Commonwealth Legislation Research Articles

Online pharmacies: buyer beware.

Online pharmacies: buyer beware.

Embracing conservation success of recovering humpback whale populations: Evaluating the case for downlisting their conservation status in Australia

Optimism and hope in conservation biology are supported by examples of endangered species recovery, such as the population growth observed in humpback whales in several of the world׳s oceans. In Australia, monitoring data suggest rapid recovery for both east and west coast populations, which are now larger than 50% of their pre-whaling abundance. The measured growth rates exceed known species trends worldwide and have no indication of diminishing. Under Australian Commonwealth legislation and regulations, these populations should be considered for downlisting, as they are not eligible for listing as a threatened species against all statutory criteria. A change in conservation status will produce new challenges for the conservation and management of a recovered species, especially with the Australian economic landscape experiencing large-scale growth and development in recent years. More importantly, a recovered humpback whale population may bring a positive shift in the research goals and objectives throughout Australia by ensuring other endangered species an equal chance of recovery while delivering hope, optimism, and an opportunity to celebrate a conservation success.

'Better than anywhere else'

Until the 1960s, the settlement of Lebanese migrants in Queensland was characteristically regional, with the immigrants dispersed widely throughout the state. Immigrant settlement involves a dynamic and complex interaction between the immigrants and the social, political and economic structures of the receiving society. An analysis of the settlement experience of Lebanese immigrants in Queensland from the 1880s reveals the interplay of several factors, which resulted in a distinct pattern of settlement. Fundamental to this experience was the influence of racially exclusive state and Commonwealth legislation and immigration policies. Additionally, Queensland’s particular geography and style of development, in conjunction with the predominance of self-employment and the segregation of Lebanese in petty commercial occupations such as hawking and shopkeeping, significantly determined the immigrants’ geographic settlement pattern. Finally, a less obvious but nonetheless important factor was the determination of the immigrants to settle permanently in Queensland. Whatever the reasons, this dispersed settlement pattern significantly shaped the lives of the immigrants and their descendants.

Australia's National Broadband Network – A cybersecure critical infrastructure?

In 2009 the Australian National Broadband Network (NBN) began to be rolled out across Australia. The Australian NBN is the largest infrastructure project in Australia's history since the Snowy Mountains Hydro-Electric Scheme from 1949 to 1972 and it has a projected cost of between AU$37 billion and AU$43 billion. Its purposes are to provide high speed broadband connectivity to 93% of Australia's homes and businesses, to enhance productivity, to improve the delivery of education, tele-medicine and regional connectivity and to form the basis of the Australian telecommunications network for the 21st Century. However, the project does not have bi-partisan support and has been affected by high-level management changes and anticipated cost over-runs.The legal implications of the Australian NBN are as vast as the project itself. Its implementation has involved the enactment of a suite of Commonwealth legislation and will involve considerable competition law and long-term access issues which have already been much critiqued. However, despite information technology being in the top five critical infrastructures internationally, a critical infrastructure analysis of the NBN has had little public attention. Similarly, due to the confidential nature of much of the NBN's operations, the cybersecurity aspects of the project have only been lightly scrutinised. Paradoxically, it is contended that greater scrutiny and public access to vital information will provide enhanced, not less, security for both the network itself and for Australian users and will also provide for a more secure and reliable engagement with Australia's international trading partners. Given the need for a high level of trust in, and the immense reliance upon, the Australian NBN, consumer and business confidence can only be enhanced by greater awareness of the critical infrastructure implications of the Australian NBN for Australia's future.

The erosion of psychiatrist-patient confidentiality by subpoenas.

We explore the reasons for the prolific use of subpoenas to gain access to psychiatric records in Australia. We examine the applicable legal principles and practices at the New South Wales (NSW) and Commonwealth levels, aiming to develop recommendations for Australian Governments to curb the inappropriate and harmful use of subpoenas. Unfettered legal access to psychiatric records is inconsistent with professional ethical guidelines and risks undermining the provision of quality psychiatric care to the community. The existing legal provisions are failing to protect psychiatrist-patient confidentiality. In NSW, the onus is placed on the psychiatrist and/or patient to make a complicated application to the court, to direct that a subpoena be set aside on the grounds of "Professional Confidential Relationship Privilege." An absence of Commonwealth legislation to protect psychiatrist-patient confidentiality is used by some litigants in family law proceedings to disadvantage patients by stigmatising them, because they have consulted psychiatrists. We recommend that uniform legislation be implemented, giving effect to a primary rule of privilege with exceptions.

Outside the Text: Inside the use of Extrinsic Materials in Statutory Interpretation

When s 15AB of the Acts Interpretation Act 1901 (Cth) was enacted over 30 years ago, its purpose was to establish clear and particular rules about when extrinsic materials could be used in the interpretation of Commonwealth legislation. Accordingly, s 15AB stipulates three threshold tests, at least one of which must be satisfied before extrinsic materials can be considered as an aid to interpretation. However, developments in the common law since that enactment have largely overtaken the utility and effect of s 15AB (and its State equivalents). In particular, the development of the ‘contextual’ approach to statutory interpretation has meant that the common law now permits recourse to extrinsic materials, including parliamentary ones, without the need to pass any gateway test. Consequently, the important emerging issue is, not when such materials can be considered, but how they may be used. This article, using recent High Court cases, examines some of the key threads that have emerged about the ‘appropriate use’ of parliamentary materials, particularly with respect to identifying the purpose of the statute and as against the weight of the statutory text.

Corporatisation, Managerialism and the Death of the University Ideal in Australia

The idea of the university as it originated in medieval Europe was that of a self-governing community of teachers and students. However that ideal has been undermined in Australia, where legislative changes over the past 20 years have led to a progressive diminution in university autonomy. Changes to Commonwealth and State legislation mean that universities are now subject to the same internal governance rules as trading corporations, and these are incompatible with the mission of a university and with academic independence. In addition, the regulation of universities has become so invasive that they can no longer be seen as truly autonomous self-accrediting institutions. This article examines the harmful effect of these changes and suggests what changes should be made to the law in order to restore a governance framework for universities which is consistent with their social purpose.

A coordinated satellite and terrestrial microwave backhaul for cellular mobile in remote and regional Australia

For several years prior to the Australian Federal elections in September 2013, Commonwealth Government telecommunications policy and legislation focussed exclusively on the fixed services National Broadband Network. This distracted broader public attention from the need for cellular mobile expansion in the more sparsely populated areas of the country. Commercial returns in these areas are clearly inadequate for unilateral private operator investment, making government participation crucial. Thus a commitment from the newly elected Coalition Government for a Mobile Black Spot co-investment programme marks a significant change of prospects for remote and regional Australia. 
 This paper proposes that the joint program should commence with a comprehensive financial and technical study of backhaul and base station technology options, to identify the most cost effective approaches. These options include the coordinated provisioning of modern satellite and terrestrial backhaul systems, utilising and upgrading existing HCRC microwave system infrastructure, and the implementation of small cell base station types. 
 It is especially timely for these opportunities to be considered now, during the present pre-launch design and construction phase for the NBN Ka band satellites.

Information: a valuable resource in managing health, safety, and the environment in the offshore petroleum industry

The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) is charged with promoting occupational health and safety and responsible environmental management in the offshore petroleum industry and ensuring industry compliance with the relevant commonwealth legislation. For NOPSEMA to exercise these functions effectively and transparently, sharing information through industry experience is integral. Although NOPSEMA already publishes widely–including guidance material, industry performance data, and safety alerts–it is working towards increasing publication of more detailed and specific industry information, such as enforcement notices. Government regulators publishing industry information of this kind is not new in Australia or overseas and is often used by regulators as a tool for promoting industry compliance. Communicating and sharing information with industry and the public are important activities of governments. Information sharing can expand knowledge, enable innovation, enhance government accountability and transparency, and even save lives by learning from others' experiences. Recently, the Australian Government has shown a deeper commitment through changes to the Freedom of Information Act 1982, making government information more accessible and open to the public. This extended abstract discusses the benefits of increasing publication of industry information to promote NOPSEMA's functions and objectives for delivering a safe and environmentally responsible offshore petroleum industry.

How long in the wilderness?Australian lesbian parents and social policy reform

Australian social policy and legislation in relation to gay men, lesbians and their families have been ‘revolutionized’ over recent years. Between 2008 and 2010 alone we have seen an incredible 84 separate pieces of legislation amended to recognize same sex relationships in Commonwealth legislation. For some rights activists, these reforms have been too long coming but for others they have created real disquiet about the way they position non-heterosexual relationships. This article draws on qualitative interviews undertaken with lesbian women who parent in New South Wales, Australia. Two waves of interviews are drawn on, the first occurring prior to Australian government reforms and the second after the reforms. The interviews provide an insight into the lived experiences of social policy reforms, highlighting how these women weigh up and reconcile legal recognition. These women’s experiences remind us again of the limitations of legal reform to bring about social or cultural change, particularly in the context of neo-liberalism. This paper seeks to ask what is the nature of this ‘revolution’ and, why now?

Towards Harmonised Company Legislation — ‘Are We There Yet’?

The enactment of uniform companies legislation in 1961-2 was a significant achievement for a country in which, a century earlier, multiple incorporations of the one body was the norm and a court of one colony questioned the existence of corporate personality created by the law of another. After Federation, business interests increasingly sought uniform State laws. They opposed centralised regulation which, in any event, was beset by constitutional difficulties. Commonwealth legislation eventually became the preferred model as shortcomings of uniform and co-operative mechanisms were progressively exposed. Yet fully harmonised corporations legislation still does not exist. In this paper presented to the 2011 Hartnell Colloquium at the Centre for Commercial Law, Australian National University to mark the fiftieth anniversary of the Uniform Companies Acts, the author sketches the development of Australian companies legislation over the last 150 years.

Towards Harmonised Company Legislation — ‘Are We There Yet’?

The enactment of uniform companies legislation in 1961-2 was a significant achievement for a country in which, a century earlier, multiple incorporations of the one body was the norm and a court of one colony questioned the existence of corporate personality created by the law of another. After Federation, business interests increasingly sought uniform State laws. They opposed centralised regulation which, in any event, was beset by constitutional difficulties. Commonwealth legislation eventually became the preferred model as shortcomings of uniform and co-operative mechanisms were progressively exposed. Yet fully harmonised corporations legislation still does not exist. In this paper presented to the 2011 Hartnell Colloquium at the Centre for Commercial Law, Australian National University to mark the fiftieth anniversary of the Uniform Companies Acts, the author sketches the development of Australian companies legislation over the last 150 years.

The Commonwealth Law Library

Article about a project at IALS to catalogue the Commonwealth Law Library, a unique collection of Commonwealth legislation amassed by the Foreign and Commonwealth Office and its predecessor departments and transferred to the Institute Library under trust deed in 1992 to complement the strong Commonwealth law holdings of the Institute. Article published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review

The High Court has held that the Constitution entrenches a 'minimum provision of judicial review'. In the context of privative clauses, the contours of that minimum provision are settled - the supervisory jurisdiction of the High Court and the State Supreme Courts to review for jurisdictional error cannot be excluded. In respect of privative clauses contained in Commonwealth legislation, conflict with s 75(v) of the Constitution provides the constitutional anchor for the minimum provision, while in State jurisdiction the textual anchor is found in the constitutional definition of a 'court', as that term is used in Ch III. In respect of other elements of judicial review, particularly the substantive principles of review, the position is radically unclear. One commentator has observed that, if the Constitution does contain principles prohibiting the exclusion of the substantive principles of judicial review, 'it is not obvious where they lie or what the justification for them might be.'

Radio and the Technology of the Common Law in 1930s Australia

This article examines how radio broadcasting in Australia in the 1930s challenged the monopolies of racing clubs who exercised tight control over access to the racecourse, supported by existing laws, with minimal media reporting in the form of scores scratched on boards at the racecourse and newspaper summaries after the event. In the 1937 case of Victoria Park Racing v Taylor, commercial radio emerged as a disruptive force that changed the way races were experienced by audiences, from attendance at the racecourse to listening to a contemporaneous report of the event as it was being played on a radio receiving set. The different approaches to the ‘novel’ practice confronting the court reveal a dispute over the common law’s correct approach to dealing with new technologies more generally. In this case, the mechanical approach of Dixon J prevailed and the novel situation of live radio broadcast was treated as falling outside the established categories of legal protection, and therefore outside the law’s control. As such, the case may appear as an example of the ‘technology’ of law extended now to the law made by judges. But to end the story there would be misleading. For it would not be long before the rather different approach of the dissenting judges, and especially Evatt J, would be embraced by a later High Court as its traditionally preferred methodology for dealing with new technologies as well as other changes in the economic and social environment. As to the decision, broadcasts of live spectacles were the subject of Commonwealth legislation in 1956. Even so, it was television rather than radio that was the subject of regulation, radio having become less unruly and more amenable to licensing arrangements.

Issues in American and Commonwealth Legislative Practice & Procedure

This is a not yet fully developed course syllabus. This course concerns legislative practice and procedure – how the legislature should identify and organize its members, select its officers and employees, conduct its internal business and affairs, carry out its legislative tasks, seek information, select which instruments to employ to memorialize its measures, and communicate with the outside world, including the other branches of the government. The student should exit the class with a knowledge of how to advise a presiding officer in regard to the conduct of a meeting under a legislative body’s standing orders, and coordinate statutory and constitutional provisions – or, at the very least, knowledge of where to find persuasive law and authority in regard to such questions. The course materials will concern U.S. federal and state legislatures as well as the legislatures of Britain and the Commonwealth. The course will also stress that Commonwealth and American legislative traditions encompass considerable variation in regard to the basic policy choices discussed here.

Slaying the Ghost of Henry VIII: A Reconsideration of the Limits upon the Delegation of Commonwealth Legislative Power

The recent judicial statements with regards to the delegation of Commonwealth legislative power are discussed. The reasons as to why Henry VIII clauses have been regularly condemned are highlighted.

Slaying the Ghost of Henry VIII: A Reconsideration of the Limits upon the Delegation of Commonwealth Legislative Power

Slaying the Ghost of Henry VIII: A Reconsideration of the Limits upon the Delegation of Commonwealth Legislative Power

PESA industry review—2009 environmental update

This paper provides a brief update on some of the key environmental issues that arose during 2009. In Queensland, activity is dominated by coal seam gas projects and specifically coal seam gas (CSG) to liquefied natural gas (LNG) projects. Environmental milestones for these projects are discussed, and the State Government’s response policy and regulation development response is reviewed. The progress of the more conventional LNG projects in Western Australia and the Northern Territory is also discussed. The final report on the mandated ten year review of the Environment Protection and Biodiversity Conservation Act 1999 was released in December 2009. Seventy-one recommendations were made, and some key recommendations related to our industry are discussed here. Climate change has again dominated the media, with the United Nations Climate Change Conference held in Copenhagen in December 2009. In Queensland, the Government released a paper that presented a range of strategies and policies, building on a number of existing schemes and introducing new measures. Gas is identified as a key transitional fuel while low emission coal technology and emerging renewable energy sources are being developed. Greenhouse gas legislation is continuing to be developed across several states, but subordinate legislation is yet to be finalised. In Victoria, submissions on the Greenhouse Gas Geological Sequestration Regulations closed in October 2009, and the Greenhouse Gas Geological Sequestration Act 2008 came into effect on 1 December 2009. In March 2009, ten offshore acreage releases were made under the Commonwealth legislation; however, the closing date for submissions is dependent upon the development of the regulations. South Australia passed an Act amending the Petroleum and Geothermal Act 2000 on 1 October 2009 to allow geosequestration. A number of reviews of the regulatory framework or the administrative systems associated with the upstream oil and gas sector have been completed in the last decade. All these reviews make similar findings and recommendations, and most recently the Jones Report, tabled in Western Australian Parliament on 12 August 2009, found that most key recommendations from previous reports and reviews had not been addressed or properly implemented. There seems to be little point in undertaking regulatory and system reviews that consistently make similar findings, if these findings are never addressed. The hurdles to implementation of key recommendations need to be identified, so that progress can be made in improving the approvals processes for the industry, and improving the environmental outcomes.

Successful strategies for native title and Aboriginal cultural heritage approvals—;an examination through the development of the Queensland CSG and LNG industry

2009 saw an unprecedented level of engagement between oil and gas companies in Queensland and Aboriginal groups, primarily because of Queensland’s burgeoning CSG/LNG industry. Most proponents have had to deal with native title and Aboriginal cultural heritage arrangements with multiple parties simultaneously, often in the early stages of project developments where project certainty is low. Many native title parties have also had to deal with multiple projects at the same time. This has added an extra layer of complexity to what is already a difficult negotiation and regulatory landscape.Queensland and Commonwealth legislation impose a complex system of regulatory approvals governing the interaction of Aboriginal interests and oil and gas projects. Project proponents must comply with state petroleum legislation and Commonwealth native title legislation to ensure approvals are validly granted. This paper will examine the complex legislative and regulatory hurdles that have been faced by project proponents in the Queensland CSG/LNG industry in managing native title and Aboriginal cultural heritage issues. The paper will critically analyse the generally accepted strategies being implemented to address native title and Aboriginal cultural heritage issues. This will include a specific focus on the legal requirements to obtain indigenous land use agreements, the fundamental issues required to be addressed to achieve the authorisation and registration of these agreements, and the alternative options if it is not possible to obtain these agreements. Finally, the paper will conclude with some commentary on the legal aspects of managing Aboriginal cultural heritage.