This essay links corporate regulation with developments in economic and corporate theory. The issue employed for this purpose is one that dates back more than one hundred years: whether companies should be regulated by the national government or by state governments. With the enactment of the Corporations Act 1989 (Cth) and the decision of the High Court in New South Wales v Commonwealth much attention has focused on the constitutional power of the federal government to regulate both the incorporation of companies and the trading activities of companies. A fundamental question however is whether it is better to regulate companies at the national level rather than the state level.

This is the sixth in the annual Menzies Lecture Series. This lecture was delivered at the Australian National University in October 1990.

The allocation of war powers between the President and Congress under the Constitution of the United States and the problems that have flowed therefrom for two centuries, are subjects perhaps too remote to inflict upon an Australian audience. Nevertheless, I do so, mindful that the vast nuclear capability of my country, as well as its present deployment of significant forces on land and sea in much of a shrunken world, make decisions of war and peace by the United States a matter of some concern for those living beyond its geographic boundaries, and throughout this planet.

Section 92 of the Australian Constitution contains a terse statement that “trade, commerce, and intercourse among the States ... shall be absolutely free”. The High Court's troubled search since Federation to give that statement a clear and certain interpretation is well known and requires no reiteration here. Michael Coper has identified 32 different phases in the history of the interpretation of s 92 between 1909 and 1980. When the latest phase was ushered in with the High Court's 1988 decision in Cole v Whitfield, it was accompanied by predictions by some commentators that it would be the last Professor Lane, for instance, said that “The decision descended as a deus ex machina, providing an uncomplicated solution for those who write and advise on the kind of freedom of interstate trade and commerce that is now guaranteed by s 92 of the Constitution”. The more pessimistic might wonder whether the Cole v Whitfield interpretation will in fact prove more durable than any of its predecessors.

Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them.

The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers.

Justiciability is a central concept in administrative law. It is used to define the limits of judicial review, limits drawn in terms of “judicial conceptions of the proper relationship between the cowts and the executive”. This paper examines the limits on judicial review of one part of the criminal process.

Decisions made at a criminal trial can be challenged by statutory avenues of appeal ort less usuallyt by judicial review. Decisions earlier in the criminal process, however, are generally unreviewable at common law. For a variety of reasons, they have “enjoyed a special immunity from judicial review.” The discretions to prosecute, or to discontinue a prosecution, have been regarded as non-reviewable exercises of prerogative powers. Where equivalent powers have been conferred by statute, the unlimited terms in which they are granted has similarly meant they are unreviewable. Even with moves to greater review of prerogative powers in Australia and overseas prosecution decisions continue to be regarded as unreviewable. As they involve a wide and unstructured discretion, with a large policy component, they are said to be more appropriately accountable to Parliament than to the courts.

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?

As Barrett's case1long ago demonstrated, a provision in a Commonwealth Act may perform the “double function” of conferring both a jurisdiction upon a court to grant a remedy, and a “substantive statutory right or duty” upon a litigant by means of “providing that in certain circumstances a person may take proceedings in a particular court to obtain a specified remedy”. The difficulty is in divining when the Parliamentary Counsel has intended that this double function be performed. Under s 76(ii) of the Constitution, Parliament may confer jurisdiction upon a federal court in “any matter arising under any laws made by the Parliament” (emphasis added). How is one to tell if “Parliament has been too sparing in the exercise of its powers and has made only a bare grant of jurisdiction without enacting a substantive law to which the exercise of jurisdiction is referable”?

The Trade Marks Act 1955 (Cth) (referred to in this article as “the Act”) provides in ss 24-26 various criteria for establishing the registrability of trade marks under the Act Those provisions require a trade mark to be distinctive or if not distinctive, capable of becoming distinctive of goods or services in respect of which registration of the trade mark is sought, before it could be registered.

This article examines s 25 of the Act, which provides for the registration of trade marks in Part B of the Trade Marks Register, in the light of some of the decisions of Australian courts. The object is to determine if such decisions conform with the terms of the provision. Some comparisons are made with the relevant provisions of the Trade Marks Act 1938 (UK). The article concludes that given the terms of s 25 of the Act, acquired distinctiveness could be a sole criterion for the registration of trade marks in Part B of the Register. The frrst part of the article considers the background to the section.

“The Official Secrets Act stiffens the spine of the secretive bureaucrat and softens the vertebrae of the press”1

The issue of the protection of privacy sums up a congeries of public anxieties about the standing of individuals in relation to those who exercise governmental and economic power. The issue has impinged increasingly on governmental and legal processes but it is one which these processes have had difficulty assimilating. At a general level, this article attempts to provide some insights into this difficulty, taking the Privacy Act 1988 (Cth) as its main focus.

Until now, analyses of the Privacy Act have tended to concentrate quite narrowly upon its provisions. Although a number of shortcomings have been identified as a consequence, no detailed or systematic explanations for these shortcomings have been advanced. This article seeks both to outline the deficiencies in the Act and to explain them. It takes as its point of departure the premise that the Act's deficiencies cannot be explained adequately by looking only at its provisions or formal legislative history.

In the recent decision in New South Wales v Commonwealth (hereafter referred to as the Corporations case), the High Court's interpretation of s 51(xx) of the Constitution frustrated the Commonwealth Government's attempt to create a single national system for the regulation of companies and securities by denying the Commonwealth Parliament the ability to legislate for the incorporation of companies. Corporate existence, and the privilege of limited liability which arises from it, flows from registration under applicable companies legislation. The Commonwealth's ability to displace State companies legislation and bring all or most corporations within its scheme would therefore be significantly enhanced by the ability to legislate with respect to the incorporation of companies. The Corporations Act 1989 (Cth) was, for reasons mentioned below, a complex piece of legislation. However, any effort by the Commonwealth to extend its control of corporate regulation without the ability to control incorporation would be likely to generate a system whereby companies came into being by registration under a State Act, but were then bound to conduct their affairs in accordance with Commonwealth legislation - a system which might almost have been constructed by opponents of federalism in order to demonstrate its absurdity.

The Australian legal system in the last fifteen to twenty years has increasingly recognised and accommodated traditional Aboriginal rights, customs, practices and beliefs. The Commonwealth Parliament has been particularly active in this area, as illustrated by its enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), (the “Land Rights Act”), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). While there is no general treaty or “makarrata” between the Commonwealth or any State or Territory on the one hand and Australian Aboriginals either generally, or at a tribal or regional level on the other, this has been seriously considered by the Commonwealth and is regularly called for by Aboriginal leaders, see, for example the Barunga Statement of 12 June 1988.

The Australian legal system does not currently recognise that any antecedent native title is held by Aboriginals, as sovereignty over the Australian continent is considered to have been gained by settlement over terra nullius rather than by conquest, see for example Milirrpum v Nabalco Ply Ltd; there are indications however that the current members of the High Court may be prepared to review those fundamental legal assumptions provided a suitable legal vehicle can be found.

There has recently been considerable discussion of the law concerning parallel importing of copyright materials. Yet the legality of parallel importing of trade marked products has still to be decided at an appellate level in Australia despite a number of Australian single judge decisions2 on the issue.

The term ‘parallel importing’ can be applied to a number of different activities. However, it usually involves the application in an overseas country of an Australian trade mark (Australian in the sense of being physically identical to the Australian mark) to products manufactured overseas. The application of the mark and the subsequent sale of the product in the overseas country is undoubtedly lawful but some of the marked products are then imported into Australia without the express consent3 of the Australian registered proprietor. This importation in competition with the Australian registered proprietor is parallel importing.

The recent High Court case on the Corporations Act and the reliance therein by the majority on ‘history’ to support their reading of s 51(xx) raises the question of what were prevailing community attitudes to uniform national legislation on corporations in the late nineteenth and early twentieth century. Whilst the views of the delegates to the Conventions and the views of the justices in the High Court in the Huddart, Parker & Co Pty Ltd v Moorehead have been selectively dusted off and resuscitated by the majority justices in the Corporations Act case the broader spectrum of opinion in relation to such matters, both at the time of federation and subsequently, is less well known. Nevertheless such views are also important in arriving at a proper understanding of the meaning of placitum (xx) of s 51.

Questions relating to the Torres Strait Islands and the rights of their inhabitants have come before the High Court in the last decade. In one of these cases the High Court examined the constituent instruments by which the islands were annexed to Queensland in the nineteenth century. That case, Wacando v Commonwealth, established that Damley Island, which is situated about 92 miles north-east of Cape York Peninsula, was part of the Colony of Queensland and therefore within its boundaries at federation. The ratio of Wacando centred on the validating provisions of the Colonial Boundaries Act 1895 (Imp). There was however disagreement between various Justices in that case as to the effect of Imperial letters patent and local legislation passed in 1878 and 1879 which raised questions as to British constitutional law and practice relating to the annexation of new territory and the modification of colonial boundaries. These issues will be examined below.

Policy formation has displaced the diffused and incremental operation of the common law as our primary means of social regulation … In the process, the nature of legislation itself has undergone a major change. It no longer consists of rules that displace or supplement the common law: contemporary legislatures … enact a wide range of … provisions that bear little resemblance to our traditional concept of law. For these functions we have no adequate theory, no general account of how such statutes should be designed ....

The period of the Hawke Labor Governments has been one of considerable economic change. That change reflects two basic and interrelated factors. First, capital accumulation itself is a continually revolutionising process. Competition forces capitalists to search for new and cheaper ways of producing their products in order to gain an advantage over their rivals. Secondly, the international economic system has been in crisis since the mid-1970s. That crisis can be seen in Australia in the tendency of the rate of profit to decline over the last twenty years or so. The strategy underpinning the Hawke Government's actions, and this is as true of the taxation field as any other area, has been to adopt measures that will facilitate capital accumulation and improve profit rates for Australian based capitalists. This article will examine how some of the tax law changes that have been made have been affected by this strategy, in particular the internationalisation of the Australian economy. In the first place however, these changes have to be seen as part of the more general process of change itself.