bluuebunny/crossref_metadata_2025 huggingface dataset:
Can a Green School Building Teach? A Pre- and Post-Occupancy Evaluation of a Teaching Green School Building
Authors: Cole Laura B. , Hamilton Erin M.
Published: January 2019

Amid increasing interests in social metrics within green buildings, this work focuses on buildings designed to enhance environmental education, here called “Teaching Green Buildings” (TGBs). This study examines one school building at three points in time before and after the move into a new construction TGB. Middle school students here and at a local, comparison Non-Green School ( N = 264) took a survey measuring outcomes of green building knowledge (GBK) and environmentally responsible behaviors (ERBs). Regression results showed that GBK is significantly higher for students in the Green School compared with the Non-Green School, but is not increasing over time for students at the Green School. No differences were detected in ERBs across schools or time, and it was found that school practices, more than the green building itself, were pivotal in student choices to conduct ERBs at school.
ISMP Adverse Drug Reactions: Longitudinal Thumbnail Fissures Due to Erlotinib Priapism Associated With the Use of ExtenZe Blindness From a Nevirapine-Based HAART Regimen Hyperprolactinemia and Galactorrhea Due to Aripiprazole Trypophobia Associated With Gabapentin Coadministered Linezolid and Methadone Cause Serotonin Syndrome
Authors: Mancano Michael A. , Esordi Morgan V. , Patel Darshil D. , Milenki Kristen J.
Published: January 2019

The purpose of this feature is to heighten awareness of specific adverse drug reactions (ADRs), discuss methods of prevention, and promote reporting of ADRs to the US Food and Drug Administration’s (FDA) MedWatch program (800-FDA-1088). If you have reported an interesting, preventable ADR to MedWatch, please consider sharing the account with our readers. E-mail Dr. Mancano at michael.mancano@temple.edu. Your report will be published anonymously unless otherwise requested. This feature is provided by the Institute for Safe Medication Practices (ISMP) in cooperation with the FDA’s MedWatch program and Temple University School of Pharmacy. ISMP is an FDA MedWatch partner.
Phenomenology and Depth in Existential Psychotherapy
Authors: Längle Alfried , Klaassen Derrick
Published: January 2019

All psychotherapies try to approach what is essential for alleviating patient suffering. In humanistic psychotherapies such as person-centered, Gestalt, and existential therapy, the focus is typically centered on the person, the essence of the human being. The person, however, as that which is free in human beings, cannot be fixed or measured. This raises a difficult question: How do we gain systematic access to this “person” when they cannot be grasped concretely? Drawing on Existential Analysis, the authors describe a phenomenological approach as possibly the most suitable method for this therapeutic task, because it is pervaded by an attitude of allowing the other to be free and a respect for the uniqueness of the person. In this approach, what is essential is drawn from the depth of the person, simultaneously involving the depth of the therapist, while bracketing foreign interpretations and theories. This article describes this method for accessing personal depth in psychotherapy via an existential-phenomenological perspective.
The Tourist Stereotype Model: Positive and Negative Dimensions
Authors: Tung Vincent Wing Sun , King Brian Edward Melville , Tse Serene
Published: January 2019

This research proposes a measurement model to evaluate tourist stereotypes. Study 1 assesses the positive and negative tourist stereotypes that Hong Kong residents hold toward Chinese outbound tourists by connecting previous research on stereotypes from the Princeton Trilogy and from the stereotype content model. Six positive stereotypes were identified across two dimensions (i.e., Approachable: friendly, sincere, and good; and Competent: intelligent, industrious, and competent) as well as six inappropriate biases across two factors (i.e., Boastful: materialistic and loud; Rude: unreasonable, immoral, rude, and uncivilized). Study 2 provides further support for the measurement model by using an additional sample to investigate tourist self-stereotypes. Collectively, studies 1 and 2 contribute to the tourism literature by highlighting the dynamics involved in (self)-stereotyping that are relevant for destination management organizations (DMOs) and public policymakers involved in managing public perceptions of tourist stereotypes.
Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?
Authors: Guilfoyle Douglas
Published: January 2019

Australia will, I believe, ratify the convention and afterwards this Parliament will pass the necessary legislation to show other countries that we join in universal condemnation of the horror [of genocide].
The State of Australian Legal AID
Authors: Noone Mary Anne
Published: January 2019

Recent comment on the Australian legal aid system has focussed on the declining levels of funding and the consequent impact of this reduced funding. Little attention has been given to the range of other changes that have occurred within the legal aid system in the last five years. There have been changes at all levels: in the organisational structures of legal aid organisations; the management of the provision of legal aid services; the form and number of legal services; and the relationships between the stakeholders in the system. Many of these changes did result from severe Commonwealth funding reductions in the 1997/98 funding year and the shift to the “purchaser/provider” model of Commonwealth government funding. Other changes are representative of broader developments in technology, management and government. Different changes have occurred in different States but a fundamental change has been the shift away from seeking a unified approach to the provision of legal aid across Australia.
"A Puny Thing Indeed"—Cheng V the Queen and the Constitutional Right to Trial by Jury
Authors: Simpson Amelia , Wood Mary
Published: January 2019

On 5 October 2000, the High Court handed down its latest decision on the scope of s 80 of the Commonwealth Constitution. This note provides an overview of the decision and its importance, and offers a critique of the reasoning employed in the majority judgments.

Section 80, variously described but commonly referred to as the trial by jury provision, “has led to some of the sharpest divisions of opinion in the history of this Court”. Whilst the decision in Cheng v The Queen (hereafter Cheng) confirms the interpretation given to s 80 in Kingswell v The Queen—which involved a challenge to the same provisions of the Customs Act 1901 (Cth)—some of the judges making up the majority in Cheng admitted to reservations about that interpretation. In addition, Kirby J and Gaudron J were vociferous in their disagreement with much of the majority's reasoning, which suggests that fundamental differences over the meaning of s 80 will continue to plague the Court into the future.
Rights, 'Dialogue' and Democratic Objections to Judicial Review
Authors: McDonald Leighton
Published: January 2019

Since its inception the Canadian Charter of Rights and Freedoms has been criticised as undemocratic. It gave a small coterie of politically unaccountable judges the power to override the policy preferences of the people’s representatives. What’s more, the justification for this rested on the vagaries of rights, about which even the converted cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John Ely famously argued, ‘we may grant until we're blue in the face that legislatures aren't wholly democratic, but that isn't going to make courts more democratic than legislatures.’

Peter Hogg and Allison Bushell have recently responded that this majoritarian objection to judicial review has been exaggerated – at least in the context of Canadian democracy. They claim that an empirical study of Charter cases and their legislative sequels falsifies the belief that the Supreme Court inevitably has the last word on rights. Judicial review is not a veto over politics but the beginning of a ‘dialogue’ about rights between courts and legislatures.
Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy
Authors: Taylor Julie
Published: January 2019

In Ghaidan v Mendoza, the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights. The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant ‘as his or her wife or husband’, should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case. Section 2(2) was interpreted as applying to a person living with a tenant ‘as if they were his or her wife or husband’, despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.
Electoral Law Symposium: An Introduction
Authors: Orr Graeme , Mercurio Bryan , Williams George
Published: January 2019

This collection of articles, commentaries and book reviews, published here in the Federal Law Review, forms only the second symposium on electoral law published in Australia. Interest in how democratic choice is regulated and how elections are run – the rules of the game of electoral politics and the ways in which its dynamics intersect with those rules – is a staple of media debate and political science. Yet it is only beginning to emerge as a focus of sustained attention in the legal academy.

In the Australian and New Zealand common law tradition, the law governing elections in particular and democracy in general has been historically subsumed, and to a degree lost, under the broader rubric of ‘constitutional law’. In part this has been imposed from without; a product of the dicing up of the discipline of law into broad doctrinal categories to suit the legal profession, a practice perpetuated by the dictates of the admission rules. However, it has also been the consequence of academic neglect: an overlooking of the potential of the field by legal scholars.
Rights Review in the High Court and the Cultural Limits of Judicial Power
Authors: Woods Robert
Published: January 2019

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.
Federalism and Subsidiarity: Principles and Processes in the Reform of the Australian Federation
Authors: Aroney Nicholas
Published: January 2019

The principle of subsidiarity offers a criterion for the rational allocation of roles within federations between federal and state governments. The principle states that ‘functions should be performed by the lowest level of government competent to do so effectively’. However, embedded in the principle is a hierarchy: there are ‘higher’ and there are ‘lower’ levels of government. This hierarchy suggests a point of view from which assessments of optimal allocation are to be made. The deeper question, therefore, is this: ‘who will decide for whom?’ The reform of a federal system turns not only on what principles are used, but on questions of process: who will decide what those principles require, and how will they go about doing it? A problem of path dependency lies at the heart of Australia's federal malaise. It is this problem that we need to be grappling with when considering the optimal design of the system. To do so, we need to consider not only the principles but also the processes by which the federal system is to be reformed. This paper draws on the comparative experience of Switzerland, Germany and Austria to provide guidance about how Australia's federal system might best be reformed.

If we want to know how to change institutions, we must be attuned to the fact that there is frequently a mismatch between the initial aims of institution-builders and the contemporary value we attach to them.
Sharing Water from Transboundary Rivers: Limits on State Power
Authors: Webster Adam
Published: January 2019

Disputes between States of Australia over the sharing of the waters of rivers that flow through or form the boundary between two or more States (‘transboundary rivers’) have frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe the resolution of these disputes in terms of limits on State legislative and executive power. After reframing the problem in this way, the article first examines the scope of State legislative and executive power and its extraterritorial effect with respect to the regulation of transboundary rivers. Secondly, the article considers inconsistencies between the laws and regulations of two States with respect to transboundary rivers. Finally, constitutional implications and limits on State power are examined, with particular focus on whether there may be scope for the extension of the Melbourne Corporation principle to assist in the resolution of some transboundary river disputes.
The Statutory Right to Seek a Credit Contract Variation on the Grounds of Hardship: A History and Analysis
Authors: Ali Paul , Bourova Evgenia , Ramsay Ian
Published: January 2019

In this article, we focus on one of the most important statutory protections for Australian consumers in financial hardship: the right to seek a variation of a credit contract contained in s 72 of the National Credit Code. We provide a comprehensive history of this right, which has been part of Australian consumer credit law since the 1970s. Over the years, it has evolved from a very limited right to seek an extension of time to pay a debt on grounds of illness and unemployment, to a broader provision that requires credit providers to comply with a prescribed process before they can commence enforcement action against a consumer who has sought a variation to their payment arrangements. We also undertake an analysis of the evolution of this right to demonstrate that despite improved understandings of the causes of financial hardship, it continues to envisage a middle-class subject with a strong awareness of their rights, and excludes some particularly vulnerable consumers. This right is also representative of a regulatory approach that envisages a limited role for consumer credit law, and does not sufficiently address the imbalance of bargaining power between the consumer and the credit provider. We argue for the imposition of an obligation to provide a minimum range of hardship assistance directly upon credit providers, as a means of addressing this imbalance and ensuring more meaningful protection for consumers in financial hardship.
The Problem of Uncertainty: An Empirical Analysis of Indeterminate Language and Ambiguous Provisions in Enterprise Agreements
Authors: Sutherland Carolyn
Published: January 2019

Australian enterprise agreements are intended to be simple documents that are easy for workers to understand and straightforward for businesses to apply. This article argues that simplicity is undermined when agreements contain indeterminate language and ambiguous provisions, since these features make it difficult to pin down the precise meaning of agreements. It presents findings from an empirical study that examines two forms of uncertainty in enterprise agreements: first, the use of vague, open-textured terms such as ‘reasonable’ and ‘practicable’; and, second, the inclusion of particular types of poorly drafted provisions that are difficult to interpret. The findings show that while the use of indeterminate terms increased over time, there was a substantial decline in the use of particular types of ambiguous provisions. The study also suggests that these outcomes have been influenced by two factors, legislative change and union involvement in bargaining. The findings add to our understanding of the nature of legal complexity and will provide the basis for a nuanced analysis of future proposals to reform the legislative framework for agreement-making.
The Referendum that Wasn't: Constitutional Recognition of Local Government and the Australian Federal Reform Dilemma
Authors: Brown A J , Kildea Paul
Published: January 2019

In 2010, the Commonwealth government proposed Australia's third attempt to give federal constitutional recognition to local government. In 2013, the government secured the passage through Parliament of a Constitution Alteration but, due to political events, and amid much controversy, the proposed amendment was not put to the people. This paper examines the merits and prospects for success of the proposed reform, with an eye to lessons for the future of local government's place in the federal system. It argues that the legal and constitutional cases for the alteration were strong, but limited, and poorly contextualised, theorised and articulated. We use public opinion evidence to conclude that had it proceeded, the referendum result would probably have been a third failure. These lessons are important for ongoing debate over sub-constitutional and constitutional reform to Australian intergovernmental relations, including questions of federal financial redistribution at the core of the proposal. Overall, the events of 2013 reinforce arguments that reforms to the position of local government, while important, should only be pursued as part of a holistic package of federal reform and renovation; and that more robust deliberative processes and principles must be adhered to before again attempting any constitutional reform.
The Evolution and Reform of Standing in Australian Administrative Law
Authors: Groves Matthew
Published: January 2019

The standing rule in administrative law requires parties to demonstrate that they have a special interest in the subject matter of the decision they wish to challenge in judicial review proceedings. This article examines the problems the special interest requirement has presented in judicial review, particularly to environmental groups, and how it has been liberalised in lower courts. The article then examines several possible reforms to standing and concludes that a standing rule should be retained but relaxed.
Is the High Court Mistaken about the Aim of Statutory Interpretation?
Authors: Smith Dale
Published: January 2019

A central tenet of the High Court of Australia's account of statutory interpretation is that the aim when interpreting a statutory provision is to ascertain the meaning of the words contained in that provision. The goal of this article is to challenge that tenet, which I call “the meaning thesis”. I argue that the High Court's acceptance of the meaning thesis leaves it unable to account for important features of the practice of statutory interpretation. In particular, it struggles to account for the ways in which statutory provisions interact with other legal norms (including other statutory provisions), especially when those other norms are introduced into the law after the statutory provisions with which they interact. This, I argue, provides a powerful reason to abandon the meaning thesis. I conclude by briefly suggesting how we might begin to develop a more satisfactory account of statutory interpretation.
Context and the Limits of Legal Reasoning: The ‘Victim Focus’ of Section 18C in Comparative Perspective
Authors: Hicks Elizabeth
Published: January 2019

This paper considers the recent controversy surrounding section 18C of the Racial Discrimination Act, and assesses the need for reform. I argue that the controversy surrounding section 18C is traceable to two causes. Firstly, section 18C locates the harm of hate speech within the experience of a victim, and secondly, describes this experience in terms of ‘feelings’ such as offence and insult. This ‘victim focus’ departs from the traditional characterisation of vilification as speech that harms social cohesion – an approach I refer to as the ‘incitement focus’. I defend section 18C's ‘victim focus’ by analysing the reasoning of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the German Constitutional Court where the ‘incitement focus’ is dominant. Through this comparison, I demonstrate that the ‘incitement focus’ is ill adapted to deal with the harm of hate speech in societies with a high degree of social cohesion. In these circumstances, the connection between speech and incitement is less amenable to legal reasoning, although courts legitimately perceive harm in the social and historical significance of hate speech. In contrast, Australia's ‘victim focus’ is better adapted to an inquiry into the relationship between speech and social and historical patterns of persecution. While I defend section 18C's description of this relationship in terms of ‘offence’ and ‘insult’, I recommend that the provision be amended to require that ‘insult’ be considered within an historical and social context. This may strengthen the public's perception that section 18C is a legitimate restriction on speech.
Australian Indigenous Constitutions: Recognition and Renewal
Authors: Dziedzic Anna , McMillan Mark
Published: January 2019

The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.
Rights-Scrutiny Cultures and Anti-Bikie Bills in Australian State Parliaments: ‘A Bill of Rights for the Hell's Angels’
Authors: Grenfell Laura
Published: January 2019

This paper analyses how four Australian state parliaments debate the rights implications of anti-bikie bills that restrict various individual rights. It focuses on three state parliaments–those of Victoria, Queensland and New South Wales–which have committees that scrutinise all bills for their rights implications and it compares the debate in these parliaments with that of South Australia where such systematic rights-scrutiny of all bills is absent. The paper considers whether the existence of a formal parliamentary committee for rights-scrutiny strengthens or diminishes the process of parliamentary scrutiny of bills for their rights implications. Overall the paper argues that, regardless of the system in place, parliamentary rights-scrutiny remains weak in the four surveyed Australian states when parliaments debate law and order bills. However, this weakness is manifested in different ways, with full and frank rights-deliberation deficient in Victoria, Queensland and New South Wales and systematic and well-informed rights-scrutiny absent in South Australia.
Unlocking the Energy of the Amazon? the Need for a Food Fraud Policy Approach to the Regulation of Anti-Ageing Health Claims on Superfood Labelling
Authors: Curll Janine , Parker Christine , MacGregor Casimir , Petersen Alan
Published: January 2019

The prevention and control of ‘food fraud’, including false or misleading statements made about a product for economic gain, is now emerging as an important and discrete policy goal for governments and regulators in the interface between food and public health. The control and prevention of food fraud complements regulation to ensure microbial food safety. This article uses a case study of anti-ageing claims made in the labelling and advertising of açai berry superfood products to argue that Australia's new regulatory system for nutrient content and health claims on food (Australia and New Zealand Food Standards Code Standard 1.2.7) inadequately addresses ‘food fraud’. This article argues that the over-reaching claims on açai product labelling will potentially mislead consumers and subvert public health messages in a context of ‘gastro-anomy’ (confusion over appropriate norms for eating) and ‘healthism’ (individual responsibility for making healthy choices). This conduct can usefully be conceptualised as food fraud. Second, the article argues that although the substance of Standard 1.2.7 is well designed to avoid food fraud, the fact that the standard allows food businesses to self-substantiate evidence when making some health claims undermines the protection offered. Australian food regulators need to articulate a more strategic and proactive approach to the prevention and control of food fraud.
The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Australian Constitution
Authors: Beck Luke
Published: January 2019

Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the ‘for the purpose of’ interpretation is misconceived and therefore that the improper purpose test is wrong.
Australian Ombudsmen: A Call to Take Care
Authors: Stuhmcke Anita
Published: January 2019

Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the development of the institution has been ad hoc and fragmented. What has followed, however, has been the transformation of the institution to apply to new contexts, to the extent that it is questionable in some instances as to whether ‘ombudsman’ remains the appropriate descriptor for the institution. This article explains and critiques these developments, observes that the conditions which have created such change are set to continue and argues that care must be taken to protect citizen trust in the ombudsman brand.
The Protection of Voting Equality in Australia
Authors: Gray Anthony
Published: January 2019

This paper argues that the High Court should accept that the Commonwealth Constitution embraces the concept of voter equality, such that systems of malapportionment may be liable to constitutional challenge. Specifically, it argues that ss 7 and 24 of the Constitution create a system of representative government and representative democracy which require that elections be free and fair, and that a malapportionment could potentially interfere with the system of representative democracy which the Constitution requires. Recent case law reinforces notions of equality in ss 7 and 24, which can be applied in the context of voter equality.
Taxing Sovereign Wealth Funds: Looking to Singapore for Inspiration
Authors: Joseph Sally-Ann
Published: January 2019

The taxation of sovereign wealth funds is an important issue for governments as they are both investors and need to attract investment. Operating in global markets, how these funds are taxed can affect investment location decisions. In Australia there are currently no legislative provisions for these investments and issues of residency, applicability and terminology hamper the use of tax treaties.

The basis of how sovereign wealth funds are taxed in Australia is administrative where tax exemptions are provided on the basis of private ruling applications. It is an inefficient and costly process which lacks certainty. Over the period 2009 to 2011 the government of the day proposed legislating its practices dealing with sovereign wealth funds. In 2010 Singapore introduced a fund exemption scheme, markedly different from that proposed in Australia. Yet it is a method that is able to be adapted to the Australian income tax legislation. It avoids definitional issues by targeting the entities the policy aims to cover, is compatible with a self-assessment system and provides flexibility in policy making. Recommendations with accompanying considerations are made with respect to incorporating Singapore's tax exemption for sovereign wealth funds into the Australian tax legislation.
The Importance of Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure
Authors: Kopsen Hugh P K , Carroll Robyn
Published: January 2019

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.
The Normative Structure of Australian Administrative Law
Authors: Bateman Will , McDonald Leighton
Published: January 2019

This article analyses the normative structure of Australian administrative law through the prism of two distinct intellectual approaches to the law of judicial review: the ‘grounds approach’ and the ‘statutory approach’. We explore the development of both approaches and track the contemporary ascendance of the statutory approach in light of the political and constitutional context within which the practice of judicial review is situated. We then reflect on the ways that each responds to two central legitimacy problems which must be confronted by modern administrative law: the democratic legitimacy of judicial review and the legitimacy of the forms of law associated with contemporary administrative government.
Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference
Authors: Henckels Caroline
Published: January 2019

The High Court's tentative moves toward adopting structured proportionality as a method of constitutional review have been hampered by concerns about the separation of powers. This article argues that the manner in which a court undertakes proportionality analysis is crucial to the question of whether it is acting within the domain of judicial power. In this regard, the concept of judicial deference plays a vital but thus far under-theorised role. Deference refers not to judicial submission or surrender to the legislature, which would abdicate judicial power to a non-judicial body. Rather, it refers to a court giving weight to the judgment or opinion of government in circumstances of normative or empirical uncertainty. Courts afford deference in this way for two reasons: the desirability of respecting decisions made by democratically legitimate decision-makers, and the practical advantages that inhere in relying on the institutional competence and expertise of the other branches of government. An increased understanding of these rationales for deference in the context of constitutional review would diminish concerns about the High Court straying outside the domain of judicial power. Proportionality and deference exist in a symbiotic relationship and should be addressed together by a coherent judicial theory; many of the concerns raised by the High Court about the former would diminish were it also to embrace the latter.
‘On Just Terms’, Revisited
Authors: Weis Lael K
Published: January 2019

Although it is now generally accepted that s 51(xxxi) is a constitutional guarantee, it continues to be applied using characterisation analysis, the method of analysis used to apply grants of legislative power. This article argues that this is a mistake: if s 51(xxxi) is a constitutional guarantee, then it should be analysed like a constitutional guarantee. It takes to task the High Court's self-consciously comparative defence of characterisation analysis, which relies on the US Constitution's Fifth Amendment ‘takings clause’ as a foil. The article demonstrates that in some respects the differences between the two constitutional property clauses have been overstated, while in other respects they have been overlooked. From a broader comparative perspective, the most significant feature of s 51(xxxi) is not its use of the term ‘acquisition’, but its lack of reference to ‘compensation’ and use instead of the phrase ‘on just terms’. By resituating s 51(xxxi) in comparative perspective, the analysis provided in this article makes two important contributions. First, it deepens existing jurisprudential critiques by providing a more precise diagnosis of the problem with characterisation analysis. Second, it proposes and defends an alternative approach that is responsive to that diagnosis, that is better supported by the text and structure of s 51(xxx), and that is consistent with the High Court's commitment to the thesis that s 51(xxxi) is a constitutional guarantee.
The Development of the High Court's Willingness to Overrule Common Law Precedent
Authors: Walpola Sonali
Published: January 2019

In its first 60 years the High Court showed a complete deference to English precedent, and did not of itself initiate changes to common law doctrines. The High Court took its first steps towards autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby ending the practice of automatically incorporating English common law developments into Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’ common law rules (those of 20th century origin) after the abolition of appeals from the High Court to the Privy Council in the 1970s. The elimination of appeals from State Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court has shown its willingness, in compelling circumstances, to overrule ancient common law doctrines acquired before Federation. This paper gives a detailed account of the emergence and expansion of the High Court's willingness to overrule common law precedent. It reveals how the High Court's autonomy in common law matters was developed in distinct stages that are linked to Australia's changing legal, political and socio-economic ties with Britain, and its growing sense of an independent national identity.
Review of Australia's Petroleum Resource Rent Tax: Implications from a Case Study of the Gorgon Gas Project
Authors: Kraal Diane
Published: January 2019

Australia has welcomed new business investment of $200 billion for integrated gas projects. However lower than expected tax receipts have tempered the early optimism of project benefits. In particular, petroleum resource rent tax (PRRT) revenues since the 2002–03 financial year have fallen. These reduced revenues have raised concerns about the effectiveness of petroleum taxation in Australia and pressured the Australian Government to call for a review of the PRRT in late 2016. Examined are the modifications necessary to the petroleum fiscal regime to address one of the PRRT Review's aims of providing an equitable return to the Australian community. Findings from a case study of an operational gas project include the need for PRRT modifications, and the addition of royalties for particular integrated natural gas projects in Commonwealth waters. The article is significant for its unique overview of Australia's petroleum taxation since the fall in oil prices from mid-2014 and the rise of gas export projects. This interdisciplinary and empirical research forms an important contribution to the current Commonwealth PRRT Review through its recommendations for change to the Petroleum Resource Rent Tax Assessment Act 1987 (Cth). It calls for more uniform federal legislation for the taxation of petroleum resource projects.
The use of Foreign Law by the High Court of Australia
Authors: Spottiswood Sarah
Published: January 2019

Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court's use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court's willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court's use of foreign decisions and to address the normative question of how the High Court should use foreign law.
Supervision of the Responsible Lending Regimes: Theory, Evidence, Analysis and Reforms
Authors: North Gill , Wilson Therese
Published: January 2019

National responsible lending regimes have operated in Australia since 2009, with the stated aims to encourage prudent lending, curtail undesirable market practices, and impose sanctions for irresponsible lending and leasing. This article outlines a study of the supervision of the responsible lending rules by the Australian Securities and Investments Commission (ASIC) from 2014 to mid-2017. The study finds that the Commission proactively engaged with lenders, encouraged tighter lending standards, and sought or imposed severe penalties for egregious conduct. Further, the Commission strategically targeted credit products commonly acknowledged as the riskiest or most material from a borrower's perspective, such as small amount credit contracts, interest only home loans, and car loans. Despite these positive findings, however, many households are heavily indebted and large segments of the community and the nation are highly susceptible to future harm. In this environment, we question the timeliness and sufficiency of the Commission's interventions and responses, and predict further litigation that tests the boundaries of the responsible lending rules. Moving forward, we call for more systematic supervision of responsible lending risks, practices and exposures and propose modest reforms that require lenders to better inform and engage with consumers about the risks of elevated levels of debt.
Constitutional Influences on State and Territory Lawmaking: An Empirical Analysis
Authors: Olijnyk Anna , Appleby Gabrielle
Published: January 2019

This article focuses on an under-studied aspect of the constraints emerging from ch III of the Australian Constitution: the effect of those constraints on law- and policy-making within the executive. Drawing on interviews with key actors in state and territory lawmaking, this article uses three case studies to examine the way in which ch III constraints have influenced the development of law and policy. The actions of governments in each case study are evaluated against a normative model of constitutional deliberation by the executive. The article concludes by identifying the legal, political and personal factors that influence the way in which state and territory executives engage with constitutional issues.
Insolvency—It's all about the Money
Authors: Anderson Helen
Published: January 2019

The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.
Should Australia be Embracing the Modern Slavery Model of Regulation?
Authors: Landau Ingrid , Marshall Shelley
Published: January 2019

Australia is following in the footsteps of the UK and US and embracing the discourse and regulatory technologies associated with modern slavery regulation. This paper offers a critical perspective on this development. It begins with a brief account of the concept's rise to prominence, and discusses the political economy in which it is embedded. It then explores some of the advantages, as well as the pitfalls, associated with the frame, and its associated regulatory approaches, techniques and discourse. The authors raise three broad sets of concerns. The first goes to the danger of exclusively focusing on criminal justice responses to penalise and deter those who practice modern slavery while neglecting other approaches that may help address the causes of the phenomenon. The second set of concerns goes to the tendency to exaggerate the transformative potential of one of the dominant regulatory responses in this area: the mandatory corporate supply chain reporting provision. The third set of concerns relate to the implications of addressing issues of worker exploitation and mistreatment through a modern slavery and human trafficking approach rather than through other well established and newer regulatory means. To support the third argument, the authors compare the modern slavery approach with two alternate approaches: labour regulation and human rights due diligence. The authors emphasise the need for vigilance to ensure that the embracement of a modern slavery frame does not shift attention (and resources) away from more thorough and effective means of securing greater corporate accountability for labour standards in supply chains.
‘Pretaliatory’ Enforcement Action for Chilling Whistleblowing through Corporate Agreements: Lessons from North America
Authors: Dixon Olivia
Published: January 2019

Studies have shown that potential whistleblowers are reluctant to report misconduct because they fear retaliation. In Australia, fear of retaliation is exacerbated for private-sector employees where the lack of prescriptive legislation aggravates vulnerability in all but exceptional circumstances. Through examining the codes of conduct of Australia's 100 largest listed companies (‘Codes’) this article argues that while Codes have the potential to provide an important regulatory function through facilitating whistleblowing, the breadth of confidentiality undertakings contained therein may instead be chilling potential whistleblowers from speaking up. While companies have legitimate interests in protecting confidential information, it is well-established that employees may disclose their employer's unlawful conduct to the government, even if such disclosure is in violation of the company's confidentiality policy. To affirm this right, in the United States (US), federal regulators have recently taken ‘pretaliatory’ enforcement action against companies for requiring employees to execute confidentiality agreements that stifle the reporting of possible violations of federal laws. Such regulation by enforcement has successfully effected cultural change through facilitating widespread amendments to US corporate confidentiality agreements. Accordingly, this article argues that any future Australian legislation should include an ‘anti-confidentiality provision’ similar to the US and Canadian frameworks to affirm an employee's right to communicate with a regulator directly, despite any purported agreement or corporate policy to the contrary.
A Statute's Meaning Need not be its Law
Authors: Blaker Jamie
Published: January 2019

There is a theory of statutory interpretation that is simple, elegant and well-subscribed. The theory is known as the meaning thesis, and it holds that the law of a statute consists in the ordinary linguistic meaning that is communicated by the statute's language. In a recent article Dale Smith has sought to discredit the meaning thesis. Here I will seek to discredit the thesis further, this time by drawing on the accomplishments of linguistics and the philosophy of language. In order for the meaning thesis to succeed, it must be demonstrated that the thesis is consistent with the established common law rules of interpretation. However, some of these rules appear to require that judges defy the plain linguistic meanings of statutes in limited circumstances. The meaning theorist's challenge, then, is to find some way to show that the established rules of interpretation do not truly cause judges to defy the language of statutes, despite appearances to the contrary. In this article, I will explain why the meaning theorist only has bad options in this regard. Of the available options, meaning theorists have settled for an argument that is premised on a flawed theory of how language communicates meaning. The theory of communication in question was proposed by H P Grice in the 1950s, but discredited by his contemporaries.