Court Of Australia Research Articles

How the NHMRC got its fingers burnt

On 20 December 1996, Justice J Finn of the Federal Court of Australia handed down his judgment in the case of the Tobacco Institute of Australia (TIA) Ltd and others v the National Health and Medical Research Council (NHMRC) and others. Justice Finn concluded that, in developing its recommendations for control of environmental tobacco smoke, the NHMRC's Working Party on Passive Smoking erred significantly in regard to the consultative procedures that it employed. As the following discussion shows, the legal decision has profound implications for the NHMRC and the provision of expert advice to Australian governments on matters of health and health policy. The discussion has been prepared by three members of the NHMRC Working Party, but reflects their personal views and not necessarily those of the Working Party as a whole or those of the NHMRC.

Do Not Go Gently into That Good Right: The First Amendment in the High Court of Australia

Do Not Go Gently into That Good Right: The First Amendment in the High Court of Australia

The Recovery of Property Transferred for Illegal Purposes

For many years it was thought to be a principle of public policy that, in a property dispute between two parties in pari delicto, equity must let the loss lie where it falls ('the non-recovery principle').' In Tinsley v Milligan,2 the House of Lords substantially qualified this principle, ruling that it does not prevent persons from reclaiming property transferred for an illegal purpose where they can establish their legal or equitable interest without relying on the illegality ('the non-reliance rule'). In particular, a person who could demonstrate an interest in the transferred property by way of a resulting trust could recover that interest because there was no need to rely on the illegal purpose underlying the transaction. Since then, the Court of Appeal, in Tribe v Tribe,3 has confirmed a further limit on the non-recovery principle, namely an exception where the transferor makes a timely withdrawal from the illegal scheme. More recently, the High Court of Australia has eroded the scope of the principle even further in its decision in Nelson v Nelson.4 In his concurring judgment in that case, Dawson J applied a significantly wider interpretation of the non-reliance rule than that adopted in both Tinsley and Tribe. More importantly, the majority of the court mounted a sustained attack on both the non-recovery principle and its refinement in Tinsley, and introduced a new approach which is likely to reduce even further the significance of illegality as a defence to a proprietary claim.

QUT Law Students Association Dinner Speech 1996: Future of the High Court of Australia

QUT Law Students Association Dinner Speech 1996: Future of the High Court of Australia

The Australian High Court's Use of theWestern SaharaCase inMabo

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1Crucial to the reasoning in the leading judgment of the landmark 1992Mabocase,2by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not beenterra nulliusat the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council inCooperv.Stuart.3In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4This had given rise to the assumption, confirmed byMilurrpumv.Nabalco Ltd(the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5The leading judgment inMabowent on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7

Should I warn the patient first?

In 1992 the High Court of Australia decided that health professionals owed a duty of care to warn patients of the risks to the particular patient of the proposed treatment before commencing that treatment. The Court ruled that it is not enough for any health care practitioner to do what everyone else does and therefore not warn the patient first. It emphasised that the information the law requires to be provided will vary from patient to patient, according to the individual patient's characteristics and needs. The decision in Rogers v Whitaker (1992) means that health professions must change their attitude and approach to the provision of information and warnings to patients.

Possessory Title in the Context of Aboriginal Claimants

To the present day, no court in Australia has decided a case of possessory title being claimed by Aboriginal claimants. In the landmark case of Mabo v Queensland1, which awarded a group of indigenous people land rights to a small group of islands based on native title, the only judge to even consider the issue of possessory title was Justice Toohey. However, as the following discussion will show, this lack of judicial consideration does not mean that possessory title may not be a useful and perhaps even favourable course of action for a group of Aboriginal claimants to follow. Possessory title is an old Common Law doctrine which states that the possession of land gives rights to a title which is good against the rest of the world except for a person with a better claim. The occupier of the land is feudally possessed or seised of the land and acquires a fee simple title. The common law presumes this interest in the land, and it will be effective against the world until it is rebutted by someone contending that they have better title. In light of this definition it can be seen that possessory title is based on two main elements. Firstly, the claimant must show that they have possession of the land in question. Secondly, there must not be a party present who can prove they have an existing and better title to the land.

The Decision of the High Court of Australia in Esso/BHP v. Plowman

The Decision of the High Court of Australia in Esso/BHP v. Plowman

An Aspect of Islamic Law in the Judgment of the Family Court of Australia in In The Marriage Of B And B [Kidnapping

(1995). An Aspect of Islamic Law in the Judgment of the Family Court of Australia in In The Marriage Of B And B [Kidnapping] Asia Pacific Law Review: Vol. 4, No. 1, pp. 91-99.

Feminized justice: The impact of women decision makers in the lower courts in Australia

We examine the impact of an Australian state government's decision to appoint a considerable number of women to its previously all-male Magistrates' Courts. Interviews with a sample of 30 male and female magnistrates revealed ready acceptance of this major change, probably because of organizational peculiarities of the jurisdiction. The advent of women as judicial decision makers was perceived to have improved the work environment of the courts. Comparison of the ways in which male and female magistrates perceive aspects of their job (e.g., judicial role, adjudication, sentencing, and the conduct of informal proceedings) suggests that most of the apparent gender differences are more likely the product of age and background than evidence of justice “in a different voice.” Changes in court ideology suggest that the appointment of women may have been used to further more general political objectives. A critical question for feminist research might be: When and why do conservative institutions adopt strategie...

Withdrawing treatment from patients in a persistent vegetative state

Medical opinion was unanimous that English youth Anthony Bland was in a persistent vegetative state with no hope of improvement or recovery. His family agreed that withdrawal of life support was appropriate, but Anthony's case went to the House of Lords for clarification of the legal position before any action was taken by his doctors. The court applied the Bolam test--that a regimen is legally acceptable if supported by a body of competent medical opinion, a principle specifically rejected by the High Court of Australia in Rogers v. Whitaker.

Problems with the Doctrine of Consent

‘Law’ said Mr Justice Windeyer of the High Court of Australia, ‘marches with science, but to the rear, and limping a little’. Nowhere is this limping more apparent than in respect of the attempts to keep up with medical science. The media is full of reports of the use of fetal ova to create new life, of the transplant of animal parts into human bodies, of tests involving the consumption of radioactive materials by human subjects. The law's response to these problems has been notable most often by its absence. To some extent, the failure of the law to come to grips with developments is not entirely its own fault. Sometimes the advances made possible by science can only be forseen by those with a scientific background. At other times, however, the law fails by not being flexible enough to be able to create new categories of legal obligations. It tries instead to pigeon-hole radically new ideas within centuries-old categorisations. As anyone who has had experience with packing a large number of outsized objects into a too small suitcase will tell you, squeezing things into inappropriately shaped containers takes time. This is one of the problems apparent in the doctrine of consent; the area of law which attempts to regulate the provision of medical services by a practitioner to a patient.

An Introduction to Menstrual Management for Women who have an Intellectual Disability and High Support Needs

Abstract This paper describes a project researching the management of menstruation for women who have severe or profound intellectual disability (high support needs). Its mandate was to develop materials, processes and resources to support menstrual management for women who have high support needs. Intervention processes are described via an illustrative case study. The impact of care providers’ attitudes on menstrual management for these women is considered. Partial participation in menstrual self‐care is discussed. Reference is made to a ruling by the High Court of Australia which requires the consent of the Family Court of Australia for surgeryresulting in sterilisation of young women under the age of 18 years.

Taking Account of the Victim in Sentencing in South Australia

South Australia's practical measures to give effect to the spirit and letter of the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power have meant changes to legislation and to legal procedures. This extract from a previously given Paper on these changes concentrates on the principles of Anglo-Australian law adopted by Courts in Australia in sentencing offenders, and in particular deals with the relevance of the victim in sentencing.

AUSTRALIA: High Court of Australia

AUSTRALIA: High Court of Australia

THE NATIVE TITLES ACT 1993—THE PETROLEUM INDUSTRY AND THE FUTURE

The judgement of the High Court of Australia in 1992 in Mabo v. Queensland has had a major impact on land law in Australia.The Native Titles Act, 1993, is the first of what will be many steps in a long, complex legislative program to integrate 'native title', into Australia's land law.Those drafting the Native Title Act seemed to have concentrated on dealing with 'native title' issues in isolation and to have ignored or put to one side the need for it to mesh with other aspects of land law. This has created uncertainty for many users of land and will require review.Although the contrary was intended, the Act creates, in practical terms, significant uncertainty for renewal of existing oil and gas exploration and production titles. It also has implications for applicants for new titles and in due course for farmouts and assignments.Eventually additional legislation will be required to clarify the relationship of native title with the other areas of land law.

Loan funds and the trustee's profit

A trustee or fiduciary may mix trust money with his own, purchase property, and make a profit upon its sale when the property subsequently increases in value. Frequently, however, the trustee will use the misapplied money in order to raise further funds by way of a loan with which he then purchases the property. In the first case, equity’s conventional approach is to apportion the increase in value rateably between the funds from the trust and the trustee’s own contribution so that the trust obtains that proportion of the profit derived which the misapplied funds bear to the purchase price. This result flows from the decision of Hudson J in the Supreme Court of victoria in Scott v Scott from which no cross-appeal was taken to the High Court of Australia.

Malpractice Liability for the Failure to Adequately Educate Patients: The Australian Law of “Informed Consent” and Its Implications for American Ethics Committees

At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and adopted the “American” patient-oriented standard (rather than the British doctor-oriented standard) for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era.

The Role of the Family Court of Australia in Child Welfare Matters

The Role of the Family Court of Australia in Child Welfare Matters

Can We Accept the Acceptable?: Evidence and procedure in child sexual abuse cases in recent Australian law

In an earlier article (Bates, 1990), it was suggested that the test enunciated by the High Court of Australia in In the Marriage of M (1988) F.L.C. 91–979 for denying custody or access in cases where there had been allegations of child sexual abuse was inappropriate. In that case, it will be remembered, the High Court stated (at 77,081) that: To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.