Court Of Australia Research Articles

Freedom of speech and racial vilification in Australia: ‘The Bolt case’ in public discourse

This article examines the public discourse that emerged in the aftermath of the 2011 decision of the Federal Court of Australia in Eatock v Bolt. We characterise the narrative of ‘the Bolt case’ as a ‘mobilising discourse’ that countered rather than echoed the decision itself. This discourse had three main messages: encouraging scepticism about the authenticity of fair-skinned Aboriginal persons and judgment by non-Aboriginal persons about the legitimacy of Aboriginal identity according to skin colour; questioning the legitimacy of racial vilification laws and strengthening a libertarian conception of freedom of speech. We explain how such a contrary discourse became dominant in the wake of a successful racial vilification action and consider the implications of these events.本文研究了2011年澳大利亚联邦法庭就伊脱克诉博尔特案做出判决后的公众议论。博尔特案的叙事属于“动员话语”，是对判决的反弹而非反响。该话语主要包括三个信息：鼓励对浅肤色原住人士的真实性的质疑，鼓励由非原住人士根据肤色判定原住民身份的合法性；质疑种族诽谤法的合理性；支持言论自由的观念。笔者解释了何以这种矛盾的话语盛行于一次成功的种族诽谤行动之后，并讨论了这些事件的影响。

Defining Characteristics of ‘Judicial Power’ and ‘Court’ – Global Lessons from Australia

For the international norms regulating the protection of judicial independence and impartiality, it is necessary that there is a clear idea as to whether a body is a real court or judicial body or whether it is simply an administrative or executive entity camouflaged under a judicial mantle. The main aim of this article is to explore the jurisprudence of the High Court of Australia on the notions of ‘courts’ and ‘judicial power’. It is believed that the exegesis by the High Court of their defining characteristics will provide useful lessons for the judiciary in other countries which seek to ensure compliance with the international norms.

The Development of the Prosecutor's Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice?

The proper role of the prosecutor, contrary to popular perception, is not that of a partisan persecutor bent on securing the conviction of an accused person but rather that of a quasi-judicial 'minister of justice' whose detached function is to seek justice and to ensure fairness. This view of the prosecutor's role can be traced back at least to the early 1800s and continues to command firm support in both Australia and England. In considering the development of the role of the prosecutor it is instructive to consider the crucial function performed by the prosecution in the disclosure of potentially significant material in its possession; whether this is evidence upon which the prosecution is choosing to rely at trial or so-called unused material. In this article I will trace the development of the principles relating to disclosure in both England and Australia from the time when the prosecutor was entitled to act as a partisan advocate to the operation for much of the 20th century of the informal 'Old Boys Act' approach to disclosure to the modern insistence on candour culminating in the landmark decisions in England in the 1990s and of the High Court of Australia in R v Mallard in 2005. The fundamental theme that emerges in relation to the issue of disclosure is that the prosecutor must act as the frank minister of justice. There is no place in the modem criminal process either for the prosecutor to act as the partisan advocate or to rely on the informal 'Gentlemen's Club' approach to disclosure. It is clear that the operation of the law in England regarding disclosure has given rise to significant practical and theoretical problems and that it would therefore be wise to be wary before importing the English model to Australia. However demanding and problematic as the prosecutor's duties of disclosure may be, I would argue that in this area, 'The prosecutor must act as a minister of justice, presenting the prosecution evidence fairly, making full disclosure of relevant material and ever conscious that prosecution must not become persecution.

'Tragic': The High Court Decision in the Indefinite Mandatory Detention Case of Al-Kateb

Case note on decision of High Court of Australia in Al-Kateb v Godwin - Court held that unlawful non-citizens able to be detained indefinitely without such detention being considered punitive and thus prohibited - critique of line of reasoning of Justice McHugh in attempting to limit influence of international law in interpreting Constitution.

Criminal Court Procedure and Public Employment Law: the High Court of Australia Decisions in Patel v the Queen (2012) and Fingleton v the Queen (2005)

[Extract] On 24 August 2012, Dr Jayant Patel walked out of a Queensland prison a free man, after the High Court of Australia found a miscarriage of justice had occurred in his trial for the murder or grievous bodily harm of four of his patients. Prior to his imprisonment, Dr Patel had served as a doctor for the state government health department, Queensland Health. Whistle-blower complaints made against him by Queensland Health nurses had spawned enquiries into his workplace practices, which ended in the criminal charges being laid.

Patently a problem? Recent developments in human gene patenting and their wider ethical and practical implications

The issue of gene patenting has become re-enlivened with the recent decisions of both the Supreme Court of the United States and the Federal Court of Australia in regards to the patentability of isolated genetic material. The latter case, Cancer Voices Australia v Myriad Genetics Inc, upheld the validity of a patent over the isolated BRCA1 gene and has highlighted the wider implications of gene patenting in Australia. This article examines the legal issues arising from that judgment in respect of the ‘manner of manufacture’ requirement for patentability. It also analyses the ethical consequences of gene patenting and the impact of the monopolistic market control that is facilitated by patents upon the delivery of biogenetic healthcare, industry investment and the dissemination of research results. It will further consider community concerns regarding possible limitations in access to genetic testing and treatment and suggest means of redressing such concerns.

Roundtable on the Future of Refugee Convention Supervision

The Roundtable on the Future of Refugee Convention Supervision was convened on Sept. 28-29, 2012, by Prof. James Hathaway of the University of Michigan Law School and Justice A.M. North of the Federal Court of Australia to consider a series of three research papers commissioned by them from the Cambridge Pro Bono Project, under the direction of Mr. Jason Pobjoy and supervision of Professor David Feldman, University of Cambridge.The summary conclusions do not represent the individual views of each participant, but reflect broadly the understandings emerging from the discussion.The introduction can be found at http://ssrn.com/abstract=2323495

An Empirical Analysis of Appeals by Class Members in Australia's Federal Class Actions

Australia was one of the first countries to emulate the United States by introducing class actions. But, unlike their American federal counterparts, the drafters of the three class action regimes that are in operation in Australia chose to deal expressly with and regulate the ability of class members (who are bound by, but not formal parties to, the class action litigation) to file an appeal, where the class representative is unwilling or unable to take such a step, from judicial orders that are adverse to their interests. Despite the fact that the ability to file an appeal represents one of the most significant powers available to Australian class members to ensure that their interests are protected in the litigation (without the involvement of the class representatives), these appeal mechanisms have not been the subject of critical analysis by Australian scholars. The aim of this paper is to address this lacuna in the legal literature by reviewing the aims, essential features and operation of the provision that governs the ability of class members to file appeals in Australia's longest running class action regime, which has been regulating class actions in the Federal Court of Australia since March 1992. For this purpose, the findings that have emerged from the first-ever empirical study of this regime, which the author recently conducted, are employed. References are also made to the corresponding provisions found in the two other Australian class action regimes, which operate in the Supreme Courts of Victoria and New South Wales, and to the American and Canadian experience with appeals by class members.

Present at the creation: The strange eventful birth of the Amalgamated Metal Workers’ Union

The author was one of the counsel who assisted in achieving the amalgamation of the three industrial organisations of employees that formed the Amalgamated Metal Workers’ Union in 1972. In this article, based on an address to a dinner celebrating the 40th anniversary of this event, he describes the hard-fought battles that preceded amalgamation, including contested proceedings before the High Court of Australia in ex parte Bevan (1972) 172 CLR 1, the Commonwealth Industrial Court in Drinkwater v Amos (1972) 20 FLR 359 and the Arbitration Commission. From these experiences, he derives lessons about the role of courts and tribunals in industrial relations, the role of well-targeted industrial advocacy, the advantages of the old system of conciliation and arbitration and the need to simplify the system of amalgamation. He also reflects on the idealistic quality of union leadership in 1972 and contrasts this with some cases today.

Case Notes: Arbitration Application Stayed Without Adjudication of the Merits; Power of the Federal Court of Australia to Enforce an Arbitral Award

Arbitration application stayed without adjudication of the merits; power of the Federal Court of Australia to enforce an arbitral award.

Can Class Action Regimes Operate Satisfactorily without a Certification Device? Empirical Insights from the Federal Court of Australia

Can Class Action Regimes Operate Satisfactorily without a Certification Device? Empirical Insights from the Federal Court of Australia

The Australian Law of Restitution: Has the High Court Lost its Way?

This essay was originally presented as the 2009 Hearn Lecture in Melbourne. It argues that, while a short time ago the High Court of Australia led the common law world in its enlightened and progressive approach to the newly- emerged law of restitution based on unjust enrichment, three more recent cases indicate that that is no longer so. The suggestion is that the High in this area has lost its way and needs to return to a correct track.

Reflections on Common Sense Causation in Australia

Part 1 of this chapter argues that the High Court of Australia’s so-called “common sense test” of causation is an empty slogan, neither a test nor anything to do with common sense. For clarity of legal analysis the issue of whether a factor was involved with the existence of the relevant phenomenon (that is, the issue of factual causation) should be kept explicitly separate from the issue of the appropriate scope of legal responsibility for that phenomenon. Expressing the latter scope issue as a “causal” issue is obfuscating and should be abandoned. This Part also argues: that Australian courts should cease referring to the “scope of the duty”; that a factor should be recognised as a factual cause if it contributes in any way to the existence of the phenomenon in issue even if it is neither a “but for” nor a sufficient factor for the existence of that phenomenon; and that aspects of the civil liability legislation prompted by the Review of the Law of Negligence: Final Report (the “Ipp Report”) can and should be ignored. Part II elaborates the “factual causation then scope-of-liability-for-consequences” approach with illustrations from the common law and under statute, including many of commercial cases.

Major tribunal decisions in Australia in 2012

This article examines a number of decisions of Fair Work Australia, the High Court of Australia and the Federal Court of Australia from 2012 regarding the application of the Fair Work Act 2009. In the decision of Bendigo v Barclay, the High Court considered how the courts should approach a determination as to whether an employer has engaged in adverse action for a prohibited reason. The Endeavour Coal decisions of Fair Work Australia and the Federal Court have addressed the good-faith bargaining provisions of the Fair Work Act 2009. Further, Fair Work Australia has resolved conflicting authority regarding the approval of enterprise agreements containing ‘opt-out’ clauses. In other decisions, Fair Work Australia has considered an appeal from unfair dismissal proceedings regarding an employee who was terminated on the basis of an offensive Facebook page, and the Federal Court has confirmed the existence of an implied term of mutual trust and confidence in an employee's contract.

Parental substance misuse and compliance as factors determining child removal: A sample from the Victorian Children's Court in Australia

Abstract Purpose The current study explores the role of parental substance misuse in child protection cases and examines its impact as a factor in decisions on child removal in court orders. Methods A cohort of 273 child protection cases from the Victorian Children's Court was reviewed. This sample consisted of cases where children have been removed (Custody to Secretary Order, n = 142 cases) or remained with parents (Supervision Order, n = 131 cases). Data was extracted on parental substance misuse in single and two parent households as well as compliance with court-based and child protection directives. Principle results Parental substance misuse (PSM) was present in 51% of child protection cases sampled and among those, poly-substance abuse was common (67%). PSM was associated with Indigenous status; younger age of child at court appearance; having a court-proven case of emotional abuse, less compliance with child protection services and a longer time between notification to authorities and final court decision. In one parent households, only parental compliance is the primary factor underlying decisions of child removal. In two parent households, the decision to remove a child from the family home was ultimately driven by parental compliance, and to a lesser extent by PSM of illicit drugs and the number of parents misusing drugs. Conclusion PSM and non-compliance appear to be significant factors in delaying stability for the child through the granting of court orders which may involve child removal. There is a need, by child protection professionals, for prompt recognition of PSM and associated compliance/engagement issues in order to refer appropriate cases for further assessment and treatment in specialist drug treatment services. Early involvement with specialist drug treatment services provides the Court with an indication of compliance which is an important factor for making decisions that assist with achieving stability for the child.

Victoria v. Sportsbet Pty LtdCase No. VID 1000 of 2011, VID 1002 of 2011, 2012 FCAFC 174, BC201209565 (Federal Court of Australia—Victoria District Registry, 3 December 2012)

Victoria v. Sportsbet Pty Ltd<i>Case No. VID 1000 of 2011, VID 1002 of 2011, 2012 FCAFC 174, BC201209565 (Federal Court of Australia—Victoria District Registry, 3 December 2012)</i>

Liability for the rating and sale of structured credit products: Australian cases and their (much) wider implications

In late 2012, the Federal Court of Australia handed down first-instance judgments in two cases, Wingecarribee and Bathurst, involving claims brought by the purchasers of complex structured credit products which subsequently collapsed in value during the widespread dislocation in the global market for such products. Both of the judgments are long (1,459 pages for Bathurst and 450 pages for Wingecarribee) and address in considerable detail a number of important questions which will be of great interest to market participants who sell, structure or issue credit ratings for complex structured credit products. The purpose of this article is to summarise the key features of both judgments before considering three particular issues in greater depth to provide, from afar, the perspective of an English litigator on whether the findings might be replicated in the English courts. Those aspects are: the court's finding in Bathurst that the rating agency owes a duty of care to investors in complex structured credit products; the meaning attributed by the court to a credit rating when deployed by parties other than the rating agency; and the approach adopted by the courts in determining the existence of advisory and fiduciary duties.

Dealing with the King's Enemies: The Drafting of the Communist Party Dissolution Bill 1950

The lawyers called upon to draft a Bill which, if enacted, could validly give effect to the promise of the successful Liberal–Country Party coalition in the 1949 federal election to outlaw the Communist Party of Australia, faced a difficult assignment. Their political instructors faced a dilemma: should the new government take a less confrontational approach to communist disruption of the economy and risk undermining the government's popular support, or should it press ahead with the promised ban and risk having the High Court of Australia invalidate it? In a process in which the politics of pragmatism gave way to Cold War ideology, the choice of the latter path led to failure.

Constitutional Interpretation, the High Court, and the Discipline of History

The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts 'do' history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered? This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading 'originalist' case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.

Constitutional Interpretation, the High Court, and the Discipline of History

The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered? This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading ‘originalist’ case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.