rights. The chairman of the National Companies and Securities Commission and the Australian Securities Commission, Mr Tony Hartnell, has gained frequent publicity and support for his concern to “deal with the excesses of the past”.
As this brief survey indicates, the renewed concern about corporate regulation has tended to focus on the task of defining and controlling the conduct of some company personnel (directors, managers, and their advisers) in order to protect the interests of other corporate players (particularly shareholders and creditors). This focus is not surprising, but where does it leave the corporation?
In this article, Mr Justice Kirby surveys two major issues which are before the Australian Law Reform Commission in its Reference to reform defamation laws. First, he suggests that any reform requires revision of procedures to deliver remedies that are apt for damage to reputation. Unless the judicial system can produce speedier redress and more relevant remedies, it is suggested that administrative or other regulation will replace court procedures. Secondly, the article explores the problems arising in the age of mass communications from Australia's eight different systems of defamation law. After weighing the arguments for and against a uniform code, it is suggested that the present disparity promotes confusion, uncertainty, self-censorship and forum shopping. Four methods of achieving a uniform code are explored. These include a return to the common law, reference of power to the Commonwealth by the States, an attempt to secure agreement with the States on uniform laws and the use of a number of Commonwealth powers to support a national Act. As the vehicle chosen will affect the law proposed, it is suggested that the choice can not be delayed.
[T]he sages of the law heretofore have construed statutes … upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances.
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.’
Can the formal amendment process embodied in s 128 of the Commonwealth Constitution be utilised to patriate the Constitution, to make Australia a republic, to establish a Bill of Rights, to abolish State Constitutions or Parliaments and to alter s 128 itself or provide a completely new amendment procedure? What is the ambit of s 128? This article considers the history, scope and interpretation of s 128.
The principle that the legislature can enact laws which bind the executive is a familiar one. The prerogative can be abrogated or abolished by legislation and the decisions of the executive made subject to administrative review.
More interesting, however, is the relationship within the federation between the legislature of one polity and the executive of another. To what extent can the laws of one polity bind the executive of another, or abrogate or abolish its prerogatives?
The High Court, over the last century, has had a very difficult time in answering these questions. Fundamental though they be to our governmental system, there has never been a clear and consistent principle established to provide ready answers to them. After the centenary of federation, one would think we would understand how the polities within that federation are intended to interact, but we do not.
In the French West Indies (FWI), practices alternative to chemical inputs are implemented to improve the sustainability of banana cropping systems. These agroecological practices are based on organic fertilization, soil covering with weed live mulch and severe prophylactic deleafing to limit sigatoka disease dissemination. However, these practices may impair the availability of soil mineral nutrients and the photosynthetic capacity of the plant and consequently induce suboptimal plant growth conditions. To assess the performance of the different banana cultivars from the Cavendish group in these suboptimal conditions, the yield components of 12 Cavendish banana cultivars were compared with four crop management modalities: i) high mineral fertilization, chemical weed control and minimum prophylactic deleafing (N + L+), ii) high mineral fertilization, chemical weed control and severe prophylactic deleafing (N + L−), iii) low organic fertilization, weed live mulch and minimum prophylactic deleafing (N−L+) and iv) low organic fertilization, weed live mulch and severe prophylactic deleafing (N−L−). The performance of all cultivars varied according to the crop management modalities in the following order: N + L+ > N + L− > N−L+> N−L−. However, the hierarchical order among the cultivars differed according to the crop management modality. Cultivar Americani exhibited the best performance in non-limiting conditions. Cultivars such as Ruby, Gua01 and Mat12 performed better with severe prophylactic deleafing while Gua02 and Ruby performed better with the low soil nutrient availability induced by organic fertilization and weed live mulch. These results can be used to guide the choice of Cavendish cultivar according to production constraints, particularly with regard to agroecological practices or abiotic stresses, such as reduced photosynthesis or limited nitrogen resource. These results suggest that there is a variability in the tolerance to abiotic stresses between the cultivars of the Cavendish group.