Australian Law Research Articles

Policy Forum: Rethinking GAAR—Back to Basics

Recent changes to Canada's general anti-avoidance rule (GAAR) on their face broaden the scope of GAAR, making it applicable to more tax-minimization schemes. However, developments in Australia, home of the modern GAAR, and case law in Canada suggest that the impact of the changes may be limited. In particular, the extension of GAAR to arrangements where tax minimization is not necessarily the primary objective of the transaction but merely one of the main purposes may prove to be unworkable. The purpose of a transaction is ultimately a subjective factor, whatever objective indicators are considered, and the only person able to assert the true purpose of an arrangement is the taxpayer. Equally obvious is the reality that tax minimization is the goal of only some steps in a commercial arrangement, and if the taxpayer can replace the investigation of the impugned transactions with the broader commercial arrangement—sell an asset, borrow money, and so forth—the main purpose will almost always be a legitimate commercial goal. More significantly, an examination of Australian and Canadian case law reveals that the courts consistently make a distinction between arrangements that are implicitly endorsed by the legislature and those that clearly fall outside possibilities contemplated by Parliament, allowing GAAR to apply only in the latter cases. For example, if the legislature and tax authorities allow taxpayers to treat finance leases as operating leases, the courts will not permit tax authorities to use GAAR to stop an egregious exploitation of the legal myth. If the legislature provides imputation credits for dividends and taxpayers structure financing to enjoy the benefit, the courts will not step in to restrict access where the legislature has not imposed statutory limits. Conversely, if the legislature has set out clear and unambiguous rules on when losses can be transferred, courts will allow tax authorities to use GAAR to strike down arrangements seeking to bypass those rules. Experience shows the courts are quite willing to allow the use of GAAR as a shield where taxpayers devise schemes that abuse concessions in the law through contrived arrangements that seek to extend the concessions to arrangements far from those for which the concessions were intended. The courts will not, however, allow the government to use GAAR as a sword to extend tax liability to arrangements that are clearly excluded through gaps or errors in the law. The message from the courts is unambiguous: if a mistake was made in the law or a treaty, it should be fixed by way of amendment, not GAAR. In short, the apparent overhaul of the Canadian GAAR may prove to be little more than a tempest in a teacup with little and perhaps no impact on dispute outcomes.

Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas

The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.

Reorganising the law to understand and protect all forms of cultural heritage

ABSTRACT Professor Irene Watson explains that decolonisation requires us to dissolve and think beyond the white colonial ‘right way of knowing’ intrinsic in Western law, and its methodologies and philosophies (1998, 28, 30). This ‘right way’ operates within a hierarchy of being that divides body from mind and spirit, and divides humans from non-human beings and from the physical and spiritual environment (Graham, 1999, 113–115). This ethos of separation is infused in Australian law and common law thinking, including those laws directed to the protection of cultural heritage. Using the cultural heritage protections laws as a prism, this paper interrogates the contemporary injustices caused by law. Contrasting the quality of protections afforded to Aboriginal cultural heritage to that afforded to ‘white’ forms of cultural heritage, we argue that cultural heritage laws operate as a racialised system of violence that is causing irreparable harm to the lands and waterways. It is urgent that we reorganise laws’ relationship to land by reinstating Indigenous sovereignty and holistic and relational management of country, the waterways, non-human beings and other entities.

Developments in Advance Care Planning in Australia: Potential Opportunities and Roadblocks for an Increasingly Digital World.

Australia is committed to looking at ways to modernize its healthcare delivery further by integrating digital health. Advance Care Planning (ACP) is an area of healthcare that would likely benefit from further digitalization. However, while greater integration of technology in the delivery of ACP could help improve practices and lead to increased uptake, the extent to which this is achievable will be influenced, in part, by current approaches to ACP regulation. This article canvasses recent developments and trends in Australian law relevant to ACP and reflects on how these developments may impact the further digitalization of ACP.

Hell yes? Enthusiastic consent as a legal standard for sexual consent

Australian laws around sexual consent have recently begun to shift towards ‘yes mean yes’ standards of affirmative consent. This article examines whether Australian laws should go further and adopt ‘enthusiastic yes’ standards of enthusiastic consent. This article begins by explaining enthusiastic consent and highlighting its strengths as a model of consent, before outlining both the practical and conceptual objections to its use within law. Ultimately, this article finds that whilst enthusiastic consent should not be used as a legal standard for sexual consent in Australia, it nonetheless remains a valuable tool for thinking about sexual consent in non-legal areas such as ethics and education.

Sims v Commonwealth: The Ultimate Foundation of Australian Law and the Recovery of Ultra Vires Payments by the Commonwealth Executive

The application of a statutory limitation period to the recovery of mistaken payments by the Commonwealth to a former naval serviceman is not a place one would expect to locate the practical influence of jurisprudence. Yet it emerges in Sims v Commonwealth. The issue concerns the accurate identification of the ultimate foundation of Australian law. It is contended that the foundation is materialised by the interaction between the Australian Constitution and the common law: the Constitution is incomplete without common law doctrines. Therefore, there must be limits to the extent to which legislatures can abolish or amend the operation of common law rules in order to safeguard the constitutional allocation of powers. This necessarily includes limitation of action provisions. The contention is derived from recent High Court authority which was apparently not cited on appeal in Sims. A limitation period must be sourced elsewhere in the interaction between the Constitution and the unified common law of Australia.

The repeal of Australia’s problematic family law presumption (and other amendments): cautiously welcomed – but what has been lost?

ABSTRACT Felicity Kaganas was intrigued by the legal concept of presumptions. She explored the presumption in the family law of England and Wales before and after its introduction in 2014. The presumption which began operating in the Australian Family Law Act 1975 (FLA) in 2006 stated that ‘equal shared parental responsibility’ (‘joint legal custody’ or guardianship) is in the best interests of children and created a legislative link between the making of such an order to shared parenting time orders. Many subsequent reviews of the FLA recommended amending the presumption, if not repealing it, but no changes were made. Meantime in England and Wales a less intrusive presumption was introduced, together with a Practice Direction intended to limit its over-use. Then in 2023 major changes to the FLA in Australia were introduced, including repealing the presumption. They became operative in May 2024. This article explores their potential to better protect parents and children who have experienced family violence. It also examines the potential consequences of the repeal of sections that provided guideposts when making shared care orders and others that rendered the past caring for children relevant. These losses could be detrimental to mothers and children who have lived with domestic and family violence or abuse.

Adolescent autonomy to make a ‘catastrophically bad’ decision informed by religious beliefs: To respect or protect?

This article examines the Australian case law in which medical treatment has been authorised against the wishes of a Gillick competent adolescent, in circumstances where the adolescent’s decision to refuse treatment has been informed by their religious beliefs. We analyse three factors that have shaped the Australian jurisprudence – medical evidence regarding the adolescent’s prognosis and risk of death; the role of religion in adolescents’ medical treatment decision-making; and the adolescent’s own views and wishes – to expose arguably uncomfortable, value-laden judicial attempts to achieve a ‘nice balance’ between the sanctity of human life and individual autonomy. We argue for greater judicial transparency about when, if ever, an adolescent’s Gillick competence will be respected in refusal of medical treatment cases shaped by the adolescent’s faith.

Remission of Debts to the State: A Comparative Study of Australian and Bulgarian Law

Remission of Debts to the State: A Comparative Study of Australian and Bulgarian Law

Why Law? Examining the Factors that Influence the Decision to Undertake a Law Degree

Existing research is largely silent on determining what factors influence individuals to undertake a law degree. Are they deeply intrinsic drivers like ‘self-efficacy’ or ‘self-confidence’, and how might extrinsic influences, such as family, teachers, or friends’ impact on those drivers? To address these questions, data were attained from 378 commencing students enrolled across three Australian law schools. Results indicate students with higher levels of self-efficacy and self-confidence are more likely to be satisfied with their decision to study law and pursue a law career. The influence of ‘teachers’ on a student’s ‘satisfaction with their choice’ was only significant for students who were also influenced by their ‘family’ – the more support from teachers and family members increased a student’s level of satisfaction. Friends only influenced a students’ intention to pursue a career in law, but not their satisfaction with their choice to pursue a law degree. This is the first study to determine the intrinsic motivations that impact a student’s choice to undertake a law degree and what extrinsic factors influence that choice.

Generative artificial intelligence vs. law students: an empirical study on criminal law exam performance

ABSTRACT Claims that GPT-4 can outperform more than 90% of human test-takers in the US Uniform Bar Examination have sparked heated debates about the impact of Generative AI (GenAI) on legal education, academic integrity, and the future of legal practice. Yet GenAI’s capabilities in broader legal examination contexts – including in jurisdictions outside the US – are unclear. This study addresses this gap by evaluating GenAI’s performance against students who took the ‘Criminal Law’ final exam at an Australian law school in Spring 2023. Various AI models and prompt engineering techniques were used to generate 10 distinct answers to the exam question. Five criminal law tutors, unaware of AI involvement, graded a mix of AI-generated and student responses. Then, the tutors were briefed on the AI-generated papers they marked and engaged in reflective semi-structured interviews. The study found that GenAI performed below the student average in questions that required detailed legal and critical analysis. However, all GenAI papers performed better than students in open-ended questions and essay writing tasks. These results provide a benchmark for the capabilities and limitations of GenAI in higher education and provide insights into the potential implications of its application to legal assessments and education, curriculum development, and the future workforce.

Pregnancy in women with mitochondrial disease-A literature review and suggested guidance for preconception and pregnancy care.

Mitochondrial donation to reduce the risk of primary mitochondrial disease transmission from mother to child is now permitted under Australian law as part of a clinical trial. The energy demands of pregnancy have the potential to worsen mitochondrial disease symptoms and severity in affected women. We conducted a systematic literature review on mitochondrial disease in pregnancy; five cohort studies and 19 case reports were included. For many women with mitochondrial disease, pregnancy does not have a negative effect on health status. However, serious adverse outcomes may occur. We provide suggested guidelines for preconception counselling and antenatal care.

The Semiotics of Indigenous Australian Law

The Semiotics of Indigenous Australian Law

Filling the Accountability Gap: Misleading Conduct Law in Business and Human Rights

Abstract This article examines the use of misleading conduct law to challenge false or deceptive business claims about their human rights practices and impacts. It does so in the context of recent developments in the field of business and human rights including the introduction of non-financial reporting, disclosure and human rights due diligence that have seen an increase in business communications about their human rights impacts. The article uses the Protect, Respect and Remedy framework of the United Nations Guiding Principles on Business and Human Rights to analyse the EU Directive on Unfair Commercial Practices (2005/29) and the Australian Consumer Law. Each prohibit misleading conduct by business. The article argues that, to differing extents, these legislations partially address the accountability gap that has emerged in the context of corporate human rights claims and practices.

It’s all relative: A multi-generational study using ForenSeq™ Kintelligence

The successful application of Forensic Investigative Genetic Genealogy (FIGG) to the identification of unidentified human remains and perpetrators of serious crime has led to a growing interest in its use internationally, including Australia. Routinely, FIGG has relied on the generation of high-density single nucleotide polymorphism (SNP) profiles from forensic samples using whole genome array (WGA) (∼650,000 or more SNPs) or whole genome sequencing (WGS) (millions of SNPs) for DNA segment-based comparisons in commercially available genealogy databases. To date, this approach has required DNA of a quality and quantity that is often not compatible with forensic samples. Furthermore, it requires the management of large data sets that include SNPs of medical relevance. The ForenSeq™ Kintelligence kit, comprising of 10,230 SNPs including 9867 for kinship association, was designed to overcome these challenges using a targeted amplicon sequencing-based method developed for low DNA inputs, inhibited and/or degraded forensic samples. To assess the ability of the ForenSeq™ Kintelligence workflow to correctly predict biological relationships, a comparative study comprising of 12 individuals from a family (with varying degrees of relatedness from 1st to 6th degree relatives) was undertaken using ForenSeq™ Kintelligence and a WGA approach using the Illumina Global Screening Array-24 version 3.0 Beadchip. All expected 1st, 2nd, 3rd, 4th and 5th degree relationships were correctly predicted using ForenSeq™ Kintelligence, while the expected 6th degree relationships were not detected. Given the (often) limited availability of forensic samples, findings from this study will assist Australian Law enforcement and other agencies considering the use of FIGG, to determine if the ForenSeq™ Kintelligence is suitable for existing workflows and casework sample types considered for FIGG.

The Development of Normative Fitness Data and Analyzing the Relationships Between 20MSFT and 2.4-km Run Performance in Australian Police Recruits.

Campbell, P, Maupin, D, Lockie, RG, Dawes, JJ, Simas, V, Canetti, E, Schram, B, and Orr, R. The development of normative fitness data and analyzing the relationships between 20MSFT and 2.4-km run performance in Australian police recruits. J Strength Cond Res XX(X): 000-000, 2024-Aerobic fitness testing plays a significant role in the academy training of law enforcement recruits. There is a lack of normative data for law enforcement recruits and substantial interchangeability for choice of field-based aerobic tests. Therefore, this study aimed to develop normative percentile rankings for the 20-m multistage fitness tests (20MSFT) and 2.4-km run specific to law enforcement recruits; and to analyze the relationship between the 2 tests by linear regression. Data from 5 cohorts of law enforcement recruits completing 20MSFT (n = 1,536) and 2.4-km run (n = 1,499) testing during basic training at an Australian Police Academy were retrospectively analyzed. Percentile ranks were calculated (20th, 40th, 50th, 60th, 80th, and 99th) based on the number of shuttles completed and time (seconds) to complete the 2.4-km run. Results were split by sex and age (i.e., <20 years, 20-29 years, 30-39 years, and 40-49 years). Linear regression analyzed the relationship between the 20MSFT to the 2.4-km run (using both seconds and km·h-1), producing predictive equations to translate scores between the 2 assessments. These data presented the first detailed normative values by age and sex for Australian law enforcement recruits. Furthermore, the results demonstrated regression models could explain 65-74% of the variance observed (r2 = 0.649-0.741) between 20MSFT performance and 2.4-km run performance. This study's findings allow for normative performance for the purpose of benchmarking fitness, setting performance goal, and rehabilitation from injury. In addition, a valid conversion through a linear regression affords cross-agency comparisons and temporal changes in test selection/recruit cohorts.

Assessing law students in a GenAI world to create knowledgeable future lawyers

ABSTRACT Assessing law students has always been a challenging task, but the introduction of Generative Artificial Intelligence (GenAI), such as ChatGPT, compounds the problems already caused by increased student numbers, contract cheating and budget cuts in universities. As GenAI rapidly develops, legal educators must find ways to accommodate, and even incorporate, GenAI into their curricula and assessments so that law graduates can understand its capabilities and limitations within legal practice. Simultaneously, many jurisdictions, including Australia, have legislative obligations to deliver law graduates who satisfy legal knowledge-based “eligibility” requirements for admission into practice. This article introduces a knowledge framework for managing GenAI in legal education consisting of three pillars: Substantive Legal Knowledge, GenAI Ethics Knowledge, and GenAI System Knowledge. The authors argue this framework can assist legal educators in designing optimal assessments in an AI-disrupted world. The article employs the knowledge framework to examine the experiences and views of Australian law students’ engagement with GenAI outputs in completing a compulsory legal ethics assessment in 2023. This empirical case study demonstrates that effective assessment design incorporating GenAI can enhance law student and graduate outcomes despite the ongoing challenges for legal educators and the profession associated with GenAI.

Robodebt and Novel Data Technologies in the Public Sector

The recent Royal Commission into Robodebt drew Australians’ attention to the risks of data technologies in the public sector. Novel data technologies, including artificial intelligence, offer potential public benefits but create risks to individuals and society. I argue that existing Australian data protection laws offer inadequate protection against the dangers posed by the use of such technologies in the public sector. Pending more tailored legislative change, I consider the extent to which specific human rights laws such as those in Queensland, Victoria and the Australian Capital Territory, together with effective application of risk assessment methodologies within a human rights culture, could be layered over data protection laws to provide ongoing technologically-neutral protection against such harms.

Psychological Distress at a Regional Australian Law School: Reporting on Law Students’ Experiences of Depression, Anxiety, and Stress

Legal education in Australia is constantly evolving to meet the needs of law students and to prepare many of them for roles in the legal profession. Examples include changes to law degree structures, optional elective units, and subjects aimed at preparing law students to be ‘workplace ready’. Law students face challenging academic requirements and law school culture that can result in greater levels of psychological distress compared to the general population. Promoting law student wellbeing and responding to high student levels of psychological distress is a key area of focus for Australian Law Schools. This article explores existing law student wellbeing studies in Australia and reports findings from an empirical exploratory study investigating the levels of depression, anxiety, and stress (DASS) using the DASS21 survey instrument in law students at a regional Australian university, James Cook University. The results from this study support earlier studies at Australian universities that show law students experience higher levels of psychological distress symptoms compared to the general population, and it is an area of concern that requires ongoing attention. Results include an exploration of the impact of factors including type of degree being studied, campus location, year of study, gender, and time spent at law school.

Chaplains in Australian public schools? A matter of philanthropy

ABSTRACT This paper uses the case of chaplains in Australian public schools to construct a Foucauldian dispositif. In examining the interplay between discourse and material structures, we argue that the embedding of chaplaincy in public schooling is driven by economic rather than purely ideological discourse. We highlight the evolving social and political dynamics and the construction and regulation of knowledge and practices, demonstrating that philanthropy is central to student welfare provision in Australian public schools. Using excerpts from parliamentary debates in the Australian Federal Hansard, policy documents, case law, and Australian tax regulations, we identify significant political moments that position chaplains as critical welfare workers in public schools. This analysis underscores the subtle, often invisible power of philanthropy in sustaining and deeply embedding chaplaincy within public schools.