Court Of Australia Research Articles

Claims against a university: the role of administrative review in Australia and the United Kingdom

The recent decision of the High Court of Australia in Griffith University v. Tang denied judicial review to a student aggrieved by the decision of a university to exclude her. This article analyses the role of judicial review of university decision-making in the United Kingdom and Australia, analysing the justification for administrative remedies in universities. It considers the legislative reform of administrative review in Australia, and the impact of that reform in some states. It places administrative review in the context of the visitorial jurisdiction, where that jurisdiction still exists. Finally, it addresses some of the policy aspects of denying judicial review in the case of the university.

The Use of Policy in Negligence Cases in the High Court of Australia

The theme of the conference at which the paper on which this chapter is based was originally presented was Principle and Policy in Private Law. It is not always easy to distinguish principle from policy, as Jane Stapleton has shown in her address to the High Court of Australia on the occasion of its centenary. Nevertheless, this chapter contends that the High Court must make use of policy, since principle alone will seldom be sufficient, to enable it to decide the cases that come before it. At the outset the chapter refers briefly to the controversy as to whether courts do or do not make law. In agreement with most judges and commentators today, it accepts that they do. It recognises, however, that there are differences between judicial and legislative powers in this regard and that there are limits on what judges can do in this respect. Nonetheless, the High Court, like all appellate courts, has leeways of choice open to it.

From Australian Courts to Aboriginal Courts in Australia—Bridging the Gap?

From Australian Courts to Aboriginal Courts in Australia—Bridging the Gap?

Insolvent Trading - An Empirical Study

This research report documents the findings of an empirical study of judicial findings (of superior courts in Australia) relating to the duty to prevent insolvent trading. The duty to prevent insolvent trading is the most controversial of the duties imposed upon company directors. Those who support the duty argue that it provides appropriate protection for the unsecured creditors of companies. Those who oppose the duty argue that it has the effect of making directors unduly risk adverse which can result in directors too quickly putting companies into voluntary administration or liquidation for fear of personal liability (which may have a negative financial impact on unsecured creditors). Information is provided about (a) the number of court judgments over time, (b) the verdict of courts, including the amount of compensation ordered to be paid by the defendant, (c) the type of company involved in insolvent trading (including the industry it operates in, and (d) the type of director (executive, non-executive, etc) involved in insolvent trading.

Due Process, Judicial Power and Chapter III in the New High Court

The High Court of Australia, in the 1990s, put forth a due process principle, which stated that the Commonwealth Parliament could not require or authorise a chapter III Court to exercise judicial power in a manner that is inconsistent with the essential character of a court or with the nature of judicial power. The High Court continues to endorse the due process principle in 2004, since it is not a radical principle, but simply an aspect of the increasingly influential doctrine of the separation of federal judicial power from legislative and executive power.

A Supreme Court for the United Kingdom? A view from the High Court of Australia

The High Court created by Australia's 1901 Constitution first sat on 6 October 1903. A century on, it is an apt time to consider how the record of the Court can contribute a different perspective to the debate over a possible Supreme Court for the United Kingdom. Of course, it cannot be assumed that common views are held of this record. Indeed, the role of the High Court and its place in the Australian political system remains hotly contested.

Pre-emptive Imprisonment for Dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The Constitutional Issues

Unlike any other law in Australia, or as far as we have been able to research the common law world, Queensland law now authorises a court to imprison a citizen on the basis that he or she presents an 'unacceptable risk to the community'. This is not done as part of the sentencing process, but as a consequence of a procedure tacked onto the end of a person's sentence that bears no real relationship to a criminal trial. The imprisonment of a citizen, not for what they have done but for what they might do, represents a radical departure from traditional judicial functions. We contend that Queensland law significantly undermines the safeguards provided by traditional judicial processes, inflicting double punishment, and that this is unconstitutional. This article outlines the constitutional arguments presented to the High Court of Australia by the Appellant in Fardon v Attorney-General (Queensland), an appeal to the Full Court of the High Court of Australia that was heard in Canberra on March 2, 2004. The appeal was dismissed on October 4, 2004.

Turning Points in the Law of Torts in the Last 30 Years

This is the text of a paper presented at the National Conference of the Australian Insurance Law Association (AILA) in Adelaide on 14 August 2003. It traces the path of the law of negligence in the High Court of Australia and, to some extent, the New Zealand Court of Appeal from 1973 to 2003. It also refers to legislation in both these jurisdictions that has impinged on the law of compensation for personal injury. It shows that the courts have abrogated several common law immunities and special standards of care and moved towards one general principle of reasonable care in all the circumstances. However, the application of the criterion of reasonable care in recent years in Australia has become much more stringent, with a marked decrease in plaintiff-friendly decisions at the highest appellate level.

Dow Jones & Company Inc v Gutnick: An Adequate Response to Transnational Internet Defamation?

The recent decision of the High Court of Australia in Dow Jones & Co Inc v Gutnick has inspired much controversy. The reaction from media and technology groups has been particularly critical as they see the decision representing a threat to freedom of expression on the Internet and a deterrent to online publication. It has also been suggested that the High Court judgments reflect a peculiarly nationalistic approach to resolving problems with respect to a medium that is fundamentally borderless and aterritorial. More generally, the decision is also highly significant because it represents the first major opportunity for an Australian court to examine the application of the rules of private international law to Internet conduct. While in the United States and Europe there now exists a large body of judicial decisions and legislative activity on the topic, in Australia, until Gutnick, the issues of jurisdiction and choice of law in relation to the Internet remained largely unexplored. The purpose of this article is to assess the adequacy of the approach taken by the High Court according to a number of criteria of adjudicative fairness. Firstly, does the decision treat plaintiffs and defendants with equality in transnational defamation litigation? Secondly, does it effectively advance the objectives of comity between nation states and the proper allocation of jurisdictional competence among national courts? In considering these issues, a number of alternative approaches to that adopted by the Court will also be discussed.

Series on Church and State Church and State in the Legal Tradition of Australia

ABSTRACTThe relationship between church and state in Australia has been examined on many occasions, though principally by historians and theologians. This article examines how the legislature and courts of Australia have handled problems where there has been a conflict at the interface between secular and religious interests. The article deals with constitutional issues, conflict in education, in town planning and taxation as well as considering what we really mean by ‘church’ and ‘state’ in this context and how problems might manifest themselves in the twenty-first century.

II. DEFAMATION ON THE INTERNET—NICE DECISION, SHAME ABOUT THE REASONING: DOW JONES & CO INC v GUTNICK

The decision by the High Court of Australia in Dow Jones & Co Inc v Gutnick,1 one of the first decisions by a final court of appeal on transnational online defamation, handed down on 10 Dec 2002, deals with the contentious issue of whether and, if so, when online publishers have to comply with the defamation laws of foreign States. The decision has been labelled a ‘dangerous precedent’ and an ‘extraordinary judgment’2 by the British press. But is it indeed either?

Re Kevin and the Right of Transsexual Persons to Marry in Australia

This article considers the decision of the Family Court of Australia in Re Kevin (Validity of Marriage of a Transsexual) [2001] FamCA 1074, which was upheld by the Full Court of the Family Court of Australia in February 2003. Re Kevin was the first case in Australia to deal directly with the question of whether a transsexual person could marry under Australian law. In the past, Australia had adhered to the judgement of Ormrod J in Corbett v Corbett [1971] P. 83, which set the benchmark for what is ‘male’ and what is ‘female’ under the common law. Prior to Re Kevin the question of what is a man and what is a woman for the purposes of marriage in Australia mirrored the strict biological test established in Corbett. In other words, the Australian courts relied upon biological factors, as espoused by Ormrod J, when determining a person's true sex. In Re Kevin, Chisholm J examined in detail what it is to be a man or woman, but unlike Ormrod J considered ‘brain sex’ to have a significant impact on a person's view of their own innate sexual identity. The Full Court of the Family Court agreed with the powerful and well-reasoned judgement of Chisholm J at first instance.

The Effects of Judge Gender in Appellate Courts: A Comparative Cross-National Test

Our focus is the behavior of judges sitting on the major appellate courts in three democratic federal governments whose judicial systems developed within the English Common Law tradition. Specifically we examine the Supreme Court of Canada, the Australian High Court, the United States Supreme Court and the major intermediate appellate courts in Australia, Canada, and the United States. Our aim is to provide a substantially broader examination of judge gender than has ever been attempted before. First, we compare across courts that have different institutional characteristics in order to determine whether the effects of gender are conditioned by institutional setting and the political context of decision making. To make these comparisons, we employ a common methodology to help assess whether differences discovered in different courts in previous separate studies were the results of differences in the political and institutional features or different time periods examined or were simply the results of different methodological choices. We further test for gender effects across a wide variety of issue categories that together make up the bulk of the agendas of our diverse courts.

Standing to Sue and Multiple Defendant Class Actions in Australia, Canada, and the United States

Recent decisions by appellate courts in Australia, Canada, and the United States provide an ideal opportunity to explore an important issue concerning the class action procedure, which has been largely ignored by legal commentators in Australia and Canada and has received, in the author's opinion, inadequate attention in the United States. The issue in question concerns the availability of the class action device where the representative plaintiff is seeking to initiate a class proceeding against more than one defendant but does not have individual standing to sue all of the proposed defendants.

Explaining historical dissent rates in the high court of Australia

This article examines the role of a judge's social background and the role of the leadership of the chief justice in explaining variations in dissent rates on the High Court of Australia between 1903 and 1975. It is of interest for students of comparative judicial politics because it is the first study to consider whether many of the factors which have been used to explain variations in dissent rates for the United States Supreme Court are applicable to courts outside the United States. The study finds that Latham's period as chief justice had a statistically significant negative effect on the dissent rate while there is mixed support for the hypotheses linking dissent rates to judges' social background.

WHO IS THE “FAIR-MINDED AND INFORMED OBSERVER”? BIAS AFTER MAGILL

The rule against bias has undergone a number of modifications during the last ten years. In particular, two elements of the test for apparent bias have been widely debated, namely the degree of bias and the perspective from which bias should be viewed. The cases before 1992 on each element of the test were difficult to reconcile, but in R. v. Gough, Lord Goff held that the test required a “real danger” of bias when viewed from the perspective of the court. However, attempts were made to amend the test after forceful criticism by the High Court of Australia, and the related observation of Sir Thomas Bingham M.R. that Gough abolished the principle that “justice must not only be done, but must also manifestly be seen to be done”.

Technological Tying in the Computer Industry: When Does it Contravene s 46 of the Trade Practices Act?

While Australia is still heavily reliant on 'old economy' industries, such as primary production and manufacturing, there is now general recognition of the importance of high-value 'new economy' industries. The term 'new economy' refers to industries such as computer software and hardware, the internet, mobile telephony, biotechnology and others that are primarily based on intellectual property rights (IP rights) and that are undergoing rapid technological change. The appropriate relationship between competition law and IP rights has been the subject of review both in Australia and in the United States of America. In Australia, the application of the Trade Practices Act 1974 (Cth) (TPA) to IP rights has been the subject of an independent inquiry and the Government has announced that it proposes to amend the TPA to take account of the recommendations of the Review Committee. In Washington D.C., the Federal Trade Commission and the Department of Justice have, since February 2002 been conducting lengthy public hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy. In the past, the reward/incentive function for IP rights has been subordinated to the policy objective of competition law; however, the stringent application of competition law may result in a loss of consumer welfare. Developments in the 'new economy' industries are throwing up new problems for competition lawyers. The purpose of this paper is to consider one such problem, namely, the tying or bundling of two or more products into one integrated product. Increasingly, firms within the computer industry are bundling one or more separate products through technological integration. Bundling is also occurring across different sectors in 'new economy' industries. The courts in Australia have very little experience of the complex issues that arise when allegations are made about anti-competitive bundling or tying in relation to the supply of computer products. The paper falls broadly into two parts. The first part considers some special characteristics of computer based markets, and the elements that need to be established in order to make out a contravention of s 46 of the TPA.The second part of the paper considers two different types of technological tying: first, the tying of two separate products through the creation of one integrated product; and secondly, tying the sale of a product with its repair or servicing in such a way that independent service organizations (ISOs) are foreclosed from the market. Both types of technological tying are open to a claim that they are anti-competitive and constitute a form of leveraging contrary to s 46 of the TPA.

Determining Dangerousness: Whatever Happened to the Rules of Evidence?

To justify the indefinite detention of an individual convicted of a serious offence, the High Court of Australia has required expert evidence by a psychiatrist or psychologist to the effect that the individual is likely in the future to commit further serious offences. This article examines whether the rules for admissibility of expert evidence, properly applied, allow any weight to be attached to such predictions. In fact, predictions of future offending are admitted, but are only relied upon where they confirm a court's pre-existing attitudes toward the dangerousness of an individual. It appears that judges are utilising expert evidence to avoid the charge that they are engaging in the arbitrary exercise of power and are acting outside the judicial method. This has significant constitutional implications for the validity of legislative schemes and their compatibility with courts exercising judicial power in accordance with the Australian Constitution.

Sentencing Principles in the High Court and the PSA

This paper examines the significance of two recent decisions of the High Court of Australia for sentencing in Queensland: Wong v The Queen; Leung v The Queen on the role numerical guidelines can play in a scheme of discretionary sentencing; Cameron v The Queen on the conditions for granting or denying discounts for pleading guilty. Although neither decision involved a Queensland offence, they both expressed principles which can complement the loose terms of the Penalties and Sentences Act 1992 (Qld). There were also, however, some statements in Wong v The Queen; Leung v The Queen criticising 'two-stage' sentencing and condemning any use of numerical guidelines. It is argued that Queensland courts need not and should not follow these directions when sentencing under the Penalties and Sentences Act.

Book Review: The Oxford Companion to the High Court of Australia

The publication, 'The Oxford Companion to the High Court of Australia', will make a major contribution to a wider understanding of this institution and the part it plays in the life of the nation. The book poses a vital question of how appropriately to question and research the work and operation of a top-level court, especially at times when the court is subject to criticism by the executive branch of government. Review(s) of: The Oxford Companion to the High Court of Australia edited by Blackshield, Tony; Coper, Michael and Williams, George, Oxford University Press, 2001