Showing papers in "Melbourne University Law Review in 2008"

Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice

Abstract: * BJuris, LLB (Hons) (UWA), MA, PhD (MUM); Senior Lecturer, Faculty of Law, Monash University; Formerly Perth Drug Court Magistrate and Geraldton Magistrate. The author would like to thank the anonymous referees for their helpful comments. [Over the past 20 years, court and legal practices have changed due to the influence of more emotionally intelligent and less adversarial approaches to resolving legal disputes. Restorative justice encounters involving victims and offenders discussing what happened, why it happened and what reparation can be made have promoted victim wellbeing and offender rehabilitation. Therapeutic jurisprudence has suggested reforms to minimise the law’s negative effects on wellbeing and to promote its wellbeing-related goals such as crime victims’ safety and health, injured workers’ rehabilitation and broken families’ welfare. Both see the management of emotions and professionals’ interpersonal skills as important in dispute resolution. This article argues that judging and legal practice should include exercising intrapersonal and interpersonal skills, and that legal education should train legal professionals accordingly.]

'Know Thine Enemy as Thyself': Discerning Friend from Foe under Anti-Terrorism Laws

Abstract: [The embedded nature of the terrorist risk appears to demand the treatment of one’s neighbour as potentially both friend and foe. One of the consequences is the application of ‘all-risks’ policing measures, such as stop and search powers. But can this wide casting of the intelligence web or the application of policing powers both enhance security and keep the faith with constitutional values? In this article, all-risks policing of terrorism will be considered by reference to the stop and search powers under s 44 of the Terrorism Act 2000 (UK) c 11. Since reasonable suspicion does not found policing action, it is important to examine the consequent patterns of usage and the forms of governance over them. This article will explore the nature and usage of the special stop and search powers since they are key to an understanding of how ‘neighbour’ terrorism is now being addressed.]

Climate change law: the emergence of a new legal discipline

Abstract: * BSc, LLB (Hons) (Qld), LLM (NYU), PhD (Melb); Associate Professor, Melbourne Law School, The University of Melbourne; Research Associate, United States Studies Centre, The University of Sydney. The author would also like to acknowledge the funding support provided via Research Support Funds awarded by the Melbourne Law School. [In recent times the issue of climate change has catapulted to the forefront of scientific and policy agendas. Climate change threatens to have wide-ranging impacts on ecosystems and presents enormous challenges for conventional modes of socioeconomic governance. Against this backdrop, the last few years have seen the consolidation of a body of legal rules and principles organised around the central problems of mitigating and adapting to climate change. The new climate change law spans from international to local levels of governance, and encompasses the activities of a wide range of actors including governments, businesses and non-governmental environmental groups. This article surveys the scope of the new discipline of climate change law, providing a synopsis of its primary component areas. It also elaborates the main challenges climate change law is likely to face as its development proceeds apace, such as coping with internationalisation of the greenhouse problem, ensuring that avenues for widespread participation in climate change regulation exist, and integrating governance and regulatory frameworks across political and disciplinary boundaries. How climate change law responds to this last challenge, in particular, is likely to be determinative of its effectiveness and cohesiveness as a body of law for dealing with the broad predicted impacts of global warming.]

Developing Legal Research Skills: Expanding the Paradigm

Abstract: This article explores the development of tertiary legal research skills education in Australia in the underlying context of Australian legal education and the transformation of legal research resulting from advances in information technology. It argues that legal research is a fundamental skill for lawyers and that research training in a law degree must cater for the vocational needs of the individual student whether their ultimate focus is practice or higher degree research. It argues that the traditional doctrinal paradigm of legal research is no longer sufficient for modern lawyers and that exposure to additional methodologies needs to be included in research training units. This article argues that while legal research skills education has changed, it must continue to develop in order to better cater for the needs of students, the profession and the academy in the contemporary legal environment.

In the Shadow of a Criminal Record: Proposing a Just Model of Criminal Record Employment Checks

Abstract: [Requests for criminal record checks have increased significantly in recent years as employers focus on risk avoidance in seeking employees with no criminal record. This trend has coincided with local incidents, global fears and hardening ‘law and order’ agendas. However, there has been no comparable attention given to the implications for the rehabilitation of former offenders, and for discrimination and privacy issues. Employment is fundamental to rehabilitation and reintegration; failure to obtain employment creates a high risk of reoffending. This article examines the role of the law in Australia in facilitating, encouraging and even compelling the making of criminal record checks; the scope of legal mechanisms (such as spent convictions and anti-discrimination regimes) which attempt to balance employer needs with those of former offenders; and the impact of complex, piecemeal and inconsistent laws on issues related to criminal record checks. A new legal framework is proposed, one which seeks to provide a more just model of using criminal record checks in the employment process.]

The Push to Reform Class Action Procedure in Australia: Evolution or Revolution?

Abstract: [Class actions were introduced in Australia over 15 years ago and, despite their initially slow uptake, are now well entrenched. In many respects, Australian class action procedure is more ‘plaintiff-friendly’ than its United States counterpart, such that Australia has become the next most likely place after North America where a corporation will find itself defending a class action. However, it has been suggested by commentators that current Australian practice and procedure are hampering the healthy development of class actions, as well as limiting their use, and should thus be reformed. The authors believe that many of the proposed changes run counter to the legislative aims of class action procedure and would remove the remaining safeguards that presently operate to limit the prosecution of claims inappropriately brought in the form of a class action. This article provides a detailed analysis of the most significant proposals for change and why many of them should be rejected.]

Substantive Legitimate Expectations in Australian Administrative Law

Abstract: [Judicial review of administrative action has traditionally had a procedural focus. This means that courts examine the procedure by which a decision is made, rather than the decision itself. A denial of natural justice is no exception to review — a person dissatisfied with an administrative decision has long been able to complain about the fairness of the decision-making process but not the fairness of the decision itself. English law has recently developed a doctrine of ‘substantive unfairness’ by which an expectation about the outcome of a decision-making process can be protected by the courts in a strong sense. The strength of the protection given under this new doctrine seems to blur the distinction between process and outcomes, which leads judicial review in a radical new direction. This article explains the English doctrine of substantive unfairness and considers whether it can and should be adopted in Australia.]

Government Liability in Negligence

Abstract: [The tort reform legislation of most Australian jurisdictions includes provisions directed specifically at protecting government defendants from civil liability. The legislation makes it harder to sue for breach of statutory duty, regulatory failure, the exercise of ‘special statutory powers’, and negligent failure to inspect the roads. These changes reflect an assumption long held at common law that there is something different about alleging government negligence, at least where the government is exercising statutory powers or performing statutory duties. The cases and reformers have long searched for the answer to the question of what that ‘something’ might be. This article considers the common law, analyses the legislation and then concludes by suggesting that a more principled approach would, in fact, focus on the nature of the functions performed, rather than on the identity of the defendant.]

Guilty Pleas or Trials: Which Does the Barrister Prefer?

Abstract: [Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients’ detriment in recommending guilty pleas over trials While this accusation against American attorneys could be true since their incentives are sometimes skewed to favour guilty pleas, it is not accurate with respect to barristers in England This is because the latter’s selfish incentives — to maximise income and avoid sanction — incline them to prefer trials over guilty pleas In Melbourne and Sydney, barristers have never been similarly accused Indeed, the topic has not been studied Based on interviews with legal professionals in those cities, this article concludes that, as in England, barristers’ incentives lead them to prefer trials Thus, when barristers in Melbourne or Sydney recommend a guilty plea, they are arguably thinking of the defendant’s interest rather than their own]

The Cohabitation Rule: Indeterminacy and Oppression in Australian Social Security Law

Abstract: This article argues that the cohabitation rule in Australian social security law is uncertain and has, as a consequence, given rise to an oppressive administrative regime. It tracks the indeterminate nature of the rule as a constant feature throughout its history and argues that this imprecision remains within its current formulation in the Social Security Act 1991 (Cth). Drawing upon basic ideas about the functionality of rules, it is suggested that the administration of an undefined rule should be attended by resistance and challenge. However, the social security regime and the cohabitation rule appear to have been accepted by the community. This acceptance is explained as being the result of the oppressiveness of the current administration. Drawing upon analysis of Administrative Appeals Tribunal decisions and interviews conducted with Centrelink clients, this article argues that the cohabitation rule unfairly targets vulnerable clients, is implemented through the use of invasive surveillance and provides opportunities for intimidation by Centrelink officers.

The Stolen Generations and Litigation Revisited

Abstract: [Litigation for the so-called ‘Stolen Generations’ had been demonstrably unsuccessful until the recent case of Trevorrow v South Australia [No 5] (‘Trevorrow’). This article explores in detail the Trevorrow decision and offers some comment on the litigation possibilities that flow from it. The success of the Stolen Generations litigant in Trevorrow is compared and contrasted to past failures in the area. Furthermore, this article considers litigation and non-litigation based responses to past wrongs, and questions whether litigation is capable of leading to an acceptable resolution for members of the Stolen Generations.]

Edward John Eyre and the Conflict of Laws

Abstract: [In 1865 Edward John Eyre, the Governor of Jamaica, in the course of suppressing a revolt, caused a leading activist to be tried and executed under martial law. Over the next three years, a group of leading politicians and thinkers in England attempted to have Eyre prosecuted for murder. When the criminal process failed, they attempted to have him sued for trespass and false imprisonment. Though this case, Phillips v Eyre, was mainly concerned with constitutional issues, Willes J laid down a rule for choice of law in tort which endured for nearly a century before it was finally superseded. In this article, the author illuminates the case by reference to its background. The author speculates on why the decision, which initially occasioned little notice, became the subject of academic and judicial controversy many years afterwards.]

Re-invigorating the Accountability and Transparency of the Australian Government’s Expenditure

Abstract: [The implementation of the central concepts captured by the final arrangements in ss 81 and 83 of the Australian Constitution has evolved over decades. However, some uncertainty as to their actual content and meaning remains. Significantly, the roles of the High Court of Australia and Parliament have been major forces in the breakdown of Parliament’s control of the executive’s expenditures, opening the way for the adoption of the current accountability and transparency arrangements. Recent actions by Parliament show that it is re-asserting its control over appropriations. However, this article advocates that the focus should be on expenditure rather than appropriations, taking advantage of the potential accountability and transparency afforded by the recent public administration reforms.]

Taking Possession: The Defining Element in Theft

Abstract: [This article argues that the Theft Act 1968 (UK) c 60 and subsequent legislative developments in Australia have overlooked the principle of preventing public violence that was historically a justification for the common law offence of larceny. The article outlines the English Criminal Law Revision Committee’s decision to amalgamate previously separate offences into one overarching theft offence in the Theft Act 1968 (UK) c 60. It then describes the historical development of the common law offence of larceny, and its basis in the protection of the possessory rights of victims. The author argues that the restriction of the term ‘property belonging to another’ to possession in the context of larceny provides a strong and principled boundary to the offence. The article then outlines four particular issues arising from the statutory expansion of the definition of theft, and concludes that retaining the distinction between offences such as theft and fraudulent conversion would be preferable to a single statutory offence.]

Constitutional choices in the work choices case, or what exactly is wrong with the reserved powers doctrine?

Abstract: [The decision of the High Court in the Work Choices Case presents a paradox. It is possible on one hand to read it as a revolutionary decision which has up-ended our conventional understanding of the scope and nature of the Commonwealths power over industrial relations, with significant long-term implications for the balance of power between Commonwealth and state governments. On the other hand, it is possible to read the outcome as entirely predictable in terms of established principles and methods of constitutional interpretation, themselves the culmination of a long line of cases dealing with federal legislative power generally and the corporations power in particular.In this article, it is contended that the paradoxical nature of the Work Choices Case is best understood by reference to a series of interpretive choices that have been made by the High Court over the course of its history and which are recapitulated in the joint judgment. Reading the case in this way, it is argued, enables us to understand both the significance of the outcome and the predictability of tire reasoning. It also helps us to understand the conundrum faced by the dissenting justices, who wished to resist a decision that would radically overhaul the balance of power between the Commonwealth and the states. Such resistance required the repudiation of a series of established conventions of constitutional interpretation, as well as entailing a return to the idea that in determining the scope of Commonwealth powers it is both legitimate and desirable to take into consideration the scope of power retained by the states. This latter aspect, however, presents us with the question: what exactly is wrong with the reserved powers doctrine? It is argued that, when the doctrine is understood and applied in its most sophisticated interpretive form, the answer is: not much at all.].

Are Plant Breeder's Rights Outdated? A Descriptive and Empirical Assessment of Plant Breeder's Rights in Australia, 1987-2007

Abstract: Taking the Plant Breeder’s Rights Act 1994 (Cth) as its focus, this article explores the notion that plant breeder’s rights are out-of-date and unnecessary. To do so, this article adopts both descriptive and empirical approaches to examining a number of issues including: the nature of, and investment in, Australian plant breeding; biopiracy and enforcement; legal disputes and processes; and the use of the Australian plant breeder’s rights system. This review shows that the Australian plant breeder’s rights scheme is well used, has been progressively amended and extended, and is just one element in a suite of measures geared to stimulate plant-related innovation. As a consequence, future research needs to take into account the heterogeneous character of plant breeding and complementary government initiatives, identify the many reasons why the plant breeder’s rights scheme is seen as viable (or why not) and consider the interrelationships between these elements.; ;

Incomplete contracts, contingent fiduciaries and a director's duty to creditors

Abstract: [This article presents economic arguments for extending a limited form of fiduciary duty to creditors. It clarifies the two components of debtor-firm opportunism against creditors: director-opportunism and shareholder-opportunism. The analysis, carried out within the economic perspective of incomplete contracts, focuses on three elements: incomplete contracts, self-interest seeking individuals and consequential ex post opportunism. The emphasis is on suggesting that the catalyst for a fiduciary duty is the presence of opportunistic behaviour, rather than arguing that it will depend on when a firm is in, near, or in danger of insolvency.]

Fiduciary Law, Non-Economic Interests and Amici Curiae

Abstract: [This article examines the role that amici curiae can play in improving the protection of non-economic interests in Australian fiduciary law. The current lack of protection of non-economic interests in Australian fiduciary law is doctrinally and philosophically problematic. In comparison with Australian fiduciary law cases, amici curiae participate more frequently and play a more significant role in the fiduciary law cases of other jurisdictions where non-economic interests are more readily protected. The increased participation of amici curiae in Australian courts would facilitate a more sensitive development of fiduciary principles in relation to non-economic interests. Furthermore, increased participation of amici curiae is consistent with the general principles and underlying concepts of fiduciary law and equity.]

How much does it hurt? How Australian businesses think about the costs and gains of compliance and noncompliance with the Trade Practices Act

Abstract: [Law-makers, courts and regulators all assume that businesses’ compliance with the law is at least partly influenced by management’s rational calculations about the costs and gains of compliance and noncompliance. In this article, the authors use evidence from a survey of 999 large Australian businesses and these businesses’ experiences of compliance and enforcement under the Trade Practices Act 1974 (Cth) (‘TPA’) to examine how large Australian businesses perceive the costs and gains of compliance and noncompliance with the Act. First, the authors look at how serious these businesses perceive the threat of financial penalties, criminal convictions, and economic and social losses to be in the event of noncompliance, as well as whether they see benefits such as organisational learning as gains of compliance. Secondly, the authors examine whether enforcement action of the Australian Competition and Consumer Commission (‘ACCC’) or stakeholder criticism changes the way that these businesses calculate the costs and gains of compliance and noncompliance. The authors end by drawing some policy conclusions for the TPA and the ACCC.]

Model Advocates or a Model for Change? the Model Equal Opportunity Briefing Policy as Affirmative Action

Abstract: This article considers a recent regulatory approach to addressing disadvantage experienced by women at the Australian Bar. The Model Equal Opportunity Briefing Policy for Female Barristers and Advocates ('MBP') developed by the Law Council of Australia in 2004 was a popular initiative which received widespread support. This article examines the origins and assumptions underpinning the policy. It is contended that while the policy is a genuine attempt to ameliorate the dismal plight of women at the Bar, it is narrow in application and effect. It is argued that this policy is a product of the prevalent Australian approach to policymaking which avoids any mention of 'affirmative action'. The article traces how this aversion is justified less by principle than rhetorical use of the idea of merit. Finally, it is contended that when we consider the case of briefing practices in Australia, merit is a contestable concept which does not provide a sufficient reason to reject out of hand other policy approaches.

Reckless Rape in Victoria

Abstract: In this article, I distinguish three types of recklessness – ‘inadvertence recklessness’, ‘indifference recklessness’ and ‘possibility recklessness’ – and examine whether each of these is, and should be, sufficient to satisfy the fault element for rape. I suggest that these three states of mind are not always properly distinguished. For example, while inadvertence recklessness is now sufficient to satisfy the fault element in Victoria, it is unclear whether indifference recklessness is sufficient, precisely because the Victorian Parliament did not carefully distinguish between these two states of mind. However, I argue, both indifference recklessness and inadvertence recklessness should be sufficient to satisfy the fault element for rape. By contrast, I contend that possibility recklessness is much more problematic than is generally realised, before suggesting a way in which the problems I identify could be alleviated.

Holding the government to account: The'stolen wages' issue, fiduciary duty and trust law

Abstract: [This article examines whether trust or fiduciary law provides potential ‘stolen wages’ plaintiffs with a strong basis for a claim over money in bank accounts that previous governments held on the plaintiffs’ behalf. It also considers the broader issue of whether governments owed a fiduciary duty flowing from their obligations under general ‘protective’ legislation to prevent such workers from being exploited and underpaid. It is argued that potential stolen wages plaintiffs have a strong claim in trust, and that an argument based on fiduciary duty, whilst weaker than that based on trust law, is more likely to succeed than in the previous types of cases in which indigenous plaintiffs have unsuccessfully argued fiduciary duty in the Australian courts.]

The review of Australia's asylum laws and policies: a case for strengthening Parliament's role in protecting rights through post-enactment scrutiny

Abstract: The central contention of this article is that there is a need for greater involvement of legislators in overseeing a systematic and rights-based scrutiny of the impact of legislation and policy. The recent operation of Australia s asylum laws and policies, in particular provides an illustration of the reforms required. Challenges to the rights of non-citizens in Australia and other jurisdictions serve as a reminder of the extent of change required before rights are firmly entrenched in the processes of government. A useful step forward would be to enhance the role of legislators in setting the criteria and agenda for post-enactment scrutiny in light of issues raised during pre-legislative scrutiny.

Beyond the Torrens Mirror: A Framework of the In Personam Exception to Indefeasibility

Abstract: [One of the central tenets of the Torrens system is that the registered proprietor is conferred indefeasible title. Indefeasibility of title is subject to an in personam exception. The content of the in personam exception to indefeasibility has been a source of debate in many Torrens jurisdictions. The purpose of this article is to map out a theoretical structure to analyse the ambit of the in personam exception so as to provide a principled development of the law in this area. This article will also attempt to explain how this proposed theoretical structure of the in personam exception deals with constructive trust claims, knowing receipt, undue influence, unconscionable dealing, duress and certain restitutionary claims.]

An Analysis of Discretionary Rejection in Relation to Confessions

Abstract: [The exercise of judicial discretion to reject legally admissible confessional evidence involves balancing a number of considerations. On the one hand, there is the desirable goal of admitting relevant evidence and bringing wrongdoers to conviction; on the other hand, there is the undesirable effect of giving curial approval to improper practices on the part of police and other authorities (the disciplinary principle) or the accused being convicted in a manner which is seen to involve substantial unfairness (the fairness principle). The exercise of this discretion is governed by law in a manner not unlike the application of legal rules, and the courts have developed and refined principles and guidelines to be used by trial judges in the exercise of that discretion. These guidelines reflect a consciousness that a confession meeting the requirements for legal admissibility is likely to be reliable, and that the step of excluding relevant and reliable evidence for reasons of policy or fairness should only be taken in cases where the argument for exclusion is strong.]

Lessons (to Be) Learnt from the Opes Prime Insolvency

Abstract: * BA (UQ), LLB (Hons) (Melb), MA (Monash), LLM (Melb); Lecturer and Associate Director (Japan), Asian Law Centre, Melbourne Law School, The University of Melbourne Between March 2000 and September 2007, the author worked at a leading commercial law firm for banking and finance clients, including Australia and New Zealand Banking Group Ltd The author did not work on margin lending matters [This article creates a narrative of the Opes Prime insolvency from the copious and sometimes confusing commentary available to the public It explains the background to margin lending practices in Australia, the Opes Prime business model and the immediate reasons behind Opes Prime’s collapse into dual external administrations It clarifies the consequences of placing a company into external administration in the current circumstances and the position of unsecured creditors It also analyses the position of Opes Prime’s major financiers — in particular, Australia and New Zealand Banking Group Ltd — and argues that the latter organisation has acted in the same way that any rational financier in its position would have acted Moreover, the article analyses the potential for success of some of the proposed litigation The only real winners may be the lawyers and their backers, the litigation funders Finally, it argues that although the immediate future of margin lending is uncertain and some of the legal techniques used to make it work from a creditor’s perspective may be under fire, margin lending is not dead It will only take a lift in the sharemarket to whet investors’ appetites again]

Of 'Sham' and Other Lessons for Australian Revenue Law

Abstract: * BA, LLM, BEc (Syd), Hon DLitt (Newc), Hon LLD (Macq), Hon LLD (Syd), Hon LLD (Nat Law Sch, India), Hon DLitt (Ulster), Hon LLD (Buckingham), Hon DUniv (SA), Hon DLitt (James Cook), Hon LLD (ANU), Hon DUniv (SCU), Hon LLD (UNSW), Hon DUniv (Griffith), Hon LLD (Murdoch), Hon FASSA, Hon FAAH; Justice of the High Court of Australia. An earlier version of this article was delivered as the Melbourne Law School Annual Tax Lecture on ‘Sham in Australia after Raftland Pty Ltd v Commissioner of Taxation’ given at the University of Melbourne on 20 August 2008. The style of the author’s oral delivery has been preserved. [In describing the issues arising in Raftland Pty Ltd as Trustee of the Raftland Trust v Commissioner of Taxation (‘Raftland’), the author examines what he sees as a general reluctance of Australian courts to embrace a more robust approach to designating documented transactions as ‘shams’, as the Supreme Court of the United States of America has effectively done for some time. He suggests that the reluctance derives from three sources: the parol evidence rule applicable where oral evidence is propounded to vary written evidence and the difficulties inherent in pleading and proving fraud; the enactment of specific legislation to invalidate designated tax avoidance ‘schemes’; and the frequent need of the Commissioner to rely on propounded documents to support the asserted tax assessment. Various possible psychological and practical considerations are also mentioned. Nevertheless, the author proposes that greater use of ‘sham’ analysis should be used in the revenue context in Australia as, he suggests, was ultimately upheld in Raftland. He also refers to the later decision in Commissioner of Taxation v Futuris Corporation Ltd. He suggests that this case illustrates how revenue lawyers need to keep abreast of developments in judicial review and administrative law more generally. Finally, the importance of revenue law to the effective functioning of the Commonwealth is emphasised, and a tribute paid to the lawyers and others who work and teach in this field.]