Artykuły w czasopismach na temat „Civil law Australia”
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1
Wolff, Leon. "Litigiousness in Australia: Lessons from Comparative Law". Deakin Law Review 18, nr 2 (1.12.2014): 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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Steffany, Steffany. "Comparison of Civil Law and Common Law in Australia and Surrounding Countries". Jurnal Daulat Hukum 5, nr 3 (30.09.2022): 156. http://dx.doi.org/10.30659/jdh.v5i3.24389.
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This study aims to determine the legal system can be interpreted in two ways. First, the legal system is defined as a unit of components or elements (sub-systems) as follows: material law-formal law and civil law-public law. Included in this view are those who see the legal system as a unity between various laws and regulations with legal principles. Second, the legal system is defined as a unity of components: legal structure, legal substance, and legal culture. Eric L Richard, an expert in global business law, divides the main legal systems into six legal families: Civil law, Common law, Islamic law, Socialist law, Sub Sahara Africa, and Far east. This research is a qualitative research with a historical juridical approach that describes the legal history of how civil law and common law apply in various countries. By collecting data in the library supported by primary and secondary data according to the chosen topic. In general, based on how law is produced and implemented, there are two legal systems known in the world, namely, civil law and common law. The two legal systems have their own history and differences.
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Gray, Anthony Davidson. "Forfeiture Provisions and the Criminal/Civil Divide". New Criminal Law Review 15, nr 1 (1.01.2012): 32–67. http://dx.doi.org/10.1525/nclr.2012.15.1.32.
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The Australian Government has recently implemented civil forfeiture provisions for property suspected to have been acquired unlawfully. The Australian Federal Police may seek a preliminary unexplained wealth order. The Court may make such an order if there is evidence the wealth may have been acquired from unlawful means. Once the order is made, a full hearing takes place. There it is presumed that such property was unlawfully gained, unless the person who owns the property can show otherwise. Such proceedings can take place without the property owner being charged. The article considers the historical basis of such orders, and their use in the United States and United Kingdom. It is argued that such proceedings are in fact criminal in nature, despite how they are labelled. The article engages with the discusssion in the larger context of the divide between criminal and civil, and whether some “middle ground” should be acknowledged. If forfeiture provisions are in substance criminal, perhaps due process obligations apply, including the presumption of innocence. This argument is more difficult in Australia, given the lack of an express bill of rights. However, it can be argued from previous cases that there is an implicit right to a fair trial, including a presumption of innocence.
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Giliker, Paula. "ANALYSING INSTITUTIONAL LIABILITY FOR CHILD SEXUAL ABUSE IN ENGLAND AND WALES AND AUSTRALIA: VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND STATUTORY INTERVENTION". Cambridge Law Journal 77, nr 3 (24.09.2018): 506–35. http://dx.doi.org/10.1017/s0008197318000685.
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AbstractThis paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.
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Rutherford, Jodhi. "Book Review - Equality and Discrimination Law in Australia". QUT Law Review 18, nr 2 (25.01.2019): 315. http://dx.doi.org/10.5204/qutlr.v18i2.762.
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Anti-discrimination laws aim to protect people from harm to which they may be subject on the basis of personal attributes such as gender, race, age or disability. With human rights principles as their source, anti-discrimination laws can be seen to have equality as their goal however contested notions of equality make it difficult to determine whether the laws are reaching this objective. Anti-discrimination law occupies a peculiar position at the nexus of public and private law; it encompasses both civil and political rights and obligations between individuals.
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Goldring, J. "Civil Liability Law Reform in Australia : the "King of Torts" Is Dead". Uniform Law Review - Revue de droit uniforme 10, nr 3 (1.08.2005): 447–68. http://dx.doi.org/10.1093/ulr/10.3.447.
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Fischer, Gerhard. "Enemy Aliens: Internment and the Homefront War in Australia, 1914–1920". Anglica. An International Journal of English Studies, nr 30/3 (1.09.2021): 107–39. http://dx.doi.org/10.7311/0860-5734.30.3.07.
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During the First World War, the German Australian community, the largest non-Anglo-Celtic group, became the target of a relentless campaign of persecution, internment and deportation that resulted in its dismemberment and the destruction of its socio-cultural infrastructure. Under the country’s belligerent Prime Minister, W.M. Hughes, the machinery of government was used to suspend basic civil rights and the rule of law, while Australian civilians were called upon to participate in the “homefront war” against an imagined internal enemy. The government’s aim was to serve the cause of Im- perial Britain and its commercial supremacy, and to secure the future of White Australia as the home of an imaginary, exclusive “British race.”
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McGaughey, Fiona, Tamara Tulich i Harry Blagg. "UN decision on Marlon Noble case: Imprisonment of an Aboriginal man with intellectual disability found unfit to stand trial in Western Australia". Alternative Law Journal 42, nr 1 (marzec 2017): 67–70. http://dx.doi.org/10.1177/1037969x17694790.
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On 23 September 2016, the United Nations (UN) Committee on the Rights of Persons with Disabilities found that the Australian government had breached its obligations under the UN Convention on the Rights of Persons with Disabilities. The case against Australia was brought by Marlon Noble, an Aboriginal man with an intellectual disability who was charged with sexual assault but found unfit to stand trial under the Mentally Impaired Defendants Act 1996 (WA). He was imprisoned indefinitely in 2001 and has been held in civil detention in the community since 2012. This article analyses the current policy and legislative context in Western Australia on this issue and reflects on Australia’s previous responses to individual human rights complaints to UN Committees.
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Keyes, Mary. "Jurisdiction Clauses in New Zealand Law". Victoria University of Wellington Law Review 50, nr 4 (2.12.2019): 631. http://dx.doi.org/10.26686/vuwlr.v50i4.6305.
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The Trans-Tasman Proceedings Acts 2010, mirror legislation in New Zealand and Australia, regulate the allocation of jurisdiction in trans-Tasman civil proceedings. The legislation includes provisions dealing with the effects of jurisdiction clauses. This article considers the treatment of jurisdiction clauses under the statutory regime and the common law regime which provides for the effect of jurisdiction clauses that are outside the scope of the legislation, how these regimes differ, and their relative strengths and weaknesses.
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Welsh, Michelle. "Realising the Public Potential of Corporate Law: Twenty Years of Civil Penalty Enforcement in Australia". Federal Law Review 42, nr 1 (marzec 2014): 1–22. http://dx.doi.org/10.22145/flr.42.1.9.
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Traditionally corporate law has been viewed as having characteristics that are commonly associated with private law. Largely this view developed as a result of the “law and economics” scholarship which dominated the corporate law debate, especially in the United States, in the last quarter of last Century. While the traditional “law and economics” approach supports the view that corporate law should be treated as a branch of private law, and that the state should have no role in its enforcement, other scholars, particularly those that adopt a progressive approach, argue that corporate law has, and should be recognised as having characteristics that are usually associated with public law. Arguably, an area of Australian corporate law that displays characteristics that are usually associated with public law is the statutory directors’ duties and the civil penalty regime that supports them. This enforcement regime gives the state through the corporate regulator, standing to take court based proceedings to enforce what are in effect, contracts that established corporate governance structures. This article seeks to determine the appropriate role of a public regulator in these circumstances. The questions considered are: whose interests should the public regulator represent when it is tasked with the responsibility of enforcing the statutory directors’ duties that largely codify fiduciary and common law duties? Given that the duties are owed by directors to their company should the primary role of the public regulator be to represent the interests of the company, and its shareholders, who have suffered a loss as a result of the alleged contravention of the directors’ duties or should the primary role of the public regulator be to act in the interests of the members of the larger community? In these situations what are the interests of the larger community? Drawing on regulatory theory the argument advanced in this paper is that despite the fact that the statutory directors’ duties codify what are in effect private rights between directors and their companies, the primary role of a public regulator is not to utilise the enforcement mechanisms at its disposal in order to obtain compensation for companies who have suffered a loss. Rather, the regulator's primary role is to act in the interests of the larger community by utilising the enforcement mechanisms at its disposal strategically in order to encourage greater compliance.
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McIntyre, Joe, Anna Olijnyk i Kieran Pender. "Civil courts and COVID-19: Challenges and opportunities in Australia". Alternative Law Journal 45, nr 3 (wrzesień 2020): 195–201. http://dx.doi.org/10.1177/1037969x20956787.
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This article provides an overview of the response of Australian courts to the COVID-19 crisis, and critically examines a number of structures and systemic issues that arise from the shift to the online deliver of justice. It places the current responses in the context of the emerging literature regarding online dispute resolution, and draws upon that literature to consider issues including open justice, symbolism and ‘court architecture’ in the digital space, technological limitations, access to justice and issues of systemic bias. It argues that by examining these issues, the present crisis will help map opportunities for future reform.
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Weller, Penny. "Human Rights and Social Justice: the Convention on the Rights of Persons with Disabilities and the quiet revolution in international law". Public Space: The Journal of Law and Social Justice 4 (28.11.2009): 17. http://dx.doi.org/10.5130/psjlsj.v4i0.1167.
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On the 60th anniversary of the Universal Declaration of the Human Rights (UDHR) the Commonwealth Attorney General announced a national public consultation concerning the need for better human rights protection in Australia and the viability of a federal human rights charter. Whether or not the anticipated Charter includes social, economic and cultural rights is directly relevant to questions of social justice in Australia. This paper argues that the legislative acknowledgment of civil and political rights alone will not adequately address the human rights problems that are experienced in Australia. The reluctance to include economic, social and cultural rights in human rights legislation stems from the historical construction of an artificial distinction between civil and political rights, and economic social and cultural rights. This distinction was articulated and embedded in law with the translation of the UDHR into binding international law. It has been accepted and replicated in judicial consideration of the application on human rights legislation at the domestic level. The distinction between the two forms of rights underpins a general ambivalence about the capacity of human rights legislation to deliver social justice and echoes a critical tradition in legal philosophy that cautions against the reification of law. Coming into force early in the 21st century, the Convention of the Rights of Persons with Disabilities illustrates the effort of the international community to recognize and eschew the burden of the false dichotomy between civil and political and economic, social and cultural rights. Acknowledging the indivisible, interdependent and indissociable nature of human rights in Australia is a crucial step toward achieving human rights based social justice.
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Cotton, John. "Australia: The Privilege Against Self‐incrimination in Australian Civil Proceedings — The Decision in Reid v Howard". Journal of Financial Crime 3, nr 4 (luty 1996): 400–402. http://dx.doi.org/10.1108/eb025745.
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Sainsbury, Maree. "What's it Got to Do with Morality? Moral Rights: An Historic and Contemporary Perspective". Media International Australia 114, nr 1 (luty 2005): 61–70. http://dx.doi.org/10.1177/1329878x0511400108.
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Australia introduced moral rights legislation in December 2000, giving effect to a doctrine that originated in civil law jurisdictions in the eighteenth century. The rights given effect to in Australia are the right of integrity, which allows the author to prevent derogatory treatment of their work, and the right of attribution, which mandates attribution of the author when the work is reproduced, published or otherwise communicated to the public. There is also the right to prevent false attribution of authorship. This article looks at the historical development of moral rights and examines why such an amendment to the law in Australia was necessary in a contemporary context. It discusses the implications of this amendment for the media and other industries.
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Lilienthal, Gary. "People Trafficking and Smuggling Crimes in Australia: A Critical Analysis of State Intent". Issues in Legal Scholarship 13, nr 1 (1.01.2015): 1–28. http://dx.doi.org/10.1515/ils-2016-0249.
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AbstractThis article’s objective is to expose the rhetorical source of the heavy irony in Australia’s immigration detention regime. The observer might wonder why an isolated and vast land could be so concerned at, and afraid of, small groups of “boat people.” Therefore, the paper poses the question as to what reasoning and public policy purposes might underlie the successful public rhetoric vilifying “boat people,” creating the construct of “people smuggling” and demanding military operations to “turn back the boats.” It tries to correlate with a likely state desire to resurrect the old laws of attainder, civil death and outlawry, in order to create a slave-class of displaced migrants, for solely state interests and purposes. In addressing the question structurally, discussion begins with a brief look at the Australian law. Argument then concentrates on the originating negotiations in the international high councils. After this, the article looks at instances of people smuggling rhetoric in Canada, also addressing briefly the United States law. Then there is a section on modern rhetorical analysis, which argument tries to use to explain what might underlie these government methods. The paper briefs the reader on the old laws of civil death, outlawry and attainder in Australia, with a view to a contextual assessment as to whether they are really what underlie the draconian outcomes of Australia’s human trafficking and people smuggling laws and policies. The research outcome will likely suggest that conveniences to the state such as efficiency in policing, removing likely political opposition from new arrivals, avoiding any dilution of the local culture and skirting unwanted international rights are most likely to be the real state intent.
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Rajapakse, Pelma Jacinth. "Contamination of Food and Drinks: Product Liability in Australia". Deakin Law Review 21, nr 1 (23.02.2018): 45. http://dx.doi.org/10.21153/dlr2016vol21no1art718.
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This article examines the Australian law determining liability of manufacturers and retailers for injury or death allegedly caused by food and drink products which were spoiled, contaminated, or otherwise in a deleterious condition. Product liability and the issue of negligence associated with consumption of foods or drinks deemed as contaminated form the key points of discussion in this article. The liability of manufacturers, processors, wholesalers and retailers are explored with reference to elements of negligence, breach of express or implied warranty, misrepresentation, and strict liability in tort. Australian case law as it pertains to duty of care, breach, causation, and damage has been established and there are consumer protection and product safety laws at both state and federal levels that provide for those affected by contamination/harmful condition of food and drink products. This article explores examples of negligence as the basis of manufacturer’s, processor’s and retailer’s liability in tort (common law and Civil Liability Act 2003 (Qld)) as well as liability under the federal and state legislation such as the Competition and Consumer Act 2010 (Cth), the Food Act 2006 (Qld) and the Australia New Zealand Food Standards Code). The various defences of contributory negligence of consumers, and obvious risk of injury suffered, as well as those established by manufacturers/retailers in the relevant proceedings are used to show the complexity of this issue. The article concludes with recommendations for consumers and businesses to avoid the risk of food contamination and to maintain food safety.
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Eesa A Fredericks. "Contractual Capacity and the Conflict of Laws in Common-Law Jurisdictions (Part 2): Australasia, North America, Asia and Africa". Obiter 41, nr 1 (1.04.2020): 10–44. http://dx.doi.org/10.17159/obiter.v41i1.10546.
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This series of two articles provides a comparative overview of the position in common-law jurisdictions on the conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, was investigated in part 1.1 Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom was also discussed.Part 2 deals with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). This part also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.
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WILLETT, CHRIS. "THE FUNCTIONS OF TRANSPARENCY IN REGULATING CONTRACT TERMS: UK AND AUSTRALIAN APPROACHES". International and Comparative Law Quarterly 60, nr 2 (kwiecień 2011): 355–85. http://dx.doi.org/10.1017/s0020589311000108.
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AbstractThis article considers the functions of transparency in regulating consumer contract terms in the UK and Australia. The discussion is set in the context of EU level regulation with various references to civil law approaches. The main issue explored here is the extent to which transparency is capable of legitimizing substantively unfair terms. However, I also explore other roles that may be played by transparency and the extent to which these are facilitated in the UK and Australia.
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Fan, Hongzhong, Mirza Nouman Ali Talib i Pan Chen. "Legal Origins and the Financial Conservatism of Private Firms". International Journal of Economics and Finance 11, nr 5 (15.04.2019): 103. http://dx.doi.org/10.5539/ijef.v11n5p103.
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Following the literature of corporate law and finance, our study emphasizes on differences of legal origins and their laws influencing the capital structures of the private firms following suboptimal conservative policies. The countries considered in each legal origin represents common law countries (UK, Australia, India, Pakistan and Thailand) and Roman backed civil law countries (Japan, South Korea, Germany) respectively. The time series considered for the study is 2000-2017. The findings provide that the conservative private firms are smaller in size with less investments but are positively related with profitability in both legal origins. However, the dividend payouts and non-debt tax shields have significant positive relation with conservative policies in civil law countries. It shows that the presence of minority shareholders’ protection law in civil law countries directs the firms to pay more dividends which may also help them in reducing agency costs. We further exhibit that, before financial crises of 2008, the conservative firms in both legal origins are less directed towards dividends, especially in common law countries. Nevertheless, private conservative firms of civil law countries are more inclined towards dividend payouts after financial crises. The study implicates that the difference of laws in legal origins affect the capital structures of the conservative private firms. It further provides that because of the less effective credit markets, private firms may also be forced to adopt conservative policies in civil law countries but may also have less agency problems due to high probability of having dividend payouts.
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Welsh, Michelle. "Realising the Public Potential of Corporate Law: Twenty Years of Civil Penalty Enforcement in Australia". Federal Law Review 42, nr 1 (marzec 2014): 1–22. http://dx.doi.org/10.1177/0067205x1404200109.
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Vogl, Anthea, i Elyse Methven. "Life in the Shadow Carceral State: Surveillance and Control of Refugees in Australia". International Journal for Crime, Justice and Social Democracy 9, nr 4 (26.11.2020): 61–75. http://dx.doi.org/10.5204/ijcjsd.1690.
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This article critically examines techniques employed by the Australian state to expand its control of refugees and asylum seekers living in Australia. In particular, it analyses the operation of Australia’s unique Asylum Seeker Code of Behaviour, which asylum seekers who arrive by boat must sign in order to be released from mandatory immigration detention, with reference to an original dataset of allegations made under the Code. We argue that the Code and the regime of visa cancellation and re-detention powers of which it forms a part are manifestations of what Beckett and Murakawa call the ‘shadow carceral state’, whereby punitive state power is extended beyond prison walls through the blurring of civil, administrative and criminal legal authority. The Code contributes to Australia’s apparatus of refugee deterrence by adding to it a brutal system of surveillance, visa cancellation and denial of services for asylum seekers living in the community.
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Forwood, Mark R. "Whither no-fault schemes in Australia: Have we closed the care and compensation gap?" Alternative Law Journal 43, nr 3 (16.08.2018): 166–70. http://dx.doi.org/10.1177/1037969x18787552.
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No-fault compensation in New Zealand, the Woodhouse report and statutory reforms to civil liability motivated consideration of no-fault schemes in Australia. In 2011, the Productivity Commission recommended adoption of a National Injury Insurance Scheme. Since 2016, the NDIS has developed nationally, followed by variations of the NIIS for motor vehicle and workplace accidents. Compensation for injuries outside the NIIS (e.g. medical negligence), or general damages or economic loss must be recovered through compulsory third-party claims or common law. For those cases, an attractive compromise between the common law and no-fault compensation exists in Menyawi’s ‘public tort liability’.
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O'Sullivan, Maria. "‘Past’ Violations under International Human Rights Law: The Indigenous ‘Stolen Generation’ in Australia". Netherlands Quarterly of Human Rights 23, nr 2 (czerwiec 2005): 243–72. http://dx.doi.org/10.1177/016934410502300204.
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This article examines the debate relating to reparations for ‘past’ human rights violations, with particular focus on the case of the indigenous ‘Stolen Generation’ in Australia. The ‘Stolen Generation’ is a term used to describe the government-sanctioned practice of forced removals of part-Aboriginal children from their indigenous parents and placement into non-indigenous institutions and homes, which occurred in Australia from approximately 1910–1970. The ‘Stolen Generation’ violations present a unique and difficult legal question for international human rights law because they straddle the divide between ‘historic’ violations and contemporary acts, that is, they were committed by Australia after Australia signed key agreements such as the UN Charter, the Universal Declaration on Human Rights, the Declaration on the Rights of the Child and the Declaration on the Elimination of All Forms of Racial Discrimination, but prior to its ratification of international human rights treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. This means that bringing a claim under international human rights law in relation to the violations raises a number of problems. The object of this article will be to explore whether Australia can be held responsible under international human rights law for the ‘Stolen Generation’ violations and possible avenues of redress. In this regard, the focus of the article will be on the possible claims victims could make to relevant treaty monitoring bodies and the types of obstacles they would face in doing so. These legal questions are also relevant to the wider debate that is taking place in relation to reparations, namely the extent to which a State can be held legally responsible to provide reparations for past violations.
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Yeung, Joshua, i Alex CH Yeung. "The neglected nexus between competition law and human rights: standard of proof for pecuniary penalties". Legal Studies 41, nr 2 (18.03.2021): 336–54. http://dx.doi.org/10.1017/lst.2021.8.
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AbstractThis paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules. Australia, New Zealand and the UK have chosen the civil standard. This unfortunately overlooks the safeguards required by the relevant human rights treaties in proceedings that involve the determination of a ‘criminal charge’. Conversely, Hong Kong has adopted the criminal standard, which may prove unworkable in these proceedings in which economic analysis is key. After analysing whether one may set this quagmire aside by asserting that these proceedings do not involve the determination of a criminal charge, it will be argued that the more plausible solution is to accept the criminal charge characterisation, limit the civil standard to the effects-based elements of the charge and apply the criminal standard to other elements. This will achieve a permissible proportionate derogation from the human rights safeguards. Similar bifurcated models have been adopted for charges such as public nuisance and harassment, and have successfully withstood human rights challenges.
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Halberda, Jan. "The principle of good faith and fair dealing in English contract law". Pravovedenie 64, nr 3 (2020): 312–25. http://dx.doi.org/10.21638/spbu25.2020.301.
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Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.
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Chinchilla-Adell, Mónica. "La contribución del «soft law» a la no proliferación biológica y química". Anuario Español de Derecho Internacional 38 (9.05.2022): 341–86. http://dx.doi.org/10.15581/010.38.341-386.
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Las nuevas amenazas del siglo XXI, entre las que se encuentran los actores no estatales, el nuevo terrorismo y las armas de destrucción masiva, acentúan la necesidad de una cooperación colectiva efectiva. En este contexto, los mecanismos convencionales vigentes para el control de las exportaciones de armamento biológico y químico no parecen ser suficientes. Es preciso entonces considerar el papel del soft law en esta materia, en particular, cómo ciertos foros informales, como el Grupo Australia, el MTCR y el Arreglo de Wassenaar, junto con la Iniciativa de Seguridad contra la Proliferación, contribuyen a un control efectivo sobre bienes estratégicos de doble uso civil y militar.
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Schofield-Georgeson, Eugene. "Silent Partners? Trade Unions, Corporations and Penalty Privilege in the Federal Court of Australia". Federal Law Review 50, nr 1 (15.02.2022): 86–103. http://dx.doi.org/10.1177/0067205x211066143.
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‘Penalty privilege’ is sometimes referred to as ‘the right to silence’ or more correctly the privilege against self-exposure to civil penalty. It is a procedural rule that applies equally to trade unions and corporations in Australian federal courts. This article critically investigates this equality of this treatment, revealing its historical evolution and arguing that it results in unequal outcomes, relative to the social and historical roles of unions and corporations. But it also discovers distinct incoherence in the application of penalty privilege, along with a host of related legislative interventions that have sought to entrench the equal treatment of trade unions and corporations more broadly. Accordingly, this article proposes a range of reform, with a particular focus on the application of penalty privilege in the federal arena. A more coherent application of penalty privilege, it is proposed, is one that applies in proportion to the social power exercised by persons and entities before the Court.
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Rudge, Chris, Narcyz Ghinea, Megan Munsie i Cameron Stewart. "Regulating autologous stem cell interventions in Australia: updated review of the direct-to-consumer advertising restrictions". Australian Health Review 45, nr 4 (2021): 507. http://dx.doi.org/10.1071/ah20217.
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ObjectiveThis paper provides an update and overview of the law governing direct-to-consumer (DTC) advertising of autologous stem cell interventions (ASCIs) in Australia. It follows significant changes to the advertising regulations made in 2018. MethodsThe paper reviews the three primary sources or ‘centres’ of law regulating ASCIs in Australia, together with the relevant guidance documents that supplement these sources. It provides analysis of how the post-2018 advertising regulations, contained in the Therapeutic Goods Act 1989 (Cwlth), apply to all ‘biologicals’, including ASCIs. It demonstrates how these three sources of law interact with one another and outlines the new tiered offence regime that applies to contraventions of these prohibitions. ResultsThe analysis demonstrates that DTC advertising of ASCIs in Australia is strictly controlled, with primary legislation prohibiting the advertising of biologicals altogether. ConclusionsThe polycentric legal regime regulating biologicals in Australia clearly makes DTC advertising of ASCIs unlawful. Health practitioners who promote ASCIs, either online, in print or in other media forms, may be penalised in different ways and by different authorities. What is known about the topic?Although several analyses have examined the regulation of ASCIs in Australia, no analysis has studied the reforms made in 2018 relating to the advertising of biologicals. As such, this analysis contributes a fresh examination of these relatively recent reforms. What does this paper add?This analysis clarifies the effects of these new advertising regulations, providing clear guidance on the relevant legal provisions for the benefit of health practitioners and health professionals more generally. What are the implications for practitioners?Health practitioners, especially those who offer ASCIs, should be aware that civil and criminal penalties are likely to be imposed on individuals who promote biologicals in Australia by any means.
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Dignam, Alan. "The globalisation of General Principle 7: transforming the market for corporate control in Australia and Europe?" Legal Studies 28, nr 1 (marzec 2008): 96–118. http://dx.doi.org/10.1111/j.1748-121x.2007.00076.x.
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The integration of national financial markets over the past 30 years has resulted in a globalised market for corporate control which has increased both the opportunities for companies to fund acquisitions and the possibility of being acquired. Takeovers and mergers have, as a result, become a matter of some concern for governments, as they try to encourage the development of financial markets but also deal with the consequences of a globalised market for corporate control, where even companies regarded as national champions are within the reach of a foreign takeover. In the course of the last decade General Principle No 7 of the UK Takeover Code, that shareholders should decide the outcome of a takeover bid, has been adopted in many jurisdictions around the world and has formed the heart of the EU Directive on Takeovers. The Principle is however a controversial one, as its adoption is often viewed in civil law jurisdictions as an attack on a core part of a social market system. This has been particularly evident in the debate on the EU Directive on Takeovers. A number of common law heritage countries have also based their takeover regime around General Principle No 7 and many of these common law heritage counties have similarities with social market systems, in that they have less significant stock exchanges than the UK, the make up of their shareholding base is more concentrated and employment protections are more extensive. A central jurisdiction in that overlap is Australia, with exactly this combination. The purpose of this paper is to examine the historical effect of introducing UK takeover principles into the Australian system, by creating an empirical data set of takeovers of Australian listed companies covering the period before and after those UK-based principles were introduced. In doing so the paper found that factors such as concentrated ownership, capital controls and protective labour law have significant effects on the market for corporate control. There was no transforming effect evident in adopting an anti-managerial pro-shareholder takeover regime. As such, the fear that the adoption of a standardised EU-wide takeover Directive, along the lines of the UK Panel on Takeovers and Mergers' shareholder-oriented General Principle 7, would have a negative transforming effect on social market systems appears, on the Australian evidence, to be overblown, while other key features of such systems, particularly concentrated ownership and protective labour laws, remain in place.
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Henderson, Emma, Nicole Shackleton i Stephanie Falconer. "Reformative and rehabilitative programs for prisoners with cognitive impairments: Australia’s international obligations". Alternative Law Journal 42, nr 2 (czerwiec 2017): 102–6. http://dx.doi.org/10.1177/1037969x17710615.
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While there has been much recent controversy relating to the abusive treatment of young prisoners and the failure of the State to properly facilitate the rehabilitation and reformation of young detainees, little attention has been paid to similar failures in relation to prisoners with cognitive impairments. In this article, we argue that Article 10.3 of the International Covenant on Civil and Political Rights and Article 26 of the Convention on the Rights of Persons with Disabilities require Australia to ensure that the conditions of detention of all prisoners are primarily reformative and rehabilitative. Analysing relevant jurisprudence, we argue that Australia is systematically failing to meet its human rights obligations to prisoners found ‘not guilty’ by reason of mental impairment.
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Martin, Greg. "Secrecy’s Corrupting Influence on Democratic Principles and the Rule of Law". International Journal for Crime, Justice and Social Democracy 6, nr 4 (14.11.2017): 100–115. http://dx.doi.org/10.5204/ijcjsd.v6i4.429.
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Sometimes secrecy in law is required to protect vulnerable witnesses or suppress sensitive evidence. However, particularly since the terror attacks of 11 September 2001, governments in liberal democratic societies have increased secrecy and the use of clandestine procedures under the pretext of safeguarding national security. In many instances, these developments have eroded civil liberties, infringed upon constitutional guarantees, and had negative effects on due process rights. In Australia, where individual rights and freedoms have only limited constitutional expression, it is hoped the doctrine of representative and responsible government will act as sufficient protection for human rights. Conversely, drawing on examples ranging from the regulation of immigration to the control of serious organised crime, this article proposes that escalating secrecy in the current era has a corrupting effect on democratic principles and the rule of law.
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Antoni, Veri. "THE POSITION OF INDIRECT EVIDENCE AS VERIFICATION TOOLS IN THE CARTEL CASE". Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 26, nr 1 (25.06.2014): 137. http://dx.doi.org/10.22146/jmh.16059.
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Indirect (circumstantial) evidence, either economic evidence or communication evidence, has been used in cartel cases in many countries such as United States of America, Japan, Australia, Brazil, Malaysia, and others. According to Indonesia criminal procedure law, the position of indirect (circumstantial) evidence is categorized as an indication (clue evidence) whereas according to Indonesia civil procedure law, indirect (circumstantial) evidence is categorized as presumption. Considering the characteristics the antimonopoly law which aims to find material truth, the position of indirect evidence is more properly said to be an indication. Owing to its status as an indication, indirect evidence should be exhibited together with the other direct evidence. Indirect evidenceatau bukti tidak langsung, baik bukti ekonomi atau bukti komunikasi, telah digunakan dalam kasus-kasus kartel di banyak negara, seperti Amerika Serikat, Jepang, Australia, Brazil, Malaysia, dan lain-lain. Menurut hukum acara pidana Indonesia, posisi bukti tidak langsung dikategorikan sebagai indikasi (bukti petunjuk), padahal menurut hukum acara perdata Indonesia, bukti tidak langsung dikategorikan sebagai praduga. Mengingat karakteristik hukum anti-monopoli yang bertujuan untuk mencari kebenaran materiil, posisi bukti tidak langsung lebih tepat dikatakan indikasi. Karena statusnya sebagai indikasi, bukti tidak langsung harus dipamerkan bersama dengan bukti langsung lainnya.
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Kwok, David. "Pro-enforcement Bias by Hong Kong Courts: The Use of Indemnity Costs". Journal of International Arbitration 32, Issue 6 (1.12.2015): 677–88. http://dx.doi.org/10.54648/joia2015031.
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This article discusses the approach taken by Hong Kong courts to award indemnity costs against applicants who were unsuccessful in resisting enforcement of New York Convention awards. Under general principles, an indemnity costs order is penal in nature and is usually awarded in exceptional circumstances. In the case of A v. R, the High Court of Hong Kong held that the unsuccessful application to resist enforcement of an award warranted the indemnity costs order. This approach was justified on the basis of Hong Kong’s Civil Justice Reform (CJR) and its implications, and was given endorsement by Hong Kong’s Court of Appeal in a subsequent decision. Meanwhile, the Court of Appeal of the Supreme Court of Victoria, Australia, had considered, but rejected, the Hong Kong approach of awarding indemnity costs. This article questions whether applications in respect of Convention awards belong to a special class, compared to other civil applications to court, so that an indemnity costs order against the unsuccessful applicant should be the norm. It is argued that whilst the awarding of indemnity costs in such circumstances is controversial, it can nonetheless be justified based on the court’s ‘pro-enforcement’ bias in relation to Convention awards.
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Kirchengast, Tyrone. "Victim Lawyers, Victim Advocates, and the Adversarial Criminal Trial". New Criminal Law Review 16, nr 4 (2013): 568–94. http://dx.doi.org/10.1525/nclr.2013.16.4.568.
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Adversarial proceedings in common law jurisdictions tend to exclude the victim of crime. Although victim impact statements provide some role for victims following conviction but before sentencing, such statements may not influence the actual sentencing outcome, despite allowing for a therapeutic experience that may encourage the restoration of the victim. The introduction of victim lawyers across certain common law jurisdictions, including England and Wales, the United States and Australia, allows victims to retain private counsel to represent their interests alongside those of the state, from pretrial hearings and potentially through to appeal. By comparison, various civil law jurisdictions following an adversarial trial process, including Sweden, have long allowed such representation. This article provides a comparative assessment of the rise of victim lawyers in common law jurisdictions, arguing that access to private counsel is an important development in criminal justice that allows for the expression of the agency of the victim as a significant stakeholder in adversarial systems of justice.
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Taylor, Paul. "Thinking Allowed in the Academy". University of Queensland Law Journal 39, nr 1 (28.03.2020): 117–46. http://dx.doi.org/10.38127/uqlj.v39i1.3893.
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The recent Review of Freedom of Speech in Australian Higher Education Providers (‘the Review’), overseen by the Hon Robert French AC, identified areas for improving freedom of speech and academic freedom, and to that end proposed the adoption of umbrella principles embedded in a Model Code. The Review’s engagement with international human rights law standards was confined, even though many are binding on Australia. As universities consider implementing the Review’s recommendations, this article reflects on the Model Code in the light particularly of the standards established by the International Covenant on Civil and Political Rights (‘ICCPR’). If the drafters of the Model Code had paid closer regard to the ICCPR and other international standards, the result may have been a scheme that more clearly and predictably distinguishes permissible from impermissible restriction on free speech and academic freedom, and gives greater priority to promoting the human rights of those in the academic community than to the institutional power to limit them.
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Nhung, Nguyen Thi Hong, Huynh Thi Nam Hai i Luu Minh Sang. "E-Court in resolving civil cases - Foreign experiences and recommendations for Vietnam". Science & Technology Development Journal - Economics - Law and Management 5, nr 3 (4.07.2021): first. http://dx.doi.org/10.32508/stdjelm.v5i3.804.
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Applying digital technology in state management activities is a trend that many countries are actively implementing. Experiences from other foreign countries show that digitizing and technologizing judicial activities is an inevitable trend to simplify administrative procedures, maximize the settlement of disputes to ensure legitimate rights of people, and to maintain social order. Vietnam is therefore not out of that trend. However, the application of information technology to the Court's activities in Vietnam has just been initially organized through a number of activities such as online filing, electronic case management..., but for the online trial, the Vietnamese law still does not have a complete legal framework. In the context of Covid-19 epidemy, the employment of E-court becomes even more necessary than ever. Because of social distancing, many activities, including court trial have been postponed. This can cause many inconveniences to the court (to comply with the law on procedural time), and to the parties (who wants to solve their legal issues as quick as possible, so that they can enjoy well their legal rights and interests). However, this model of court needs many conditions to be developed: investment of Government, qualifications of competent persons, people’s scientific and technical level… It should be noted that technological measures are just a different implementation method of the procedural provisions, but due to being as the procedural law, these implementation steps should be clearly specified in the law, so as not to be considered a violation of the proceedings. Thus, the contents of law need to be legalized such as applicable conditions, procedures on initiating a lawsuit, on giving announcement to parties... In fact and theory, all kind of civil cases can be judged online as long as the requirements of platform and demand of participating parties are met. And the civil procedure law can add regulations about the online method to some of necessary procedural steps as an additional choice to the parties. The article focuses on recommending the building of a E-Court model in Vietnam in civil proceedings, where this model can be effectively applied due to the civil nature of the case, with the research method of analysis, thesis and comparison with other foreign laws, such as Malaysia, Korea, Australia and Canada.
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Mulyadi, Lilik. "MENGGAGAS KONSEP DAN MODEL IDEAL PERLINDUNGAN HUKUM TERHADAP WHISTLEBLOWER DAN JUSTICE COLLABORATOR DALAM UPAYA PENANGGULANGAN ORGANIZED CRIME DI INDONESIA MASA MENDATANG". Jurnal Hukum dan Peradilan 3, nr 2 (31.07.2014): 101. http://dx.doi.org/10.25216/jhp.3.2.2014.101-116.
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Practice of whistleblower and justice collaborator law protection especially in the effort to destroy the organized crime in Holland, germany and Australia to institution and the protect orientation is variatif and partial. Protection practice in Holland uses witness agreements, it is the agreement between the public prosecutor and witness to give the testimony with reward especially to organized crime. In Germany, trough Witness Protection Law In Process Criminal Investigation and Protection Against Victims (Zeugenschutzgesetz/ZschG). Essentially, Zeugenschutzgesetz/ZschG rules the dimention for the witnesses, both witnesses and not the victims. Besides, it is also ruled about rights issues witnesses before the trial and during the trial process. On the aspect of witness rights before the trial include the examination of witnesses in the policemen and prosecution, the secret of witness identity and the changes of witness identity. Then, the witness right in the trial are separated examination of the suspect and inspection with a camera recording. Then in Australia trough the National witness Protection Program with a secret identity, no responsibility in criminal and civil, the protection from the defamation, the protection from criminal acts of retaliation and conditionalprotection if their names are published to the media.Keywords: Law Protection, whistleblower, justice collaborator and organized crime
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Nwafor, Anthony O. "Corporate Criminal Responsibility: A Comparative Analysis". Journal of African Law 57, nr 1 (1.02.2013): 81–107. http://dx.doi.org/10.1017/s0021855312000162.
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AbstractThis article focuses on the extent of a company's responsibility for the criminal conduct of its employees. It considers the initial reluctance of common law courts to hold corporations criminally responsible for offences requiring mens rea, a mental element not found in artificial persons. The courts overcame this initial difficulty with recourse to the identification doctrine, which seeks to attribute to a company the fault of certain of its officers. However, the restrictiveness and inconsistencies embodied in the various judicial statements of that doctrine precipitated recourse in some jurisdictions to civil law concepts, such as respondeat superior, vicarious liability and even strict liability, to found corporate criminal responsibility. The need to streamline the scope of, if not enhance, corporate criminal liability, has engendered statutory reforms in some jurisdictions. The article considers reforms in Australia, the UK, Canada and the USA, in comparison with the situation in South Africa and Lesotho.
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Abu-Zeitoun, Mamoun, i Mouaid Al-Qudah. "Withdrawal and Criminal Liability under the Criminal Laws of Jordan and Australia: A Comparative Study". Arab Law Quarterly 24, nr 1 (2010): 3–40. http://dx.doi.org/10.1163/157302510x12607945807197.
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This article is a comparative study of withdrawal as a defence to the criminal liability of an offender in Jordan (a civil law jurisdiction) and Australia (a common law jurisdiction). The analysis in this paper reveals that, in both jurisdictions, criminal laws have long accepted withdrawal as a conduit through which the offender’s liability can be modified or completely quashed. However, there has been no serious attempt, at least in Jordan, to provide anything approaching a complete explanation of the conditions under which the defence may be available and to explore its limits and boundaries. Neither has any serious effort been made to offer an account of the defence’s conceptual nature and governing rationale. The present paper seeks to identify and explore the defence’s conceptual basis and rationale, its current state of law and the appropriate direction in which the defence might be developed. To achieve this purpose, the paper is divided into three sections. In Section 1, it explores the conceptual nature of withdrawal. Section 2 addresses the rationale of the defence in light of the underlying principles of criminal liability in both jurisdictions. In Section 3 a comparative analysis of the defence’s qualifying requirements is undertaken in relation to both primary and accessorial criminal liability. Comparative analysis shows that withdrawal can be used as a defence to all forms of criminal complicity with differing degrees of variations in relation to both its qualifying requirements and the extent to which it may affect the liability of an offender. In cases involving incitement, however, the inciter cannot rely on the defence to avoid criminal liability although his or her punishment can be reduced pursuant to his or her voluntary withdrawal under the JPC.
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Dutson, Stuart. "The Conflict of Laws and Statutes: The International Operational of Legislation Dealing With Matters of Civil Law in the United Kingdom and Australia". Modern Law Review 60, nr 5 (wrzesień 1997): 668–89. http://dx.doi.org/10.1111/1468-2230.00107.
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Manuel, Oliver Cojo. "Third-Party Litigation Funding: Current State of Affairs and Prospects for Its Further Development in Spain". European Review of Private Law 22, Issue 3 (1.06.2014): 439–68. http://dx.doi.org/10.54648/erpl2014036.
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Abstract: Third-party litigation funding (TPLF) is a promising and fascinating practice that is receiving increasing attention. However, TPLF is still a novel institution, and hence there exists certain controversy as to what it actually stands for. In order to bring some clarity in this regard, a definition of TPLF will be provided. This definition will be used to compare TPLF with other ways of funding litigation disputes, to investigate its origins, and to examine its advantages and disadvantages. Nonetheless, the main purpose of this article is to shed light as to two supplementary issues. On the one hand, this article will show what is the current state of affairs of TPLF. For that purpose, a comparative analysis of several countries will be provided. This will show that TPLF is commonplace in common law countries such as Australia, though virtually non-existent in civil law countries. On the other hand, in order to determine the prospects for TPLF to expand into jurisdictions in which it has not developed so far, Spain will be taken as an example. This analysis will show that the possibilities for TPLF to grow in Spain are rather promising as TPLF may help overcome some of the challenges currently faced by the Spanish civil justice system. In addition, TPLF seems to be legally viable under Spanish law. Resumé: Third-Party Litigation Funding (TPLF) est une pratique prometteuse et fascinante, qui reçoit une attention croissante. Cependant, le TPLF est encore une institution novatrice, à ce titre il existe un certain nombre de controverses concernant ce qu'il représente. Afin d'apporter de la clarté à cet égard, une définition du TPLF sera fournie. Cette définition sera utilisée pour comparer le TPLF avec d'autres moyens de financement de litiges contentieux, pour rechercher ses origines et examiner ses avantages et inconvénients. Néanmoins, le but principal de cet article est de faire la lumière sur deux questions supplémentaires. Dans un premier temps, cet article montrera quelle est la situation actuelle du TPLF. Pour cela, une analyse comparative de plusieurs pays sera établie. Elle démontrera que le TPLF est monnaie courante dans les pays de common law comme l'Australie, et pratiquement inexistante dans les pays de droit civil. Dans un second temps, afin de déterminer les perspectives du TPLF de se développer dans les juridictions où il n'est que peu implanté, l'Espagne sera prise comme exemple. Cette analyse montrera que les possibilités pour le TPLF de se développer en Espagne sont prometteuses puisque le TPLF peut permettre de surmonter certaines difficultés rencontrées actuellement par son système de justice civile. En outre, TPLF semblent légalement viables en vertu du droit espagnol.
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Devie, Devie. "Analisis Yuridis Kekuatan Hukum Memorandum Of Understanding Yang Timbul Karena Hubungan Perdata Internasional Antara Negara Indonesia Dan Negara Australia". Journal of Law and Policy Transformation 5, nr 2 (10.12.2020): 46–56. http://dx.doi.org/10.37253/jlpt.v5i2.1377.
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Cooperation relationships governed by international civil law in the business world between 2 (two) countries or more generally use written agreements to obtain legal certainty for both parties and as a manifestation of good faith / good faith in establishing work relations. The form of cooperation in business between countries is often not made in a permanent form, on the grounds that it is only in the form of an agreement or an initial agreement, there are negotiations until only for consideration. This then becomes the background for the birth of a Memorandum of Understanding in business agreements between countries. The Memorandum of Understanding was initially only considered as a preliminary agreement that has no legal force in binding and forcing the parties concerned to fulfill their obligations and cannot be used as a means of proof in a court of law, this is the view of the general public and the court in a country adhering to the common legal system law, one of which is the state of Australia, whereas according to the Indonesian state which has no law in regulating the Memorandum of Understanding has the legal force in binding and forcing it like any other formal agreement, if it is linked to the Civil Code. The method used in researching this thesis is a type of normative legal research as a guideline for writing, where the author collects data through library research or the results of library studies by reviewing the laws of Indonesia and Australia as the main data in writing this thesis report with the help of journals -journals obtained from electronic means that discuss problems in this thesis report so that the author can conclude from the problem under study. Based on the results of research conducted by researchers, it can be concluded that a Memorandum of Understanding can be formed by two countries with different legal systems with the aim of creating a binding cooperative relationship and has the power to force both parties to fulfill obligations if there is an agreement between parties to state in the form of a Memorandum of Understanding there is an "intention to create legal relations" or intention to form a legal relationship.
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Tetley, Carmen. "The Hague Convention: Who is Protecting the Child?" Children Australia 37, nr 4 (6.11.2012): 135–41. http://dx.doi.org/10.1017/cha.2012.34.
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The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The ‘Child Abduction Section’ provides information about the operation of the Convention and the work of the Hague Conference in monitoring its implementation and promoting international co-operation in the area of child abduction. There are currently 58 member countries and 22 non-member countries. Australia signed the Convention five years after its introduction. The Family Law (Child Abduction) Regulations 1986 enshrined in Australian law the principles espoused in the Convention which came into force in 1987. The Regulations are to: (a)secure the prompt return of children wrongfully removed to or retained in any contracting state, and(b)ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states. This paper shows that the failure of Family Courts to take account of the effects of their actions on the development and best interests of children whose return is secured can add to the psychological abuse of those who were removed from their home countries to avoid sexual abuse and violence. It suggests that the exceptions in the regulations that allow a child to remain in the new country with the primary caregiver are being ignored.
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Ip, John. "RECONCEPTUALISING THE LEGAL RESPONSE TO FOREIGN FIGHTERS". International and Comparative Law Quarterly 69, nr 1 (4.12.2019): 103–34. http://dx.doi.org/10.1017/s0020589319000447.
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AbstractThe Syrian civil war has highlighted the phenomenon of foreign fighting, in which individuals leave their home State to join an armed conflict overseas. The predominant paradigm for regulating foreign fighting, centred on United Nations Security Council Resolution 2178, is based on counterterrorism, which in essence treats foreign fighting as a form of terrorism. This paradigm is largely reflective of the domestic legislation of the United Kingdom, United States, Canada and Australia. This article argues that this approach is problematic, and that an alternative paradigm based on the international law of neutrality and related domestic legislation provides a better means for regulating foreign fighting.
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Twyford, John. "Liquidated Damages: A Comparative Study of the Law in England, Australia, New Zealand, and Singapore". Journal of Professional Issues in Engineering Education and Practice 133, nr 3 (lipiec 2007): 210–17. http://dx.doi.org/10.1061/(asce)1052-3928(2007)133:3(210).
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Thompson Jackson, Janet, i Susan R. Jones. "Law & Entrepreneurship in Global Clinical Education". International Journal of Clinical Legal Education 25, nr 3 (18.12.2018): 85–134. http://dx.doi.org/10.19164/ijcle.v25i3.769.
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As clinical legal education (CLE) continues to evolve and prepare practice-ready lawyers, and governments worldwide focus on the multilayered impact of technology, automation and artificial intelligence, there is a pressing need to examine law and entrepreneurship through the lens of global clinical legal education. The range of issues include: corporate social responsibility, disruptive technologies, microbusiness, social entrepreneurship, social impact investing, the creative economy, sustainable local economies, cooperatives and shared work, and inclusive entrepreneurship.Indeed, new legal entities like benefit corporations and low profit limited liability companies (L3Cs) have emerged to address contemporary legal needs and in the United States, the notion of an entrepreneurial mindset is prominent. Many of today’s law students are Millennial generation, ages 18-34, while others are digital natives who have not known a world without technology.Business law clinics (BLCs), also referred to as transactional clinics, representing for profit, nonprofit or nongovernmental (NGOs) organizations and social enterprises aim to support the growth of entrepreneurial ecosystems while promoting social and economic justice. BLCs teach law students substantive law, practical skills and professional values. Indeed, BLCs with a social and economic justice perspective can help law students, the next generation of leaders, to develop critical analytic skills and insights into how entrepreneurship supports and sometimes hurts human rights and civil society efforts.Part one of this article examines the evolution of global CLE in western countries like the United States, United Kingdom, Canada, Australia, and in Georgia and Croatia. Part two discusses a more recent phenomenon in CLE, the emergence of BLCs, which expand the clinical experience beyond the courtroom to the boardroom, and the differences and similarities between litigation and transactional legal clinics. Part three examines the rise in BLCs globally, and contains case studies of the global experience in transactional CLE with perspectives from Georgia, Croatia, Australia, Canada and the U.K. Part four considers the unique pedagogical and programmatic aspects of BLCs, such as redefining “practice-ready,” teaching Millennials, and collaboration as a lawyering skill. Part five reflects on the significance of BLCs now. In Part six the article concludes by looking to the future of BLCs in a global context. The article also includes an Appendix 1 with BLC Lawyering Competencies and Learning Outcomes and Appendix 2 with a Checklist for Starting or Re-Imagining a BLC.
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Kopsen, Hugh P. K., i Robyn Carroll. "The Importance of Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure". Federal Law Review 45, nr 1 (marzec 2017): 97–125. http://dx.doi.org/10.1177/0067205x1704500105.
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This article examines the duty of full and frank disclosure of parties to family law financial proceedings in Australia, and the potential consequences of failure to comply with this fundamental obligation. The duty is briefly compared and contrasted with disclosure requirements in civil litigation and criminal proceedings to demonstrate the uniqueness of the family law position. The rationale and content of the duty is considered in light of recent cases including the High Court decisions of Stanford v Stanford (2012) 247 CLR 108 and Hall v Hall (2016) 257 CLR 490. The article presents a three-pronged taxonomy of the consequences of non-compliance with the duty, namely evidential, procedural, and final orders/related consequences. We conclude that the absolute nature of the duty and the comprehensive nature of the potential consequences of failure to make full disclosure mean that parties and legal practitioners do so at their peril.
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Townsend, Sarah L. "Undocumented Irish Need Apply". Radical History Review 2022, nr 143 (1.05.2022): 125–40. http://dx.doi.org/10.1215/01636545-9566146.
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Abstract In the late 1980s, amid immigration reform in the United States, legislators and lobbyists secured generous visa allotments for Irish immigrants, whose path to legal residency in the United States narrowed after the 1965 Hart-Celler Act abolished the national origins quota system. Claiming that the new law discriminated against Europeans, Irish advocates framed their campaign as an effort to diversify the post-1965 immigrant pool, which was predominantly Asian and Latin American. By examining the rhetoric deployed in congressional hearings and media appearances, this article considers how groups like the Irish negotiated the terms of their whiteness in the post–civil rights era. It also addresses the global dimensions of this case study, including Irish lobbyists’ coalition with other (nonwhite) immigrant groups, concurrent immigration reform in Australia and Canada, the effect of the Northern Irish civil war and US-Irish diplomatic relations, and its legacies in a newly multicultural contemporary Ireland.
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Kincaid, Peter. "Third Parties: Rationalising a Right to Sue". Cambridge Law Journal 48, nr 2 (lipiec 1989): 243–70. http://dx.doi.org/10.1017/s0008197300105306.
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In a revolutionary but unsatisfactory recent decision, the High Court of Australia has allowed a third-party beneficiary of an insurance contract a right to sue the promisor. The decision casts doubt upon the whole doctrine of privity and ultimately upon bargain as the theoretical basis of promissory liability. The Trident case is unsatisfactory not because it allowed a third-party beneficiary a cause of action or because it challenges privity and bargain, but because it offers no satisfactory replacement for the theory of bargain. The reasons the court gave for recognising a right to sue are weak and inconsistent with the common law's approach to questions of civil liability. That approach is to give a plaintiff a cause of action against a defendant not solely because of something the defendant has done, but because there is a legally relevant link between what he has done and the plaintiff's condition. That is, the plaintiff must, in order to establish a right, satisfy some criterion for linking the defendant's behaviour to his complaint.
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Panjaitan, Annisah Dian Utami, Novianti Novianti i Mochammad Farisi. "Polluter Pays Principle Terkait Pertanggungjawaban Corporate PTTEP Australasia Terhadap Pencemaran Minyak Di Laut Timur Indonesia". Uti Possidetis: Journal of International Law 2, nr 2 (8.06.2021): 189–209. http://dx.doi.org/10.22437/up.v2i2.11839.
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This research is aimed to analyze and determine the 16th provision principle of the declaration on environment and development, namely the polluter pays principle, as one of the state’s form of accountability towards the polluting across borders between PTTEP Australia and Indonesia. This is a juridical research, which analyzes the issue discussed through the use of many realted sources. The Polluter Pyas Principle, as a form of State responsibility in environmental pollution, has some advantages and disadvantages when applied as a recommendation by the OECD (Organization for Economic Cooperation and Development). From a legal perspective, this principle can be applied as a civil liability law, whereas from an economic perspective, it can be viewed as effort to control pollution by means which the polluter has an obligation to pay for the environmental pollution that he/she caused. Even so this principle also has its weakness, in an economic approach this principle is difficult to determine the determination of the cost of loss. In some countries themselves have applied this principle in handling cases of environmental pollution. In the case of cross-border environmental pollution, the principle of good neighborliness and the principle of state responsibility in dealing with pollution cases as a sign of State’s goodwill to comply with existing international law. The case of environmental pollution itself is not only the State that can sue, but a group of people or the community can also sue, if they feel harmed by the pollution that occurs. One of them is by carrying out Class Action in holding accountable for the consequences of pollution that has occurred, and is detrimental to a group or large number of people. Even though international environmental law is a soft law, it can become hard law depending on the pollution case that occurs. Even so, International Environmental Law contained in the Stockholm Declaration, Rio de Jeneiro, Civil Liability Convention and other related international arrangements have been very good in their regulatory fields. Only the state which ratifies the convention applies according to the pollution case that occurs.