A Constitution cannot be applied without employing some theory of interpretation. An adequate theory—that is, a coherent method or approach—must address two fundamental, connected questions. In what sense are words in the text to be understood? How is ambiguity or uncertainty to be resolved? Resolution of these matters is logically prior to the determination of particular controversies.

Of necessity, judges have provided some answers to these foundational questions. But the issues have only begun to attract significant express attention in recent times, particularly in light of developments relating to implied rights. This new-found concern is not surprising, for the further one moves from considering clear and direct stipulations of particular text, the more important one's interpretational approach becomes. The theory of constitutional interpretation employed affects both one's readiness to recognise implications, and the nature and age of the sources to which reference is made in so doing.

In public administration many decisions made in purported exercise of statutory powers are, as a matter of practical necessity, made not by the officer or body in whom the power has been reposed by statute but by persons purporting to act as delegates or agents of the repository of the power. Nowadays the empowering statute will often contain a provision which expressly authorises delegations of power or the appointment of authorised officers who, by virtue of their appointment, will be invested with specified powers. The statute may limit the powers which may be delegated. It may restrict the classes of persons who may be selected to act as delegates. It may stipulate that delegations be effected by instruments in writing or by some other procedure.

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

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”.

Whilst the nature and scope of Commonwealth judicial power has been much examined since federation, the nature of judicial power exercised in the Australian Capital Territory (ACT) or, indeed, the Commonwealth's territories more generally, has not. Usually the analysis of territory judicial power extends only to the conclusion that it does not form part of the judicial power of the Commonwealth and that it is territorially limited as a result of the operation of s 122 of the Constitution. This article examines in more detail the nature of judicial power in the ACT and identifies some of the significant limits upon, and uncertainties surrounding, that power. It examines the history of courts in the ACT, the relationship between Territory judicial power and the judicial power of the Commonwealth, the jurisdiction of ACT courts and some of the important limits on that jurisdiction.

Life (at least for company lawyers) without Salomon's case seems inconceivable. It is generally seen as a landmark decision. Every British and Australian company law textbook refers to it as a key case in the development of company law. The story of Salomon's case is, in fact, so well ingrained in our sensibilities that we all “know” (or at least think we do) the story of the unravelling of modern company law and the crucial role the decision by the House of Lords in Salomon v Salomon & Co Ltd plays in that story. We know the script so well that questioning the iconic status of Salomon's case would seem to be a ludicrous exercise. Despite the seeming futility of such an exercise it is the intention of this paper to suggest that re-examining some of our unquestioned assumptions may lead to some useful insights into the development of “modern” company law, and by inference, into a number of the problems (both theoretical and practical) facing contemporary corporations law academics and practitioners.

I do not understand how, by whatever words that proposition is dressed up, it means anything else except that section 117 does not apply if the Court does not want it to.

British business in the second half of the nineteenth century was characterised by the continued predominance of small private firms at a time when competing nations such as Germany and the United States were more commonly embracing large corporations. Alfred Chandler has contrasted personal capitalism in Britain with competitive managerial capitalism in America and attributes the alleged poor performance of British business and, through it, national rates of economic growth to the uncompetitive small family firm. Applying internalisation and transaction cost analysis he argues that such firms failed to achieve economies of scale and scope or to develop sophisticated administrative hierarchies managed by tiers of professional executives, features increasingly common in America by the end of the nineteenth century. An alternative tradition has used the economics of information and the networks paradigm to argue for the benefits of small-scale cooperative capitalism in both Britain and Japan.

Australia's telecommunications sector is in the process of remarkable change. Over the past decade, it has evolved from a market dominated by a government owned entity (Telecom) with a statutory monopoly, to a privatised and fully competitive market comprising “carriers”, “carriage service providers” and “content service providers”, each providing an ever-expanding range of services through a variety of delivery platforms. The aim of this paper is to review the rapidly evolving legal and administrative framework for the protection of privacy within Australia's telecommunications sector. The paper will survey the regulation of telecommunications interception by individuals and law enforcement bodies, disclosure of the contents of (tele)communications by telecommunications service providers, encryption policy, computer “hacking” offences, the Telecommunications Industry Ombudsman scheme and the new “co-regulatory” approach to standards development through the Australian Communications Industry Forum (ACIF). The paper will also consider whether Australia's privacy regime is an adequate response to the challenges posed by the changing telecommunications environment.

“Universities occupy a central position in a national innovation system” and the benefits of their research extend to having better educated students, developing a body of knowledge and effective transfer of that knowledge to users. This knowledge may generate intellectual property with, not only educational and research value for the university itself, but also commercial or applied potential.

Australian universities recognise the need to protect, allocate and exploit these intellectual property rights and have policies or statutes that govern the management of their intellectual property resources. They face at least three challenges in the process. The first is to formulate a policy that clarifies ownership and limits misunderstandings between the originators of intellectual property and the university Establishing the appropriate mix of rights is fundamental to the success of their intellectual property management programs and their reputation. If they claim too much, the originators may produce an inferior product or seek employment or studies elsewhere. If they are too generous and considerate of originators’ rights, they may fail to provide adequate protection for both university interests and those of the wider community.

The decision to centralise, or to decentralise, the responsibility for law-making in relation to a subject of shared legislative competence is a fundamental dilemma for the polities of a federation. The advantages and disadvantages of both are well known. Amongst other things, centralisation promotes national unity, it decreases regulatory “arbitrage”, it may reduce search and compliance costs, and it capitalises on economies of scale in administration and law-making. By contrast, decentralisation is more receptive to local conditions, and offers the advantages that derive from interjurisdictional competition.

Australian corporate law has seen its share of the debate. That debate has been undeniably directional-there has been, over the past forty years, considerable momentum towards centralisation. Each legislative step taken in that period has been one closer to centralised national laws and administration. The only real opposition came to the Commonwealth's attempt to arrogate legislative power to itself in the Corporations Act 1989 (Cth), which the High Court struck down as unconstitutional.

It was never intended that the company to be constituted should consist of one substantial person and six mere dummies.

The robust affirmation of separate corporate personality by the House of Lords in Salomon is in sharp contrast to the fragile legal personality possessed by Mrs Salomon in 1897. In corporate law discourse Salomon v Salomon & Co Ltd is portrayed as the first case about the “one person company”. The case has given rise to considerable debate about the recognition of corporate personality where the corporation is the alter ego of a human person. In fact the portrayal of A. Salomon & Co Ltd as the alter ego of Aron Salomon is misleading because the company was a family company. The subscribers to the memorandum, described by Lopes LJ in the above quote as “six mere dummies” were Aron Salomon's wife and five children who were active participants in the company.

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.

One of Aesop's fables tells the story of a war between the Birds and the Beasts, and the problems which this posed for the Bat. Whilst sharing characteristics in common with each set of protagonists, the Bat nevertheless did not belong to either side. Unfortunately this subtlety was not noticed by the warring parties'who each dismissed the Bat as an enemy. This image of the Bat's difficult position captures what I am attempting to do in this article. I examine the debate (“war” is too strong a word for it) between the two dominant justificatory theories of corporate governance and regulation in Australian corporate jurisprudence—the concession theory and the contract-based theories. I argue that although this debate has offered some important insights, ultimately it has proved to be either too simplistic (offering one-dimensional pictures of corporate life) or too restrictive (limiting our conception of how corporate governance and regulation might be improved). I sketch out an alternative justificatory theory which I call “corporate constitutionalism”.

Australia’s second chief justice has generally received a bad press. Perhaps this is due in part to the circumstances of his departure, which did nothing to enhance the prestige of the office. But it may be worthwhile to revisit the decade of his stewardship, for it marks the commencement of a centralist approach to the interpretation of our Constitution. It may also be fruitful to examine the extent to which the justices under his leadership collaborated in preparing their judgments, for that question has a contemporary relevance.

Judicial biographies in Australia are rare. Even famous judges, who have led interesting and varied lives, pass without a proper record of their decisions and intellectual and personal struggles. So it is with the Right Honourable Sir Frank Kitto AC KBE, Justice of the High Court of Australia from 1950 to 1970. He settled in the Armidale District after the conclusion of his service on the High Court. He served as the Chancellor of the University of New England from 1970 until 1981. With his wife Eleanor he devoted his time (apart from working a small grazing property), as he put it, to “a mass of reading that I had had to put aside through the years of my professional life”. He described this reading as ranging over subjects “from history and biography … and philosophy to fiction, both light and classical”. He even spoke of the enjoyment of selected programmes on television. One suspects that his viewing was probably connected with his duties in late years as foundation Chairman of the Australian Press Council rather than a quest for enlightenment—generally elusive on the small screen.

This article considers the impact of the doctrine of legal personality as enunciated in the classic corporate law case, Salomon v Salomon & Co Ltd, on our theories concerning the role of the membership within a corporation, in particular the role of the membership within a university corporation.

Universities live on the edge of corporate law. Although it has been one hundred years since the judgment in Salomon's case, the ground rules of university governance were established well before that judgment. Furthermore, Salomon's case involved a one-man company organised under the Companies Act 1862 (UK) and universities are not typically organised under business incorporation statutes. Nevertheless, Salomon's case has had a dramatic effect on the way we view the constitutional structure of all corporations, including university corporations.

In the past fifty years the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of “judicial power”, there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine.

This article advances a new legal theory of the corporation—the “dual view” theory of the corporation. The theory states that the corporation must be explained in two different ways. First, the corporation must be explained internally to the law, as a legal category which acts as a trigger for the application of a set of legal rules. This “inner view” of the corporation says much about the function of the category within the legal system, but very little about why this category was designed to operate in this way. The inner view cannot explain the functions fulfilled by the category in the external world. To gain knowledge of the latter, one must adopt a second view-point, the “outer view”. The corporation must be explained as a legal artefact which facilitates the coordination of social action, whether this be in the economic system, the political system or indeed smaller systems of interaction such as the family.

Public awareness of the consequences of international law for Australians was highlighted during the battle in the 1980s to save the Franklin River in south-west Tasmania. That battle, which eventually resulted in the Commonwealth Parliament relying upon the provisions of the 1972 Convention for the Protection of the World Cultural and Natural Heritage to enact the World Heritage Properties Conservation Act 1983 (Cth), was finally resolved when the High Court of Australia in the Tasmanian Dain case upheld the validity of the legislation on the basis of the Constitution, s 51(xxix), the Commonwealth's external affairs power. This decision set off a sequence of events which resulted in subsequent High Court decisions that gave further scope to the external affairs power and which also gave the Hawke ALP government great confidence as to its ability to rely upon conventions and treaties, both bilateral and multilateral, as a source of legislative power.