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In March 2012, the Australian Commonwealth Attorney-General's Department published a Discussion Paper which explored the prospect of codifying or otherwise reforming the Australian law of contract. There is little reason to think that the codification of the Australian law of contract is likely to be embarked upon in the foreseeable future. At the same time, recent years have seen a resurgence of interest in codification in Britain. This paper examines the experience of contract codification efforts in Australia with a view to identifying a number of cautionary lessons. It focuses on two challenges inherent in contract codification which have been given too little attention by the proponents of reform in Australia. [ABSTRACT FROM AUTHOR]

In 2004 the Australian Opposition party introduced to Parliament a private member's bill proposing the amendment of Australian copyright law to include an artist's resale royalty. In response to the bill the Government released the Proposed Resale Royalty Arrangement Discussion Paper, which successfully provided a tangible foundation for discussions and stimulated the first strong academic debate regarding a resale royalty within Australia. Despite overwhelming support from respondents, in May 2006 the Government announced it would not support the adoption of a resale royalty right and the Resale Royalty Bill 2004 failed to pass through Parliament. The rejection of a resale royalty by the Australian Government illustrates the ongoing difficulty of incorporating civil law notions of creative rights, and moral rights in particular, into common law - particularly as the Australian Government's approach to policy making is increasingly underpinned by economic rationalism. [ABSTRACT FROM AUTHOR]

Compensation is a primary legal mechanism to provide recompense for harm. It is a feature of both common (Anglo-Celtic) law and of civil (European) law systems. In both systems it deals with harms that occur across the world. It has featured in particular in claims for product liability, vehicle accident and workplace accident related harm. This form of claim is common to both the common law and the civil law system, although each system of law has developed distinctive features. While there are differences between the common law and the civil law jurisdictions in this context, there have been distinctive, new, and common, features to emerge from the concept of compensation over the past decade. Chief among these is the search for a unifying principle of compensation, one that can encompass the most recent pressure upon this area of law: compensation that reflects reparation for wrongs now the subject of broad human rights and humanitarian concern. Such wrongs include criminal actions by the state, and breaches of duty of care by state bodies leading to abuse and neglect of children. This paper will canvass some recent cross-jurisdictional cases with a view to establishing commonalities in the quest for a global shift from compensation to reparation. It looks in particular at compensation in the context of earlier governmental policies that have since been considered to contain or imply notions of eugenics. In keeping with two earlier papers published in this journal, the paper notes that while this is a matter of international concern, there can be a constructive comparative focus in examining both Australia and Sweden. The primary concern of the paper is to raise issues that concern the future of genetic research, placing that future in a reflective past context. [ABSTRACT FROM AUTHOR]

The Australian government is undertaking public consultations over possible improvements to the 2010 Australian Consumer Law (ACL) regime, including again the idea of adding a European-style general safety provision (GSP). To bolster the case for such reform, Part 2 of this paper analyses 2017–2019 data trends from the OECD Global Recalls Portal for Australia compared with several comparable economies, especially in the Asia-Pacific region where Australia now has most of its trade and investment links. The analysis finds a persistently high per capita recall rate for Australia, compared with several jurisdictions including Korea, Japan, and especially the USA. However, the analysis identifies various legal and other factors across the jurisdictions that impact on interpreting such data. Part 3 therefore begins by highlighting some more specific patterns uncovered from an ongoing joint research project comparing child product safety trends particularly in Australia and the USA. It highlights various concerns regarding recalls in Australia, as well as weaknesses in Australia's ACL regime (in addition to the lack of a GSP), in coordinating with sector-specific regulation, and in private law mechanisms that could more indirectly promote consumer product safety. Some estimated economic costs from current levels of reported injuries, as well as of many recalls, further reinforce the case for adding a GSP. Part 4 concludes that this improvement to the ACL could be combined with some of the other reform options outlined by the Australian government's Consultation Regulatory Impact Statement, as well as the introduction of a novel "product safety substantiation order" power. The conclusions and analysis should be helpful for other jurisdictions considering product safety law reforms in an increasingly globalized and digital economy, and draw already on comparisons with regulatory regimes and issues particularly in the Asia-Pacific region. [ABSTRACT FROM AUTHOR]

The central hypothesis of the paper is that bit by bit and largely unnoticed Australian corporate law has undergone a profound change. Australian corporate law, and particularly the Corporations Act 2001 (Cth), has moved from an essentially private law, substantive rights model, to one that seeks to regulate the company and those involved in its affairs through the prescription of processes and procedures by which corporate decisions may be made and by which the procedural correctness of those decisions is assured. The paper will also seek to demonstrate, by an analysis of the changes in the patterns of corporate case law, that this proceduralising trend has effected a fundamental change in the nature of corporate law and the role of the courts and may now claim to be a, if not, the principal characteristic of Australian corporate law. The paper concludes by highlighting some of the wider implications of this trend and the risk it poses to the intellectual heart of corporate law. [ABSTRACT FROM AUTHOR]

Though the overall numbers of women judges remain small, higher proportions of women have been appointed to many lower courts in common law, and particularly in civil law, countries. This paper investigates whether the experiences of judging and judicial work differ among women and men magistrates in Australia’s lower courts. The particular focus is satisfaction with their work as judges. In so doing, it helps build up a picture of the extent of the gendered nature of the judiciary as an occupation. Measures of overall job satisfaction identify few gender differences; more refined measures highlight areas of divergence between men and women magistrates, suggesting gendered experiences of judicial work which result from particular characteristics of the occupation, as presently constituted, rather than the nature of judging itself. [ABSTRACT FROM AUTHOR]

Following the decision of the House of Lords in While v White [2001] 1 AC 596, the Court of Appeal in England looked to the Australian case law on special contributions to develop principles for assessing the respective contributions of the parties in 'big money' cases. At much the same time, the Chief Justice of the Family Court of Australia invoked the reasoning in White v White as a justification for suggesting that the doctrine of special contributions should be reconsidered. To evaluate these developments, it is necessary to understand the similarities and differences between English and Australian law on property division, and the history of assessing contributions in Australia. The paper concludes by evaluating the arguments for and against the notion of special contributions. [ABSTRACT FROM AUTHOR]

This contribution examines the evolution of the doctrine of special contribution from the legislative provisions of the Family Law Act 1975 and the High Court's imposition of a duty on trial judges to evaluate contributions rather than to rely on presumptions or guidelines of equal sharing. It is argued that reports of the demise of the doctrine of special contribution may be exaggerated, and that the recent pronouncements in the English and Australian courts have not been sufficient to abolish the operation of the doctrine. The paper concludes that the doctrine of special contribution is, and should be, an orthodox and enduring feature of matrimonial property law in the Australian and English jurisdictions, which can only be removed by amendment to the relevant legislation. [ABSTRACT FROM AUTHOR]

Debate over statutorily limiting auditor civil liability has implicitly assumed auditors are homogeneous in their preferences for capping liability. This study examines the preferences of auditors for limiting auditor liability and investigates reasons for the preferences. The study uses an Australian setting in which there has been a persistent debate for a decade or more over regulatory intervention in this area. The study provides a background to the debate over this issue and addresses the effects of two factors suggested by the extant literature, namely auditor size and the business risk of an auditor's client portfolio. These factors are argued to affect the expected costs of litigation facing auditors and therefore their preferences on capping liability. Using the submissions by audit firms on an Australian Companies and Securities Law Review Committee Discussion Paper on limiting auditor liability, the study finds larger audit firms that have greater capacities to lobby and greater expected costs of litigation from unlimited liability than smaller firms, dominate the respondents on the Paper and tend to be more supportive of liability limitation than smaller audit firms. Within the array of possible methods of capping liability canvassed by the Discussion Paper, the study documents evidence of diversity in preferences among audit firms. Larger audit firm size is associated with a preference for a group of methods that provides such firms with opportunities to benefit from the capping at the expense of the smaller audit firms. The method most preferred by the larger audit firms is the multiple of fee with a prescribed minimum. Perhaps not surprisingly, this is also the preferred method of the professional accounting bodies in Australia. As to the effect of the riskiness of the client portfolio on preferences for methods of limiting liability, the study finds that higher business risk in an auditor's portfolio is associated with a preference for methods that give greater control over their liability exposure. The study has implications for the impact of regulation of capping liability on competition in the audit services market. [ABSTRACT FROM AUTHOR]

The coupling of justice, efficiency and cost in case management suggests a clear assumption: justice, economy and the smooth running of a process are all elements of the same program within a legal system. The suggestion, expressed in Aon Risk Services Australia Ltd v Australian National University (2009), is typically oriented towards assumptions of systemic behaviour in the name of efficiency. This paper argues that Australian law has moved towards a distinct neoliberal model, reflected by a chronic suspicion of lengthier proceedings. This, it argues, misunderstands the basis of just resolution of proceedings, and neglects the sensible rationale provided in State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146. Justice delayed is not always justice denied. [ABSTRACT FROM AUTHOR]

The article discusses the need of codification of the Australian contract law. Topics discussed include compensation of deconstructivist approach to codification, interpretation of codification in context of Hayekian approach in to legal system and codification of private law in European legal system.

For the past decade, reconciliation has been an issue for contemporary debate in Australia. A discursive approach (Potter & Wetherell, 1987) was employed in this study to examine the operation of whiteness as a normative framework for Indigenous and non-indigenous relations and reconciliation in Australia. Semi-structured interviews were conducted with young Indigenous and non-indigenous Australians concerning their understanding and experience of reconciliation. The analysis identified that reconciliation in Australia was located within a context in which race and racism were important considerations and the first part of this paper examines how participants managed the issue of race in Australian society. It was demonstrated that race marked the lives of Indigenous people while "whiteness" as race remained uninterrogated. Talk around race drew on discursive resources that denied the impact of racism and deracialised difference. In particular, reconciliation was framed in a discursive repertoire of "common humanity" rather than difference. The implications of this position were discussed in relation to participants' construction of reconciliation and their understandings of their role in the reconciliation process. [ABSTRACT FROM AUTHOR]

Questioning of Catholic Church leaders in the Australian Royal Commission into Institutional Responses to Child Sexual Abuse has revealed a distinct sense of immunity and lack of responsibility for the crimes of church personnel, which has resulted in stymied justice for complainants in sexual abuse lawsuits. In this article, I explore this immunity by examining it in the context of treatments of sexual harms in other areas of private law, particularly religious exceptions to discrimination law, by which religious organizations are granted immunity from the modern rationale of the harms of discrimination on the grounds of sex and sexual orientation. In situating child sexual abuse claims in the broader sphere of private law, I aim to reveal law’s incoherent logic of sexual harms, and its implications for justice. The example of religious exceptions illustrates an incoherent problematization of sexual harm and responsibility in contemporary legal and political systems that aim to uphold modern values of equality and dignity while sustaining incompatible doctrines of religious autonomy. [ABSTRACT FROM AUTHOR]

In family law disputes over parenting in Australia, an independent lawyer may be appointed to represent the interests of the child or children. Based on interviews with lawyers working in this capacity, this article examines their concerns about meeting with children and the barriers preventing children's empowerment in such proceedings. It finds that particular conceptions of children and childhood influence not only lawyers' views about appropriate participation, but how children's views are interpreted by lawyers. Nevertheless, the empowerment project is a complex one, and there are very real hurdles for lawyers seeking to empower the children whose interests they represent. [ABSTRACT FROM AUTHOR]

This article explores the dichotomy between ‘bottom-up’ and ‘top-down’ legal reasoning in the private law context. It considers the High Court of Australia’s recent allegations that: first, ‘top-down’ legal reasoning is illegitimate in private law judicial decision-making; secondly, any arguments adopting this reasoning structure are unacceptable, such as those deriving from the Birksian model of unjust enrichment; and, thirdly, as a result unjust enrichment methodology exhibits dangerous features and leads to adverse consequences. This article contests those allegations. It argues that the meaning of ‘top-down’ legal reasoning is unclear. The concept may involve reasoning that is legislative, theoretical or prescriptive in nature. If the phrase means legislative or prescriptive reasoning, its judicial use is indeed illegitimate, but the Birksian unjust enrichment methodology does not adopt it. Conversely, if the phrase means theoretical reasoning, then the Birksian school of thought indeed adopts this method, but legitimately so. The article next contends that the Court’s allegations of danger and adverse consequences do not support its claims of illegitimacy. The unjust enrichment approach ‘fits’ well with history, seeks to avoid fictions, and creates logical unity and coherence. The article concludes that Birksian unjust enrichment reasoning merely applies orthodox judicial techniques. [ABSTRACT FROM PUBLISHER]

The article presents information on the complementary protection in the domestic law of Australia which focuses on the international human rights law protection against refoulement. It then discusses the need of legislative amendments for aligning domestic law with international obligations. It further states that this legislation makes complementary protection more complicated. It also discusses the role of Committee against Torture (CAT), exceptions and exclusions for complementary protection.

The article discusses the way in which tortfeasors with reduced mental capacity are handled under the common law of negligence in Australia. It is stated that adequate explanation for this discrepancy is not provided by academic analyses and courts' reasons. Several proposals for resolving this dissonance are also provided in the article.

The article focuses on the civil jurisdictional limitations on judgments in the single economic market of the Trans-Tasman region, comprised of Australia and New Zealand. Topics include the interstate enforcement of civil judgments, the Trans-Tasman Single Economic Market, and the Trans-Tasman Proceedings Act 2010.

This article explores the private law and employment status of faith workers. Although faith workers generally lack statutory employment rights enjoyed by the majority of Australian workers, judicial and bureaucratic responses to this lacuna leave much to be desired. The article sets out a theoretical framework for understanding the character and historical dimensions of faith workers ' employment situation. Drawing on the work of Philip Selznick, it calls for a 'responsive law' approach to remedy the problem. It also surveys recent developments in the United Kingdom which could provide guidance for Australian policy and legal initiatives [ABSTRACT FROM AUTHOR]

The ancient charge of 'scandalising the court' (publications aiming at lowering the authority of the court) has had a resurgence in Australia over the past decade, at the very time judges and magistrates have developed an inclination to sue for defamation. The combined effect is to send a warning to media organisations to take care when criticising judicial officers or the judicial process, particularly if that involves implying some improper motive on the part of a judge or magistrate. In New Zealand there have been some isolated but significant threats and cases, particularly in the volatile area of family law. This article reviews some recent Australian and New Zealand cases where a charge of scandalising the court has been either threatened or enforced and considers the implications for freedom of media expression in a new era of anti-terrorism when important questions are being asked about the fairness of justice processes. [ABSTRACT FROM AUTHOR]

In this article, the author examines the role of policy in admiralty law in Australia. The author pays attention to the arrest of property pursuant to the action in rem. She argues that a failure to appreciate the true nature of the action in rem may result in the unwitting deprivation of private law rights and interests in the context of an adjudication which involves, fundamentally, issues of public law. She also examines the role of balancing such competing private and public law interests, which has been removed from the courts of admiralty.

This contribution considers the development of the 'partnership' theme in cases decided by the Full Court of the Family Court of Australia and the desirability of this theme as a guide for dividing matrimonial property. The central argument is that a partnership model is the preferable model for informing the approach taken to dividing matrimonial property, but that the theme as currently articulated does not provide a very helpful guide for dividing property. Drawing on overseas developments and social sciences research, it is concluded that a 'needs first' approach has merit, but that the introduction of a starting point of equal sharing of assets acquired during the marriage is probably a more realistic goal for Australian legislative reform. [ABSTRACT FROM AUTHOR]

First, it should be noted that various services for immigrants, such as English language training, citizenship programs, welfare agencies, and the like, were available for newcomers to the U.S.. But, granted that the lot of the new immigrant to the U.S. in earlier periods was harsher than that of contemporary migrants to Australia, the point remains that the immigrants are subject to a constant set of conditions, i.e., Australia and the services it provides. If northwestern Europeans did possess a greater propensity to as similar and adopt than other European immigrants, then the superior social facilities. Australia should in no way prevent them from showing more favorable rates relative to south eastern European immigrants. One critical issue raised is that immigration was rigidly controlled by the Australian government. Ignoring the fact that all sorts of undesirable Europeans were excluded by the U S. beginning with the immigration law of 1882, the marital status, dependent status, employability, and security and health conditions of immigrants to Australia were rigorously specified.