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Publisher: RMIT Publishing   (Total: 400 journals)

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Showing 1 - 200 of 400 Journals sorted alphabetically
40 [degrees] South     Full-text available via subscription   (Followers: 2)
Aboriginal and Islander Health Worker J.     Full-text available via subscription   (Followers: 14)
Aboriginal Child at School     Full-text available via subscription   (Followers: 5)
About Performance     Full-text available via subscription   (Followers: 11)
Access     Full-text available via subscription   (Followers: 25)
ACCESS: Critical Perspectives on Communication, Cultural & Policy Studies     Full-text available via subscription   (Followers: 9)
Accounting, Accountability & Performance     Full-text available via subscription   (Followers: 16)
ACORN : The J. of Perioperative Nursing in Australia     Full-text available via subscription   (Followers: 17, SJR: 0.103, h-index: 4)
Adelaide Law Review     Full-text available via subscription   (Followers: 19)
Advocate: Newsletter of the National Tertiary Education Union     Full-text available via subscription   (Followers: 1)
Agenda: A J. of Policy Analysis and Reform     Full-text available via subscription   (Followers: 1)
Agora     Full-text available via subscription   (Followers: 3)
Agricultural Commodities     Full-text available via subscription   (SJR: 0.102, h-index: 8)
Agricultural Science     Full-text available via subscription   (Followers: 2)
AIMA Bulletin     Full-text available via subscription   (Followers: 4)
AJP : The Australian J. of Pharmacy     Full-text available via subscription   (Followers: 10, SJR: 0.102, h-index: 5)
Analysis     Full-text available via subscription   (Followers: 3)
Ancient History : Resources for Teachers     Full-text available via subscription   (Followers: 4)
Anglican Historical Society J.     Full-text available via subscription   (Followers: 3)
Annals of the Royal Australasian College of Dental Surgeons     Full-text available via subscription   (Followers: 4, SJR: 0.101, h-index: 11)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 3)
Appita J.: J. of the Technical Association of the Australian and New Zealand Pulp and Paper Industry     Full-text available via subscription   (Followers: 14, SJR: 0.18, h-index: 27)
AQ - Australian Quarterly     Full-text available via subscription  
Arena J.     Full-text available via subscription   (Followers: 1)
Around the Globe     Full-text available via subscription   (Followers: 1)
Art + Law     Full-text available via subscription   (Followers: 12)
Art Monthly Australia     Full-text available via subscription   (Followers: 10)
Artefact : the journal of the Archaeological and Anthropological Society of Victoria     Full-text available via subscription   (Followers: 3)
Artlink     Full-text available via subscription   (Followers: 5)
Asia Pacific J. of Clinical Nutrition     Full-text available via subscription   (Followers: 10, SJR: 0.672, h-index: 51)
Asia Pacific J. of Health Management     Full-text available via subscription   (Followers: 3)
Aurora J.     Full-text available via subscription  
Australasian Biotechnology     Full-text available via subscription   (Followers: 1, SJR: 0.1, h-index: 8)
Australasian Catholic Record, The     Full-text available via subscription   (Followers: 5)
Australasian Drama Studies     Full-text available via subscription   (SJR: 0.101, h-index: 2)
Australasian Epidemiologist     Full-text available via subscription  
Australasian Historical Archaeology     Full-text available via subscription   (Followers: 7)
Australasian J. of Early Childhood     Full-text available via subscription   (Followers: 4, SJR: 0.174, h-index: 1)
Australasian J. of Gifted Education     Full-text available via subscription   (Followers: 5, SJR: 0.115, h-index: 3)
Australasian J. of Human Security, The     Full-text available via subscription   (Followers: 1)
Australasian J. of Irish Studies, The     Full-text available via subscription   (Followers: 8)
Australasian J. of Regional Studies, The     Full-text available via subscription   (Followers: 1)
Australasian Law Management J.     Full-text available via subscription   (Followers: 7)
Australasian Leisure Management     Full-text available via subscription   (Followers: 1)
Australasian Musculoskeletal Medicine     Full-text available via subscription   (Followers: 3)
Australasian Music Research     Full-text available via subscription   (Followers: 4)
Australasian Parks and Leisure     Full-text available via subscription   (Followers: 2)
Australasian Plant Conservation: J. of the Australian Network for Plant Conservation     Full-text available via subscription   (Followers: 4)
Australasian Policing     Full-text available via subscription   (Followers: 5)
Australasian Public Libraries and Information Services     Full-text available via subscription   (Followers: 32)
Australasian Review of African Studies, The     Full-text available via subscription   (Followers: 2)
Australian Aboriginal Studies     Full-text available via subscription   (Followers: 10, SJR: 0.109, h-index: 6)
Australian Advanced Aesthetics     Full-text available via subscription   (Followers: 4)
Australian Ageing Agenda     Full-text available via subscription   (Followers: 6)
Australian and Aotearoa New Zealand Psychodrama Association J.     Full-text available via subscription  
Australian and New Zealand Continence J.     Full-text available via subscription   (Followers: 3)
Australian and New Zealand Sports Law J.     Full-text available via subscription   (Followers: 8)
Australian Art Education     Full-text available via subscription   (Followers: 7)
Australian Bookseller & Publisher     Full-text available via subscription   (Followers: 1)
Australian Bulletin of Labour     Full-text available via subscription   (Followers: 2)
Australian Canegrower     Full-text available via subscription   (Followers: 2)
Australian Coeliac     Full-text available via subscription   (Followers: 1)
Australian Cottongrower, The     Full-text available via subscription   (Followers: 1)
Australian Educational and Developmental Psychologist, The     Full-text available via subscription   (Followers: 8, SJR: 0.143, h-index: 4)
Australian Family Physician     Full-text available via subscription   (Followers: 3, SJR: 0.364, h-index: 31)
Australian Field Ornithology     Full-text available via subscription   (Followers: 4, SJR: 0.141, h-index: 6)
Australian Forest Grower     Full-text available via subscription   (Followers: 4)
Australian Forestry     Full-text available via subscription   (Followers: 2, SJR: 0.252, h-index: 24)
Australian Grain     Full-text available via subscription   (Followers: 2)
Australian Holstein J.     Full-text available via subscription   (Followers: 1)
Australian Humanist, The     Full-text available via subscription   (Followers: 3)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 19)
Australian Intl. Law J.     Full-text available via subscription   (Followers: 23)
Australian J. of Acupuncture and Chinese Medicine     Full-text available via subscription   (Followers: 3, SJR: 0.106, h-index: 3)
Australian J. of Adult Learning     Full-text available via subscription   (Followers: 15, SJR: 0.159, h-index: 7)
Australian J. of Advanced Nursing     Full-text available via subscription   (Followers: 11, SJR: 0.225, h-index: 26)
Australian J. of Asian Law     Full-text available via subscription   (Followers: 4)
Australian J. of Cancer Nursing     Full-text available via subscription   (Followers: 8)
Australian J. of Civil Engineering     Full-text available via subscription   (Followers: 5, SJR: 0.17, h-index: 3)
Australian J. of Dyslexia and Learning Difficulties     Full-text available via subscription   (Followers: 8)
Australian J. of Emergency Management     Full-text available via subscription   (Followers: 10, SJR: 0.401, h-index: 18)
Australian J. of French Studies     Full-text available via subscription   (Followers: 7, SJR: 0.1, h-index: 5)
Australian J. of Herbal Medicine     Full-text available via subscription   (Followers: 3, SJR: 0.109, h-index: 7)
Australian J. of Language and Literacy, The     Full-text available via subscription   (Followers: 2, SJR: 0.399, h-index: 9)
Australian J. of Legal History     Full-text available via subscription   (Followers: 14)
Australian J. of Mechanical Engineering     Full-text available via subscription   (Followers: 3, SJR: 0.129, h-index: 4)
Australian J. of Medical Science     Full-text available via subscription   (Followers: 1, SJR: 0.122, h-index: 5)
Australian J. of Multi-Disciplinary Engineering     Full-text available via subscription   (Followers: 2)
Australian J. of Music Education     Full-text available via subscription   (Followers: 3)
Australian J. of Music Therapy     Full-text available via subscription   (Followers: 8)
Australian J. of Parapsychology     Full-text available via subscription   (Followers: 2)
Australian J. of Social Issues     Full-text available via subscription   (Followers: 5, SJR: 0.178, h-index: 20)
Australian J. of Structural Engineering     Full-text available via subscription   (Followers: 6, SJR: 0.296, h-index: 8)
Australian J. of Water Resources     Full-text available via subscription   (Followers: 6, SJR: 0.226, h-index: 9)
Australian J. on Volunteering     Full-text available via subscription   (Followers: 2)
Australian J.ism Review     Full-text available via subscription   (Followers: 8)
Australian Life Scientist     Full-text available via subscription   (Followers: 2, SJR: 0.1, h-index: 2)
Australian Literary Studies     Full-text available via subscription   (Followers: 5, SJR: 0.1, h-index: 6)
Australian Mathematics Teacher, The     Full-text available via subscription   (Followers: 6)
Australian Nursing J. : ANJ     Full-text available via subscription   (Followers: 6)
Australian Orthoptic J.     Full-text available via subscription  
Australian Primary Mathematics Classroom     Full-text available via subscription   (Followers: 4)
Australian Screen Education Online     Full-text available via subscription   (Followers: 2)
Australian Senior Mathematics J.     Full-text available via subscription   (Followers: 1)
Australian Sugarcane     Full-text available via subscription  
Australian TAFE Teacher     Full-text available via subscription   (Followers: 4)
Australian Tax Forum     Full-text available via subscription   (Followers: 3)
Australian Universities' Review, The     Full-text available via subscription   (Followers: 4)
Australian Voice     Full-text available via subscription   (Followers: 6)
Bar News: The J. of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Bioethics Research Notes     Full-text available via subscription   (Followers: 13)
BOCSAR NSW Alcohol Studies Bulletins     Full-text available via subscription   (Followers: 4)
Bookseller + Publisher Magazine     Full-text available via subscription   (Followers: 5)
Breastfeeding Review     Full-text available via subscription   (Followers: 17, SJR: 0.31, h-index: 19)
British Review of New Zealand Studies     Full-text available via subscription   (Followers: 4)
Brolga: An Australian J. about Dance     Full-text available via subscription   (Followers: 1)
Cancer Forum     Full-text available via subscription   (SJR: 0.143, h-index: 10)
Cardiovascular Medicine in General Practice     Full-text available via subscription   (Followers: 7)
Chain Reaction     Full-text available via subscription  
Childrenz Issues: J. of the Children's Issues Centre     Full-text available via subscription  
Chiropractic J. of Australia     Full-text available via subscription   (SJR: 0.107, h-index: 3)
Chisholm Health Ethics Bulletin     Full-text available via subscription   (Followers: 1)
Church Heritage     Full-text available via subscription   (Followers: 4)
Commercial Law Quarterly: The J. of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 4)
Communicable Diseases Intelligence Quarterly Report     Full-text available via subscription   (Followers: 2, SJR: 0.567, h-index: 27)
Communication, Politics & Culture     Open Access   (Followers: 13)
Communities, Children and Families Australia     Full-text available via subscription   (Followers: 2)
Connect     Full-text available via subscription   (Followers: 2)
Contemporary PNG Studies     Full-text available via subscription  
Context: J. of Music Research     Full-text available via subscription   (Followers: 8)
Corporate Governance Law Review, The     Full-text available via subscription   (Followers: 7)
Creative Approaches to Research     Full-text available via subscription   (Followers: 13)
Critical Care and Resuscitation     Full-text available via subscription   (Followers: 18, SJR: 1.737, h-index: 24)
Cultural Studies Review     Full-text available via subscription   (Followers: 15)
Culture Scope     Full-text available via subscription   (Followers: 4)
Current Issues in Criminal Justice     Full-text available via subscription   (Followers: 10)
Dance Forum     Full-text available via subscription   (Followers: 2)
DANZ Quarterly: New Zealand Dance     Full-text available via subscription   (Followers: 3)
Day Surgery Australia     Full-text available via subscription   (Followers: 2)
Deakin Law Review     Full-text available via subscription   (Followers: 14)
Developing Practice : The Child, Youth and Family Work J.     Full-text available via subscription   (Followers: 19)
Early Days: J. of the Royal Western Australian Historical Society     Full-text available via subscription  
Early Education     Full-text available via subscription   (Followers: 8)
EarthSong J.: Perspectives in Ecology, Spirituality and Education     Full-text available via subscription   (Followers: 1)
East Asian Archives of Psychiatry     Full-text available via subscription   (Followers: 2, SJR: 0.331, h-index: 7)
Educare News: The National Newspaper for All Non-government Schools     Full-text available via subscription  
Educating Young Children: Learning and Teaching in the Early Childhood Years     Full-text available via subscription   (Followers: 17)
Education in Rural Australia     Full-text available via subscription   (Followers: 1)
Education, Research and Perspectives     Full-text available via subscription   (Followers: 10)
Educational Research J.     Full-text available via subscription   (Followers: 17)
Electronic J. of Radical Organisation Theory     Full-text available via subscription   (Followers: 3)
Employment Relations Record     Full-text available via subscription   (Followers: 2)
English in Aotearoa     Full-text available via subscription   (Followers: 1)
English in Australia     Full-text available via subscription   (Followers: 2, SJR: 0.19, h-index: 6)
Essays in French Literature and Culture     Full-text available via subscription   (Followers: 6)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
Eureka Street     Full-text available via subscription   (Followers: 5)
Extempore     Full-text available via subscription  
Family Matters     Full-text available via subscription   (Followers: 10, SJR: 0.259, h-index: 8)
Federal Law Review     Full-text available via subscription   (Followers: 21)
Fijian Studies: A J. of Contemporary Fiji     Full-text available via subscription   (Followers: 1)
Focus on Health Professional Education : A Multi-disciplinary J.     Full-text available via subscription   (Followers: 7)
Food New Zealand     Full-text available via subscription   (Followers: 4)
Fourth World J.     Full-text available via subscription   (Followers: 1)
Frontline     Full-text available via subscription   (Followers: 18)
Future Times     Full-text available via subscription   (Followers: 2)
Gambling Research: J. of the National Association for Gambling Studies (Australia)     Full-text available via subscription   (Followers: 5)
Gay and Lesbian Law J.     Full-text available via subscription   (Followers: 2)
Gender Impact Assessment     Full-text available via subscription   (Followers: 1)
Geographical Education     Full-text available via subscription   (Followers: 2)
Geriatric Medicine in General Practice     Full-text available via subscription   (Followers: 8)
Gestalt J. of Australia and New Zealand     Full-text available via subscription   (Followers: 2)
Globe, The     Full-text available via subscription   (Followers: 3)
Government News     Full-text available via subscription   (Followers: 2)
Great Circle: J. of the Australian Association for Maritime History, The     Full-text available via subscription   (Followers: 7)
Grief Matters : The Australian J. of Grief and Bereavement     Full-text available via subscription   (Followers: 10)
He Puna Korero: J. of Maori and Pacific Development     Full-text available via subscription   (Followers: 4)
Headmark     Full-text available via subscription   (Followers: 2)
Health Inform     Full-text available via subscription  
Health Issues     Full-text available via subscription   (Followers: 2)
Health Promotion J. of Australia : Official J. of Australian Association of Health Promotion Professionals     Full-text available via subscription   (Followers: 8, SJR: 0.606, h-index: 19)
Health Voices     Full-text available via subscription  
Heritage Matters : The Magazine for New Zealanders Restoring, Preserving and Enjoying Our Heritage     Full-text available via subscription   (Followers: 2)
High Court Quarterly Review, The     Full-text available via subscription   (Followers: 3)
History of Economics Review     Full-text available via subscription   (Followers: 9)
HIV Australia     Full-text available via subscription   (Followers: 3)
HLA News     Full-text available via subscription   (Followers: 3)
Hong Kong J. of Emergency Medicine     Full-text available via subscription   (Followers: 4, SJR: 0.173, h-index: 7)
Idiom     Full-text available via subscription   (Followers: 1)
Impact     Full-text available via subscription   (Followers: 1)
InCite     Full-text available via subscription   (Followers: 18)
Indigenous Law Bulletin     Full-text available via subscription   (Followers: 17)
InPsych : The Bulletin of the Australian Psychological Society Ltd     Full-text available via subscription   (Followers: 2)
Inside Film: If     Full-text available via subscription   (Followers: 7)
Institute of Public Affairs Review: A Quarterly Review of Politics and Public Affairs, The     Full-text available via subscription   (Followers: 11)
Instyle     Full-text available via subscription  
Intellectual Disability Australasia     Full-text available via subscription   (Followers: 7)
Interaction     Full-text available via subscription   (Followers: 3)
Intl. Employment Relations Review     Full-text available via subscription   (Followers: 2)
Intl. J. of Disability Management Research     Full-text available via subscription   (Followers: 2)

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Journal Cover Adelaide Law Review
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   ISSN (Print) 0065-1915
   Published by RMIT Publishing Homepage  [400 journals]
  • Volume 38 Issue 1 - Paciocco v Australia & New Zealand banking group
           Ltd (2016) 90 ALJR 835
    • Abstract: Macalincag, Rozelle
      The highly anticipated conclusion to a five-year battle over the status of the doctrine of penalties in Australia came in the case of Paciocco v Australia & New Zealand Banking Group Ltd. This case note reviews the procedural history of Paciocco, which provides the foundation for the earlier controversy surrounding the penalties doctrine and the consequent importance of the case, before undertaking an analysis of the High Court's decision and its wider ramifications. Paciocco takes a welcome step towards remedying the Court's prior significant expansion of the doctrine.

      PubDate: Wed, 2 May 2018 11:35:32 GMT
       
  • Volume 38 Issue 1 - 2016 senate electoral reforms in the high court and
           beyond
    • Abstract: Roeger, Shauna
      In 2016, the government implemented significant reforms to the Senate electoral processes when it passed amendments to the Commonwealth Electoral Act 1918 (Cth) ('CEA'). Shortly after the passage of the amending legislation, Senator Bob Day challenged the amendments' constitutional validity in the High Court of Australia. In Day v Australian Electoral Officer (SA), the High Court unanimously dismissed the challenge. This case note explains the High Court's reasoning and considers how the decision reinforces existing constitutional principles regarding the Parliament's power to determine electoral processes. This case note then examines how the new system fared at the 2016 federal election, and concludes that, while Senate processes may still benefit from further reform, especially in relation to Senate casual vacancies, the 2016 reforms were a victory for Australian democracy.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - Submission of manuscripts
    • PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - The sociopolitical and legal history of the tax
           deduction for donations to charities in Australia and how the 'public
           benevolent institution' developed
    • Abstract: Martin, Fiona
      Every year the Australian revenue grants tax concessions of around $1.3 billion in respect of tax deductibility of donations to specific charities and not-for-profits (NFPs). This article explains the historical development of the tax deduction for charitable donations. It explores the exemption of charities and other NFPs from land and income tax in order to explain how this tax deduction arose. The discussion will establish that the tax deductibility of donations arose in an ad hoc fashion due to war and depression, that the concession was shaped by the personal issues and ideologies of influential politicians, that the 'person in the street' opinion about charities was important and that Britain and the United States of America also played a part. It will also demonstrate how the revenue was taken into account in the development of a tax deductible NFP that is unique to Australian taxation law, the 'Public Benevolent Institution'.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - Sexual orientation and 'gay wedding cake' cases under
           Australian anti-discrimination legislation: A fuller approach to religious
           exemptions
    • Abstract: Elphick, Liam
      Freedom from discrimination and religious freedom have long clashed in the context of religious exemptions to anti-discrimination legislation. Historically rooted in debates over gender and race, this legal battleground has largely turned to sexual orientation in recent years. This has been particularly borne out in various 'gay wedding cake' disputes in overseas jurisdictions, where bakery owners have been sued for refusing to bake a cake for a same-sex wedding on religious grounds. Though the continued definition of marriage as being between a man and a woman has so far precluded these cases from arising in Australia, an in-depth examination of how such gay wedding cake cases would be decided under Australia's varying anti-discrimination laws remains lacking. Furthermore, existing approaches have tended to focus on the external morality of law and human rights, facing the difficult task of balancing freedom from discrimination with religious freedom. To avoid the uncertainty typical of external morality debates this article suggests an alternative approach, arguing that an application of Lon L Fuller's natural law theory, and in particular his eight 'excellencies' of law making, could provide a path forward for this debate in the pursuance of the internal morality of law. This approach would suggest an expansion of the current definitions of sexual orientation in Australian anti-discrimination legislation, the application of religious exemptions to religious organisations and religiously-affiliated bodies but not to individuals, and a shift to a quasi-subjective test to determine religious beliefs under such exemptions. This would provide a clearer path forward for lawmakers and judicial decision makers in an area of law rife with uncertainty and inconsistency.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - An Australia-Indonesia arrangement on refugees:
           Exploring the structural, legal and diplomatic dimensions
    • Abstract: Tyrer, Samuel
      Australia must engage cooperatively with its regional neighbors on asylum issues facing the region. A proposal for cooperation between Australia and Indonesia on refugees is explored as to its structural, legal and diplomatic dimensions. Obstacles to that arrangement are rigorously analysed. Useful recommendations are then made to move such an arrangement forward. The discussion shows that support from both countries for this arrangement can be developed. Critically though, this arrangement is between two countries and so cannot succeed to protect refugees on its own. Rather, cooperation between multiple countries is necessary to successfully protect refugees and thereby undermine irregular boat journeys to Australia and generally. Policy discussions in this area must continue, including as to what other concrete arrangements could be developed between states benefiting refugees in various ways. As Australia's existing arrangements for offshore processing with Papua New Guinea and Nauru, which see asylum seekers detained in facilities in those countries, are unraveling, finding alternative and principled policies is imperative.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - Exemplary damages: Retribution and condemnation the
           purpose controlling the scope of the exemplary damages award
    • Abstract: Doecke, Alison
      Exemplary damages have caused a long and unresolved struggle with the underlying compensatory purpose of tort law because they award the plaintiff more than is necessary to compensate actual loss. This article identifies key principles from Australian High Court jurisprudence regarding such damages before turning to divergent authority from New Zealand and the New South Wales Court of Appeal. It is apparent from this review that the scope of the award (in terms of whether consciousness of wrongdoing is required) can only be determined by clarifying the proper purpose of the award of such damages. Only if the High Court continues to move from a punishment purpose to a condemnatory purpose will an award of exemplary damages be justified for less than conscious wrongdoing. It is argued that such windfall gain for the plaintiff is only justified when the defendant deserves punishment and consequently is required to have some subjective fault.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - The constitutional conventions and constitutional
           change: Making sense of multiple intentions
    • Abstract: Hobbs, Harry; Trotter, Andrew
      The delegates to the 1890s Constitutional Conventions were well aware that the amendment mechanism is the 'most important part of a Constitution', for on it 'depends the question as to whether the state shall develop with peaceful continuity or shall suffer alternations of stagnation, retrogression, and revolution'. However, with only 8 of 44 proposed amendments passed in the 116 years since Federation, many commentators have questioned whether the compromises struck by the delegates are working as intended, and others have offered proposals to amend the amending provision. This paper adds to this literature by examining in detail the evolution of s 128 of the Constitution - both during the drafting and beyond. This analysis illustrates that s 128 is caught between three competing ideologies: representative and responsible government, popular democracy, and federalism. Understanding these multiple intentions and the delicate compromises struck by the delegates reveals the origins of s 128, facilitates a broader understanding of colonial politics and federation history, and is relevant to understanding the history of referenda as well as considerations for the section's reform.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - An effective priority for the commissioner of taxation
           in liquidation: Bell group NV (in liq) v Western Australia (2016) 331 ALR
           408
    • Abstract: Marateo, Daniel
      In Bell Group NV (in liq) v Western Australia, the High Court unanimously held that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) ('Bell Act') was invalid in its entirety under s 109 of the Constitution. The Court found that the Bell Act was inconsistent with Commonwealth tax legislation that ascribes certain characteristics to Commonwealth tax debts, and that created obligations owing to the Commissioner as a creditor of the Bell Group entities.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - A colonial history of the river murray dispute
    • Abstract: Webster, Adam
      This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the 'rights' of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 38 Issue 1 - Absorbing south australia's wills act dispensing power
           in the united states: Emulation, resistance, expansion
    • Abstract: Langbein, John H
      Since 1975, South Australia has been the epicentre of a notable development in the law of wills. In that year, the State Parliament passed the Wills Act Amendment Act (No 2) 1975 (SA), which amended s 12(2) of the Wills Act 1936 (SA) ('Wills Act'). Section 12(2) allows the Supreme Court to validate a will in which there has been some failure to comply with the formal requirements of the Wills Act, if the evidence in the case persuades the Court that the decedent intended the document to be his or her will. Section 12(2), widely known in the scholarly literature as the dispensing power, has had a shaping influence elsewhere in the common law world. Other Australian states and territories have enacted comparable legislation, as have most Canadian provinces. In the United States, the South Australian legislation and its case law have been the subject of sustained scholarly study, law revision activity, legislation, and case law. My main focus in this lecture will be to review the American experience, concluding with the most recent chapter, still being written, which is the story of how our absorption of the South Australian reform has led us to confront a completely unforeseen development the enforcement of so-called digital or electronic wills.

      PubDate: Wed, 2 May 2018 11:34:29 GMT
       
  • Volume 37 Issue 2 - Bartlett v Australia and new Zealand banking group
           Ltd, [2016] NSWCA 30 (7 march 2016)
    • Abstract: Williams, Natalie
      In 'Bartlett v Australia and New Zealand Banking Group Ltd', Mr Bartlett was wrongfully dismissed by the Australia and New Zealand Banking Group Limited (ANZ)2 for committing serious misconduct by allegedly posting confidential internal information to a journalist.

      PubDate: Fri, 24 Nov 2017 11:38:34 GMT
       
  • Volume 37 Issue 2 - Zaburoni v the queen (2016) 256 CLR 482
    • Abstract: Teng, Jordan Wei Peng; Mahony, Rebecca
      In 'Zaburoni v The Queen', the High Court decided what it means to 'intend' to transmit a serious infectious disease to another person under s 317(b) of the 'Criminal Code Act 1899' (Qld) ('the Code'). Godfrey Zaburoni was convicted in the District Court of Queensland of intentionally transmitting the human immunodeficiency virus ('HIV') to his former partner.

      PubDate: Fri, 24 Nov 2017 11:36:25 GMT
       
  • Volume 37 Issue 1 - Abortion in the shadow of the criminal law': The
           case of South Australia
    • Abstract: Heath, Mary; Mulligan, Ea
      In 1969, the South Australian Parliament passed amendments to the criminal law designed to liberalise abortion and clearly state the circumstances in which abortion services might lawfully be provided by medical practitioners. Nevertheless, abortion offences, and the circumstances under which abortion may lawfully be provided, are stated in the Criminal Law Consolidation Act 1935 (SA), and this fact has given rise to continued concern about the legality of abortion in South Australia. This article considers whether there is any basis for these concerns, with particular focus on the provision of medication abortion, which was not contemplated by Parliament in 1969. In doing so, it draws on the language of the provisions and the extensive parliamentary debates that preceded their passage into law, arguing that Parliament's primary goal was to preserve women's health through clarifying the contexts in which lawful abortion would be available. We contend that any suggestion that medical abortion is criminal in South Australia, or that medical practitioners who comply with the statutory scheme in good faith run the risk of being prosecuted, is not grounded in an accurate account of the positive law. Nor is it supported by the application of the law in practice since 1969.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Achieving fairness in the allocation of public funding
           in referendum campaigns
    • Abstract: Kildea, Paul
      In 2013 the Gillard Government caused controversy when, in the lead-up to its planned referendum on local government recognition, it allocated 95 per cent of available promotional funding to the Yes campaign. This occurrence affirms that funding allocation is emerging as a contentious area in Australian referendum practice, and there are signs that disagreements about funding could have an impact on the proposed referendum on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. This article argues that the existing regulation of federal referendum expenditure is inadequate and a more principled and long-term approach is required. It evaluates the merits of three different approaches to funding allocation: 'equal funding', which sees funding shares divided equally between the Yes and No campaigns; 'proportionate funding', by which available money is allocated in proportion to parliamentary support; and discretionary funding, whereby promotional funds are apportioned at the discretion of the federal government. The article argues that legislation should be passed to establish a sustainable approach to funding allocation that advances, as much as possible, the objective of fairness in referendum campaigns. To this end it identifies and evaluates several reform options that, although imperfect, are preferable to the status quo.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Dr George Ian Duncan remembered
    • Abstract: Kirby, Michael
      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Australian employee entitlements in the event of
           insolvency: Is an insurance scheme an effective protective measure'
    • Abstract: Al Bhadily, Mohammed; Hosie, Peter
      In 2001, the Howard Government established the General Employee Entitlements and Redundancy Scheme, funded by taxpayers to provide a limited level of protection for employee entitlements in the event of corporate insolvency. The effectiveness of the scheme has been questioned as it involved taxpayers bailing out insolvent companies, and because government support has the potential to discourage employers from being fully accountable for employee entitlements. Government subsidising of employee entitlements may encourage misconduct or possibly lead to illegal activities by directors and corporate officers. A system where taxpayers bear the main cost of corporate failure is arguably inequitable. In 2012, the General Employee Entitlements and Redundancy Scheme was replaced by the 'Fair Entitlements Guarantee Act 2012' (Cth), also funded by the taxpayer, prompting the same concerns. This paper explores the potential for a joint employer and federal government-funded insurance scheme to provide an alternative solution for protecting employee entitlements when corporations collapse. An insurance scheme is proposed as a protective measure for employee entitlements. Such a scheme could provide sustainable and effective protective measures for employee entitlements.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - The future of charity regulation in Australia:
           Complexities of change
    • Abstract: Vaughan-Williams, John
      This article analyses the Australian Charities and Not-for-profits Commission (ACNC), established in 2012 by the Labor Government, and its role in charity regulation and guidance for Australia. This analysis is made in light of previous Coalition Government plans, which have since been abandoned, to disband the body. The charitable sector has long called for wholesale regulatory reform, due to the amount of duplicate reporting that exists in Australia's federal system. The ACNC has undertaken to address this issue, and many positive achievements have already been reached. Drawing on comparisons with both the New Zealand jurisdiction and Australia's pre-ACNC system, this article presents the case that the ACNC is a vital body for the sector, and presents some suggestions for future improvement in charity regulation.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Rebutting the ban the burqa rhetoric: A critical
           
    • Abstract: Barker, Renae
      The re-emergence of the ban the burqa campaign in Australia and the short-lived Commonwealth parliamentary ban on the wearing of face coverings in Parliament House highlight the ongoing hysteria surrounding the veil and the dangers of responding to that hysteria. This article critically examines the arguments put forward in support of a ban on the burqa. Arguments examined include that the wearing of a full face veil is not a religious requirement in Islam, that the veil is oppressive to women, that it is un-Australian, that the veil poses a security risk, that a ban is necessary for facial identification and that banning the veil is consistent with Australian society's treatment of other forms of face covering. The article concludes that these arguments do not provide a justification for a ban in Australia, either alone or in concert. Further, it demonstrates that many of the arguments put forward in support of a ban are counterproductive and contradictory. It argues that instead Australia should strive to identify where limited restrictions may be necessary and that any restrictions on the wearing of the face veil should be as minimally invasive as possible.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Conflict in strata title developments: The need for
           differentiated dispute resolution rules
    • Abstract: Douglas, Kathy; Leshinsky, Rebecca; Condliffe, Peter
      Conflict arising in apartment buildings, medium-density housing and master planned estates is an important issue as strata title developments become more prevalent in Australia. In Victoria, the 'Owners Corporations Act 2006' (Vic) ('OC Act') provides for a dispute resolution scheme for conflicts arising in strata developments. This article reports on research into dispute resolution under the 'OC Act', and in particular into the effectiveness of the model rules for dispute resolution provided in the associated regulations. The research, which was conducted in Victoria in 2011, gathered data from a range of key stakeholders in owners corporations, including 34 strata managers of owners corporations. This article reports on the range of conflicts experienced by the strata managers who participated in the study. Analysis of the data provided by the strata managers shows that difficulties with conflict and the model rules for dispute resolution under the 'OC Act' were most evident in small and large developments. The participants most satisfied with the model rules were managers in medium-sized owners corporations. Whilst a majority of managers used the model rules, over a third used their own informal rules. These findings lead the authors to argue that there is a need for differentiated rules for dispute resolution that are dependent upon the size of the development. Additionally, the authors suggest that further research is needed into the informal rules applied by a significant proportion of managers to ascertain their effectiveness and to provide owners corporations with added choice in dispute resolution.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Sentencing parents: The consideration of dependent
           children
    • Abstract: Walsh, Tamara; Douglas, Heather
      Sentencing a parent will necessarily impact upon their dependent children; if a parent is imprisoned, hardship to their children is inevitable. In all Australian jurisdictions, judges and magistrates are able to consider the hardship that would be caused to an offender's family and dependants when determining a sentence. However, Australian courts have held that the circumstances will have to be 'exceptional' for hardship to children to influence sentencing. In this research, we considered 85 sentencing appeal cases from all Australian jurisdictions where hardship to the defendant's dependent children as a result of the sentence was considered. This article discusses the cases in order to consider the kinds of circumstances that have been found to be 'exceptional'. The authors also consider the mercy discretion, and its relationship with the exceptional circumstances test. The article identifies concerns with the requirement for exceptionality and argues that the best interests of offenders' children should always be a significant factor to be weighed in the sentencing process.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Pre-trial defence disclosure in South Australian
           criminal proceedings: Time for change'
    • Abstract: Line, Lucy; Wyld, Claire; Plater, David
      The issue of defence disclosure in criminal proceedings has come under renewed focus as a result of the recent 'Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013' (NSW) which imposes comprehensive duties similar to those that exist in Victoria and England. This article argues that South Australia also needs legislative reform to implement broader requirements for pre-trial defence disclosure. This article suggests that cultural change amongst lawyers and judges is also required. South Australia would benefit from such reforms as it would improve the efficiency of the criminal trial process. The increased complexity and length of modern criminal trials, combined with the current financial climate, means that criminal procedural reform must be shaped by considerations for efficacy. The legislature must be willing to take a more managerialist approach to criminal procedure, while still preserving an accused's rights within the adversarial system. It is suggested that the traditional arguments against defence disclosure are more rhetorical than real and that current resistance to South Australia's existing pre-trial defence disclosure regime is explicable by a wider cultural resistance within the legal community to mandated defence disclosure. In order for a stricter regime of defence disclosure to be successfully implemented, Parliament needs to be mindful of this culture and provide incentives for an accused to participate in pre-trial disclosure, rather than relying solely on sanctions for noncompliance. Despite the challenges in this controversial area, a scheme for fair, effective and enforceable pre-trial defence disclosure can be identified and should be adopted in South Australia.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - The media's standing to challenge departures from open
           justice
    • Abstract: Douglas, Michael
      Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure. This article addresses the standing of media organisations to challenge departures from open justice. In some jurisdictions, the issue is resolved by statute. However, the position is not uniform around Australia. The article explains the position under the differing statutes and at common law. It focuses on the common law position, where the standing of media organisations is controversial. It argues that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - 'Paperless arrests': North Australian Aboriginal
           Justice Agency Ltd v Northern Territory (2015) 326 ALR 16
    • Abstract: Eldridge, John
      In North Australian Aboriginal Justice Agency Ltd v Northern Territory, an unsuccessful challenge was mounted to the constitutional validity of div 4AA of pt VII of the Police Administration Act 1978 (NT) ('PA Act').

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 1 - Minister for Immigration and Border Protection v WZARH
           (2015) 326 ALR 1
    • Abstract: Roeger, Shauna
      In Minister for Immigration and Border Protection v WZARH,1 the High Court considered whether WZARH, a Sri Lankan Tamil who arrived by boat on Christmas Island in 2010, had been denied procedural fairness in the Independent Merits Review of his Refugee Status Assessment. The Minister was granted special leave to appeal after two judges of the Federal Court invoked the concept of 'legitimate expectations' to find in favour of WZARH. The High Court dismissed the appeal, but, usefully, provided a succinct statement of the current principles on procedural fairness. This case note analyses the implications of the decision on the role of 'legitimate expectations' at both the threshold- and content-stage of the inquiry.

      PubDate: Fri, 24 Nov 2017 11:33:58 GMT
       
  • Volume 37 Issue 2 - The role of the solicitor-general negotiating law,
           politics and the public interest [Book Review]
    • Abstract: Doyle, John
      Review(s) of: The role of the solicitor-general negotiating law, politics and the public interest, by Gabrielle Appleby, Hart Publishing, 2016, xxviii + 335 pp, ISBN 978 1 84946 712 4.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - Legal education and the ageing population: Building
           student knowledge and skills through experiential learning in
           collaboration with community organisations
    • Abstract: Ries, Nola M; Johnston, Briony; McCarthy, Shaun
      The Australian population is ageing and dementia is now the leading cause of disability in persons over the age of 65 years. Lawyers must be prepared to meet the legal needs of older clients, including helping them plan in advance for health, financial and property matters. Lawyers must be able to recognise when cognitive impairment may limit a client's decision-making capacity and take appropriate steps to handle such situations. Legal regulatory bodies in Australia report an increasing incidence of complaints against legal practitioners, including junior lawyers, for failures to identify and manage capacity issues. This article discusses an experiential learning pilot project designed to build students' knowledge and skills to better meet their professional responsibilities when providing assistance to older clients. The University of Newcastle Law School in New South Wales, Australia, collaborated with local community organisations to deliver: (1) a legal education initiative that included law students in the delivery of legal information seminars for older adults and people with chronic health conditions; and (2) a training module to educate students about client capacity issues.

      The article describes the process of embedding research into this project to evaluate students' experiences and to investigate the impact of community legal education on attendees' knowledge and behaviour. Our results demonstrate the value of experiential learning for students and indicate that legal education can enhance attendees' readiness to plan ahead for future periods of incapacity.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - Foucault and the politics of rights
    • Abstract: Burdon, Peter D
      Review(s) of: Foucault and the politics of rights, by Ben Golder, Stanford University Press, 2015, XII + 264 pp, ISBN 978 0 804 79649 1.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - Naval power in the Indian ocean: Rising tension,
           maritime governance and the role of law
    • Abstract: Stephens, Dale
      Maritime areas of the world are fast becoming sites of growing tension and potential confrontation by rising global powers. While the world is well aware of the issues surrounding claims in the South China Sea, another site of rising tension is the Indian Ocean Region (IOR), especially in the context of India and China. Such tensions may be addressed and ameliorated through the agency of law. While dispute resolution mechanisms such as that found in the 'United Nation Convention on the Law of the Sea' may provide a possible means of avoiding potential conflict, the force of law is possibly better applied through its more diffuse, but no less powerful, normative effect. That is, the capacity of law to provide boundaries of engagement and to shape vocabularies and frameworks of resolution within the political realm, offer much more hope of success than the rather blunt application of formal processes of adjudication. This article will canvass the manner in which law may have that harmonizing effect within the IOR at a time where actions and reactions hold the real potential for overreaction by any side.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - Land, custom, and ideology 1870-1940: The new Zealand
           case in a global context
    • Abstract: Boast, RP
      This article explores the ways in which ideologies relating to property and tenures changed in the later 19th and early 20th centuries. In the later 19th century utilitarian and classical liberal ideologies favouring individualist and anti-corporate policies began to lose ground to new approaches favouring collectivism and cultural relativism. This trend manifested itself in a variety of ways and in a number of different disciplines, but the most important shift occurred with the rise of relativist anthropology associated in particular with Franz Boas. The changing climate of opinion had significant effects in countries as diverse as the United States, Mexico, and New Zealand. The article takes a comparativist approach and examines developments in a number of countries, while paying particular attention to the New Zealand case. New Zealand was a country which had already developed a complex body of statutory law relating to indigenous tenures by 1900. It is argued that although the impacts of the new trends in anthropology and other disciplines were mixed in New Zealand, they were nevertheless significant and are shown most clearly in the legislation relating to Māori land development enacted in 1929 and associated in particular with Sir Ᾱpirana Ngata. Various policy developments in New Zealand in the 1930s, however, meant that Ngata's vision for Māori landowners was only partially fulfilled. More generally the article is written from the perspective that it is important for developments in New Zealand to be understood in their international and intellectual contexts.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - Losing our birthright: 'Singh v Commonwealth'
    • Abstract: Gava, John
      In this article I argue that in 'Singh v Commonwealth' ('Singh') the High Court, without good reason, removed the accepted notion that birth in Australia takes a person outside the legislative power granted to the Commonwealth in the aliens and immigration powers. In the article I examine in detail the judgments in 'Singh', especially the claim made in the majority judgments that there were no relevant authorities concerning children of aliens born in Australia. I then examine all the major cases dealing with the aliens power decided before 'Singh' and show that, contrary to the majority's claim, there was a longstanding series of authorities that directly and indirectly held that a person born in Australia could not be an alien. I conclude by showing that the High Court has consistently said that previous decisions should only be overturned after serious consideration and for good reasons. This fidelity to authority has been forcefully defended by many High Court judges, including several who decided 'Singh'. It was not, however, given effect to in 'Singh' and this led to a significant change in one of our most important human rights - the right to call somewhere home.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - The laws of design in the age of mechanical
           reproduction
    • Abstract: Hunter, Dan; Wood, Suzannah
      This article provides a cultural and historical account of how various laws that relate to design developed, from the 17th through 20th centuries, through a study of their interactions with the furniture design industry. The article examines the complex development of intellectual property laws that apply to furniture design, and demonstrates how the furniture design craft (and later, industry) relied on different facets of the intellectual property system at different stages in its development. It demonstrates how the industry shifted intellectual property regimes as a response to the absence of protection within design rights for the modernist furniture style of the 20th century. From these studies, the article demonstrates how the design industry's claim for increased protection flows from the idea that there is a protectable 'aura of authenticity' around iconic designs - a claim that is largely indefensible and provides little basis for expanded legal protection.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - In defence of judicial dissent
    • Abstract: McIntyre, Joe
      Recently, the issue of the 'inefficient' practice of judicial dissent has become a matter of some controversy in Australia. Responding to this controversy, this article defends the role of dissent by developing a conceptual foundation to identify and understand the vital role it plays - through various mechanisms - in promoting the excellent performance of the judicial function. It then turns to an illustration of judicial excellence in dissent by reference to a paragon opinion which demonstrates that dissent is not a mere anachronism, but a vital tool in enhancing judicial performance.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - Justice must be seen to be done: A contextual
           reappraisal
    • Abstract: Oakes, Anne Richardson; Davies, Haydn
      This article locates Lord Hewart CJ's well-known dictum 'justice must be seen to be done' in the context of early 20th century concerns with the composition of the League of Nations' Permanent Court of International Justice. These concerns related to perceptions of judicial independence but his remarks now sustain an impartiality analysis criticised both for its amorphous nature and for its failure to address the relational dimensions of public confidence and legitimacy. In the 21st century, the composition of the judicial bench is once again an issue of concern but the imperatives are those of democracy and accountability. From this perspective, the appearance of justice is best served by judges who are reflective of the community they are appointed to serve. The 'fair reflection principle' of judicial international standards brings renewed attention to the issue of the composition of the judicial bench, giving contemporary substance to Lord Hewart's remarks and illustrating further the dynamic connection between evolving national and international norms.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 37 Issue 2 - John Jefferson bray - a vigilant life [Book Review]
    • Abstract: Kirby, Michael
      Review(s) of: John Jefferson Bray - a vigilant life, by John Emerson, Monash University Publishing, 2015, I-XVI + 271 pp, ISBN 978 1 92223 561 9.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Judicial review of vice-regal decisions: 'South
           Australia v O'shea', its precursors and its progeny
    • Abstract: Leeming, Mark
      This article is about vice-regal power, which (relevantly for present purposes) is a species of executive power, and is intended to encourage critical thinking about aspects of the relationship between it and judicial power and legislative power. The article looks to litigation from South Australia - some well-known, some perhaps less so - which provides insights into the legal analysis. Considerations of space require it to be selective, rather than comprehensive. I have tried to choose examples with a contemporary flavour: notably, a Royal Commission inquiring into a particular named union, and the exercise of vice-regal power following a closely fought Senate election marred by the fact that many ballots had been lost.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Editorial note
    • Abstract: Stubbs, Matthew; Webster, Adam
      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Freedom of conscience and religion [Book Review]
    • Abstract: Babie, Paul
      Review(s) of: Freedom of conscience and religion, by Richard Moonirwin Law, 2014240 pp, ISBN 978 1 55221 364 3.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - R v Keogh [No 2] (2014) 121 SASR 307
    • Abstract: Carr, Emily
      In 'R v Keogh [No 2]', the South Australian Court of Criminal Appeal ('the Court') considered an application to grant leave for permission to pursue a 'second or subsequent appeal' pursuant to s 353A of the 'Criminal Law Consolidation Act 1935' (SA) ('CLCA'). In reviewing the decision reached in Keogh, this case note analyses the Court's approach to the interpretation of the scope and limitations of its power under s 353A of the CLCA. In particular, it examines the soundness of the Court's substantive distinction between its jurisdiction to hear secondary criminal appeals on the grounds of 'fresh and compelling evidence' under s 353A in contrast to its jurisdiction under s 352 of the 'CLCA'.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - 1984-2014the life of the (non-constructive) trust in
           the high court
    • Abstract: Dal Pont, GE
      The High Court of Australia has handed down at least 30 judgments on the law of trusts in the period 1984-2014. This presents as an opportune time to consider what the timeframe of a generation has contributed to trusts law at the highest judicial level in Australia. Leaving aside the constructive trust, which is jurisprudentially distinct and well served by academic literature, this paper focuses on the High Court developments in the law of trusts within this era. It concludes that, while not revolutionary, the case law has revealed incursions into what may previously have been assumed to be accepted principle and a consequent fluidity in the concept of the trust and its incidents.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - What lawyers should know about the forensic 'sciences'
    • Abstract: Edmond, Gary
      Recent and authoritative reports from the US, Canada and the United Kingdom question many types of forensic science and medicine evidence used routinely in criminal proceedings across the common law world. This article reviews recent reports produced by the National Academy of Sciences (US), the National Institute of Standards & Technology and National Institute of Justice (US), Lord Campbell in Scotland, and Justice Goudge in Ontario, in order to assess their implications for expert evidence and legal practice in Australia. The article suggests that Australian legal institutions have not performed well in response to forensic science and medicine evidence and remain largely oblivious to serious epistemic infirmities.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - The strange career of the common Lawin North Carolina
    • Abstract: Orth, John V
      The common law began its career long ago and far away, in England in the 12th century. Unlike other of the world's great legal traditions, the common law did not produce an authoritative law book comparable to the 'Corpus Juris Civilis' of Roman law or the Code Napoleon of French law. Instead, the common law generated a collection of judicial decisions, a set of institutions and a distinctive way of resolving disputes. Common law rules, derived mainly from decided cases, were multifarious and sometimes seemingly contradictory, yet susceptible to rational organisation and harmonisation. Common law institutions, principally courts, were for many years a confusing collection of ancient offices with often unclear and overlapping jurisdictions, but they benefited from a tradition of orderliness and a crude but recognisable effectiveness. The 'common law way' of reasoning from case to case within a rigid set of procedures was at bottom and necessarily practical, but it included an element of ancient anachronism that contributed an air of mystery and majesty.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - What lawyers should 'do' about forensic science
           evidence
    • Abstract: Odgers, Stephen
      This article examines what lawyers - and particularly defence lawyers - must do in challenging forensic science evidence. This article argues that for this to occur there must be a significant increase in legal aid funding.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - The perils of law office science: A partial response
           to professor Gary Edmond
    • Abstract: Binnie, Ian; Park-Thompson, Vanessa
      Professor Gary Edmond's article, 'What Lawyers Should Know About the Forensic "Sciences"' calls attention to some important failings in the judicial treatment of scientific evidence. But the issues he describes are not limited to the forensic sphere, and are endemic in civil litigation generally.

      In this paper, we continue Professor Edmond's discussion and explore examples from the US, Canada, Australia, England and New Zealand in the fields of product liability, intellectual property and other types of commercial disputes. We explore the unsettling unwillingness on the part of the bar, the bench and the government to actively engage with the 'scientific verities' of a case, and to go against prior rulings when current scientific developments have overtaken the legal reasoning in earlier cases. Finally, we look at the impact this judicial unwillingness has on the legal system.

      It is clear that legal rulings must be, and must seem to be, well-grounded both as a matter of law and science. With the growth of alternate dispute resolution, the continued functioning of the civil litigation system depends on it.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Why don't the gatekeepers guard the gates':
           Comments prompted by Edmond
    • Abstract: Williams, Keelah EG; Saks, Michael J
      Despite clear rules and procedures directing judges to critically scrutinise proffers of expert testimony - and giving them the tools to do so - judges continue to allow unreliable expert evidence into the courtroom. What accounts for the gatekeepers' failure to guard the gates' Drawing from psychological literature, we offer possible explanations for neglectful judicial gatekeeping, and discuss potential solutions for the path forward.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Evidence of forensic scientific opinion and the rules
           for admissibility
    • Abstract: Heydon, JD
      This article describes some possible methods by which unreliable forensic scientific evidence might be excluded. Is it irrelevant' Does its probative value exceed its prejudicial effect' Are there categories of it which should be automatically inadmissible' Are the existing rules for exclusion too loose, or too loosely applied' What is the correct balance between the roles of judge and jury'

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - The racial discrimination act and inconsistency under
           the Australian constitution
    • Abstract: Williams, George; Reynolds, Daniel
      The Racial Discrimination Act 1975 (Cth) has assumed a special place on the federal statute book in the forty years since its enactment. This is due to it operating as a national guarantee that rights shall be enjoyed equally by all people regardless of their race. This guarantee has, by virtue of s 109 of the Constitution, overridden inconsistent state legislation that detracts from such rights, and on one occasion has had a like effect on subsequent federal legislation. However, most such attempts to invoke inconsistency with state laws have failed due to limitations contained within the Act. Further, the effectiveness of the Act is limited at the federal level because the federal Parliament has the power to amend or suspend the Act's operation, something Parliament has done on two occasions. Stronger protection - such as by entrenching the principle of non-discrimination on the basis of race in the Constitution - is required to bring about a stronger form of protection against racial discrimination.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - The second or subsequent criminal appeal, the
           prerogative of mercy and the judicial inquiry: The continuing advance of
           post-conviction review
    • Abstract: Milne, Sue
      When all rights of judicial appeal are exhausted, post-appeal review of a criminal conviction is commonly removed into the executive sphere by way of the prerogative of mercy, or judicial inquiry. As a particular class of administrative decision, these forms of post-conviction review are substantially immune from judicial review, and notably with respect to the mercy prerogative, invoke discretionary powers and lack transparency. In order to provide a public and more transparent approach to post-conviction review, the South Australian Parliament has created a judicial pathway for criminal review, post-conviction. The Statutes Amendment (Appeals) Act 2013 (SA) is the first enactment in Australia to create a second or subsequent right of criminal appeal where an appeal court is satisfied that there is fresh and compelling evidence which should, in the interests of justice, be considered on an appeal. Appeals may be allowed if the court considers there was a substantial miscarriage of justice. This paper examines the likely efficacy of these reforms and argues that the creation of a right to a second or subsequent appeal provides a public and pragmatic solution, by way of a judicial approach to revisiting a conviction, outside the executive or political sphere. This ultimately provides a simpler, direct and more transparent process than the mercy prerogative and judicial inquiry.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Against oracular pronouncement: A reply to Heydon
    • Abstract: Edmond, Gary
      Of the respondents to 'What Lawyers Should Know About the Forensic "Sciences"' only the Honourable John Dyson Heydon is disengaged from the central issue of endemic problems across the forensic science and their implications for criminal justice practice. His response undertakes to succinctly restate 'the rules for admissibility' for expert opinions with no role for reliability. This restatement of what purports to be common law orthodoxy operates as though merely rehearsing commitments precludes alternatives, including alternative interpretations that are not only more consistent with relevant statutory provisions, but also more likely to advance overarching institutional objectives.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - What lawyers should and can do now that they know
           about the forensic sciences: A response to Edmond's 'what lawyers should
           know about the forensic "sciences"'
    • Abstract: Ligertwood, Andrew
      Accepting the fragility of forensic evidence exposed in recent reports and the risk of courts acting upon that evidence without a full appreciation of its limitations, this response focuses upon what lawyers and judges, in the light of this knowledge, can do to alleviate this problem, arguing that current evidential rules and processes, if approached with the rigour that the principles behind them demand, can go a considerable way to ensuring that the accused in a criminal trial is protected from forensic evidence being overvalued. Particular focus is given to evidential rules controlling the reception of forensic evidence - rules of relevance, rules controlling the admissibility of expert opinion evidence and the courts' residual discretion - and to the appropriate expression of forensic evidence if rigorous application of the common law criminal standard of proof is to be ensured. The prosecution's duties of disclosure, the adversarial nature of common law trial process, and the processes for appeal are also briefly considered as available to protect accused against unreliable forensic evidence. It is concluded that as a first response lawyers and judges are duty bound to invoke these protections to mitigate the risk of forensic evidence being overvalued.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 1 - Law, religion, constitution: Freedom of religion,
           equal treatment, and the law [Book Review]
    • Abstract: Babie, Paul
      Review(s) of: Law, religion, constitution: Freedom of religion, equal treatment, and the law, Edited by W Cole Durham Jr, Silvio Ferrari, Cristiana Cianitto and Donlu Thayer Ashgate, 2013 454 pp, ISBN 978 1 4724 1614 8.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Nordenfelt v Maxim-Nordenfelt: An expanded reading
    • Abstract: Dent, Chris
      The 1894 House of Lords decision of 'Nordenfelt v Maxim-Nordenfelt' is talked about in terms of being the start of the modern doctrine regarding restraint of trade clauses in contracts. This article considers the decision, both within the context of the other 19th century decisions in the area, and those that were decided before and after that time, in order to better contextualise it within the overall history of the doctrine. Key aspects to be examined include the shifting use of the term 'reasonable', the excision of the 'general' versus 'particular' restraints distinction from thelaw and the trend towards finer-grained categories in legal understandings. 'Nordenfelt', therefore, can be best understood as a point of inflection in the law, rather than the new dawn that it is often now seen to be.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Private political activists and the international law
           definition of piracy: Acting for 'private ends'
    • Abstract: Honniball, Arron N
      Piracy under international law grants states the right to exercise universal jurisdiction, provided that all conditions of its definition are cumulatively met. Yet academic debate continues as to whether the requirement that piratical acts be committed 'for private ends' excludes politically motivated non-state actors. This article attempts to resolve the dispute through a thorough analysis of the term 'private ends'. An application of the rules of treaty interpretation is followed by an in-depth examination of 'private ends' historical development. State practice is examined in an attempt to resolve the ambiguities found. Finally the rationale of universal jurisdiction underlying the definition of piracy is explored, in order to answer whether such actors should be excluded. This article argues that a purely political ends exception developed, but its application beyond insurgents was never resolved. Limited state practice has ensured such ambiguity survived. Nevertheless given the objective of providing discretionary universal jurisdiction over violence and depredation between vessels at sea, violent actors should not be excluded solely upon their political motivations. Instead the limited (but growing) precedents of equating 'private ends' to a lack of state sanctioning should be followed.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Small-scale property development: GST implications
    • Abstract: Hanegbi, Rami; Obst, Wes
      The purpose of this article is to explore the GST implications of small-scale property development in Australia and to provide guidance as to whether such activities give rise to a GST liability. The legislation governing the operation of the GST affecting these projects uses the familiar terminology of 'business', but it also uses terminology such as 'adventure or concern in the nature of trade', which has not received extensive consideration by the Australian courts. The authors review relevant case law to identify key principles, which will guide the courts in applying this terminology to small-scale property development, and provide guidance as to when a taxpayer undertaking such projects will be required to register for GST. The authors also discuss the factors relevant to determining the impact of the timing of registration. The article concludes that small-scale property developers need to be aware of the complexities and uncertainty in relation to the application of the GST to such projects.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - The high court's constructive trust tricenarian: Its
           legacy from 1985-2015
    • Abstract: Dal Pont, GE
      The last 30 years or so has witnessed the High Court of Australia devote more of its energies to the constructive trust than in the preceding 80 years since its inception. As 2015 represents the Court's tricenarian since its judgment in 'Muschinski v Dodds', in which Deane J enunciated what remains essentially the only probing analysis of the nature of the constructive trust in High Court jurisprudence, this article seeks to inquire into the progeny of his Honour's analysis.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - To leash or not to leash the dogs of war': the
           politics of law and Australia's response to mercenarism and private
           military and security companies
    • Abstract: Sorensen, Kim
      The growth in the number of private military and security companies ('PMSCs') in the post-Cold War era has been exponential. An oft-raised concern regarding this growth is how to deal with PMSCs in relation to international anti-mercenary norms. Some would say that PMSCs are little more than corporatised mercenaries and deserve moral and legal opprobrium as mercenaries. Others maintain that PMSCs are legitimate military and security service providers, capable of self-regulation under industry codes and international regulatory initiatives on PMSCs. Others argue that even if PMSCs do not fit the mercenary tag, they pose problems for stability in weak or failing states, which often lack the means to make PMSCs accountable for their actions. This article focuses on evaluating Australian responses to international concerns about the modalities of mercenarism both past and present. The critical core of the article is the argument that achieving progress on building legal frameworks to regulate the privatisation of war is inextricably linked with the politics of law.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Legislative oversight of a bill of rights: The
           American perspective
    • Abstract: Ostler, Duane L
      In recent years, whenever a federal bill of rights is proposed for Australia, the example of the United States and particularly the 'judicial activism' of the US Supreme Court are usually cited as reasons to shoot down the proposal. However early US history, prior to American adoption of a federal bill of rights actually supports legislative rather than judicial oversight of rights issues. This little known history would seem to be in keeping with modern proposals for a federal bill of rights in Australia today, which usually emphasise parliamentary rather than High Court oversight of rights issues. However, the early American experience also provides a caution against the 'dialogue model' which is the most popular proposal for an Australian bill of rights in recent times. This is due to structural and federalism difficulties the dialogue model would likely create.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Protecting the rights of those with dementia through
           mandatory registration of enduring powers': A comparative analysis
    • Abstract: Ryan, Trevor; Arnold, Bruce Baer; Bonython, Wendy
      Australian laws on legal capacity are currently being reviewed by both the Commonwealth and several state and territory jurisdictions. Compliance of existing frameworks with obligations arising under the Convention on the Rights of Persons with Disabilities is a focal point of several reviews, specifically the provisions governing substituted decision-making, and protection of vulnerable people. Formalised registration procedures for enduring powers of attorney appointments are one proposal that has received support, notably in Victoria; however, there are several different ways such a procedure could be implemented.

      This article offers a comparative analysis of selected common law and civil law regimes regarding enduring powers of attorney and guardianship in relation to people who suffer from dementia. It highlights questions about mandatory registration of those powers and the effectiveness of non-registration in terms of promoting the autonomy of the individual and protection of that person's personal and financial interests. It critiques principle and practice regarding privacy in relation to mandatory registration of enduring powers of attorney. The article argues that proposed reforms in Victoria are deficient with respect to protection of both the privacy and the welfare of the individual with dementia and highlights some potential pitfalls other jurisdictions should be aware of when under taking their own reviews of the law in this field.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Administrative law parallels with private law
           concepts: Unconscionable conduct, good faith and fairness in franchise
           relationships
    • Abstract: Buchan, Jenny; Gunasekara, Gehan
      In 21st century business format franchising, the search for solutions has taken the legislature and the courts into the areas of unconscionable conduct and good faith. To date these concepts have lacked the ability to curtail franchisor opportunism in exercising contract-granted discretions. Similar difficulties afflict administrative law approaches to good faith, lawfulness and rationality, errors of law and fact finding, and fairness - criteria against which contract-based discretions have been appropriately exercised by franchisors. We examine franchising cases against the administrative law approaches, acknowledging doctrinal differences (as well as similarities) and conclude that a common body of principle underlies both areas. This allows a fresh approach to interpreting the exercise of franchisor's discretions.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Militant democracy: An alien concept for Australian
           consutitional law'
    • Abstract: Tyulkina, Svetlana
      This article presents an overview of the development and growth of the concept of militant democracy in contemporary constitutional theory and practice, and its relevance to Australia. Militant democracy refers to a form of constitutional democracy authorised to protect its continued existence as democracy by pre-emptively restricting the exercise of civil and political freedoms. Initially, militant democracy focused on electoral integrity, adopting measures such as the prohibition of allegedly undemocratic political parties. However, in recent years militant democracy has expanded to include policies aimed at addressing threats such as religious fundamentalism and global terrorism. This article examines the extent to which Australia can be said to be a militant democracy. It investigates how militant democracy is manifesting itself in contemporary Australian democracy by analysing provisions of the Australian Constitution, relevant legislation and jurisprudence of the High Court of Australia. The article attempts to reconceptualise certain features of the 'Australian constitutional' system through the lens of the militant democracy concept.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - Re-interpreting blackstone's commentaries: A seminal
           text in national and international contexts [Book Review]
    • Abstract: Tomlins, Christopher
      Review(s) of: Re-interpreting blackstone's commentaries: A seminal text in national and international contexts, edited By Wilfrid Presthart Publishing, 2014XIV + 245 PP ISBN 978 1 84946 538 0.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - 'Dallas Buyers Club LLC v IINET Ltd' [2015] FCA 317 (7
           April 2015)
    • Abstract: Pascale, Joshua
      In the case of 'Dallas Buyers Club LLC v iiNet Ltd', Perram J of the Federal Court of Australia exercised the Court's discretion under r 7.22 of the 'Federal Court Rules 1979 (Cth) ('FCR')' and ordered for the preliminary discovery of certain account holder details held by the six internet service provider ('ISP') respondents. However, cautious of Dallas Buyers Club LLC's ('DBC') endeavours, his Honour stayed the order pending the applicant satisfying certain requirements. This case note considers the reasonableness of Perram J's judgment against the backdrop of the 'FCR', as well as domestic and international case law. It then evaluates the influence of the decision upon the broader Australian society. This case note concludes with the acceptance of Perram J's reasoning, however questions the impact of the decision in light of recent legislative and market reform in the sphere of illegal downloading.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 36 Issue 2 - 'Independent Commission Against Corruption v Cunneen'
           (2015) 318 ALR 391
    • Abstract: Dunning, Isabella
      In the case of Independent Commission Against Corruption v Cunneen, the High Court of Australia considered for the first time the scope of the New South Wales Independent Commission Against Corruption's jurisdiction to investigate 'corrupt conduct'. Turning against existing ICAC practice, a majority of the Court interpreted the operative s8(2) provision of the 'Independent Commission Against Corruption Act 1988' (NSW) as requiring corrupt conduct that adversely affects the probity, and not merely the efficacy, of the exercise of a public official's functions. Prior to 'Cunneen', the meaning of 'adversely affects' under s8(2) was unclear and in need of clarification. However, the High Court's approach lacks a sound legislative or policy basis and, coupled with the New South Wales Parliament's subsequent legislative reform, unnecessarily restricts the scope of the ICAC's jurisdiction into the future.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Foreword: Teaching-research Nexus in law
    • Abstract: Hewitt, Anne; Keyzer, Patrick
      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Foreword: Personal property security law: Local and
           global perspectives
    • Abstract: Brown, David
      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Bridging the divides: An interdisciplinary perspective
           on the teaching-research nexus and community engagement
    • Abstract: Arvanitakis, James; Matthews, Ingrid
      This paper examines the application of 'design thinking' principles to the teaching-research nexus, and argues for extending this nexus to community engagement, in the context of an ongoing interdisciplinary research project. The research is investigating young people and civic engagement, and is an ideal site for building a positive and reciprocal relationship between teaching, research and community engagement. These relationships are not axiomatic but must be nurtured with commitment and strategically managed. Drawing on teaching experiences in sociology and law, and reflecting on a co-design methodology developed for investigating youth citizenship, we conclude that 'design thinking' principles can be applied more broadly to strengthen the teaching-research nexus. Finally, we argue that universities must develop and implement genuine community engagement to remain relevant in the contemporary world.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - The learning journey: Please take me with you
    • Abstract: O'Brien, Molly Townes
      In the academy, we need not take our learning journeys alone. We can take our students with us. We can teach as we research and research as we teach. While it may seem that teaching and research compete for our time, energy and focus, they are also excellent collaborators. Research allows us to infuse the classroom with our values, new ideas and enthusiasm. Teaching assists our research by prompting us to tell stories that clarify our research, and by giving us reasons to keep up with developments, update materials and design activities. Both give us a chance to hone our expertise, to gather motivation, to attract collaborators and to try out fresh perspectives. Teaching and research both prosper on the learning journey together.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Let's talk about lex: Narrative analysis as both
           research method and teaching technique in law
    • Abstract: Wolff, Leon
      Law is saturated with stories. People tell their stories to lawyers; lawyers re-tell their clients' stories to courts; legislators develop regulation to respond to their constituents' stories of injustice or inequality. This article describes an approach to first-year legal education that respects this narrative tradition. In particular, it outlines the curriculum design and assessment scheme that deploys narrative methodology as the central teaching and learning device.

      This narrative approach to legal education is a fresh twist on the teaching-research nexus. The link between teaching and research has occupied growing interest in the scholarship of higher education. Initially cast as a clash of civilizations, more recently, teaching and research are seen as inter-related and complementary: research outputs can inform curriculum content, research skills can be incorporated in the course design, research on teaching effectiveness can guide course instruction, and research-specific values of critical inquiry and evidence-based reasoning can steer the learning approach. However, this article argues that a narrative approach to legal education goes further than this. It does more than simply incorporate research into teaching; it transforms a recognised qualitative research method - narrative analysis - into a teaching technique.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - 'Unions New South Wales v New South Wales' (2013) 304
           ALR 266
    • Abstract: Graham, Samantha
      In Unions New South Wales v New South Wales, the High Court of Australia considered the constitutional validity of amendments to the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ('EFED Act'). The plaintiffs' contention was that provisions restricting political donations and electoral communication expenditure impermissibly burdened the freedom of political communication implied by the Commonwealth Constitution. This case note draws comparisons between Unions and Australian Capital Television Pty Ltd v Commonwealth, a 1992 case that considered legislation remarkably similar to the law in Unions. This comparison provides the backdrop for a critical analysis of the provisions challenged in Unions and the policies that underpinned the amendments. After exploring the High Court's approach to these issues, this case note concludes with a brief discussion of the implications of Unions within the context of electoral system reform.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Could continental Europe adopt a uniform commercial
           code article 9-type secured transactions system': The effects of the
           differing legal platforms
    • Abstract: Tajti, Tibor
      With the entry into force of the Australian Personal Property Securities Act 2009 (Cth) in 2012, the Unitary Model of secured transactions law on personal property became part of the legal system of another major economy of the world. Australia joined the United States of America (the source-jurisdiction), Canada and New Zealand. Given the success of the Unitary Model, it is natural to question whether a similar breakthrough is to be expected in Europe as well. From a legal perspective, the key dilemma is whether the Continental European civil law systems - the majority of Europe's jurisdictions - are compatible with the Unitary Model at all. This depends to a great extent on the inherited yet differing legal platforms - the concepts, principles and rules characteristic of common law or civil law systems. This article aims to exemplify the discrepancies that might prove to be obstacles to transplanting the Unitary Model and which still have not yet been properly analysed in comparative scholarship.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Stop 'sliming' your liquid assets: Security over
           deposit accounts - us perspectives
    • Abstract: Quirk, Patrick
      This article discusses the role played by art 9 of the United States' Uniform Commercial Code in the Global Financial Crisis, and outlines the method for taking security over deposit accounts held in US banks. It compares the process for taking such security in Australia with that used in the US, and places particular emphasis on the detailed provisions of the Uniform Commercial Code relating to attachment, collateral description, consumer exceptions, perfection by control, standard control agreements, priorities and proceeds. It is submitted that the set-up, workings and side effects of the Uniform Commercial Code art 9 regime will be instructive for practitioners in non-US jurisdictions, and may prompt useful questions and insights about their own rules and commercial conventions. Relevant portions of the American Bar Association's Joint Taskforce on Deposit Account Control Agreements are discussed, and some comparative observations are made for those involved in international transactions.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Debtor-induced payments
    • Abstract: Turner, David C
      The Australian Personal Property Securities Act 2009 (Cth), as do the other personal property security acts of New Zealand and the Canadian provinces, clearly states that the recipient of a debtor-induced payment made by a grantor of a security interest in collateral is immunised from a proceeds claim or priority entitlement by a secured party. The policy behind debtor-induced payments is primarily to ensure that a debtor is able to pay his or her general unsecured creditors in priority to the debts owed to a secured party. An additional policy reason is the protection of the economy through the maintenance of the payments system generally. This article critically examines the legislation in the various Personal Property Securities Acts, including the case law, identifies the policy arguments in support of a broad application of the rule and suggests that the American provision in Article 9 of the Uniform Commercial Code provides a better solution as it will enhance the ability of a debtor to pay his or her unsecured debts and thereby ensure the free flow of cash and negotiable instruments used to pay debts.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Personal property securities legislation: Analysing
           the new lexicon
    • Abstract: McCracken, Sheelagh
      Grant Gilmore, co-draftsperson of art 9 of the United States Uniform Commercial Code, from which Australia's 'Personal Property Securities Act' 2009 (Cth) is partly derived, likened approaching art 9 to mastering a foreign language. More recently, the Supreme Court of Canada observed, in the context of a discussion of the meaning of 'property' under equivalent legislation: 'For particular purposes Parliament can and does create its own lexicon.' Focusing primarily on the 'Dictionary' contained in the 'Personal Property Securities Act' 2009 (Cth), this article analyses some of the new definitions and vocabulary. It also examines terms whose meanings are only partly defined or simply assumed, terms which appear to lack a statutory definition, and terms whose previously accepted meaning appears to have changed. The underlying theme is that the 'Personal Property Securities Act's' operation cannot properly be understood without a close knowledge of the language in which the legislation is couched. Finally, the article also briefly explores how the language shapes the manner in which the legislative concepts are intellectualised.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Security interests in mobile equipment: Lawmaking
           lessons from the Cape Town convention
    • Abstract: Goode, Roy
      The announcement by the Australian government of Australia's intention to ratify the Cape Town Convention and its associated Aircraft Protocol provides a timely opportunity to describe the key elements of these two important international instruments adopted in November 2001 which, as will be seen later, have already attracted strong support which is steadily increasing. The Cape Town Convention has already received 61 ratifications and the Aircraft Protocol 55 ratifications. With its enactment of the Personal Property Securities Act 2009 (Cth), Australia joined the many jurisdictions that have adopted a modern, functional approach to security interests based on art 9 of the United States Uniform Commercial Code and the Canadian Personal Property Security Acts. But domestic laws are not well suited to high-value equipment that moves regularly across national borders, such as aircraft objects and railway rolling stock, or to equipment that is not on Earth at all, such as satellites and other space assets. The conflict rule designating the lex situs as the applicable law does not work for objects having no fixed situs or for assets in space where no private law exists. Moreover, even if a uniform conflict rule could be devised it would not overcome major differences in national laws governing secured transactions. Hence the need for an international regime governing the creation, perfection and priority of interests in mobile equipment, with an international registry for the registration of such interests and priority rules based on the order of registration. This paper describes the key features of the Cape Town Convention and Aircraft Protocol and their relationship to national law.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Jurisprudence as practical reason: A celebration of
           the collected essays of John Finnis [Book Review]
    • Abstract: White, Margaret
      Review(s) of: Jurisprudence as practical reason: A celebration of the collected essays of John Finnis, edited by Mark Sayers and Aladin Rahemtula, Supreme Court Library, 2013, 122 pp, ISBN 978 0 9872471 4 8.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - What we know about contract law and transacting in the
           marketplace - a review essay of Catherine Mitchell, 'contract law and
           contract law practice: Bridging the gap between legal reasoning and
           commercial expectation' and Jonathan Morgan, 'contract law minimalism: A
           formalist restatement of commercial contract law'
    • Abstract: Gava, John
      Since Stewart Macaulay's pioneering work on the use and non-use of contract law in the market two competing schools of thought have emerged to explain the appropriate way to judge contract disputes before the courts. The first, contextualism, argues that judges, in deciding contract disputes and developing the law, should give effect to the expectations, practices and desires of the business community. The alternative, formalism, argues that since business uses law selectively it would be counterproductive if the law were anything other than predictable. The books reviewed synthesise the scholarship surrounding this debate and, in so doing, each proposes the form of judging thought to be the most suitable. In this review I will argue that when viewed against the arguments of two giants in this field, Macaulay himself and Hugh Collins, it becomes apparent that Mitchell's careful, well-explained and balanced contextualism is ultimately unpersuasive and that Morgan's formalist defence makes much more sense. I will also argue, however, that the differences between Mitchell and Morgan are ultimately tactical because both see contract law in instrumental terms. Both understand the role of contract law as being to aid and enhance market exchange but differ over how this is best achieved. I will argue that both are wrong on this point and that there are historical, constitutional and institutional reasons for not seeing contract law in instrumentalist terms.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - The president and congress: Separation of powers in
           the united states of America
    • Abstract: Bruff, Harold H
      Although the framers of the Australian Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favour of responsible government in a parliamentary system like that of the United Kingdom. In doing so, Australians depended on existing conventions about the nature of responsible government instead of specification of its attributes in constitutional text. The United States Constitution contains detailed provisions about separation of powers, but unwritten conventions have produced some central features of American government. This article reviews conventions developed by Congress that constrain Presidents in the domestic sphere with regard to the appointment of executive and judicial officers and the funding of the federal government. The article then reviews conventions developed by Presidents that liberate them in the conduct of foreign relations and war making. These aspects of the American experience may aid the analysis of problems of executive power under the Australian Constitution.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Honeysett v The Queen (2014) 311 ALR 320: Opinion
           evidence and reliability, a sticking point
    • Abstract: Buckland, Prudence
      In 'Honeysett v The Queen', the High Court of Australia considered the admissibility of opinion evidence under Part 3.3 of the 'Evidence Act 1995' (NSW) ('Evidence Act'). This case note examines the Court's decision in 'Honeysett' and assesses the approach taken by the Court in interpreting s 79(1) of the Evidence Act. It probes the reluctance of the Court to read reliability into a determination of admissibility under s 79(1) and considers the treatment of new and developing areas of specialised knowledge. The broader procedural implications of the Court's determination are also evaluated, taking account of the 'uneasy alliance'2 between law and science and adversarial doctrine.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - Sir Richard Hanson [Book Review]
    • Abstract: Stubbs, Matthew
      Review(s) of: Sir Richard Hanson, by Greg Taylor, Federation Press, 2013, 244 pp, ISBN 978 1 86287 907 2.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 1 - The price of rights: Regulating international labor
           migration [Book Review]
    • Abstract: Reilly, Alexander
      Review(s) of: The price of rights: Regulating international labor migration, by Martin Ruhs, Princeton University Press, 2013, 272 pp, ISBN 978 0 691 13291 4.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Ethnocide and indigenous peoples: Article 8 of the
           declaration on the rights of indigenous peoples
    • Abstract: Pruim, Sandra
      Article 8 of the Declaration on the Rights of Indigenous Peoples provides that Indigenous peoples and individuals have the right to be free from forced assimilation and destruction of culture. In addition, this provision requires that states provide effective mechanisms for prevention and redress of actions that: deprive Indigenous peoples of their integrity as distinct peoples; dispossess Indigenous peoples of land; force population transfers, assimilation or integration; or promote or incite discrimination. This article aims to develop a greater understanding of this novel provision. It investigates the historical development of art 8 of the Declaration on the Rights of Indigenous Peoples, together with the concept and jurisprudence of cultural genocide expressed in the Convention on the Prevention and Punishment of the Crime of Genocide in an effort to determine the scope and content of the right, whether or not it is legally binding and its enforcement. Article 8 should ensure Indigenous peoples are able to use their own languages and protect their historical, cultural and religious heritage and objects in libraries, museums, schools, historical monuments, places of worship or other cultural institutions. In essence, this article protects the right of Indigenous peoples and individuals to live in an environment where they can enjoy their own cultures and where those cultures are able to develop and flourish.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Coherence and acceptance in international law: Can
           humanitarianism and human rights be reconciled'
    • Abstract: Crowe, Jonathan
      The relationship between international humanitarian law and international human rights law has been widely debated. Influential discussions have been produced by both the International Court of Justice and the International Law Commission. This article brings a new perspective to this issue, emphasising and contrasting the underlying concepts that the two areas of law rely on for their legitimacy. I argue that while international human rights law derives its legitimacy largely from the value of coherence, international humanitarian law emphasises the notion of acceptance. This contrast has important implications for efforts to integrate the two fields.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - The establishment clause of the Australian
           constitution: Three propositions and a case study
    • Abstract: Beck, Luke
      This article argues that the reasoning in Attorney-General (Vic) ex rel Black v Commonwealth, the sole High Court case on the meaning of the establishment clause of s 116 the Constitution, is too narrow and requires reconsideration. It begins that process of reconsideration and argues that the proper meaning of the establishment clause encompasses at least the following three propositions. First, the establishment clause prohibits federal expenditure for religious purposes such as religious activities. Secondly, the establishment clause prohibits the Commonwealth from instituting programs that result in a religion or multiple religions becoming identified with the Commonwealth. Thirdly, the establishment clause prohibits the Commonwealth from instituting programs that result in a religion or multiple religions becoming identified with the states and territories. The article concludes by testing the Australian Government's National School Chaplaincy and Student Welfare Program against those three propositions.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Reflecting on Hannah Arendt and 'Eichmann in
           Jerusalem: A report on the banality of evil'
    • Abstract: Burdon, Peter; Appleby, Gabrielle; Laforgia, Rebecca; McIntyre, Joe; Naffine, Ngaire
      In this essay, we offer a modern legal reading of Hannah Arendt's classic book, Eichmann in Jerusalem. First we provide a brief account of how Arendt came to write Eichmann in Jerusalem and explain her central arguments and observations. We then consider the contemporary relevance of Arendt's work to us as legal academics engaged with a variety of problems arising from our times. We consider Arendt's writing of Eichmann in Jerusalem as a study in intellectual courage and academic integrity, as an important example of accessible political theory, as challenging the academic to engage in participatory action, and as informing our thinking about judgement when we engage in criminal law reform. Finally, we consider the role of Arendt's moral judgement for those within government today and how it defends and informs judgement of the modern bureaucrat at a time of heightened government secrecy.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Towards better disclosure of corporate risk: A look at
           risk disclosure in periodic reporting
    • Abstract: Duffy, Michael
      Disclosure is a primary form of investor protection and is fundamental to market efficiency. Knowledge of the risks facing them is integral to the successful operation of business enterprises and is also of benefit to their investors. Whilst continuous disclosure is a policy that should provide a good basis for risk disclosure, periodic disclosure of risk has received significantly less attention. This is because periodic disclosure is more traditionally an area for disclosure in financial accounts than for management discussion and analysis. However, this may be changing, particularly due to the enactment of s 299A of the Corporations Act 2001 (Cth) in 2004 and ASIC's more recent interpretations of that section.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - 'Guilty, your honour': Recent legislative developments
           on the guilty plea discount and an Australian capital territory case study
           on its operation
    • Abstract: Wren, Elizabeth; Bartels, Lorana
      The overwhelming majority of defendants in Australian criminal courts plead guilty and most Australian jurisdictions include a guilty plea in their sentencing legislation as a mitigating factor. However, the application of this reduction varies significantly. In an attempt to provide a better understanding of this aspect of sentencing, this article examines the legislation and case law on guilty pleas, with a particular focus on the Australian Capital Territory. The article contextualises this discussion by examining the High Court's position on sentence reductions for guilty pleas, as well as the New South Wales Court of Criminal Appeal's guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Recent key legislative amendments in relation to quantifying guilty pleas are then discussed, revealing the often subtle but meaningful differences in the legislation across Australia. This is followed by a case study analysis of 300 recent cases in the Australian Capital Territory Supreme Court, which provides important insight into the practical operation of the discount in a jurisdiction that has traditionally seen little sentencing research. The article concludes with some observations on future directions for policy and practice.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Juvenile courts - an Australian innovation'
    • Abstract: Anderson, Jennifer
      The Juvenile Court is usually depicted as an American invention, first established in Chicago in 1899, before spreading across the United States and into other English-speaking areas in the first decade of the 20th century. This article suggests that the Adelaide Children's Court in South Australia, which began operating informally in 1890 and gained legislative recognition in 1895, should more appropriately be called the first juvenile court. While the Adelaide Children's Court has attracted considerably less scholarly and popular attention than its United States equivalents, the South Australian model was the first to bring together elements that were subsequently identified as essential components of children's courts. The Court also exerted considerable, and again often undocumented, influence on other legislative schemes in Australia and overseas. The article argues that a close historical analysis of the Adelaide Children's Court's early years, between 1890 and 1910, reveals just how innovative the South Australian scheme was. It concludes by calling for a more expansive approach to the development of the juvenile jurisdiction.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Indigenous students at law school: Comparative
           perspectives
    • Abstract: Devonshire, Peter
      Indigenous students face significant challenges in gaining admission to law school. General entry standards are exclusionary to the extent that they sustain historical stereotypes and fail to reflect the unique profile of indigenous students. It is argued that traditional equity initiatives should be supplanted with access programs that provide orientation for the study of law and formative assessment of both generic and discipline-specific skills such as literacy, comprehension, case analysis and research techniques. The latter stage of the program would be dedicated to applying acquired skills to certain key areas of substantive law. This model would provide greater predictive accuracy for successful transition to law school while affirming the distinct cultural identity of indigenous students.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 35 Issue 2 - Google Spain SL v Agencia Espanola de Proteccion de
           Datos (European Court of Justice, C-131/12, 13 May 2014)
    • Abstract: Squires, Jerome
      In 'Google Spain SL v Agencia Espanola de Protecci n de Datos', the European Court of Justice ('the Court') held that European data protection law applies to search engines, such as Google, and gives individuals the right to have links removed from search results, provided certain conditions are met. 'Google Spain' has been heralded as a landmark decision because the Court's expansive approach to the rights of data subjects amounts to judicial recognition of the 'right to be forgotten.' This case note suggests that the Court erred in its interpretation of art 6(1)(c) of 'Directive 95/46', a provision central to the right to be forgotten, and that its approach to rights and interests is largely unexplained and unjustified.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - Worker voice in Australia and New Zealand: The role o
           f the state reconfigured'
    • Abstract: Bogg, Alan; Forsyth, Anthony; Novitz, Tonia
      In our introduction to this symposium, we consider the significance of the role played by the State in offering opportunities for workers' voice and ensuring (or preventing) its efficacy. We examine how this role is currently being reconfigured, tracking ideological shifts, the development of institutional apparatus, the function of the state as the 'model employer' and the potential opportunities (or otherwise) offered by 'constitutionalisation' of labour norms.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - Marriage equality: What sexual minorities can learn
           from gender equality
    • Abstract: Kirby, Michael
      Dame Roma Mitchell, graduate and later Chancellor of the University of Adelaide, achieved many firsts in her life. These are described in the opening biographical note which demonstrates how she became a potent symbol of gender equality in the law in Australia. The author examines the still evolving story of marriage equality in Australia and the world and the lessons that advocates of this change can draw from the earlier movement for equality of women. He describes the divided decision of the New Zealand Court of Appeal in Quilter (1998), and the challenge this presented to the traditional approach to 'marriage'. He then identifies a series of statutory and judicial moves which have resulted, in less than 20 years, in expanding the availability of marriage to non-heterosexual couples in many jurisdictions of differing legal traditions. This list also includes instances where courts have rejected the concept. The author proceeds to catalogue medical research that suggests significant health benefits deriving from access to marriage status. He addresses the supposed justifications for denying this civic right to sexual minorities. Among the lessons that they can learn from the earlier feminist movement for reform are the need for role models, theoreticians, political supporters, international principles, cultural and social change agents and bipartisan support in politics. The article concludes that marriage equality represents a further frontier of fundamental human rights and legal equality upon which Dame Roma Mitchell's life can inspire and guide the present generation.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - The voices of the low paid and workers reliant on
           minimum employment standards
    • Abstract: Naughton, Richard; Pittard, Marilyn J
      This article addresses and critiques whether there is adequate provision for certain workers - low paid workers and those who rely on the basic minimum safety net standards provided in the federal system of workplace regulation - to have a 'voice'. Against the backdrop of historical developments over time in Australia to the present day under the 'Fair Work Act' 2009 (Cth), it explores the voices of these groups of workers.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - The 'fair work act' and worker voice in the Australian
           public service
    • Abstract: Roles, Cameron; O'Donnell, Michael
      The Australian Public Service ('APS') has always been something of a testing ground for federal governments' industrial relations policies. Under the Coalition government from 1996 to 2007, workplace relations laws and strict parameters regulated bargaining in the APS and promoted managerial unilateralism, individualism, and union exclusion. By contrast the Labor government's Fair Work Act 2009 (Cth) favoured collective agreement making, but retained some features of previous workplace laws such as tight regulation of industrial action. The Labor government's bargaining framework provided increased recognition of trade unions and for the role of workplace union representatives in the bargaining process. This article examines the role of worker voice during the 2011-12 APS bargaining round. The government as employer, through the Australian Public Service Commission, sought to limit Average Annualised Wage Increases to three per cent and also proposed a range of cuts to working conditions. The paper demonstrates how worker voice was mobilised in APS agencies following campaigns by public sector unions and workplace representatives for 'no' votes in response to initial agency offers, for 'yes' votes for protected action ballots, and through engagement in creative forms of industrial action.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - Voice and gender inequality in New Zealand
           universities
    • Abstract: Reilly, Amanda
      New Zealand universities exhibit a typical gender hierarchy with women predominating in lower status and less well-paid roles. This is despite the fact universities are governed by regulations prohibiting discrimination. Literature on gender inequality in universities suggests that the causes for this are structural and systemic. Voice mechanisms, such as ensuring there are women on decision making committees, may improve gender equality and thus compliance with the law. However, this article draws on organisational and other literature to argue that the benefits of this are limited; women do not all 'speak with one voice' and the experience of gender may divide women as much as it unites them. There are also risks for individual women who speak out regarding gender inequality which may result in them choosing to remain silent. It is concluded that those seeking to design effective voice mechanisms as well as universities seeking to comply with their legal obligations should be sensitive to the limitations of voice.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - The hobbit affair: A new frontier for unions'
    • Abstract: Walker, Bernard; Tipples, Rupert
      The industrial action surrounding the making of The Hobbit movie presented a contentious interaction between global business, lawmakers, and unions. The debate centred upon the employment status of film industry workers and their ability to involve unions in negotiating their terms of employment, culminating in a legislative amendment which defined their employment status. One narrative interpreted these events as a pragmatic solution which brought considerable economic benefits for both the industry and the country. Alternative views, however, construed the situation as involving constitutional challenges, curtailing union influence, and removing employee choice and employment protection. Seen in the context of the increasing use of independent contracting arrangements, the events can be viewed as eroding union influence and the protection available to workers. The case highlights the interdependence between differing arenas of voice, with diminution of economic and political voice contributing to a loss of industrial voice. This paper explores a number of crucial questions regarding the future role and influence of unions in the ever-growing sphere of non-standard employment relationships.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - Unfair labour practices, trade union Victimisation and
           voice: A comparison of Australia and the United Kingdom
    • Abstract: Lambropoulos, Victoria; Wynn, Michael
      The protection of collective worker voice in common law countries with strong collectivist traditions like Australia and the UK is problematic where collective bargaining and trade unions are no longer promoted by state apparatus. This article examines the changing nature of voice in the context of freedom of association protections in these two jurisdictions. We examine the effects of declining union security on trade union victimisation rights and consider whether increasing constitutionalisation of labour law results in a weakening of individual and collective voice. A particular focus of the article concerns the individualisation of collective processes in the Australian Fair Work Act 2009 (Cth).

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - From the arbitration system to the 'fair work act':
           The changing approach in Australia to voice and representation at work
    • Abstract: Bray, Mark; Stewart, Andrew
      This article explores mechanisms for employee voice and representation at work by reference to five processes for making rules about the employment relationship: statutory regulation, delegated regulation, collective agreement-making, individual contracting, and managerial unilateralism. We look in particular at five labour law regimes that have operated in Australia: the traditional conciliation and arbitration system; the enterprise bargaining regime introduced in 1993; the Workplace Relations Act as it operated after 1996; the 'Work Choices' amendments that took effect in 2006; and the Fair Work legislation from 2009 onwards. Our analysis of those regimes suggests three main findings. First, the support for union forms of collective voice has declined, but the laws have also changed dramatically in the types of support offered for trade unions. Secondly, the diminishing legislative support for unions has not been counterbalanced by the development of alternative collective forms of employee voice. Thirdly, the individualisation of rule-making processes and employee voice has been a consistent trend in Australian labour law.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - At and along: A review of the law and ethics of
           medicine: Essays on the inviolability of human life [Book Review]
    • Abstract: MacLeod, Adam J
      Review(s) of: At and along: A review of the law and ethics of medicine: Essays on the inviolability of human life, by John Keown, Oxford University Press, 2012, xxii + 392 pp, ISBN 978 0 199589 55 5.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - 'Google Inc v Australian Competition and Consumer
           Commission' (2013) 294 ALR 404
    • Abstract: Tonkin, Seb
      In Google Inc v Australian Competition and Consumer Commission, the High Court determined whether, in displaying misleading or deceptive advertisements, an online search engine company could itself be liable for 'misleading or deceptive conduct' under s 52 of the Trade Practices Act. This case note examines the decision and its background, and assesses the different judgments' responses to the somewhat deficient pleadings of the Australian Competition and Consumer Commission ('ACCC'). Finally, it briefly considers the public policy implications of decisions which deny liability to service providers on the internet.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
  • Volume 34 Issue 1 - The early life of Mr Justice Boothby
    • Abstract: Taylor, Greg
      Mr Justice Benjamin Boothby occupied the post of Second Judge in the Supreme Court of South Australia from 1853 to 1867. He may have been the most unsuitable appointment to the Bench in South Australia's history, and lacked almost every quality necessary for the role. After years of controversy, he was dismissed in 1867, the only judge ever to suffer that fate in South Australia's history. It was his eccentric interpretation of the law that provoked the enactment of the 'Colonial Laws Validity Act 1865', 28 and 29 Vict, and thus he was an important figure in the legal history of the whole British Empire. But very little indeed is known of his colourful early life before his arrival in South Australia aged 50. This article fills that gap.

      PubDate: Thu, 2 Nov 2017 11:47:29 GMT
       
 
 
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