Between 1990 and 1993, the Australian High Court handed down an amazing series of judgments. Twelve cases were involved. Six of them were primarily concerned with curbing the power of tile executive or modifying the rule of law doctrine. The remaining six focused on the protection of the rights of individuals. It is suggested that these decisions, four of which were unanimous and only two of which had as many as three Justices in dissent, reveal a major, and possibly a long-term, shift in the orientation of the Court. Using its own and British jurisprudence as a springboard, the Court is rejuvenating the traditional doctrine of the rule of law by applying it not only to rights against the state — the traditional view of civil and political rights — but also to claims upon the state, which some theorists consider are non-rights and only programmatic in their nature. It has begun to extend the concept of the rule of law into the area of substantive, as distinct from formal, equality. Finally, it has elevated certain rights to the status of a new and potent “common law of the Constitution”.

The Attorney-General: [Clark, told the Legislative Assembly that] … Sir Samuel Griffith, Mr Kingston and himself knew what they were doing. They went to work with their eyes open and he claimed part of the responsibility, or glory, or whatever they might call it.

Mr Dobson: A march towards republicanism.

The Attorney-General: said they could call it what they liked. If it was republicanism, then Sir Samuel Griffith was a good republican, and he was as good a one as he [Clark].

A report of the debate on the Draft Constitution in the Tasmanian Legislative Assembly. Hobart Mercury 18 August, 1897.

There is undoubtedly a growing willingness in the High Court to find constitutional implications protecting individual freedoms or rights. There are a number of possible bases for this approach, including the separation of powers and the common law. In this context, the High Court's decisions in Australian Capital Television Pty Ltd v Commonwealth (No 2) (the Political Advertising case) and Nationwide News Pty Ltd v Wills (which together I shall call the “principal cases”) are very significant. A majority of six judges in the decisions held both that the Constitution entrenches the system of representative democracy and that this in tum implies constitutional protection of free speech on political matters. The two cases were handed down on the same day and must be read together as. the judges' reasoning for these conclusions overlap between the cases. The significance of the principal cases is twofold. They constitute the clearest acceptance by the Court to date of an implied constitutional limitation relating to individual freedom. More importantly, they establish a new basis for finding further constitutional implications. If freedom of political communication is constitutionally protected because it is essential to representative democracy, other freedoms and requirements might be similarly essential and be similarly protected.

In October 1994, the High Court decided two cases, Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd both of which are of considerable constitutional importance to the States in terms of the reach of Commonwealth implied rights and the recognition of State implied rights. Theophanous establishes a constitutional defence to a defamation action based upon the implied freedom of political discussion previously derived from the Commonwealth Constitution in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth. In Stephens, this defence was applied in the context of an entirely State matter.

No two areas of law-in Australia are moving with quite the breathless pace of corporate law and labour law. Changes under the Corporate Law Simplification project promise to be fundamental and far-reaching. And in Australian labour law, the enterprise bargaining regime under the Industrial Relations Reform Act 1993 is charting new waters. Lord Wedderburn has referred to the “unaccustomed proximity” of corporate law and labour law, and indeed, little recognition of the other's significance is evident in the reforms unfolding in each of these vital fields. This article focuses on the relevance of corporate law to labour lawyers. Its message, however, might just as easily be reversed.

In 1981 and in following years Australian parliaments embarked upon a novel experiment: statutory reform of the general approaches to statutory interpretation. The best known of these provisions (called here “purpose rules”) is s 15AA of the Acts Interpretation Act 1901 (Cth).

Australian law regulating the use and disclosure of official information is in a far from satisfactory state. It suffers from both obscurity and untoward complexity … [and i]t is ill-suited both to contemporary conditions of government and to prevailing constitutional and democratic norms … Notwithstanding the progressive introduction of Freedom of Information regimes in Australia, we have by no means reached — or sought to reach the position where … the free use and disclosure of information is the norm and secrecy the exception … While the balance is now changing, and desirably so, secrecy endures as the primary obligation and openness the exception …

The United States is said to be undergoing a republican revival. Republicanism is a political theory and philosophy that has become enmeshed in the debates surrounding United States constitutionalism. Commentators have argued for several different paradigms of republicanism. Frequently, support for a particular paradigm has been sought from an understanding of historical and modern political thought and, more significantly for our purposes, from the era that saw the birth of the United States Constitution.

The multifarious origins of, and many views on, republicanism, as well as the number of commentators moulding the concept to suit their own ends, make republicanism difficult to pin down. The core elements of modern republicanism may be taken to refer to a system of government by the people equally that seeks to achieve the common good through deliberation by political actors who act not in their own interest or the interests of their constituents but for the community as a whole. This is a far cry from the “militarist, elitist, religious, and sexist sentiments” historically displayed by republicanism.

One of the primary consequences of the difficulties experienced by companies and by regulators in the decade of the 1980s has been a greater focus on corporate governance. The precise meaning and content of this expression is far from clear. It seems to be a term used to describe a number of related phenomena that are influencing the way in which companies are being managed, governed and regulated. The mode of governance of companies is being influenced by the growth in institutional investment, an increased focus on the role of the board of directors, increased levels of disclosure of financial information, as well as by the chal1ging and developing roles of regulatory bodies such as the Australian Stock Exchange (ASX), the Australian Securities Commission(ASC), and the Australian Competition and Consumer Commission (ACCC).

The Copyright Law Review Committee (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the “digital revolution”, permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission.

The High Court's judgment in Minister for Immigration and Ethnic Affairs v Teoh is perhaps the most controversial judgment handed down by the Court this year, for both legal and political reasons. On the political side it has added further fuel to the fire about the significance of the ratification of treaties and the roles of the Executive and the Parliament in the process of ratification and implementation of treaties. On the legal side, it has developed the law on “legitimate expectations” and provided interesting obiter dicta on sleeping issues such as the use of treaties and international law in the interpretation of statutes and the development of the common law. It has also left open questions about the status of treaties which form schedules to legislation but which are not directly implemented by that legislation. This note will address the legal, rather than the political, aspects of the Teoh case, starting with the development of the law on “legitimate expectations”, and then considering issues concerning the use of unincorporated treaties to develop and affect the law in other ways.

George Williams poses a very topical question: is a republican tradition for Australia either possible or desirable? Simply by recognising republicanism as a tradition deeply rooted in the history of Western political thought, Williams helps to take us beyond the current officially sponsored nativist campaign to rid us of our “foreign” Queen. Republicanism is a complex phenomenon that first became manifest in the world of classical antiquity. The strength of Williams's article lies in the impulse to break free from the banal parochialism of the republic promoted by the Australian Republican Movement and a compliant media eager to service the perceived legitimation needs of the national government.

In the American constitutional tradition Williams finds a rich store of ideas about the role of an active citizenry in the creation and preservation of a free republican society. The idea of the republic in America did not begin or end with the removal of a “foreign” monarch. Republicanism inspired the transformation of American society after the overthrow of the British monarchy.

Andrew Fraser has made a valuable contribution to the debate over the role of republicanism in Australia. He has raised an important, and generally ignored, question: would Keating's model for an Australian republic achieve a republican republic? A corollary of this is a further question: is it in any event desirable that an Australian republic be based upon the strong republicanism favoured by Fraser? On the former question, I would agree with Fraser that Keating's model would not imbue the Australian nation with Fraser's version of republicanism and that, if Fraser's version of republicanism were to be accepted, Australia would remain an unrepublican republic. However, as to the latter question, we would disagree. Fundamentally, I do not see Fraser's version of strong republicanism as being viable.

Fraser has significantly broadened the discussion of republicanism and has widened perceptions of what the ideology, for want of a better word, might encompass. However, while much of his criticism of my article, “A Republicanism Tradition for Australia?”, is explicable on the basis that he and I obviously share very different starting-points and approaches, I feel that he has misconstrued my argument in some respects.

Garfield Edward John Barwick, born on 22 June 1903, is undoubtedly one of the most important Australians of the century. As counsel, Barwick had an important role in the landmark cases in the High Court and the Privy Council in the 1940s and the 1950s. As Attorney-General for the Commonwealth through 1958 to 1963, he was involved in initiatives in matrimonial causes, company law and trade practices. Sir Garfield's career also included service as Minister for External Affairs (1961-1964).

This book of his recollections and reflections has a clarity and force which come in part from its simplicity of style and in part from the personality of the author. It provides an important historical record of Sir Garfield's view of a number of key events in Australian history — especially Australian legal history. It also provides insight into the philosophy and values of this influential Australian lawyer.