Dissertations / Theses on the topic 'Jurisprudence – Australia'

In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ???native title??? had survived the acquisition of sovereignty over the Australian continent and is ???recognised??? by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ???recognition???. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ???law of the land???. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ???custom???. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.

This thesis has three objectives. Its primary objective is to examine, and critically evaluate, the theoretical accounts offered by Hans Kelsen and Joseph Raz to explain the temporal continuity and discontinuity of legal systems. In particular, it evaluates the explanatory power of those accounts by combining an abstract analysis of the accounts in principle and an evaluation based on systematically applying them to one concrete, historically circumstanced instance: the legal systems of British derivation in Australia between 1788 and 2001. The thesis thus tests each account’s factual fit: how adequately it corresponds to, accords with, and persuasively makes sense of, the facts – including complex social facts, attitudes and normative standards – for which it purports to offer an account. Second, the thesis aims to demonstrate, more generally, the utility of applying theoretical accounts to a particular historical instance to complement abstract analysis. Third, the thesis aims to advance the understanding of the evolution of Australian legal systems between 1788 and 2001. These three objectives are achieved through the critical exposition and reconstruction of the accounts, their development and enrichment where refinement is appropriate, their application to the specific context of Australia and their evaluation, individually and in comparison.

Section 75(v) of the Constitution gives the High Court original jurisdiction in all matters in which a ‘writ of mandamus, prohibition and injunction is sought against an officer of the Commonwealth.’ In Plaintiff S157/2002 v The Commonwealth, the High Court held that s 75(v) of the Constitution entrenched a minimum provision of judicial review. The preservation of a minimum provision of judicial review means that legislative restrictions on the High Court’s s 75(v) jurisdiction are severely limited. The Court has made it clear that intrusion upon this minimum provision of judicial review is a question of substance and therefore degree. The privative clause, the historically preferred weapon of choice to limit judicial oversight, has been rendered largely ineffective by ‘creative’ approaches to interpretation. A consequence of the ineffectiveness of privative clauses has been the rise in the use of no-invalidity clauses. A no-invalidity clause is a provision in legislation that preserves the validity of a decision despite failure to adhere to the requirements in the legislation. By making a claim as to the validity of a decision, despite non-compliance with legislative requirements, the no-invalidity clause attempts to bring errors made by an administrative decision maker within jurisdiction. Classifying legal errors as non-jurisdictional arguably circumvents the exercise of the High Court’s s 75(v) jurisdiction to conduct judicial review, which is only available to correct jurisdictional errors of law. This would, at least superficially, appear to impede the jurisdiction of the High Court to conduct judicial review under its s 75(v) jurisdiction, at least in substance. In the 2008 High Court decision of Federal Commissioner of Taxation v Futuris Corporation Ltd, the High Court gave effect to a broad no-invalidity clause in s 175 of the Income Tax Assessments Act 1939 (Cth). Section 175 purported to make an income tax assessment valid notwithstanding any failure to adhere to the requirements laid out in the legislation. This conclusion is difficult to reconcile with the High Court’s broader jurisprudence on s 75(v), notably, the intention of the Court to look to substance and not form. However, an exploration of the High Court’s jurisprudence on the entrenched minimum provision of judicial review reveals that these concerns may be misguided. This thesis will explore key case law surrounding privative and no-invalidity clauses with the hope of rationalising the underlying approach that lends meaning to the minimum provision of judicial review. Once this is achieved, a more complete picture of the High Court’s decision in Federal Commissioner of Taxation v Futuris Corporation Ltd, and the approach to no-invalidity clauses generally, can be better understood.

Plus de soixante ans après sa signature, qui sont les personnes bénéficiaires de la qualité de réfugié au sens de l’article 1A de la Convention de Genève relative au statut de réfugié de 1951? En effet, si cette convention compte parmi les plus ratifiées au monde et n’a jamais été remise en cause, celle-ci fait pourtant l’objet de polémiques croissantes portant sur sa capacité à protéger les personnes contraintes de s’exiler. Elle s’applique par ailleurs dans un contexte politique de suspicion grandissante à l’égard des demandeurs d’asile. On peut donc se demander qui sont aujourdh’ui les personnes qui se voient reconnaître la qualité de réfugié ? A cette fin, l’étude s’appuie sur une analyse comparée des jurisprudences de plusieurs pays occidentaux : Australie – Belgique - Canada - Etats-Unis - France – Grande-Bretagne – Nouvelle-Zélande. Elle s’appuie aussi sur une analyse systémique de l’article 1A et ses interprétations jurisprudentielles à la lumière des évolutions du droit international des droits de l’homme et du droit international humanitaire. Ainsi, l’analyse met en lumière plusieurs points. Plus que les motifs invoqués ou la nature des mauvais traitements craints, c’est sur le caractère individuel ou collectif des persécutions que se dessine une ligne de fracture entre les Etats occidentaux. En effet, ces derniers ont, de manière convergente, fait évoluer leur interprétation de la qualité de réfugié quand les requérants invoquent des persécutions individuelles. C’est ainsi que les individus craignant d’être persecutés en raison de l’expression de leurs opinions politiques ou religieuses dissidentes, ou du libre exercice de leurs droits fondamentaux, quel que soit leur genre ou leur orientation sexuelle, se voient aujourd’hui communément reconnaître la qualité de réfugié. Dans le cadre de ces persécutions individuelles, les Etats ont aussi développé de manière convergente une interprétation assouplie des agents de persécution, acceptant ainsi de protéger les personnes fuyant des mauvais traitements perpétrés par des agents étatiques et des personnes privées. En revanche, il existe encore de nombreuses divergences entre les Etats lorsque les individus revendiquent fuir des persécutions collectives. S’appuyant sur la reconnaissance d’une interprétation plus ou moins individualiste de la qualité de réfugié, les personnes craignant d’être persécutées en raison de leur race, de leur nationalité ou de leur appartenance à un groupe religieux ne doivent pas satisfaire aux mêmes exigences pour se voir reconnaître la qualité de réfugié. Et dans le contexte actuel où de plus en plus de personnes fuient des persécutions collectives perpétrées dans un Etat en situation de conflit armé, ces divergences sont d’autant plus importantes
Sixty years after its signatory, who can be qualify as a refugee under the 1951 Refugee Convention relating to the Status of Refugee ? If it is one of the most ratified treaty of the world, it’s relevance have nevertheless recently been questioned and some commentators don’t hesitate to speak of an outdated Convention. Moreover, it applies in a political context of clear suspicion against asylum-seekers. So, we can wonder who can nowadays qualify as a refugee among the million of persons fleeing their home ? To answer to this question, the study focuses on judicial review of many industrialized countries, such as Australia – Belgium – Canada – United States – France – Great-Britain and New Zealand. A systemic interpretation of Article 1A and its judicial interpretation in the light of both international human right law and international humanitarian law also helps to conduce the study. First, the analyse reveals that it is not on the motives of persecution neither the nature of the treatment feared that we can observe similarities or differences between the countries. It is on individual or collective persecutions. When asylum seekers look for international protection based on individual persecutions, States have commonly adopted a dynamic interpretation of article 1A . Persons who have a well-founded fear of being persecuted because they have freely express their dissent political or religious opinion, their sexual orientation, or because they refuse to conform to the roles and identities attributing to their gender, can be recognised as refugees in all the countries of the study. In the context of individual persecutions, States have also commonly developed an evolutive interpretation of the persecution agents. They protect all the persons who risk to be persecuted by state agents or non-state agents. On the contrary, there are many continuing and growing divergences between States when persons flee collective persecutions because of their race, their nationality of their belonging to a religious group. They keep on developing a different interpretation of the individualist definition of the refugee. And while more and more person ask for international protection because they flee collective persecutions during an armed conflict, these divergences are even more important

Justice Deane was a member of the High Court from 1982 until 1995. This thesis examines Deane's constitutional jurisprudence during this period and argues that his decisions were permeated by themes and principles forming a coherent vision of the Constitution and its interpretation. Although voiced most fully in Theophanous v Herald and Weekly Times (1994) 182 CLR 104, Deane's constitutional vision was evident from his earliest High Court decisions. Central to Deane's constitutional philosophy was his concept of 'the people'. Deane regarded 'the people' as the source of legal authority of the Constitution, and the Constitution as ultimately concerned with their governance and protection. Although Deane recognised the importance of representative democracy as a fundamental commitment of the Constitution, it was the Court, and judicial process, that for Deane was the most important guarantee of individual liberty. Consistent with this understanding of the role of the Court, Deane's jurisprudence favoured rights-sensitive interpretations of the Constitution's text, including the development of a number of innovative, and controversial, implied constitutional rights. These features of Deane's constitutional jurisprudence, matched with his reliance on broad and flexible interpretive principles in constitutional interpretation, challenged orthodox assumptions of the legitimate limits on judicial review in the Australian constitutional system. In the years since Deane's departure from the Court the concept of 'the people' as the source of the Constitution's authority has gained wide acceptance. Few have also accepted Deane's bold vision of the Court's duty to protect the fundamental rights of 'the people' from legislative interference. Until this aspect of Deane's constitutional vision is adopted, some of his more controversial interpretations of the Constitution are unlikely to gain the acceptance of a majority of the Court. However, much of Deane's jurisprudence displays his reliance on his distinctive concept of 'the people' to support the application of both established principles of constitutional interpretation and a number of innovative interpretive principles to derive moderate conclusions on the meaning and effect of the Constitution. For this reason, Deane's jurisprudence contains many fresh and compelling answers to questions regarding the meaning of the Constitution in contemporary Australia.

This thesis considers the role of professional regulation in disciplining lawyer dishonesty. It defines dishonesty as acts done, whether at the suggestion of a partner, a client or another lawyer, that enable a client to act dishonestly. In particular, it focuses upon the professional norms, practices and rules that regulate large firm lawyer misconduct in Australia. As the size and sophistication of law firms has grown, so too has evidence of lawyers being complicit in the dishonest actions of their clients. This thesis examines how lawyers working within these environments navigate the practical and psychological challenges of acting honestly for their clients. It undertakes a theoretical inquiry into both the importance of lawyer honesty and the often conflicting norms and pressures of large firm practice . It also draws upon research in cognitive and social psychology to develop an empirically-grounded framework for lawyers' decisions to act dishonestly. In particular, it focuses upon the role of rationalisations in encouraging a pragmatic approach to clients' dishonest acts, especially in the context of the complexities and ambiguities of commercial legal practice. In the continuing absence of a national regulatory scheme governing the legal profession in Australia, the thesis focuses upon the disciplinary system operating in New South Wales and undertakes a theoretical inquiry into the importance of regulating lawyer dishonesty and an empirical study of NSW disciplinary cases to understand how lawyer dishonesty is dealt with by the professional and regulatory bodies in that state. It shows that significant gaps exist in the current regulatory scheme, particularly in the context of "who" disciplinary actions are brought against, "what" misconduct actions are for and "how" practitioners are dealt with. It argues that these gaps undermine the legitimacy of the regulatory anddisciplinary systems, which have as their goal providing a consistent scheme for the regulation of lawyers and the enforcement of standards of competence and honesty across the legal professlon. Finally, the thesis considers whether the regulatory regime governing professional misconduct in NSW can be effectively used to improve the standard of large firm lawyer honesty. It argues "yes" and suggests that three regulatory responses are required: firstly, normative issues need to remain at the centre of the regulation of professional misconduct; secondly, all law firms should be subject to the requirement to implement appropriate management systems and finally, specific provisions should be introduced to impose liability on large firm lawyers who assist their clients to act dishonestly.

Title page, contents and abstract only. The complete thesis in print form is available from the University of Adelaide Library.
"The thesis of this dissertation is that the Gleeson High Court is a largely a-theoretical Court, in that the judicial decisions of the Court are characterised by a low-level of abstraction, and the Gleeson Court does not theorise at length about the reasons for adopting a particular judicial approach. This approach distinguishes the Gleeson Court from the realist based jurisprudence of the Mason Court, which articulated the relevance of legal theory and tended to make statements of wide legal principle. The approach of the Gleeson Court also diverges from Dixonian legalism, which the analysis presented in this thesis will establish is a theoretical form of legalism." --p. 4.
http://proxy.library.adelaide.edu.au/login?url= http://library.adelaide.edu.au/cgi-bin/Pwebrecon.cgi?BBID=1297203
Thesis (Ph.D.) -- University of Adelaide, Law School, 2007

Doctor of Philosophy (PhD)
The official version of law in Australia is that the state has a monopoly over sovereignty: there is only one Australian law whose meaning is determined by the courts. However, the courts have implied that there is another law, the law of Indigenous peoples which exists as a social fact. It can be recognised by the state for particular purposes, such as the protection of the ‘native title’ of Aboriginal peoples and Torres Strait Islanders to their traditional countries. Native title is characterised as the translation of a primarily spiritual connection to land into proprietary rights and interests, requiring proof of the connection that a particular Indigenous society has under traditional laws and customs continuously acknowledged since Britain claimed sovereignty. Given the special nature of native title, the preference is to recognise title by negotiated agreement. This thesis undertakes a study of some of the assumptions and inconsistencies on which the recognition of native title – and this ‘not quite’ legal pluralism – rests. It questions law’s relation to fact, time, space, identity, language and practice as these are deployed in calibrating Indigenous peoples’ claims, and so reaches across disciplines to History (questioning the knowable past), Philosophy (the notion of recognition), Legal Theory (the concept of law as rules and the separation between law and fact), Anthropology and Literary Studies (the possibility of translation), Aesthetics (the rationality of proof), and Geography (the alternative space of negotiation). In looking closely at the practical and discursive process of making a claim, an account of native title can be given that refuses the cogency of the monopoly of sovereignty, and envisages instead a multi-faceted phenomenon that is the ‘unofficial’ law of native title. Native title is a set of practices which stimulate new articulations of Indigenous law and settler law and put them in relation with one another: the process of recognition is also a creative process of transformation.

This thesis attempts a comparative sociology of the labour law in Australia and Nigeria. It finds that there are fundamental similarities between the compulsory arbitration laws of both countries which cannot be adequately explained, simply, in terms of race, geography or stages of industrial development. The thesis outlines in considerable details two broad sociological perspectives on law, the autonomy model and the social product model, and uses the insights of these two approaches to explain the observed similarities. The thesis shows that the 1904 Australian law was transplanted to Nigeria in the period 1968-76. Further, it shows that although at first sight Australia in 1904 is very different from Nigeria in 1968, the respective social circumstances (particularly the social control traditions) were remarkably similar, thus allowing the borrowing of the Australian legislation by Nigeria. The few differences which the thesis identifies suggest that the borrowing was not a case of blind legal transplantation.

Includes bibliographical references (leaves 220-229) Considers to what extent feminist theoretical and critical perspectives have been incorporated into law. A law course or law textbook that uncritically presents legal doctrines, or representations of men's and women's social roles, risks adopting and perpetuating the unstated point-of-view of a particular cultural group in society. Argues for a legal education that has an open self-consciousness of the culturally specific and inevitably partial point-of-view of the law and, consequently, a conscious recognition of the unavoidable point-of-view of legal education.

This dissertation is a comparative study of the law of criminal complicity in Jordan (a civil law jurisdiction), and in New South Wales (NSW) (a common law jurisdiction). It addresses the basis of criminal culpability of individuals, and explores the extent to which the basis of such culpability rests on the autonomy and autonomous actions (or inactions) of individuals. Ideas of such autonomy have been integral to western ethical, political and legal thinking since the seventeenth century. The analysis in this dissertation raises issues where the criminal law does not adequately take into account the limits on individual autonomy in relation to liberty of action, freedom of choice and effective deliberation. These issues highlight that a more serious and deeper understanding of individual autonomy as a ground of culpability must be taken into account by law-makers, to ensure that the grounds of criminal culpability more adequately reflect the limits on people’s individual autonomy in modern society today.
Doctor of Philosophy (PhD)

DISSERTATION SUBMITTED IN COMPLIANCE WITH THE REQUIREMENTS OF THE FACULTY OF LAW AND OF THE SENATE OF THE UNIVERSITY OF THE WITWATERSRAND IN COMPLETION OF THE DEGREE MASTER OF LAWS (INCOME TAX) BY COURSE work JOHANNESBURG 12 October 1984

This thesis examines the valuation of transitional justice. It argues the need for and advances a more theoretically expansive set of ideal standards that can be used to assess the process and substantive outcomes of transitional justice decision-making. In so doing, it advocates a victim-inclusive and sustainable model of justice. Effective decision-making is understood in ideal terms as being :(l) politically and publicly inclusive; (2) methodically planned; (3) politically purposive; and (4) legally comprehensive in the sense of equally recognising state obligations and victim rights.

Parliamentary supremacy is a major and important principle of Australian constitutional law. Popular sovereignty, on the other hand, has come to occupy a confusing and possibly dangerous position in Australia's current constitutional arrangements. In the 'implied rights cases', popular sovereignty was said to replace (or at least heavily qualify) parliamentary supremacy, and was seen as a springboard for the protection of individual rights. This thesis argues that the promulgation and enforcement of individual rights chosen by the High Court, against a democratically elected parliament, should be seen as a massive appropriation of political power from parliaments to judges. This is of course not to say that the High Court has no role to play in the development of rights in constitutional law, but it is to say that this role should be exercised cautiously and with restraint, and with due deference to the expressed will of the people through their elected representatives. As a result, any notion of 'extra-constitutional rights' not discerned from the text and structure of the Constitution, that might be said to limit parliamentary supremacy, should not be entertained. The broad traditions, including judicial deference to Parliament and separate roles of the legislature and the judiciary should be maintained, such that the enunciation of rights of general application should be left to parliaments. The Founders of the Australian Constitution instituted these broad traditions when they envisaged the institutional design and normative scheme of the Constitution. Such traditions were based on positivist and utilitarian notions, and also included the embracing of the doctrine of parliamentary supremacy and the specific rejection of a bill of rights. For the High Court to now show infidelity to the institutional design of the Founders would mean that the checks, balances and traditions envisaged by the Founders are subverted, potentially leading to a dysfunctional constitutional order. Moreover, it is argued this shift in the role of one of the key components of the federation can have a destabilising effect on the High Court itself, and no less the federation. For if Australia ever found itself in the midst of a constitutional crisis, Australians must be able to have utmost faith in the High Court as an apolitical institution to determine the validity of Australian laws. Since the passage of the Australia Acts in 1986, some Justices of the High Court have sought to imbue the Australian Constitution with a republican form of ideology to search for an autochthonous or 'home-grown' Constitution. It is said the traditional view of the legal basis of the Constitution being the United Kingdom Parliament, cannot support a popular ideological basis to the Constitution and emphasise individual rights. However, the fact that the United Kingdom Parliament can no longer legislate for Australia, does not necessarily mean the legal basis of the Constitution is now popular sovereignty. Nor does it follow that the withdrawal of the British hegemony or Australia’s lack of a bill of rights should sanction any greater role for the High Court. It is this discourse in the 'implied rights cases' surrounding the legal basis of the Constitution and individual rights that this thesis takes up in detail. This thesis will deconstruct the elements of this discourse to show that it constitutes a pernicious challenge to orthodox methods of constitutional interpretation previously based upon the rule of law and the separation of powers. It will be argued that in the 'implied rights cases' the High Court was less concerned about trespassing upon parliament's traditional and separate role than it was in promulgating a new rights discourse for Australia. Whilst doing so, every effort has been made to state the law as at November 2004.

Parliamentary supremacy is a major and important principle of Australian constitutional law. Popular sovereignty, on the other hand, has come to occupy a confusing and possibly dangerous position in Australia's current constitutional arrangements. In the ‘implied rights cases’, popular sovereignty was said to replace (or at least heavily qualify) parliamentary supremacy, and was seen as a springboard for the protection of individual rights. This thesis argues that the promulgation and enforcement of individual rights chosen by the High Court, against a democratically elected parliament, should be seen as a massive appropriation of political power from parliaments to judges. This is of course not to say that the High Court has no role to play in the development of rights in constitutional law, but it is to say that this role should be exercised cautiously and with restraint, and with due deference to the expressed will of the people through their elected representatives. As a result, any notion of ‘extra-constitutional rights’ not discerned from the text and structure of the Constitution, that might be said to limit parliamentary supremacy, should not be entertained. The broad traditions, including judicial deference to Parliament and separate roles of the legislature and the judiciary should be maintained, such that the enunciation of rights of general application should be left to parliaments. The Founders of the Australian Constitution instituted these broad traditions when they envisaged the institutional design and normative scheme of the Constitution. Such traditions were based on positivist and utilitarian notions, and also included the embracing of the doctrine of parliamentary supremacy and the specific rejection of a bill of rights. For the High Court to now show infidelity to the institutional design of the Founders would mean that the checks, balances and traditions envisaged by the Founders are subverted, potentially leading to a dysfunctional constitutional order. Moreover, it is argued this shift in the role of one of the key components of the federation can have a destabilising effect on the High Court itself, and no less the federation. For if Australia ever found itself in the midst of a constitutional crisis, Australians must be able to have utmost faith in the High Court as an apolitical institution to determine the validity of Australian laws. Since the passage of the Australia Acts in 1986, some Justices of the High Court have sought to imbue the Australian Constitution with a republican form of ideology to search for an autochthonous or 'home-grown' Constitution. It is said the traditional view of the legal basis of the Constitution being the United Kingdom Parliament, cannot support a popular ideological basis to the Constitution and emphasise individual rights. However, the fact that the United Kingdom Parliament can no longer legislate for Australia, does not necessarily mean the legal basis of the Constitution is now popular sovereignty. Nor does it follow that the withdrawal of the British hegemony or Australia’s lack of a bill of rights should sanction any greater role for the High Court. It is this discourse in the ‘implied rights cases’ surrounding the legal basis of the Constitution and individual rights that this thesis takes up in detail. This thesis will deconstruct the elements of this discourse to show that it constitutes a pernicious challenge to orthodox methods of constitutional interpretation previously based upon the rule of law and the separation of powers. It will be argued that in the 'implied rights cases' the High Court was less concerned about trespassing upon parliament's traditional and separate role than it was in promulgating a new rights discourse for Australia. Whilst doing so, every effort has been made to state the law as at November 2004.