How the NHMRC got its fingers burnt

On 20 December 1996, Justice J Finn of the Federal Court of Australia handed down his judgment in the case of the Tobacco Institute of Australia (TIA) Ltd and others v the National Health and Medical Research Council (NHMRC) and others. Justice Finn concluded that, in developing its recommendations for control of environmental tobacco smoke, the NHMRC's Working Party on Passive Smoking erred significantly in regard to the consultative procedures that it employed. As the following discussion shows, the legal decision has profound implications for the NHMRC and the provision of expert advice to Australian governments on matters of health and health policy. The discussion has been prepared by three members of the NHMRC Working Party, but reflects their personal views and not necessarily those of the Working Party as a whole or those of the NHMRC.

When state silence becomes persecution: The case of domestic violence refugees in minister for immigration and multicultural affairs v Khawar

In Minister for Immigration and Multicultural Affairs v Khawar, the Federal Court upheld a finding setting aside the refusal of the Refugee Review Tribunal (RRT) to grant a protection visa to a Pakistani woman - Tribunal's failure to consider the notion that state tolerance of violence for discriminatory reasons could amount to persecution under the definition of 'refugee' in the Convention Relating to the Status of Refugees.

The Tampa decision : refugee rights versus the executive's power to detain and expel unlawful non-citizens

In Ruddock and Others v Vadarlis and Others the Federal Court had to balance two fundamental but competing rights, the right of the state to secure its frontiers and the rights of individuals not to be subjected to unlawful detention - Court's task was hampered by intense public debate over the illegal refugee crisis - in the wake of 11 September 2001 and the Tampa crisis, the Federal Government has rushed through several amendments to migration laws and border protection legislation.

Re McBain; ex parte Australian Catholic Bishops Conference

The case of Re McBain; ex parte Australian Catholic Bishops Conference sought to make an order under s 76 of the Constitution that the decision of the Federal Court was incorrect in law - decision was made on the basis of constitutional and procedural issues - High Court consolidated the definition of 'matter' in sections 75 and 76 of the Constitution - writ of certiorari considered - role of the Attorney-General in proceedings in which he had granted a fiat - case reiterated the role of the judiciary in Australia.

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri

The case of Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri examines the legality of the continued, and possibly indefinite, detention of an asylum seeker - in determining whether mandatory detention was in fact 'mandatory', and legally so, the Federal Court had to examine the complexity between statute, the Constitution and fundamental rights and freedoms at stake.

The Wellesley Island decision: Offshore native title post Yarmirr and ward

Casenote on Federal Court decision, The Lardil Peoples v State of Queensland - recognition of non-exclusive native title rights and interests in offshore areas.

Pace of Civil Litigation in the Queensland Supreme Court

The overriding philosophy of the Uniform Civil Procedure Rules 1999 in Queensland is to facilitate the just and expeditious resolution of the issues in a civil proceeding at minimum expense. The court is enjoined to apply the rules to avoid undue delay, expense and technicality. Parties impliedly undertake to the court and each other to proceed expeditiously. These rules adopt management theories developed to contain delay and cost in the civil justice system. A survey was designed to determine whether the overriding objective is being achieved in practice. The results indicate a reduction in the time from initiation of a proceeding to termination as compared to a sample of similar cases determined under the repealed Rules of the Supreme Court.

Judicial (in)activism in Australia's secular commonwealth

his article addresses two aspects of Australia's soft secular government. The first aspect explains how, and asks why, judges have been inactive in helping to draw the contours of secular government in Australia. The principal reason is that much of the social regulation that provokes the interest of faith-based groups is the constitutional concern of the States, and no State Constitution claims to coordinate relations between church and state. Moreover, the electorate has twice refused to pass referenda, in 1944 and 1988, for extending a constitutional demand of secular governance to the States. However, this is not so for the Commonwealth. It falls under the restrictions of section 116 of the federal Constitution, which states: The Commonwealth shall not make any law for establishing any religion ('the establishment clause') or for imposing any religious observance, or for prohibiting the free exercise of any religion ('the free exercise clause'), and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. As will be explained, while methods of legal interpretation suggest that section 116's establishment clause could place mild demands of non-discrimination on the federal Parliament, judicial inactivity in policing such demands on the Commonwealth, paradoxically, has arguably been secured by judicial activism in the High Court. A second aspect of secular government addressed is the High Court's disposal of 'the separation of church and state' as a constitutional principle in Australia. The contrast, of course, is to the United States, where for sixty years 'separation' has been given uneven recognition as a rule of constitutional law, and has undoubtedly driven the development of hard forms of secular governance in that country. The centrepiece of American secular government is the 1971 decision in Lemon v Kurtzman, where the US Supreme Court held that valid legislation had to pass three tests, ie: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion .. . finally, the statute must not foster 'an excessive government entanglement with religion. The third 'entanglement' prong of Lemon is the modern, less ambitious, form of the 'wall of separation', prohibiting too close an engagement between church and state. As this paper will demonstrate, 'entanglement's' destiny shows how unlikely it is that 'separation' can survive as a meaningful constitutional principle in the USA. And, it will also be argued that 'separation' has even poorer prospects for import to Australia.