bluuebunny/crossref_metadata_2025_split huggingface dataset:
EXPLORING THE BENEFITS AND PITFALLS OF USING MUTUAL WILLS
Authors: CASSIDY JULIE 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The purpose of this article is to consider a peculiar type of will known in equity as a mutual will. The major focus is a consideration of the interplay of the legal effect of mutual wills and the practical use of such wills. It is hoped that this discussion will assist legal practitioners in identifying those clients who may benefit from executing mutual wills, identifying those clients who might intend to execute mutual wills, advising clients as to the pros and cons of mutual wills and the benefits of accompanying such wills with a deed or contract.</span><span>] </span></p></div></div></div>
BAKER V THE QUEEN & FARDON V ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
Authors: ROOS OSCAR 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In 2004, the High Court of Australia had cause to revisit its 1996 decision in </span><span>Kable</span><span>, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of </span><span>Fardon </span><span>and </span><span>Baker </span><span>demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be “tough on crime”. The so-called “</span><span>Kable </span><span>principle”, as construed by the High Court in 2004, may prove to be the “constitutional watch dog that barks but once”.</span><span>] </span></p></div></div></div>
RECENT DEVELOPMENTS IN EUROPEAN COMPANY AND BUSINESS LAW
Authors: SAENGER INGO 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>Company Law, Business Law and Capital Markets Law in Europe are widely influenced by a multitude of regulations and directives as well as by the case-law of the European Court of Justice. There have already been nu- merous cases in which the ECJ gave fresh impetus to several developments which were slowed down before by specific statutory provisions of individual Member States. The most recent reason for a special focus on the up-to-date developments are the prevailing dynamics in EU-wide harmonization of law in general and in particular the Action Plan on “Modernising Company Law and Enhancing Corporate Governance in the EU” presented by the Euro- pean Commission.</span><span>] </span></p></div></div></div>
THE BIRTH TORTS: DAMAGES FOR WRONGFUL BIRTH AND WRONGFUL LIFE
Authors: STRETTON DEAN 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>This article examines the capacity of parents of children (whether dis- abled or not) born as a result of medical negligence to sue for the costs associated with the birth and raising of the children (‘wrongful birth’), as well as the capacity of disabled children who owe their existence to medi- cal negligence to sue for the costs associated with the disability (‘wrong- ful life’). Many legal systems have allowed the first type of claim, but very few have allowed the second type. The author argues that allowing both types of claim is consistent with ordinary principles of tort law, and that there are no policy reasons that override this conclusion. Consequently, a range of damages ought to be available in relation to both types of claim.</span><span>] </span></p></div></div></div>
LESS THAN THEY BARGAINED FOR: UNION BARGAINING FEES IN CERTIFIED AGREEMENTS- A MATTER OF LAW, POLITICS OR PUBLIC POLICY?
Authors: DONOVAN GUY 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The High Court of Australia’s decision in </span><span>Electrolux No 3</span><span>, combined with the Australian government’s changes to workplace relations law, has en- sured that unions are prohibited from charging bargaining fees. The gov- ernment claimed to have prohibited the fees on the basis that they offend the principle of “freedom of association”. However, the government failed to consider other policy considerations and considerable international precedents that suggest if bargaining fees are limited to an amount cover- ing bargaining services alone, they provide unions with a beneficial source of financial security, whilst also overcoming the free-rider problem and maintaining respect for the concept of voluntary unionism. Therefore, it is perhaps incorrect to suggest that the prohibition of bargaining fees was prescribed by the government on the basis of some overriding concern for the freedom of association. Rather it seems more realistic to suggest that freedom of association was the guise under which the government was able to further marginalise the role of unions in industrial relations in or- der to promote its own ideological and economic agenda</span><span>.] </span></p></div></div></div>
PRECEDENT AND POLICY: AUSTRALIAN INDUSTRIAL RELATIONS REFORM IN THE 21ST CENTURY USING THE CORPORATIONS POWER
Authors: GRAY ANTHONY 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>This article will discuss the topical issue of whether the Commonwealth, in Australia’s federal system of government, can rely on its so-called “corporations power” in order to pass planned industrial relations laws. The Federal Government has recently indicated its plans to introduce a national system of industrial relations regulation in Australia. While the detail of the proposed legislation is not currently to hand, the planned changes raise a controversial issue whether the Australian Government would permit such regulation. This article considers the corporations power as justification for the proposed laws.</span><span>] </span></p></div></div></div>
SOME CARE, LITTLE RESPONSIBILITY? PROMOTING DIRECTORS’ AND MANAGERS’ LEGAL ACCOUNTABILITY FOR OCCUPATIONAL HEALTH AND SAFETY IN THE WORKPLACE
Authors: WHEELWRIGHT KAREN 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>Health and safety at work remains a serious and under-recognised prob- lem in Australia. This paper argues for the importance of increasing the individual responsibility and accountability of senior managers and direc- tors of corporations for the development and maintenance of occupational health and safety (OHS) standards in the workplace. In order to do so, the paper first sets out the range of statutory and general law duties and li- abilities to which directors and senior managers are subject, considers to what extent these obligations have relevance in the OHS area and argues for the extension of these duties and liabilities in some circumstances. The paper then goes on to argue for a better legislative model for the legal re- sponsibility of managers and officers, supported by the increased prosecu- tion of individuals in appropriate circumstances, as well as acknowledging the benefits of a broader range of non-legal strategies to improve board- level commitment to OHS that will influence corporate compliance over- all</span><span>.] </span></p></div></div></div>
THE CONSTITUTION AND A NATIONAL INDUSTRIAL RELATIONS REGIME
Authors: WILLIAMS GEORGE 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The federal Government is proposing to bring about a single national scheme for the regulation of industrial relations in Australia. This will raise a number of important constitutional questions that may need to be resolved by the High Court. These questions as examined in this article are: could a single national law for the regulation of industrial relations be passed under a head of Commonwealth power (in particular, under the Commonwealth's powers over corporations, interstate trade and commerce or external affairs); even such a law could so be enacted, would it nevertheless be struck down due to an express or implied constitutional limitation; and to what extent could the law override the State laws that already govern much of the field?</span><span>] </span></p></div></div></div>
THE CONFLICT OF THE RATIONALITIES: INTERNATIONAL LAW, HUMAN RIGHTS AND THE WAR IN IRAQ
Authors: CUSHMAN THOMAS 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>When one thinks of international law and human rights, one imagines that they are complimentary phenomena. The goal of international law is to protect human rights, and human rights are to be enjoyed, presumably on a global basis, under the protection of a universally binding rule of inter- national law. To be for human rights is necessarily to be for international law, and vice versa. The central purpose of this essay is to argue that not only is the presumed positive relationship between international law and human rights not necessarily the case, but that the relationship is of a more tense and conflictual nature. In some cases, there is a negative or in- verse relationship between law and human rights. While there is an as- sumption that the promotion of international law and the promotion of human rights are essentially part of the same project of modernity, this is not the case. At a rhetorical level, they appear to be one and the same thing, but at a practical level – literally, at the level at which international law is practiced and at which human rights is practiced – international law and human rights constitute different value-spheres in the contempo- rary world.] </span></p></div></div></div>
STUDENT SUBJECTIVITY AND THE LAW*
Authors: LINDSAY BRUCE 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>This article examines the character of the university student in law in the context of wide-ranging changes to Australian higher education since the 1980s. The legal character of the student derives from two major sources: establishment of a university jurisdiction, primarily under State University Acts, and federal higher education funding legislation. With the rise of market/economic conditions in the sector, the student has become subject to tensions between these sources of law, increasingly resolved in terms of his/her existence as a “consumer” within a commercial university model. Alongside the older statutory university jurisdictions, the standing of the student is both increasingly complex and impoverished</span><span>.] </span></p></div></div></div>
TAKING PARLIAMENTARY SOVEREIGNTY SERIOUSLY WITHIN A BILL OF RIGHTS FRAMEWORK
Authors: MEAGHER DAN 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The Victorian Government has made a commitment to consult with the community on how best to protect and promote human rights in Victoria. To this end, it has established a Human Rights Consultation Committee to undertake this consultation and to report on the desirability or otherwise of enacting a Bill of Rights. The government has, however, indicated its preference for a statutory Bill of Rights and one that preserves the 'sover- eignty of Parliament'. This article takes those two government preferences as its baseline and then explores what might follow if the preservation of parliamentary sovereignty is taken seriously within a Victorian rights framework.</span><span>] </span></p></div></div></div>
SOURCES OF DOUBT, SOURCES OF DUTY: HLA HART ON INTERNATIONAL LAW
Authors: MORSS JOHN 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In many ways HLA Hart’s critical analysis of the concept of law, with its repudiation of simple command theories of legal obligation, is at the same time a critique of the notion of state sovereignty. It is therefore an adumbration, if no more, of a radical reconceptualisation of interna- tional law, one which redefines the distinction between municipal and in- ternational jurisdiction. This paper is an exploration of what Hart could or ‘should’ have said about international law, based as much as possible on what he did say about international law and law in general. After some introductory comments it outlines Hart’s general analysis of law, with particular reference to the relevance for our understanding of inter- national law.</span><span>] </span></p></div></div></div>
THE FUTURE OF INSIDER TRADING IN AUSTRALIA: WHAT DID RENE RIVKIN TEACH US?
Authors: OVERLAMD JULIETTE 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[The case of R v. Rivkin</span><span>1 </span><span>is one of the very few Australian cases resulting in a conviction for insider trading, making it a landmark case in this area of the law. This article examines developments in Australian law relating to insider trading in light of this decision of the New South Wales Court of Criminal Appeal. Aspects of the insider trading offence which have been clarified by Rivkin’s case are examined and discussed, as are those which remain contentious or unclear despite the judgment. The essential ele- ments of the insider trading offence are reviewed in this context, particu- larly in light of recent legislative reform and relevant academic commentary. This article also considers the role of the courts in interpret- ing difficult legislative provisions such as the laws regulating insider trad- ing, as well as providing an international perspective by analysing the potential application of key provisions of the legislative regimes of other jurisdictions. Clarification of contentious aspects of insider trading has been much needed, so despite the continuing absence of clarity in relation to some elements of the offence, judicial pronouncement by a higher court on these issues should be viewed as a welcome development to the laws on insider trading.</span><span>] </span></p></div></div></div>
DIRECTORS’ PERSONAL LIABILITY- IS THE PROPOSED AMENDMENT TO SECTION 197 ACCEPTABLE WHEN COMPARED WITH HANEL V O’NEILL?
Authors: THAI LANG 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>On 2 June 2005, the Australian Government announced a proposal to amend s. 197 of the Corporations Act. This is to overturn the decision in </span><span>Hanel v. O'Neill </span><span>(</span><span>“Hanel”</span><span>) where the South Australian Supreme Court has expanded the circumstances in which directors of trustee companies can be held personally liable for the debts under the current section 197(1) of the </span><span>Corporations Act 2001 </span><span>(Cth). The multiple interpretations presented in </span><span>Hanel </span><span>highlighted the uncertainty of s. 197 and this uncertainty is height- ened in at least two subsequent cases. The article provides a detailed analysis of how the decision in </span><span>Hanel </span><span>is affecting the directors' freedom of management and suggests some precautionary measures that the directors could take as protection against creditor's actions under s. 197. The au- thor welcomes the proposed amendment because the new section will cre- ate certainty for directors as to the scope of their potential personal liability, but contends that the substance of the proposed s. 197 is not ac- ceptable as there is potential for abuse by directors of certain trustee com- panies.</span><span>] </span></p></div></div></div>
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: AN EXERCISE IN LAW, POLITICS AND DIPLOMACY BY RACHEL KERR (OXFORD: OXFORD UNIVERSITY PRESS, 2004) 239 PAGES. PRICE AUD$180.00 (HARDCOVER). ISBN 0 19 926305 1
Authors: UPCHER JAMES 
Published: April 2016

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>T</span><span>HE </span><span>I</span><span>NTERNATIONAL </span><span>C</span><span>RIMINAL </span><span>T</span><span>RIBUNAL FOR THE </span><span>F</span><span>ORMER </span><span>Y</span><span>UGOSLAVIA</span><span>: A</span><span>N </span><span>E</span><span>XERCISE IN </span><span>L</span><span>AW</span><span>, P</span><span>OLITICS AND </span><span>D</span><span>IPLOMACY </span><span>BY </span><span>R</span><span>ACHEL </span><span>K</span><span>ERR </span><span>(O</span><span>XFORD</span><span>: O</span><span>XFORD </span><span>U</span><span>NIVERSITY </span><span>P</span><span>RESS</span><span>, 2004) 239 P</span><span>AGES</span><span>. P</span><span>RICE </span><span>AUD$180.00 (</span><span>HARDCOVER</span><span>). ISBN 0 19 926305 1 </span></p><p><span><br /></span></p><div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>When the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993, the fabric uniting the Balkans was ripping apart. How could an ad hoc Tribunal, thousands of kilometres from the conflict with no enforcement apparatus, ameliorate the anarchy and destruction sweeping the region? In its early years it languished almost unused, its courtrooms empty. In 2005, as the ICTY moves slowly towards the completion of its mandate, increased international pres- sure has led to a series of surrenders of indicted suspects.</span><span>1 </span><span>It is a significant achievement that Slobodan Milosevic, the alleged architect of so much of the car- nage in the Balkans, now sits in the dock of the ICTY, defending charges of geno- cide, crimes against humanity and war crimes. His favoured approach is to play the martyr. </span></p></div></div></div><p><span><br /></span></p></div></div></div>
Admissibility of Propensity Evidence in Paedophilia Cases
Authors: Williams C R , Draganich Sandra 
Published: April 2016

<p>Application of the propensity evidence rule in paedophilia cases starkly highlights the tension between the two competing principles underlying the rule. Paedophilia is an area where the danger of prejudice is at its highest. At the same time the probative significance of propensity evidence may be great. In their habitual offending behaviour, paedophiles seek to establish opportunity and overcome the child’s resistance to the sexual acts, typically through a long and drawn out grooming process in a manner calculated to minimise the risk of detection. Evidence of similar misconduct of the accused may be highly probative in establishing this pattern of paedophilia behaviour, and a proper factor to be taken account of in balancing probative value against risk of prejudice. In this context the Hoch/Pfennig test for admissibility is unduly strict. A more satisfactory balance between probative value and danger of prejudice may be achieved under the provisions of the uniform Evidence Acts and the pre-Hoch/Pfennig common law contained in s 398A of the Crimes Act 1958 (Vic).</p>
Transforming Customary Title to Individual Title: Revisiting the Cathedral
Authors: Hepburn Samantha 
Published: April 2016

<p>At the date of writing, the proposed amendments to the Aboriginal Land Rights Act 1976 (NT) endorsing the transfer of customary ownership to the Northern Territory government in exchange for a re-grant of a sub-lease, had not yet been passed. This article examines the rationalisations underlying this proposed change and the broader implications for customary ownership. Individuated title cannot accurately encompass the cultural foundations of indigenous ownership because it is sourced in a different ontological perspective. It is argued that the transformation of customary ownership into individual title will destroy its unique communal foundation, dislocate indigenous ‘tenants’ from their customary identity and produce a complex network of fractionalised interests. It is argued that such a shift is ultimately a retrograde step which, as experience in the United States and New Zealand has clearly shown, cannot provide an economic solution for remote indigenous communities.</p>
The HIH Collapse: A Costly Catalyst for Reform
Authors: Allan Gregor 
Published: April 2016

<p>This paper examines the corporate governance and audit law reforms wrought in the wake of recent corporate scandals such as the HIH collapse. It considers the cost of these reforms and, using HIH as a principle reference point, the likely benefits. In particular, it questions reforms in the areas of auditor independence and audit standards. Do the new independence requirements go far enough? Does audit practice regulation now go too far? Indeed, is the audit function inherently<br />susceptible to legislated sanction – or does this denigrate the very<br />essence of auditing as a profession?</p>
Trade as a Weapon? The WTO and Human Rights-Based Trade Measures
Authors: Schultz Jenny , Ball Rachel 
Published: April 2016

<p>Can the World Trade Organisation become a body for addressing human rights issues? As an international body the the WTO is growing in stature. However moves to encompass human rights concerns are unlikely to go unchallenged by developing nations, and the WTO’s internal rules add another layer of complexity. Trade sanctions can be a blunt weapon in human rights campaigns.</p>
'Desperately Mortal': Exclusion in Shakespeare's Legal Plays
Authors: Morss John R 
Published: April 2016

<p>Shakespeare’s most explicitly ‘legal’ plays are The Merchant of Venice and Measure for Measure. Both examine the interaction between human desire on one hand and the law on the other. In both plays laws cuts through the social hierarchies, either neutralising or exaggerating them. Key characters find their exclusion nullified by the law, and then discover inclusion is far worse than exclusion.</p>
In Whose Interest? The Need for Consistency in to Whom, and about Whom, Australian Public Interest Whistleblowers can make Protected Disclosures
Authors: Latimer Paul , Brown A J 
Published: April 2016

<p>Since the 1990s Australia’s nine jurisdictions have passed (or, in the case of the Northern Territory, proposed to pass) public sector whistleblower legislation. The legislation, which reflects different political origins and legislative aims, is not consistent in many respects and there are few common tests across the jurisdictions. This article analyses two issues - who the Australian whistleblower<br />can disclose to, and who the whistleblower can make protected disclosures about. The examination of these issues indicates inconsistencies in the public law whistleblower laws enacted since the 1990s. This inconsistency is not sensible in Australia’s national economy, where an employee in one State can make a protected disclosure, but an employee in another cannot make the same disclosure. This article supports the election commitment of the Rudd federal government in 2007 to introduce best practice federal whistleblowing legislation which will hopefully overcome shortcomings analysed in this article.</p>
Occupational Health and Safety Duties to Protect Outworkers: The Failure of Regulatory Intervention and Calls for Reform
Authors: Harpur Paul 
Published: April 2016

<p>Many Australian outworkers, especially recent immigrants working from home, currently endure poor working conditions. Outworkers often toil without traditional industrial support. Most retailers and suppliers do not monitor working conditions at the base of the supply chain. Occupational health and safety protections are often not enforced in practice. Increased obligations for retailers and suppliers at the top of the supply chain would reduce the violation of fair working conditions.</p>