bluuebunny/crossref_metadata_2025_split huggingface dataset:
Context and the Limits of Legal Reasoning: The ‘Victim Focus’ of Section 18C in Comparative Perspective
Authors: Hicks Elizabeth 
Published: January 2019

AbstractThis 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

AbstractThe 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

AbstractThis 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.
Taxing Sovereign Wealth Funds: Looking to Singapore for Inspiration
Authors: Joseph Sally-Ann 
Published: January 2019

AbstractThe 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

AbstractThis 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

AbstractThis 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

AbstractThe 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

AbstractAlthough 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

AbstractIn 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

AbstractAustralia 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

AbstractJustices 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

AbstractNational 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

AbstractThis 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

AbstractThe 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

AbstractAustralia 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

AbstractStudies 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

AbstractThere 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.