Search Results

Australian courts have repeatedly refused to accept that international law principles and norms, whether based on treaty or customary law, can be incorporated into the common law without the need for prior legislation. Despite some promising signs in the Mabo case that developments in international law can have an indirect influence on the development of the common law, Australian judges have consistently failed to take advantage of opportunities for analysing the relationship between international law and national law. Nor has the ability to use treaties as extrinsic evidence in the interpretation of ambiguous statutory language been enough to allow for a genuine analysis of the place of international law in Australian law. This has left jurisprudence uncertain, imposing a chilling effect on the pursuit of international legal rights through the Australian courts.

This chapter examines Australian competition law and policy with respect to foreign conduct and the state of international cooperation in Australia. Part One of the chapter outlines the circumstances in which Australia applies its substantive competition laws extraterritorially, as compared with the “effects” test applied in the United States. Part Two discusses Australia's approach to comity. Part Three considers the cooperative arrangements regarding competition policy in which Australia participates, explaining their role and content. It also discusses Australia's participation in international bodies and the important role played by government networks in achieving convergence, compliance, and cooperation between competition regimes.

This chapter recounts the debt to the judicial work of the House of Lords that Australian law owes to Lord Bingham and his distinguished colleagues and predecessors, and Lord Bingham's enormous contribution to the ongoing conversation that takes place, especially between the highest courts of countries in the commonwealth of Nations and specifically with the judicial members of the House of Lords.

This chapter discusses, in the context of institutional law reform and direct social justice advocacy, why law students should become involved in law reform, arguing that law schools should do more than equip their students to be good legal technicians. Law schools should also instil in their students an understanding of, as well as a commitment to, what the law should be in a just society. In particular, the chapter consider two law reform oriented projects that adopt elements of the clinical method to inculcate in law students a broader understanding of the role practicing lawyers can play to achieve systemic justice: the internship program at the Australian Law Reform Commission, and the Social Justice Advocacy Project housed within the University of New South Wales Law Faculty.

This chapter explores the continual adoption of the principles of Discovery into contemporary Australian law. It looks at the overturning of the terra nullius element in the Mabo case in 1992 but also looks at how the Doctrine of Discovery still leaves a legacy in Australian law whereby the rights of indigenous peoples remain unprotected.

This chapter offers an overview of government established and supported expert policy advisory bodies at the federal level in Australia from the 1970s to 2010. It considers firstly, why were these specialised bodies established outside the formal permanent bureaucracy? Secondly, what has given these bodies their ‘expertness’? Thirdly, what processes have they employed and how have these processes contributed both to perceptions of their expertness and their value in policy development? Fourthly, what has been their impact on policy; has it gone beyond the specific issues on which they have provided advice and affected the wider debate and agenda? Last, what do the operations and perceived success or failure of these bodies tell us about the nature of policy development in Australia and the role of expertise?

This chapter argues for the adoption of the possibility of suspending performance as a remedy for breach. Rather than forcing the injured party to choose between terminating the contract and keeping it alive, he should, in an appropriate case, be entitled to suspend his performance or to require an assurance that the other party will fulfil his obligation. The chapter analyses the various functions and advantages of suspension and discusses the pertaining legal rules in English and Australian law, which do not openly recognize suspension, as well as the provisions in the Convention on International Sale of Goods (the Vienna Convention) and the United States' Uniform Commercial Code and Restatement 2d Contracts.

Long before the Second World War ended, the Allies were planning to prosecute Axis war criminals, including both those in positions of leadership and the perpetrators of individual crimes. There was no standing war crimes court at the end of the Second World War, however, and the post-war trials were a watershed in international law. For the trials at Nuremberg and Tokyo, Allied planners drew on the development of international humanitarian law and international agreements signed by the combatants over the decades preceding the war. The vast majority of war criminals who were prosecuted did not face the court at Nuremberg or Tokyo: they appeared before national military tribunals which were conducted according to each prosecuting country’s war crimes law. The Australian War Crimes Act passed through the parliament in October 1945, shortly before trials began.

This chapter examines the laws and policies of Australia in relation to the death penalty in order to illustrate the potential role an abolitionist nation may play in stopping capital punishment in Asia. The discussions cover Australia's relationship with Asia; Australian internal laws and policies and its international stance on the death penalty; Australian formal laws and policies in relation to cooperation with Asian retentionist nations in criminal matters; and Australian-Asian agency to agency cooperation when the Asian agency is located in a state that maintains the death penalty.

This chapter discusses the definition, policy, and application of the doctrine of sham in Australia. It covers sham and principles of legal construction; sham in the context of legislative regimes; sham in tax law; and elements of sham in Australia; and the policy and law of sham.

This chapter examines the sham doctrine as it currently stands in Australia. It reflects on the decision of the High Court of Australia in Raftland Pty Ltd as Trustee of the Raftland Trust v Federal Commissioner of Taxation, drawing out the three main reasons for the reluctant embrace of sham by Australian courts. It discusses how the sham doctrine currently engages at least two legal questions that are of general significance. The first is the question of interpretation. The second question of general significance is that the contemporary debates about ‘sham’ occur in the context of a wider discourse about the law’s attitude to form and substance. The chapter then considers the Full Court of the South Australian Supreme Court’s decision in Pickersgill v Tsoukalas. The case illustrates the practical difficulties associated with analysing evidence said to support a finding of sham, and of the consequences that face parties who assert that a document is a sham.

This chapter focuses on Australian migration law, highlighting its role in colonial settlement, nation-building, and racist exclusion. The chapter examines particular adaptations to Australian labour law which seek to acknowledge and mitigate the vulnerability of migrant workers. Overall it identifies two contradictory trends: Australia is simultaneously institutionalizing greater employer control over the admission of temporary labour migrants, whilst enhancing regulatory controls to ensure the fair treatment of migrant workers. It notes the success of this strategy depends on the ability of Australian agencies to ensure the appropriate enforcement of migrant workers’ rights and to ensure that Australian workers’ terms and conditions are not undercut.

This chapter discusses the development of the law of intestate succession in Australia and New Zealand. The rules of intestate succession in Australia and New Zealand have their origins in English law as a result of colonization. These rules provide insight into the changed meaning of family over time and the assumed responsibilities of deceased persons. In Australia, the changes in life expectancy were the impetus to prefer the surviving spouse over descendants and ascendants. New Zealand has not moved as far in this regard. The differential treatment of husbands and wives and the preference for sons over daughters have been abandoned in favour of formal gender equality. Marriage is no longer the exclusive foundation of family relationships for purposes of succession law. Relationships outside of marriage, including same-sex relationships, are now legally recognized and accorded equivalent status to marriage.

New Zealand and Australia are named in that order in the title because New Zealand was the first to develop the discretionary family provision jurisdiction, in 1900, that now applies in New Zealand, Australia, and much of the common law world. This allows courts to make awards to family members from the estate of the deceased. Originally benefitting only the surviving spouse and children, family provision has extended the rules of eligibility in line with changes in the meaning of ‘family’. So as well as spouses, claims can also, in many of the Australasian jurisdictions, be made by civil partners, cohabitants, and same-sex partners. Most jurisdictions have also broadened the class of eligible children to include grandchildren and stepchildren who were being maintained by the deceased as well as children born of new reproductive techniques. Both New Zealand and Australia have significant indigenous populations and their eligibility to claim family provision is modified to accord with their customary law. Over time, the courts have adopted a much broader view of a deceased’s ‘moral duty’ to his or her family, particularly in regard to claims by adult children. The size of awards has increased correspondingly. The chapter discusses this development, as well as the increasing relevance of Indigenous customary law and how the courts deal with disentitling conduct. In view of the greatly expanded scope of family provision in New Zealand and Australia, testamentary freedom may be only an illusion in these jurisdictions.

This chapter examines the unfolding dispute between Philip Morris Asia Limited (PMA) and Australia over the country's Product Safety Regulations. The discussions cover treaty-based investor-state arbitration (ISA); the impact of the PMA claim on Australia's policy debate; and further practical implications and lessons from the PMA claim. It suggests that Australia's policy shift away from ISA, reinforced by the ongoing tobacco company claims, could precipitate the unraveling of a growing acceptance of the ISA system throughout the Asia-Pacific region. The Gillard government Trade Policy Statement may also rub up against an emerging tendency on the part of the EU, like the United States, to view investment chapters or treaties as stepping-stones toward comprehensive arrangements. At least at this stage, however, it seems unlikely that the Australian government will heed calls—prompted partly by the PMA claim—to terminate some of its existing treaties that have gone past their initial term.

The material contained herein is intended as a general guide only and is not intended to be a memorandum of law study, nor to provide legal advice, and should not be treated as a substitute for legal advice concerning particular situations. Legal advice should always be sought before taking any action based on the information provided. The publishers, editors, and author bear no responsibility for any errors or omissions contained therein.