Journal articles on the topic 'Australian law'
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1
Wolff, Leon. "Litigiousness in Australia: Lessons from Comparative Law." Deakin Law Review 18, no. 2 (December 1, 2014): 271. http://dx.doi.org/10.21153/dlr2013vol18no2art39.
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How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.
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Morfesi, David, and Iain Sandford. "Effective Compliance with Trade Law and International Business Integrity Requirements in Australia." Global Trade and Customs Journal 8, Issue 10 (October 1, 2013): 328–37. http://dx.doi.org/10.54648/gtcj2013046.
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This article considers the framework of Australian law, policy and institutions that raise compliance issues for enterprises undertaking business into and out of Australia. It provides a brief, practical perspective on the Australian frameworks that regulate: general import and export compliance; compliance with special regimes affecting certain goods, such as defence and strategic items; as well as Australia's strict quarantine requirements for food, biological products and other goods that risk introducing exotic pests and diseases. It also addresses Australia's increasing emphasis on 'business integrity' issues that affect how, where and with whom business is done. The article concludes by suggesting that Australian law requirements should be addressed in the context of the global compliance systems of internationally active businesses.
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Mitchell, Andrew D. "Is Genocide a Crime Unknown to Australian Law? Nulyarimma v. Thompson." Yearbook of International Humanitarian Law 3 (December 2000): 362–83. http://dx.doi.org/10.1017/s1389135900000702.
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While it is clear that international treaties become part of Australian domestic law only once implemented by domestic legislation, it is less certain whether implementing legislation is required to incorporate customary international law into Australian law. This question is assuming a new importance as international law moves beyond dealing simply with relationships between sovereign nations to protecting the human rights of groups and individuals within states. Since the arrival of Europeans, indigenous Australians have witnessed enormous violations of their human rights. InNulyarimmav.Thompson, members of the Aboriginal community alleged that certain Commonwealth Ministers and Members of Parliament had committed genocide, and sought various remedies. Since Australia has not implemented the Convention on the Prevention and Punishment of the Crime of Genocide by legislation, the case squarely raised the issue of whether customary international law, and in particular international criminal law, could become part of Australian law without the assistance of Parliament.
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Black, C. "Maturing Australia through Australian Aboriginal Narrative Law." South Atlantic Quarterly 110, no. 2 (April 1, 2011): 347–62. http://dx.doi.org/10.1215/00382876-1162489.
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Croft, Clyde. "Recent Developments in Arbitration in Australia." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 599–616. http://dx.doi.org/10.54648/joia2011046.
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Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
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Suarez, Megan. "Aborginal English in the Legal System." Australian Journal of Indigenous Education 27, no. 1 (July 1999): 35–42. http://dx.doi.org/10.1017/s1326011100001526.
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The Australian legal system is based on the principle of equality before the law for all its citizens. The government of Australia also passed the international Human Rights and Equal Opportunity Commission Act in 1986, although these rights are not accessible to all Australians in the legal system (Bird 1995:3). The Australian legal system has failed to grant equality for all its people. The Aboriginal community is severely disadvantaged within the legal system because the Australian criminal justice system has “institutionalised discrimination” against Aboriginal people through communication barriers (Goldflam 1995: 29).
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Weatherburn, Don. "Law and Order Blues." Australian & New Zealand Journal of Criminology 35, no. 2 (August 2002): 127–44. http://dx.doi.org/10.1375/acri.35.2.127.
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This paper discusses law and order politics and policy in Australia. It challenges the conventional criminological wisdom that Australia does not have a serious crime problem. It argues that, while political responses to crime are all too frequently irrational, this is not because Australian state and territory governments so often rely on punitive law and order policies. Australian law and order policy is irrational because it usually lacks any clear rationale, is rarely subjected to any effectiveness or cost-effectiveness evaluation, frequently ignores the possibility of unintended side-effects and is occasionally founded on a misdiagnosis of the crime problem that prompts it. The paper concludes by discussing various explanations for this state of affairs and what can be done about it.
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Bird, Ruth. "Legal Research and the Legal System in Australia." International Journal of Legal Information 28, no. 1 (2000): 70–92. http://dx.doi.org/10.1017/s073112650000888x.
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The law in Australia is derived from legislation passed in Australian parliaments, at Federal and State level, together with the English Common law tradition and the Australian Common Law which developed from the English Common Law.
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Christiansen, Thomas. "When Worlds Collide in Legal Discourse. The Accommodation of Indigenous Australians’ Concepts of Land Rights Into Australian Law." Studies in Logic, Grammar and Rhetoric 65, no. 1 (December 1, 2020): 21–41. http://dx.doi.org/10.2478/slgr-2020-0044.
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Abstract The right of Australian Indigenous groups to own traditional lands has been a contentious issue in the recent history of Australia. Indeed, Aborigines and Torres Strait Islanders did not consider themselves as full citizens in the country they had inhabited for millennia until the late 1960s, and then only after a long campaign and a national referendum (1967) in favour of changes to the Australian Constitution to remove restrictions on the services available to Indigenous Australians. The concept of terra nullius, misapplied to Australia, was strong in the popular imagination among the descendants of settlers or recent migrants and was not definitively put to rest until the Mabo decision (1992), which also established a firm precedent for the recognition of native title. This path to equality was fraught and made lengthy by the fact that the worldviews of the Indigenous Australians (i.e. Aborigines and Torres Strait Islanders) and the European (mainly British and Irish) settlers were so different, at least at a superficial level, this being the level at which prejudice is typically manifested. One area where this fact is particularly evident is in the area of the conceptualisation of property and especially the notion of land “ownership” and “use”. In this paper, we will focus on these terms, examining the linguistic evidence of some of the Australian languages spoken traditionally by Indigenous Australians as one means (the only one in many cases) of gaining an insight into their worldview, comparing it with that underlying the English language. We will show that the conceptualisations manifested in the two languages are contrasting but not irreconcilable, and indeed the ability of both groups of speakers (or their descendants in the case of many endangered Australian languages) to reach agreement and come to develop an understanding of the other’s perspective is reason for celebration for all Australians.
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McEniery, Ben. "Physicality in Australian Patent Law." Deakin Law Review 16, no. 2 (December 1, 2011): 461. http://dx.doi.org/10.21153/dlr2011vol16no2art110.
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It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods — namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.
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TAKAHASHI, Teiji. "Australian Wine law." JOURNAL OF THE BREWING SOCIETY OF JAPAN 107, no. 6 (2012): 395–412. http://dx.doi.org/10.6013/jbrewsocjapan.107.395.
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McDonagh, Maeve. "Australian privacy law." Computer Law & Security Review 6, no. 5 (January 1991): 13–17. http://dx.doi.org/10.1016/0267-3649(91)90149-p.
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Dziedzic, Anna, and Mark McMillan. "Australian Indigenous Constitutions: Recognition and Renewal." Federal Law Review 44, no. 3 (September 2016): 337–61. http://dx.doi.org/10.1177/0067205x1604400301.
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The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.
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Campbell, Bill, and Stephanie Ierino. "James Crawford and the Australian Government." Australian Year Book of International Law Online 40, no. 1 (December 7, 2022): 195–217. http://dx.doi.org/10.1163/26660229-04001009.
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Abstract This article by two international lawyers advising the Australian Government focuses on the cases before international courts and tribunals in which Professor Crawford appeared as counsel on behalf of the Australian Government including the Southern Bluefin Tuna Cases, the East Timor Case, the Whaling in the Antarctic Case and the Certain Documents and Data Case. The article also covers advice Professor Crawford provided to the Australian Government both in the course of those cases and on other matters such as compulsory pilotage in the Torres Strait. To paint the full picture, mention also is made of a limited number of matters earlier in his career in which he acted against Australia. The article illuminates Professor Crawford’s role as adviser, counsel and advocate for Australia across the full breadth of international law, from law of the sea and international environmental law, to the law on diplomatic protection and the law of treaties.
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Boyle, Liam. "The Significant Role of the Australia Acts in Australian Public Law." Federal Law Review 47, no. 3 (July 3, 2019): 358–89. http://dx.doi.org/10.1177/0067205x19856501.
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The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.
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Briggs, Chris. "Lockout Law in Australia." Journal of Industrial Relations 49, no. 2 (April 2007): 167–85. http://dx.doi.org/10.1177/00221856070490020301.
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Should Australian lockout law be reformed? Lockouts in Australia are legally the formal equal of strikes and the legal treatment of lockouts is the most `de-regulated' in the OECD. The notion that strikes and lockouts should be treated equally is intuitively appealing. However, other OECD nations have rejected an equal right to strike and lockout, reserving lockouts for exceptional circumstances where employers suffer from an imbalance of bargaining power so as to reconcile lockouts with other legal principles such as freedom of association and the right to strike. Australian employers, it will be argued, have been given too much freedom by policy makers at federal level to use lockouts that should legally be reserved as a weapon of genuine `last resort'. However, instead of repositioning Australian lockout law back towards the international mainstream, WorkChoices will produce a legal framework that, uniquely, positively discriminates in favour of employer lockouts against strikes.
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Boughey, Janina. "Re-Evaluating the Doctrine of Deference in Administrative Law." Federal Law Review 45, no. 4 (December 2017): 597–625. http://dx.doi.org/10.22145/flr.45.4.6.
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It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission1 as authority. In that case, the High Court of Australia indicated that Australia's strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference – deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.
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Kemp, Katharine. "Strengthening Enforcement and Redress Under the Australian Privacy Act." Global Privacy Law Review 3, Issue 3 (September 1, 2022): 150–62. http://dx.doi.org/10.54648/gplr2022016.
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The regulatory regime provided by the Privacy Act 1988 (Cth) has long been criticized for its limited effectiveness in providing both remedies for individuals and guidance and deterrence for entities obliged to comply with the statute. Key concerns include the restricted rights of redress for individuals, and the inadequate powers and funding of the federal privacy regulator, the Australian Information Commissioner. In the last three years, the Australian Competition & Consumer Commission (ACCC) has begun to take on an important role in advocating for reform of Australia’s privacy law, assessing the potential anticompetitive effects of the data practices of digital platforms, and actively litigating privacyrelated misleading conduct matters under the Australian Consumer Law (ACL). This article describes the contrast in the roles, powers and funding of these two regulators and makes proposals for reform which would assist in providing Australians with appropriate access to justice in directly redressing privacy wrongs beyond organizations’ misleading representations about data practices. Australia, Data Privacy, Privacy Regulators, Enforcement, Redress
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Tahmindjis, Phillip. "Sexual Harassment and Australian Anti-Discrimination Law." International Journal of Discrimination and the Law 7, no. 1-4 (September 2005): 87–126. http://dx.doi.org/10.1177/135822910500700404.
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This paper examines the law of sexual harassment in Australia and concludes that, while there is extensive legislative coverage at Commonwealth, State and Territory levels, this coverage is uneven. The differences and resulting outcomes between local jurisdictions are considered. The differences between Australian laws and overseas jurisdictions are also considered, particularly with respect to procedure in sexual harassment cases and remedies in a jurisdiction where punitive damages are not allowed. The paper considers the positive and negative features of the Australian law and argues that greater education of the legal profession is needed to allow the adequate delivery of justice to people who have been sexually harassed.
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Kildea, Paul, and Sarah Murray. "Democratic Constitutions, Electoral Commissions and Legitimacy – The Example of Australia." Asian Journal of Comparative Law 16, S1 (December 2021): S177—S192. http://dx.doi.org/10.1017/asjcl.2021.35.
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AbstractThis article explores the structure, management and institutional design of commissions in Australia and unpacks how these institutions operate within the Australian political landscape. Part 1 looks at the structure of Australian electoral commissions and how they maintain structural independence. Part 2 seeks to better understand Australian electoral institutions, through an examination of how they have manoeuvred administrative and political challenges and emergencies when they have arisen. Finally, Part 3 employs a neo-institutionalist lens to focus on the internal and external dynamics that assist or hinder the operation of commissions in Australia and how legitimacy and institutional trust can be created, maintained and harmed by electoral agencies in the Australian context.
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Healey, Deborah J. "Strange Bedfellows or Soulmates: A Comparison of Merger Regulation in China and Australia." Asian Journal of Comparative Law 7 (2012): 1–40. http://dx.doi.org/10.1017/s219460780000065x.
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AbstractChina and Australia are extremely significant trade partners and investors. Australia has a very well established competition law, now called the Competition and Consumer Law 2010, with a well-established merger regime. China has a relatively new competition law, the Anti-Monopoly Law 2007. This article compares merger control in the two jurisdictions. The Ministry of Commerce (MOFCOM) has already referred to an Australian decision in rejecting a merger, the only reference to a foreign decision to date, which confirms the utility of the comparison. This article critically evaluates the determinations of MOFCOM and compares the approach of the Australian Competition and Consumer Commission (ACCC), the Australian regulator. It assesses the transparency and predictability of procedures and decision-making in the two jurisdictions.
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Molnar, Adam. "Technology, Law, and the Formation of (il)Liberal Democracy?" Surveillance & Society 15, no. 3/4 (August 9, 2017): 381–88. http://dx.doi.org/10.24908/ss.v15i3/4.6645.
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This article argues that the politics of surveillance and (il)liberalism in Australia is conditioned by the dynamic interplay between technological development and law. Applying criminologist Richard Ericson’s concept of ‘counter-law’, the article illustrates how rapidly advancing capacities for surveillance and Australia's legal infrastructure collide. In this view, even regulatory safeguards can be instrumental in the broader drift toward (il)liberal democracy. Drawing on the Australian context to illustrate a broader global trend, this article conveys how such an apparatus of control reflective of (il)liberal democracy might be more accurately understood as a form of socio-technical rule-with-law.
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Balasingham, Baskaran, and Tai Neilson. "Digital Platforms and Journalism in Australia: Analysing the Role of Competition Law." World Competition 45, Issue 2 (June 1, 2022): 295–318. http://dx.doi.org/10.54648/woco2022011.
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News media businesses compete with search engines and social media networks for advertising revenue but at the same time depend on the latter to reach and interact with audiences. The Digital Platforms Inquiry (DPI) completed by the Australian Competition and Consumer Commission (ACCC) found that media businesses’ dependency on digital platforms gives companies like Google and Facebook substantial bargaining power over Australian news media businesses. This development over the past decade has caused negative repercussions for the choice and quality of news available to Australians. In response to thegse findings, Australia’s News Media and Digital Platforms Mandatory Bargaining Code 2021 extends the application of competition law into digital news and advertising markets. The reform is intended to address the impact of digital platforms on the commercial viability of Australian news companies. In this article, we assess the application of competition law to the relationship between news media and digital platforms, including the strength of the DPI findings and the appropriateness of the resulting reforms. We argue that after decades of deregulation of the media sector in Australia the News Media Bargaining Code is a hybrid legislation, which introduces news media industry regulations under the guise of competition law. While we see a continued role for competition law in digital platform markets, this article indicates the challenges posed by digital platforms on media pluralism and the limitations of a market-driven approach to news media policy. news media businesses, digital platforms, advertising, regulation, media policy, Australian competition law, market power, media pluralism, Digital Platforms Inquiry, News Media Bargaining Code
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Millbank, Jenni. "What is the Responsibility of Australian Medical Professionals Whose Patients Travel Abroad for Assisted Reproduction?" Medical Law Review 27, no. 3 (2019): 365–89. http://dx.doi.org/10.1093/medlaw/fwy040.
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Abstract Australian medical professionals whose patients undertake assisted reproductive treatment abroad face a conflict: to try to provide optimal and on-going care for their patient at the same time as ensuring compliance with Australian legal, ethical, and professional rules which proscribe as unsafe or unethical key aspects of such treatment. A major suggestion from literature on medical travel is that risks to the patient can be mitigated through the involvement of the local professional. However, the force of legal regulation and ethical guidance in Australia strenuously directs clinicians away from involvement in overseas reproductive treatment. This article reports on 37 interviews with Australians travelling abroad for surrogacy, egg donation, and embryo donation, reflecting on patients’ experiences with Australian medical professionals both before and after they travelled. Patient reports demonstrate a fragmented and bewildering medical landscape in Australia, in which the ability to access domestic care and expertise varied markedly depending upon the kind of treatment patients were seeking abroad, and the mode of practice of the Australian doctor. Doctors practicing within licensed IVF clinics were notably more constrained than those outside such a setting. Patients seeking egg donation were offered information and received a wide range of diagnostic and preparatory treatments, while those seeking surrogacy were shunned, chided and offered limited (and sometimes covert) assistance. While recent changes to national ethical guidance improve clarity on information giving, the ethical and legal propriety of Australian medical professionals providing diagnostic or preparatory treatment for cross border reproduction remains uncertain.
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Tomasic, Roman, and Brendan Pentony. "Taxation law compliance and the role of professional tax advisers." Australian & New Zealand Journal of Criminology 24, no. 3 (December 1991): 241–57. http://dx.doi.org/10.1177/000486589102400305.
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Tax practitioners play a pivotal role in the Australian taxation system. Not only do they act as intermediaries between the Australian Taxation Office (ATO) and the majority of taxpayers, especially business taxpayers, but they also influence the ethical climate and level of compliance with taxation laws. This article discusses this role by reference to data derived from an empirical study of tax practitioners and tax officials from around Australia. The study sheds light on the nature of the compliance problem and the factors which affect the administration of Australian taxation law generally.
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Kirby, Michael. "Sexuality and Australian Law." Journal of Homosexuality 48, no. 3-4 (March 31, 2005): 31–48. http://dx.doi.org/10.1300/j082v48n03_04.
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Pengelley, Nicholas. "Australian University Law Libraries." International Journal of Legal Information 28, no. 2 (2000): 424–28. http://dx.doi.org/10.1017/s0731126500009197.
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Until a few years ago there were only 12 law schools in this country. That number has now grown to 28 with rumours of more, and with the additional introduction of programmes like those run by the University of London. Law student numbers in Australia country have risen by over 60% since 1987. It can be, and has been, argued that this is simply too many for our resources and many of the newer law schools were established more with an eye to the prestige of having a law degree within the institution.
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Ewing, Tania. "Australian law finds balance." Nature 347, no. 6291 (September 1990): 320. http://dx.doi.org/10.1038/347320b0.
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Kaye, Stuart, and Donald R. Rothwell. "Australian law in Antarctica." Polar Record 29, no. 170 (July 1993): 215–18. http://dx.doi.org/10.1017/s0032247400018519.
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ABSTRACTThis article examines the content and ramifications of an Australian Parliamentary Committee's Report into the application of Australian law in the Australian Antarctic Territory (AAT). The Report's main findings suggest that Australian law should be more vigorously applied in Antarctica, and that current practices with regard to the operation and enforcement of Australian law are perceived as damaging to Australian sovereignty. This is particularly the case in the context of the virtual non-application of law to all foreign nationals within the AAT, to an extent far beyond the categories of persons exempted by Article VIII of the Antarctic Treaty. The article also discusses the possible ramifications and difficulties of giving effect to the Report's findings. Particular stress is placed upon the impact of asserting a 200-nautical-mile fishing or exclusive economic zone in the waters off the AAT, as well as the logistic difficulties that may become apparent if Australian sovereignty is more actively asserted. In this context, brief consideration is given to the Report's recommendations relating to the Antarctic environment and tourism within the AAT.
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Wood, Asmi John. "The Position of the Niqab (the Face Veil) in Australia under Australian and Islamic Laws." American Journal of Islamic Social Sciences 29, no. 3 (July 1, 2012): 106–51. http://dx.doi.org/10.35632/ajiss.v29i3.321.
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The Sayed Case in the District Court of Western Australia required the court to decide on the issue of a witness in niqab. The defendant, in this case a Muslim man, said that a prosecution witness wearing niqab created a disadvantage for the defense and wanted her to provide her testimony without a face veil. While this is a narrow characterization of the issue for the court, the case sparked much controversy including calls for the government to regulate forms of Muslim women’s dress as was the case in France and Belgium. At present, while many Muslim women in Australia do not cover either their hair or face, the common law and statute do not prescribe or proscribe any form of dress for Australians. The call by some Muslims, such as in the Sayed Case, for the imposition of limits on Muslim dress, employs the scholarship of foreign Muslims who they support. This paper calls for the rejection of such prescriptive formulations of both Australian law and the local expressions of Islamic law. Others such as Katherine Bullock, an Australia Muslim academic, support women’s choice in the broadest terms ‒ and this paper supports the primary sources of Islam, the traditional Islamic scholarship, and is deeply acculurated in the Australian ethic of personality autonomy and choice for all, including Muslims women. While they are both independent works, both Bullock’s work and the common law as articulated by the judge in the Sayed Case are strongly supportive of allowing women the choice of covering themselves. This paper contends that Australian common law, as confirmed in the Sayed Case, is reflective of a broader Muslim consensus and should be retained as the status quo.
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Wood, Asmi John. "The Position of the Niqab (the Face Veil) in Australia under Australian and Islamic Laws." American Journal of Islam and Society 29, no. 3 (July 1, 2012): 106–51. http://dx.doi.org/10.35632/ajis.v29i3.321.
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The Sayed Case in the District Court of Western Australia required the court to decide on the issue of a witness in niqab. The defendant, in this case a Muslim man, said that a prosecution witness wearing niqab created a disadvantage for the defense and wanted her to provide her testimony without a face veil. While this is a narrow characterization of the issue for the court, the case sparked much controversy including calls for the government to regulate forms of Muslim women’s dress as was the case in France and Belgium. At present, while many Muslim women in Australia do not cover either their hair or face, the common law and statute do not prescribe or proscribe any form of dress for Australians. The call by some Muslims, such as in the Sayed Case, for the imposition of limits on Muslim dress, employs the scholarship of foreign Muslims who they support. This paper calls for the rejection of such prescriptive formulations of both Australian law and the local expressions of Islamic law. Others such as Katherine Bullock, an Australia Muslim academic, support women’s choice in the broadest terms ‒ and this paper supports the primary sources of Islam, the traditional Islamic scholarship, and is deeply acculurated in the Australian ethic of personality autonomy and choice for all, including Muslims women. While they are both independent works, both Bullock’s work and the common law as articulated by the judge in the Sayed Case are strongly supportive of allowing women the choice of covering themselves. This paper contends that Australian common law, as confirmed in the Sayed Case, is reflective of a broader Muslim consensus and should be retained as the status quo.
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Douglas, Michael, Mary Keyes, Sarah McKibbin, and Reid Mortensen. "The HCCH Judgments Convention in Australian Law." Federal Law Review 47, no. 3 (July 15, 2019): 420–43. http://dx.doi.org/10.1177/0067205x19856503.
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In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.
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Holloway, Ian. "Sir Francis Forbes and the Earliest Australian Public Law Cases." Law and History Review 22, no. 2 (2004): 209–42. http://dx.doi.org/10.2307/4141646.
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There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.
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Kelly, Danial. "FOUNDATIONAL SOURCES AND PURPOSES OF AUTHORITY IN AUSTRALIAN LAW." Jambe Law Journal 1, no. 1 (July 9, 2018): 1–12. http://dx.doi.org/10.22437/home.v1i1.8.
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The starting point in understanding Australia’s socio-legal place in an international context is to be familiar with its Western legal tradition. Some of the characteristics of the Western idea of law include the separation of law from other normative systems (such as religion), the centrality or primacy of law as a method of regulating society, and the inherent authority of law. Other major socio-legal features of contemporary Australia include a multicultural population and government by representative democracy. Australian law has sprung out of the English branch of the Western legal tradition, therefore the English heritage of Australian law will first be considered.
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Kelly, Danial. "FOUNDATIONAL SOURCES AND PURPOSES OF AUTHORITY IN AUSTRALIAN LAW." Jambe Law Journal 1, no. 1 (July 9, 2018): 1–12. http://dx.doi.org/10.22437/jlj.1.1.1-12.
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The starting point in understanding Australia’s socio-legal place in an international context is to be familiar with its Western legal tradition. Some of the characteristics of the Western idea of law include the separation of law from other normative systems (such as religion), the centrality or primacy of law as a method of regulating society, and the inherent authority of law. Other major socio-legal features of contemporary Australia include a multicultural population and government by representative democracy. Australian law has sprung out of the English branch of the Western legal tradition, therefore the English heritage of Australian law will first be considered.
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Morss, John. "Facts, Threats and Reds: Common Law Constitutionalism and the Rule of Law." Deakin Law Review 14, no. 1 (August 1, 2009): 79. http://dx.doi.org/10.21153/dlr2009vol14no1art132.
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In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere.
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McMahon SC, Julian. "Anti-Death Penalty Advocacy: A Lawyer’s View From Australia." International Journal for Crime, Justice and Social Democracy 11, no. 3 (September 1, 2022): 12–22. http://dx.doi.org/10.5204/ijcjsd.2472.
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This article reviews the executions of Australians in the region and the Australian responses over the past two decades. Informed by the author’s legal defence role in death penalty cases in Singapore and Indonesia, the article explores developments in anti–death penalty advocacy since 2015: the parliamentary enquiry, the ‘whole of government’ strategy led by the Department of Foreign Affairs and Trade and the efforts made by Australia and Australians in Asia.
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Tréguier, Lucie, and William van Caenegem. "Copyright, Art and Originality: Comparative and Policy Issues." Global Journal of Comparative Law 8, no. 2 (September 25, 2019): 95–127. http://dx.doi.org/10.1163/2211906x-00802001.
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This article reviews the laws of France and of Australia in relation to artistic works copyright for useful articles. Australian law applies a different subsistence test to ‘applied art’ than to fine art, whereas French law makes no such distinction, applying the principle of ‘Unité de l’art’. The decision of the High Court of Australia in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 clr 458, which aligns the standard of originality more closely with that applied in European copyright law, invites reconsideration of the Australian approach in favour of a universal standard for all artistic works. A more contemporary understanding of what constitutes ‘art’ points in the same direction. In the result, there is no longer any need to apply a restrictive ‘artistic quality’ standard to works of applied art in Australia. Such an approach better aligns the tests of artistic copyright subsistence in different jurisdictions.
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Eldridge, John. "Contract Codification: Cautionary Lessons from Australia." Edinburgh Law Review 23, no. 2 (May 2019): 204–29. http://dx.doi.org/10.3366/elr.2019.0549.
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In March 2012, the Australian Commonwealth Attorney-General's Department published a Discussion Paper which explored the prospect of codifying or otherwise reforming the Australian law of contract. There is little reason to think that the codification of the Australian law of contract is likely to be embarked upon in the foreseeable future. At the same time, recent years have seen a resurgence of interest in codification in Britain. This paper examines the experience of contract codification efforts in Australia with a view to identifying a number of cautionary lessons. It focuses on two challenges inherent in contract codification which have been given too little attention by the proponents of reform in Australia.
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Bainbridge, Jason. "‘Rafferty's Rules’: Australian Legal Dramas and the Representation of Law." Media International Australia 118, no. 1 (February 2006): 136–49. http://dx.doi.org/10.1177/1329878x0611800116.
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This paper explores the problems involved in representing the Australian legal system on film and television, how these problems are addressed, and what commentary these texts are making about the practice of law in Australia. It is suggested that the formal and dress requirements of the Australian legal system make the trial process a ritual based around the reification of the lawyer and the stigmatisation of the accused — in short, a degradation ceremony — and that Australian legal dramas reflect this. But because of this lack of dynamism in the courtroom, Australian legal dramas must seek alternative sits of drama — often domestic, and invariably outside the courtroom. In this way, they present a more holistic view of the lawyer/judge's life, reinterpreting court proceedings (and the institution of law itself) as a repressed set-up by actively displacing dramatic tension outside the courtroom, thus denying the courtroom the centrality it occupies in American representations and, by extension, American culture.
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Kercher, Bruce. "Many Laws, Many Legalities." Law and History Review 21, no. 3 (2003): 621–22. http://dx.doi.org/10.2307/3595123.
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Peter Karsten asks why there might be a greater comparative propensity among CANZ historians than among those of the United States. Part of the reason may lie in the legal education many of us in Australia received, and in the formal legal status of many commonwealth countries until recently. As recently as the early 1970s, Australian law students were taught that English law was as significant as that made in the Australian courts. Appeals from the Australian Supreme Courts to the Privy Council were finally abolished only in 1986. From that time onward, there was a drive within the law schools to find differences from England, to look toward comparisons with other places than England.
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Grantham, Ross. "The Proceduralisation of Australian Corporate Law." Federal Law Review 43, no. 2 (June 2015): 233–57. http://dx.doi.org/10.22145/flr.43.2.3.
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The central hypothesis of the paper is that bit by bit and largely unnoticed Australian corporate law has undergone a profound change. Australian corporate law, and particularly the Corporations Act 2001 (Cth), has moved from an essentially private law, substantive rights model, to one that seeks to regulate the company and those involved in its affairs through the prescription of processes and procedures by which corporate decisions may be made and by which the procedural correctness of those decisions is assured. The paper will also seek to demonstrate, by an analysis of the changes in the patterns of corporate case law, that this proceduralising trend has effected a fundamental change in the nature of corporate law and the role of the courts and may now claim to be a, if not, the principal characteristic of Australian corporate law. The paper concludes by highlighting some of the wider implications of this trend and the risk it poses to the intellectual heart of corporate law. The modern registered company owes its immediate creation to the legislature. Historically, however, the nature of the corporate form and the content of what is now known in Australia as corporate law has been very much more the work of the courts.1 It is thus the case that the decision of the House of Lords in Salomon v A Salomon & Co Ltd2 is more often cited as the foundation of modern corporate law than are the Joint Stock Companies Act 1844 (UK)3 or the Limited Liability Act 1855 (UK).4 It is also the case that the building blocks of corporate law were predominantly taken from the private law. Within the open girders of the statutory framework,5 corporate law was built out of the concepts of contract, property, and trust. It is thus not surprising that the company was, and is still, regarded as a fundamentally private legal and economic institution.6
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Downie, Colette. "Will Australia Trust Arbitrators with Antitrust?" Journal of International Arbitration 30, Issue 3 (June 1, 2013): 221–65. http://dx.doi.org/10.54648/joia2013017.
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International arbitration has gained acceptance in many jurisdictions as a convenient method for resolving competition law disputes. In Australia, it remains unclear whether competition disputes are arbitrable, even though Australian courts and legislatures have recognized the legitimacy of arbitration as a dispute resolution process. This article outlines a model which would allow competition arbitration to operate within the Australian commercial and legal environment. Options are presented to alleviate the difficulties which continue to be experienced during US and EU antitrust arbitration proceedings and at the award enforcement stage. It is envisaged that the recommendations made by this article will enable international arbitration to become a complementary method of competition law enforcement, if Australia trusts arbitrators with antitrust.
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Cantatore, Francina, and Jane Johnston. "Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law." Deakin Law Review 21, no. 1 (February 23, 2018): 71. http://dx.doi.org/10.21153/dlr2016vol21no1art727.
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This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.
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White, Samuel, and Ray Kerkhove. "Indigenous Australian laws of war: Makarrata, milwerangel and junkarti." International Review of the Red Cross 102, no. 914 (August 2020): 959–78. http://dx.doi.org/10.1017/s1816383121000497.
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AbstractStudies in Australian history have lamentably neglected the military traditions of First Australians prior to European contact. This is due largely to a combination of academic and social bigotry, and loss of Indigenous knowledge after settlement. Thankfully, the situation is beginning to change, in no small part due to the growing literature surrounding the Frontier Wars of Australia. All aspects of Indigenous customs and norms are now beginning to receive a balanced analysis. Yet, very little has ever been written on the laws, customs and norms that regulated Indigenous Australian collective armed conflicts. This paper, co-written by a military legal practitioner and an ethno-historian, uses early accounts to reconstruct ten laws of war evidently recognized across much of pre-settlement Australia. The study is a preliminary one, aiming to stimulate further research and debate in this neglected field, which has only recently been explored in international relations.
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Arzandeh, Ardavan. "RECONSIDERING THE AUSTRALIAN FORUM (NON) CONVENIENS DOCTRINE." International and Comparative Law Quarterly 65, no. 2 (April 2016): 475–91. http://dx.doi.org/10.1017/s0020589316000014.
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AbstractA quarter of a century after the High Court of Australia's landmark ruling in Voth v Manildra Flour Mills Pty Ltd, this article examines the application of the modern-day forum (non) conveniens doctrine in Australia. It outlines the prevailing view in the academic literature which claims that the Australian doctrine is functionally different from its English counterpart, articulated in Spiliada Maritime Corporation v Cansulex Ltd. Through a detailed assessment of the case law and commentary, this article questions that widely accepted orthodoxy and demonstrates it to be unpersuasive and reconceptualizes our understanding of the forum (non) conveniens doctrine in Australia. Its main contention is that while, theoretically, there may be a narrow conceptual space between Spiliada and Voth, it is so narrow as to be practically non-existent.
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Nettheim, Garth. "Reconciliation: challenges for Australian law." Australian Journal of Human Rights 7, no. 1 (March 2001): 47–76. http://dx.doi.org/10.1080/1323238x.2001.11911051.
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Finlay, H. A. "MARRIAGE CONCILIATION UNDER AUSTRALIAN LAW." Family Court Review 7, no. 1 (March 15, 2005): 8–15. http://dx.doi.org/10.1111/j.174-1617.1969.tb00677.x.
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Bates, Frank. "Reforming Australian Matrimonial Property Law." Anglo-American Law Review 17, no. 1 (January 1988): 46–65. http://dx.doi.org/10.1177/147377958801700104.
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Naughton, R. "Australian Employment Law in 1992." Asia Pacific Journal of Human Resources 31, no. 2 (December 1, 1993): 39–51. http://dx.doi.org/10.1177/103841119303100205.
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