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.

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.

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.