Commonwealth Authorities Research Articles

To Barbados or Bofin: the fate of Irish Catholic priests imprisoned in the aftermath of the Cromwellian conquest, 1653 to 1662

The position of Catholic priests in Ireland changed dramatically in the aftermath of the Cromwellian conquest of the country, which was completed in 1653. From a situation where de facto tolerance of the faith was widespread, laws against Roman clergy were now implemented with rigour. Many priests were arrested and executed while many more escaped to the sanctuary of the Catholic countries of continental Europe. As they sought to rid the country of any remnant of a Catholic clerical presence, the Commonwealth authorities undertook a number of schemes that were designed to ensure that the small number of priests who remained in captivity in Ireland would be unable to play any further role in the pastoral care of the Catholic population.

To Barbados or Bofin: The fate of Irish Catholic priests imprisoned in the aftermath of the Cromwellian conquest, 1653 to 1662

Abstract: The position of Catholic priests in Ireland changed dramatically in the aftermath of the Cromwellian conquest of the country, which was completed in 1653. From a situation where de facto tolerance of the faith was widespread, laws against Roman clergy were now implemented with rigour. Many priests were arrested and executed while many more escaped to the sanctuary of the Catholic countries of continental Europe. As they sought to rid the country of any remnant of a Catholic clerical presence, the Commonwealth authorities undertook a number of schemes that were designed to ensure that the small number of priests who remained in captivity in Ireland would be unable to play any further role in the pastoral care of the Catholic population.

Urquhart’s Pantochronochanon: What’s in the Name

Sir Thomas Urquhart of Cromarty’s Pantochronochanon (1652) traces the descent of the Urquharts from Adam through Old Testament worthies, princes of Achaia and Scots of pedigree down to the present laird, Sir Thomas himself. It is part of the extraordinary literary production of his time in prison after his capture at the Battle of Worcester (1651). He wrote to enlarge himself through words either by impressing the Commonwealth authorities enough to free so remarkable an author or simply by pantagruelizing the reality that confined him. ‘Pantochronochanon’ is one of the various Greek titles he gave his books. Greek was the language with humanist cachet, and while it wasn’t uncommon at the time to give books Greek names, it was part of Sir Thomas’s display of fantastic erudition that he should come out with the most outlandish ones.1 Pantochronochanon does cover all time, at least from the sixth day...

The duties of a resulting trustee

Abstract The precise duties surrounding express trusts have caused issues enough (as we explore in this journal)—but what of the duties of resulting trustees? They have been considered in the authorities, and have been the subject of academic commentary, but have nevertheless remained somewhat opaque. A recent judgment in the Court of Appeal in Singapore (its highest court) has thoroughly traversed the principal English and Commonwealth authorities and collated the academic articles. It provides a comprehensive and valuable insight into the duties of resulting trustees.

Emirates Trading, good faith, and pre-arbitral ADR clauses: a jurisdictional precondition?

The 2014 High Court decision in Emirates Trading v Prime Mineral Exports is an interesting example (and possibly the first), of an English Court affirming that non-compliance with pre-arbitral dispute resolution procedures could remove the tribunal's jurisdiction entirely. It is also probably the first case to import into an ADR clause a binding obligation to conduct pre-arbitral settlement negotiations ‘in good faith'. The decision has worrying implications for arbitrators and arbitration generally, if followed. While professing to be based on emerging jurisprudence abroad (principally Australia and Singapore), and on one investment treaty decision (Tulip Real Estate v Amsterdam) the rationale (and the conclusion) on such an important issue is worryingly unsound, based as it is on questionable dicta on the role of good faith generally. The authors examine in considerable depth the English and Commonwealth authorities in relation to agreements to agree (stretching back over almost a century), the enforceability of agreements to negotiate and the implied term of good faith in commercial contracts, concluding that the correct approach to non-compliance with pre-arbitral dispute resolution procedures is one that is either procedural or substantive, but should not (in the absence of clear words expressing such an intention) deprive the tribunal of jurisdiction.

A contextual defense of "comparative constitutional common law"

The relevance of comparative constitutional law, especially in the judicial forum, has been a longstanding source of debate. Even between jurisdictions sharing the same legal tradition, the judicial use of comparative law has been repeatedly criticized on grounds related to the widely differing characteristics of the jurisdictions being compared. This article seeks to challenge these objections when the comparison concerns the constitutional law of Commonwealth countries, with a legal system based on the common law tradition. More specifically, in these common-law-based systems, the use of such a comparative analysis is rooted in a shared legal history and tradition and can be coherently explained by the nature of common law. Historically, the beginnings of modern “comparative common law” can be traced back to the British colonization and the reception of English law in the new British territories. Over time, the practice in the colonies of referring to English and other Commonwealth authorities had become well established to such an extent that it continued even after the political and legal ties between the former colonies and the UK had been severed. One major reason for this ongoing practice is the fact that the independence of almost all of the former colonies had been formalized through the adoption of a constitution on the “Westminster model,” and was thus founded on the general principles of English constitutional law. Altogether, these channels of reception of the common law tradition, and of many of its fundamental rules and principles, have contributed to creating a unique legal context allowing for the development of comparative constitutional common law.

Regulating Executive Power Under the Australian Commonwealth Framework

This book goes beyond the traditional fare of administrative law (such as merits review, freedom of information, privacy, ombudsman, human rights, crime prevention, discrimination, and so on) and the new frontier of the evolving integrity arrangements (such as crime and misconduct commissions, whistleblower protections, aspects of the ombudsman’s work, and so on) and addresses the ‘other administrative law’. These are the means of accountability, responsibility and transparency centered on the Parliament and the political process worked out through the Parliament. In particular this covers the Budget, and the financial and employment frameworks adopted through the recent public administration reforms under the Financial Management and Accountability Act 1997 (Cth), the Commonwealth Authorities and Companies Act 1997 (Cth), the Auditor-General Act 1997 (Cth), the Charter of Budget Honesty Act 1998 (Cth), and the Public Service Act 1999 (Cth). This ‘other administrative law’ has now evolved considerably into a sophisticated framework of principles and procedures. The book addresses this sophisticated framework and the interaction between its various parts founded on the authority of the Constitution.

Fulham Football Club (1987) Ltd v Richards [2010] EWHC 3111 (Ch)

This case note examines the UK and Commonwealth authorities which govern whether it is possible to contractually exclude or diminish the operation of the Companies Act 2006, s.994 by the use of an arbitration clause.

Royalism, Print and Censorship in Revolutionary England

Jason McElligott's study is centred on the royalist newsbooks published between September 1647, when Mercurius Melancholicus and Mercurius Pragmaticus first appeared, and June 1650, when the last survivor—The Man in the Moon—was suppressed by the Commonwealth authorities. During this period, more than 530 issues of 51 separate titles, some very short lived, were produced clandestinely in London. These ephemeral items of cheap print have largely been overlooked as a historical resource and it is claimed by McElligott that an analysis of their content, authorship, production, readership, and distribution obliges us to re-think both ‘the nature of political allegiance during the Civil Wars’ (p. 2) and ‘the currently accepted model for the relationship between government and the press in early-modern England’ (p. 210). The neglect of royalism as a subject for historical enquiry is rather overstated in a polemical introduction, which is particularly ill-judged in its dismissal of recent work on royalist print-culture as too narrowly confined to ‘canonical authors and poets with connections to the royal court’ (p. 4) and insufficiently aware of the contexts in which royalist material was ‘produced and circulated’ (p. 8). To take a single example, there is no acknowledgement of Lois Potter's discussion of Crouch and the underground press of 1647–50 in Secret Rites and Secret Writing: Royalist Literature 1641–1660 (1989; rev. ante, cviii [1993], 197)—wrongly cited as Secret Rites and Secret Writings—which foreshadows arguments in the present book about uncertain and composite authorship, secret networks of writers and printers, the distinction made between open and oblique opposition by the Interregnum licensing authority, and the role of the Stationers’ Company in searching out illegal printers and publishers.

Governance Issues for Public Sector Boards

The push to apply corporate governance arrangements from the private sector into the public sector is a manifestation of the ongoing search for ways to improve accountability and performance. This small interview study reports on the experience of senior Commonwealth public servants and board directors trying to work within the corporate governance frameworks set out in the Commonwealth Authorities and Companies Act (1997) and the Financial Management and Accountability Act (1997). It suggests that lines of accountability can be blurred, formal authority can be subverted, and safeguards to protect the public interest, against harms such as political patronage, may be weak or absent. Many agencies do not have appropriate procedures for assessing their own governance arrangements. There is considerable resistance to the notion that a central authority should be established with the dedicated purpose of overseeing governance arrangements and practices in the Commonwealth.

Company Taxation in Australia

N the years since World War II Australia has been faced with a chronic deficit in its balance-of-payments current account. This situation has come about as a result of Australia's dependence on wool and a few other exports as a source of overseas earnings coupled with substantial unsatisfied demand on the part of her people for goods produced overseas.' Downward fluctuations in wool prices have usually caused a loss of foreign exchange with a consequent decrease in national purchasing power and a contraction in the supply of money. Whenever the depletion of reserves has reached a danger point, the Commonwealth government has severely restricted imports. The restrictions are relaxed only on an improved showing in the proceeds from exports and a rise in the level of foreign exchange reserves. In recent years many leading Australian economists have become convinced that the deficit in the balance of payments on current account is a matter of indefinite duration since present prospects for substantially increasing exports are not good. Efforts being made by Commonwealth authorities to remedy the situation include the promotion of exports, endeavours to maintain currency stability, promotion of economic development, encouragement of efficient domestic production, maintenance of the climate for foreign investment, and quantitative restriction of imports as an interim measure to conserve foreign exchange for essential imports. Among officials of the Commonwealth government, the opinion is developing that it would be desirable to pursue a policy of more actively seeking prospective investors abroad and inducing them to invest in Australia. Such a policy has the following advantages: it would give much greater stability to the level of capital inflow, which is of key importance to the balance of payments; and it would enable investment to be channelled into areas where gaps in production now exist. Present economic circumstances favour such a policy but the Commonwealth government has been slow to implement it. None the less, investors from the United States and the British Commonwealth have shown ever increasing interest in Australia. Moreover, when once established in Australia overseas investors have received the enthusiastic support of both state and Commonwealth governments. Clearly, the future prospects for investment in Australia are good. Australian manufacturing enterprises enjoy the advantage of geographical proxim-