This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

Medical biotechnology offers vast opportunity for the treatment of human genetic conditions, including the development and improvement of drugs, diagnostic capabilities and therapeutic techniques. Australian health and medical research has a rich and proud history. This has been recognised in numerous federal government reports, which examine the sustainability of research momentum and the ability of the Australian industry to capitalise on this research base. Australia‘s increasing $1 billion trade deficit in pharmaceuticals, medical equipment and other health and medical industries has been a major impetus for the push to develop Australia's medical research base.

Many domestic and export market opportunities for the Australian biotechnology industry exist. These opportunities have been taken up for the most part by the existing research sector, and by small companies, whether spin-off companies from research institutions, or companies independently conducting research. The industry is highly competitive and motivated to participate in the biotechnology revolution on an international level. To enable them to do this, intellectual property protection is crucial as a tool to enable trade, collaboration, and competitive advantage.

Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.

This collection of articles, commentaries and book reviews, published here in the Federal Law Review, forms only the second symposium on electoral law published in Australia. Interest in how democratic choice is regulated and how elections are run – the rules of the game of electoral politics and the ways in which its dynamics intersect with those rules – is a staple of media debate and political science. Yet it is only beginning to emerge as a focus of sustained attention in the legal academy.

In the Australian and New Zealand common law tradition, the law governing elections in particular and democracy in general has been historically subsumed, and to a degree lost, under the broader rubric of ‘constitutional law’. In part this has been imposed from without; a product of the dicing up of the discipline of law into broad doctrinal categories to suit the legal profession, a practice perpetuated by the dictates of the admission rules. However, it has also been the consequence of academic neglect: an overlooking of the potential of the field by legal scholars.

In most Australian jurisdictions there are limitations on the time within which proceedings for judicial review of governmental acts (or for particular remedies) are to be commenced. Some such limitations are imposed by statute, some by rules of court. In some cases the relevant court of supervisory jurisdiction is authorised to extend the time. But in other cases there is no discretion to extend the time.

This article examines the justifications which have been offered for imposition by legislation of limits on the time within which applications for judicial review are to be made. It surveys Australian legislation on the subject and examines the legal effects of such legislation. The article also considers reasons why it may be thought desirable to give courts authority to extend prescribed time limits and the associated question of whether exercise of that authority should be regulated by legislative standards. The article also examines the factors which the Federal Court has considered relevant in the exercise of its discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act‘), a section which is substantially reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).

A decade ago, members of the High Court recognised an implied guarantee of procedural due process in the exercise of federal judicial power. Polyukhovich v Commonwealth, Leeth v Commonwealth and Chu Kheng Lim v Minister for Immigration were the leading cases. Thus in Lim’s Case, Brennan, Deane and Dawson JJ said that the Commonwealth Parliament cannot require or authorise a Chapter III court ‘to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.’ Opinions about the content of this due process principle varied. Most judges accepted that federal judicial power must be exercised consistently with the rules of natural justice. Deane and Gaudron JJ went further, however. They argued that the due process principle guaranteed the fair trial of a federal offence, a requirement that, among other things, would prevent abolition of the inherent power of a court to stay an unfair criminal trial.

In Ghaidan v Mendoza, the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights. The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant ‘as his or her wife or husband’, should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case. Section 2(2) was interpreted as applying to a person living with a tenant ‘as if they were his or her wife or husband’, despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.

An essential feature of any democratic system is the holding of regular elections that lead to the creation of the government of a nation. It is often said that such elections should be ‘free and fair’. Some obviously fail this test. For example, observers, including representatives of the European Union (‘EU’) and the Commonwealth, found that in recent elections in Zimbabwe the number of polling stations was reduced in strong opposition areas, the body supervising the election was unqualified and the ruling party (Zanu-PF) used violence, intimidation, bribery and vote-rigging to secure re-election. Of course, elections need not be so blatantly violent or corrupt to fail the ‘free and fair’ standard. International observers and opposition parties have, for instance, criticised the recent Russian elections because the state run television station promoted the ruling party while criticising and defaming the challengers.

It may be true that morality cannot be legislated, but behaviour can be regulated. The law may not change the heart, but it can restrain the heartless.

During 1999 and 2000 considerable attention was focused on an inquiry conducted by the broadcasting regulator, the Australian Broadcasting Authority (‘ABA’), into the commercial arrangements of a number of commercial radio presenters associated with talkback radio. In May 1999, an Australian Broadcasting Corporation (‘ABC’) program, Media Watch, alleged that, John Laws, a presenter with Sydney Radio Station 2UE, had financial arrangements in place with an organisation representing the major Australian banks, the Australian Bankers' Association. It was alleged that the effect of these arrangements was that Laws would broadcast positive comments about the banks. These comments were independent of any paid advertising run by the station for the banks or the Bankers' Association. Following the Media Watch revelations, the ABA announced that it would conduct an inquiry into the allegations in order to determine whether there had been any breach of the Broadcasting Services Act 1992 (Cth) (‘BSA’) or the licence conditions or codes of practice to which Radio 2UE was subject.

Not so long ago, Australian electoral law was described as being in a Cinderella state, a neglected but promising field of inquiry. Some years down the track, it is clear that Australian electoral law is beginning to shed its Cinderella-status with scholars paying increasing attention to the legal regulation of elections.

In this burgeoning field, political finance laws assume critical importance. Indeed, it has been said that such laws probably pose ‘perhaps the central issue facing electoral law’. Arguably for this reason, this aspect of Australian electoral law, more so than any other, has been the subject of sustained scholarship. It is even showing signs of maturing into a distinct area of electoral law.

In a recent issue of the Australian Law Journal Enid Campbell argued that both the length of High Court judgments and the number of multiple separate High Court judgments has increased and that this is counterproductive. This view echoes similar concerns expressed by some judges and others in the profession. This argument is based on several assumptions about the High Court that are widely held among lawyers, but which have not been subject to any detailed empirical research. Those assumptions are:

1. (a) High Court judgments have become significantly longer in recent times.

2. (b) There is an increase in the number of concurring judgments on the High Court.

3. (c) There is an increase in the number of dissenting judgments on the High Court.

Elections are commonplace events. Both in terms of their frequency, but also in the way they are taken for granted. Especially in Australia, but more generally in western democracies, their ebb and flow forms a seasonal rhythm, against which the more substantive work of government and public affairs – policy debates, law-making, administration and the (re)construction of community and national identities – is played out, through debate in the media, opinion polling and parliamentary and executive activity.

The magic long ago seeped out of our understanding and, for many, the experience of elections. They are major logistical events, certainly. But on the surface they appear to be relatively routine affairs, professionally run by full-time, non-partisan electoral commissions, who are bureaucratically guided, indeed bound, by enormously detailed legislative codes. The Commonwealth Electoral Act 1918 (Cth) (CEA), for example, currently extends to more than 350 pages. By contrast, the inaugural Commonwealth Electoral Act 1902 (Cth) and accompanying Commonwealth Franchise Act 1902 (Cth) together spanned fewer than 45 pages.

Recognising the importance of species diversity in conserving and exploiting plant genetic resources for food and agriculture, international and domestic arrangements have attempted over the decades in situ conservation, ex situ germplasm collections and germplasm exchange mechanisms. These initiatives established valuable resources for the development of new crop and forage plant varieties but there were no uniform or binding arrangements for conserving and accessing these resources. A more formal and uniform arrangement to both facilitate the conservation and exchange of some crop and forage plant genetic materials and share the benefits is now addressed in the International Treaty on Plant Genetic Resources for Food and Agriculture (‘PGRFA Treaty’). The Food and Agriculture Organization of the United Nations (‘FAO’) adopted the PGRFA Treaty in 2001, although it has not yet entered into force. A separate and distinct PGRFA Treaty was the culmination of the re-negotiation of the United Nations' International Undertaking on Plant Genetic Resources for Food and Agriculture recognising ‘the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions’.

New Zealand’s political landscape experienced a seismic shift in 1993, when the country replaced the First-Past-The-Post (FPTP) voting system it had inherited from its British colonial past with a new Mixed Member Proportional (MMP) voting system. The move had immediate and deep ramifications for a whole range of issues: the range of interests represented in Parliament; the way that governments are formed and function; how the country’s public sector agencies operate; the manner in which its electoral participants conduct their campaigns; and so on. Indeed, it is not too much of an exaggeration to say that every area of New Zealand’s public and political life was touched in some fashion by the general ‘systems change’ produced by the country’s decision to embrace MMP.5 These changes have effected shifts in what may be termed the ‘political culture’ of New Zealand; re-alignments in the relationships between various public and political institutions and bodies; as well as alterations to the formal legal rules that govern these institutions and bodies.