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					MONASH UNIVERSITY
        LAW REVIEW

Contents and Abstracts of Past Editions




                   MONASH UNIVERSITY LAW REVIEW
                                      Faculty of Law
                                          PO Box 12
                                   Monash University
                                   Clayton Vic 3800
                                            Australia

                                   Phone: + (61 3) 9905 3374
                                     Fax: + (61 3) 9905 5305
                     E-mail: law.review@law.monash.edu.au
                   Web: http://www.law.monash.edu.au/monlr
  Volume 1(1) August, 1974
  Articles
  Monash – The First Decade
  Robert Baxt

  Intentionally Causing Economic Loss – Beaudesert Shire Council v Smith
  Revisited
  Gerald Dworkin

  Unfair Competition – French and European Approaches
  André Tunc

  Silence as Evidence
  JD Heydon

  Getting Blood out of Stones: Problems in the Enforcement of Maintenance
  Orders from Magistrates‟ Courts
  Dorothy Kovacs

  Case notes
  Platemaster Pty Ltd v T Investments Pty Ltd

  Ord Forrest Pty Ltd v Federal Commissioner of Taxation

  Industrial Equity Ltd v Tocpar Pty Ltd

  Mihaljevic v Eiffel Tower Motors Pty Ltd and General Credits Ltd and Academy of
  Health and Fitness Pty Ltd v Power




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 1(2) March, 1975
  Articles
  Editorial Note
  Robert Baxt

  The Survival of Civil Conspiracy: A Question of Magic or Logic
  Peter G Heffey

  Lumley v Gye – The Aftermath: An Inducement to Judicial Reform?
  HJ Glasbeek

  Unlawful Act Manslaughter
  CR Williams

  Natural Justice – The Modern Synthesis
  GDS Taylor

  Case Commentary
  Bradley v The Commonwealth

  Case Notes
  R v Raymer; Re Papal

  R v Sergi

  Legislative Comment
  Local Government (Home Builders’ Liability) Act 1973

  Review Article
  Statutes and Racial Discrimination in Australia




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 2(1) September, 1975

  Sir Douglas Menzies – A Personal Recollection
  Sir Richard Eggleston

  Articles
  Fifth Wilfred Fullagar Memorial Lecture “Let Justice Be Done”
  Baron Denning

  History of the Rule in Royal British Bank v Turquand
  KE Lindgren

  Mad Judge Montagu: A Misnomer?
  BA Keon-Cohen

  An Empirical Study of the Need for Reform of the Victorian Rent Control
  Legislation
  AJ Bradbrook

  Case Notes
  Maridakis v Kouvaris

  271 William Street, Pty Ltd v The City of Melbourne

  Legislative Comments
  The Victorian Small Claims Tribunal

  Fair Credit Reports Act 1975 (SA)




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 2(2) May, 1976
  Articles
  Wage Indexation and the Impact of the 1975 National Wage Cases
  RE McGarvie

  The Mystique of Secret Ballots: Labour Relations Progress v Industrial Anarchy
  Ronald C McCallum

  The Australian Bank Cheque – Some Legal Aspects
  W S Weerasooria

  Every Man‟s Castle or every Trader‟s Dumping Ground
  D K Srivastava

  Judicial Discretion in Family and other Litigation
  H A Finlay

  Case Notes
  River Murray Pollution

  Director of Posts and Telegraphs v Abbott and the Defence of Executive
  Necessity




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 3 (1 and 2) November, 1976
  In memoriam to Elizabeth Eggleston
  Volume 3 (1)
  Articles
  Elizabeth Eggleston – A Tribute

  The Power of the House of Representatives Over Supply
  BM O‘Brien

  The Law of Testimonial Oaths and Affirmations
  Mark Weinberg

  Interference With Trade: The Illegitimate Offspring of an Illegitimate Tort?
  GA Owen

  Commentaries
  The Australian Bank Cheque – Some Further Legal Aspects

  Administrative Appeals Tribunal Act 1975 (Cth)

  The Clearance Procedure and the Concept of Competition under the Trade
  Practices Act 1974

  Case Notes
  Ex P ACTU–Solo and the High Court‟s Original Jurisdiction

  Pecuniary Interest of Parliamentarians: A Comment on the Webster Case

  Volume 3 (2)
  Articles
  Liberal Law in a Repressive Age: Communism and the Law 1920-1950
  S Ricketson

  “Out of Mind, Out of Sight”: The Disposition of Mentally Disordered Persons
  Involved in Criminal Proceedings”
  Arie Freiberg




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 3 (3 and 4) June, 1977
  Volume 3 (3)
  Articles
  Fairness and Natural Justice – Distinct Concepts or Mere Semantics?
  GDS Taylor

  Fraud on a Power: Judicial Control of Appointments by Discretionary Trustees
  Yuri Grbich

  Case Note
  To Remind People of the Bill of Rights 1688

  Book Reviews


  Volume 3 (4)
  Articles
  Consent in Rape: The Problem of the Marriage Contract
  Jocelynne A Scutt

  The Application of the Trade Practices Act, 1974 (as amended) to Restrictions in
  Patent, Know-How and Trade Mark Licensing Arrangements
  Peter J Goldsworthy

  Case Note
  Insurance – Cover Note – Avoidance by Insurer for Non-Disclosure by
  Proponent: What is the Test of Materiality?




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 4 (1 and 2) December, 1977
  Volume 4 (1)
  Articles
  Sixth Wifred Fullagar Memorial Lecture “Beyond Reasonable Doubt”
  Sir Richard Eggleston

  The Validity of the Foreign Investment Guidelines
  David Flint

  Excessive Self Defence in Homicide Cases: Some Fundamental Problems in
  Australian Law
  Dorothy Kovacs

  Legislative Comment
  Loss of Services: An Anachronistic Alternative to the Child Custody Laws
  AJ Bradbrook and RRS Tracey

  Case Note
  Dugan v Mirror Newspapers Ltd



  Volume 4 (2)
  Articles
  Actions Against Voluntary Associations and the Legal System
  Deirdre O‘Connor

  Allocating Shipment Risks and the UNCITRAL Convention
  CW O‘Hare

  Comment
  A Growth Tax for the States? – Rubbish!
  JD Hammond

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 4 (3 and 4) June, 1978
  Volume 4 (3)
  Articles
  Criminal Bankruptcy
  Richard G Fox and Colin O‘Hare

  The Victorian Town Planning Appeals Tribunal
  Tannetje Lien Bryant

  Current Problems in Legal Theory
  Jude Wallace

  Case Notes
  Driscoll v R

  Ogilvie v Ryan

  Schiller v Southern Memorial Hospital

  Volume 4 (4)
  Articles
  From Caravans to Mobile Homes
  BW Boer

  Community Legal Education in Australia
  BA Keon-Cohen

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 5 (1 and 2) December, 1978
  Volume 5 (1)
  Articles
  Seventh Wilfred Fullagar Memorial Lecture: “The Battered Baby and the Limits of
  the Law”
  JD McClean

  Judges in Their Own Cause: The Ratification of Directors‟ Breaches of Duty
  R Baxt

  Law and Society: A Different Approach to Legal Education
  Ross Cranston
  Case Notes
  Grant v Downs

  Rio Tinto – Zinc Corporation v Westinghouse                   Electric   Corporation:
  Extraterritorial Jurisdiction in Antitrust Matters

  Volume 5 (2)
  Articles
  Debt Collection Harassment in Australia (Part 1)
  Bruce Kercher

  Relator Actions: The Injunction and the Enforcement of Public Rights
  Geoffrey A Flick

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 5 (3 and 4) June, 1979
  Volume 5 (3)
  Articles
  Expectations in Contractual Negotiations
  DW Greig

  Debt Collection Harassment in Australia (Part 2)
  Bruce Kercher

  Legislative Comments
  Some Aspects of State and Federal Jurisdiction under the Australian
  Constitution
  Lee Harvey and James A Thomson

  Reform of the Law of Domicile in Victoria
  Michael Pryles

  Attachment of Earnings Legislation: Enforcement without Pain
  Lindsay R Ford

  Volume 5 (4)
  Articles
  The Salisbury Affair: Special Branches, Security and Subversion
  Richard G Fox

  The Bar, Immunity and Saif Ali
  Phillip Sutherland

  The Wishes of Children and the Role of the Separate Representative
  Dominica Whelan

  Homosexuality of a Parent: A New Issue in Custody Disputes
  Ellen Goodman

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 6 (1 and 2) December, 1979
  Volume 6 (1)
  Articles
  Eigth Wilfred Fullagar Memorial Lecture: New Growth in the Law – The Judicial
  Contribution
  The Hon Mr Justice F G Brennan

  Altering the Terms of Employment and Some Recent Developments in Contract
  of Employment Law
  C Arup

  A Personality Crisis: The Trade Union Acts, State Registered Unions and Their
  Legal Status
  Marilyn J Pittard

  Legislative Comments
  Town and Country Planning (Miscellaneous Provisions) Act 1978 (Vic)
  TL Bryant

  The Market Court Act
  T Pagone and T Cunningham

  Volume 6 (2)
  Articles
  Admiralty Jurisdiction (Part 1)
  CW O‘Hare

  Some Legal Consequences of Weather Modification: An Uncertain Forecast
  GN Heilbronn

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 6 (3 and 4) June, 1980
  Volume 6 (3)
  Articles
  Administrative Review on the Merits: The Right or Preferable Decision
  The Hon Mr Justice MD Kirby

  Admiralty Jurisdiction (Part 2)
  CW O‘Hare

  The Time Factor in Private International Law
  Michael Pryles

  Legislative Comments
  S 161 Marriage Act 1958 (Vic)
  Dorothy Kovacs

  Volume 6 (4)
  Articles
  The Police, the Premier and Parliament: Governmental Control of the Police
  Louis Waller

  Mitigation of Sentence in Order to Deter?
  Leslie Sebba

  Judicial Intervention in Prisons
  G Zdenkowski

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 7 (1 and 2) December, 1980
  Volume 7 (1)
  Articles
  Ninth Wilfred Fullagar Memorial Lecture: The Common Law Judge and the
  Twentieth Century – Happy Marriage or Irretrievable Breakdown?
  The Right Honourable Lord Scarman, Lord of Appeal in Ordinary

  Severance of a Matrimonial Joint Tenancy by a Separated Spouse
  S MacCallum

  The Pharmaceutical Industry: Prescription Drug Information Controls in Australia
  and the United States
  LW Darvall

  Case Notes
  R v Shannon: What Every Defendant Should Know

  The University Visitor in Australia: Murdoch University v Bloom


  Volume 7 (2)
  Articles
  Teaching Legal Writing in the United States
  James AR Nafziger

  A Re-Interpretation of Section 51(1) of the Income Tax Assessment Act and the
  Deductibility of Inflated Expenses
  Jaginder Singh-Pasricha

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 7 (3 and 4) June, 1981
  Volume 7 (3)
  Articles
  The Dissolution of Non-Profit Associations
  AS Sievers

  The History of Australian Drug Laws: Commercialism to Confusion?
  Terry Carney

  Wardship: A Crisis in Jurisdiction
  Dorothy Kovacs

  The Relevance of Religion in Custody Adjudication Under the Family Law Act
  Ellen Goodman

  Volume 7 (4)
  Articles
  The Indivisibility of State Legislative Power
  BM O‘Brien

  Native Justice in Australia, Canada and the USA: A Comparative Analysis
  BA Keon-Cohen




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 8 (1 and 2) September, 1981
  Volume 8 (1)
  Articles
  Tenth Wilfred Fullagar Memorial Lecture: The Past and the Future of Judge-made
  Law
  SFC Milsom

  The Law-Making Power of the Judge and its Limits: A Comparative Analysis
  Mauro Cappelletti

  Volume 8 (2)
  Articles
  “An Honour and Almost a Singular One”: A Review of the Justices‟ Preventive
  Jurisdiction
  Peter Power




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 8 (3 and 4) March, 1982
  Volume 8 (3)
  Articles
  East-West Trade: The Philosophies and Practicalities of State Trading
  David E Allan and Mary E Hiscock

  Nationality Qualifications for Members of Parliament
  Michael Pryles

  Case Notes
  Recent Developments on Locus Standi: Onus v Alcoa of Australia Ltd


  Death After Divorce – Untying the Knot Once too Often: Emmett and Emmett

  Volume 8 (4)
  Articles
  Civil and Social Guardianship for Intellectually Handicapped People
  Terry Carney

  Cargo Disputes and the Metronome Syndrome (Part 1)
  CW O‘Hare




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 9 (1 and 2) September, 1982
  Volume 9 (1)
  Articles
  Eleventh Wilfred Fullagar Memorial Lecture: The Constitutional Protection of
  Human Rights
  Sir Harry Gibbs

  Judicial Review and Appeals as Alternative Remedies
  Enid Campbell

  Volume 9 (2)
  Articles
  Cargo Disputes and the Metronome Syndrome (Part 2)
  CW O‘Hare

  An International Convention on Sovereign Immunity? Some Problems in
  Application of the Restrictive Rule
  Gillian Triggs




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 9 (3 and 4) March, 1983
  Volume 9 (3)
  Articles
  The Income Tax Judgments of Sir Garfield Barwick: A Study in the Failure of New
  Legalism
  Geoffrey Lehmann

  Estate Agents Act 1980 (VIC): Agents‟ Right to Commission Under Standard
  Form Agency Agreements
  Robert J Sadler and Steven M Gostin

  Volume 9 (4)
  Articles
  Redundancy and the Operation of an Employment Termination Law
  CJ Arup

  The Industrial Safety, Health and Welfare Act 1981 (VIC) – Radical Advance or
  Passing Phase?
  WB Creighton

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 10 (1 and 2) March, 1984
  Volume 10 (1)
  Articles
  Twelfth Wilfred Fullagar Lecture: Antitrust and Market Alternatives to Regulation
  Phillip Areeda

  Negligence, Economic Interests and the Assessment of Damages
  Peter Cane

  Volume 10 (2)
  Articles
  Hearsay Evidence and Criminal Process in Germany and Australia
  Heinrich Reiter

  Repatriation Disability Pensions: Reverse Onus of Proof Problems in the
  Determination and Review System
  Judith E Grbich




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 10 (3 and 4) September, 1984
  Volume 10 (3)
  Articles
  Borne for Another
  Louis Waller

  Acquisition of Shares is Dealing in Securities
  Paul Latimer

  Legislative Comment
  Freedom of Information and The Commonwealth Ombudsman – Kavvadias v
  Commonwealth Ombudsman
  Moira Paterson

  Volume 10 (4)
  Articles
  Copyright Protection for Ideas: An Appraisal of the Traditional View
  Andrew Christie

  Computerised Land Title and Land in Formation
  Andrew Lang

  Case Notes
  The Distribution of Property Pursuant to Section 79 of the Family Law Act 1975
  (Cth): Mallet v Mallet

  Unlawful and Dangerous Act Manslaughter
  RV Wills




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 11 (1 and 2) March, 1985
  Volume 11 (1)
  Articles
  The Duty of Schools and Teachers to Protect Pupils from Injury
  Peter G Heffey
  Case Commentary
  Taylor v Johnson: Unilateral Mistake in Australian Contract Law
  Gary Davis

  Volume 11 (2)
  Articles
  Genius and Janus: Information Technology and the Law
  Colin Tapper

  New Developments in Maintenance Agreements
  Dorothy Kovacs




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 11 (3 and 4) September, 1985
  Volume 11 (3)
  Address by His Excellency the Governor-General of Australia
  Articles
  Restoring the Frontiers of an Unruly Province: Intergovernmental Immunities and
  Industrial Disputes
  Warwick Rothnie

  Volume 11 (4)
  Articles
  Jury Secrecy and Contempt of Court
  Enid Campbell

  Is there Law after Economics: some Issues of Integration
  Timothy Pinos
  Case Note
  1984 Revisited: Regulating by Unfettered Discretion; Foley v Padley
  Susan Kneebone




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 11 (3 and 4) September, 1985
  Volume 11 (3)
  Address by His Excellency the Governor-General of Australia
  Articles
  Restoring the Frontiers of an Unruly Province: Intergovernmental Immunities and
  Industrial Disputes
  Warwick Rothnie

  Volume 11 (4)
  Articles
  Jury Secrecy and Contempt of Court
  Enid Campbell

  Is there Law after Economics: some Issues of Integration
  Timothy Pinos
  Case Note
  1984 Revisited: Regulating by Unfettered Discretion; Foley v Padley
  Susan Kneebone




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 12 (1 and 2) March, 1986
  In memoriam to Professor Emeritus Sir David Plumley
  Derham
  Volume 12 (1)
  Sir David Derham: In Memoriam
  Articles
  Detmold‟s “The Unity of Law and Morality”
  Jeffrey D Goldsworthy
  Case Commentary
  More Thoughts on Caltex: Candlewood Navigation Corporation Ltd v Mitsui Osk
  Lines Ltd
  Graham Roberts

  Volume 12 (2)
  Articles
  Judges as Lawmakers in the 1990s
  The Right Honourable Mr Justice Richardson

  Capital or Current: The Tax Treatment of Expenditures to Preserve a Taxpayer‟s
  Title or Interest in Assets
  Richard Krever




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 12 (3 and 4) September, 1986
  Volume 12 (3)
  Articles
  The Wilfred Fullagar Memorial Lecture: Income Taxation – An Institution in
  Decay?
  Ross Parsons

  Hematite Petroleum Pty Ltd v Victoria: Breakthroughs in the Interpretation of
  Section 90 of the Constitution
  Graeme Lowe

  Case Note
  United Dominions Corporation v Brian Pty Ltd & Ors
  Susan Morgan

  Volume 12 (4)
  Articles
  The Child under the Family Law Act: Recent Developments
  Dorothy Kovacs

  Controlling Minors‟ Fertility
  Jenny Morgan




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 13 (1 and 2) March, 1987
  Volume 13 (1)
  Articles
  On Charity‟s Edge – The Animal Welfare Trust
  Philip Jamieson

  The Tracy Maund Memorial Lecture: Any Reasonable Creature in Being
  Louis Waller

  Case Note
  In Re Gray; Ex Parte Marsh
  Pamela Tate

  Volume 13 (2)
  Articles
  The Liability of Bodies Posessing Statutory Powers for Negligent Failure to
  Avoid Harm
  Annette Rubinstein

  The Australian Senate and Supply – Some Awkward Questions
  Charles Sampford




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 13 (3 and 4) September, 1987
  Volume 13 (3)
  Articles
  The Wilfred Fullagar Memorial Lecture: Future Directions in Australian Law
  Sir Anthony Mason

  Directors‟ “Wider” Responsibilities – Problems Conceptual, Practical and
  Procedural
  Leonard Sealy

  Volume 13 (4)
  Articles
  Law and Medical Experimentation: of Embryos, Children and Others with Limited
  Capacity
  Gerald Dworkin

  Geographic Disadvantage as a Basis for Marine Resource Sharing Between
  States
  Glenn McGowan




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 14 (1 and 2) March, 1988
  Volume 14 (1)
  Articles
  Poison Pill Take-Over Defences: A Review of Dynamics Corporation of America v
  CTS Corporation (1986-1987)
  Paul Latimer

  The Coherence of “Legitimate Expectations” and the Foundations of Natural
  Justice
  Pamela Tate

  Volume 14 (2)
  Articles
  The Contractualisation of the Law of Leasehold: Pitfalls and Opportunities
  Jack Effron

  National Security – A Political Concept
  Peter Hanks




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 14 (3 and 4) September, 1988
  Volume 14 (3)
  Articles
  The Wilfred Fullagar Memorial Lecture: The Codification of Commercial Law
  Roy Goode

  The Meaning of “Matter”: A Matter of Meaning – Some Problems of Accrued
  Jurisdiction
  Lee Aitken

  The Freedom of Information Act (Cth) and its effect on business related
  information and confidential information in the possession of Commonwealth
  agencies
  James Elliot

  Case Note
  Defending Against Hostile Takeovers: Darvall v. North Sydney Brick & Tile
  Company Limited & Others
  James Mayanja



  Volume 14 (4)
  Articles
  The Trade Practices Injunction – An Empirical Study of its use by the Trade
  Practices Commission
  John Duns

  Avals and Quasi-Indorsements of Negotiable Instruments: A Comparison of Civil
  Law and Common Law
  Robert Lombardi

  Authors‟ Moral rights and the Copyright Law Review Committee‟s Report:
  W[h]ither Such Rights Now?
  David Vaver

  Legislative Comment
  The Australia Act 1986 – Some Legal Conundrums
  H P Lee




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 15 (1 and 2) March, 1989
  In memoriam to Emeritus Professor Ernest Kingston
  Braybrooke
  Volume 15 (1)
  Emeritus Professor EK Braybrooke: In Memoriam
  Articles
  The Retail Tenancies Legislation: Stage Two in the Landlord-Tenant Law Reform
  Saga
  Adrian Bradbrook

  The Right to Remain Silent: The Interrogation of Children
  Moira Rayner

  Vexatious Litigants and Their Judicial Control – The Victorian Experience
  Simon Smith

  Volume 15 (2)
  Articles
  Occupier‟s Liability Towards Contractual Entrants
  Jane Swanton

  Consultation and the Making of Subordinate Legislation – A Victorian Initiative
  Gregory Craven




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 15 (3 and 4) 1989
  Special Anniversary Edition celebrating 25 Years
  of Law at Monash University

  Staff Photograph – 1990
  Photograph of Editorial Committee – 1990
  Foreword by Professor CR Williams
  Introduction by Associate Professor HP Lee and Ms M Pittard

  Articles
  The Foundation of the Monash Law School
  Peter Balmford

  The Eighteenth Wilfred Fullagar Memorial Lecture: International Law-Making
  The Hon EG Whitlam

  The Proceeds of Crime Act 1987 – New Despotism or Measured Response?
  Mark Weinberg

  Judicial Attitudes, Aptitudes and Abilities in the Field of High Technology
  Colin Tapper

  Client Assessment of Victoria‟s Guardianship Board
  Terry Carney

  Necessity in a Constitutional Crisis
  Peter W Hogg

  „Bona Fides’ and „Proper Purposes‟ in Corporate Decisions
  LS Sealy

  Procedural Justice in Sentencing Australian Juveniles
  Arie Freiberg, Richard Fox and Michael Hogan

  The Foundation of the Duty of Care in Negligence
  JA Smillie

  Security – Some Mysteries, Myths and Monstrosities
  David E Allan

  Security: A Pragmatic Conceptualist‟s Response
  Roy Goode

  Wigmore, Fact-finding and Probability
  The Hon Sir Richard Eggleston

  Liability to Compensate for Denial of a Right to a Fair Hearing
  Enid Campbell




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 16 (1) 1990
  Articles
  Cross-vesting of Jurisdiction in Administrative Law Matters
  Enid Campbell

  Does American Labour Arbitration Provide a Model for Australia?
  Dennis R Nolan

  Infanticide: Psychiatrists in the Plea Bargaining Process
  Robyn Lansdowne

  Criminal Delay as Abuse of Process
  Richard G Fox

  A Question of Title: Has the Common Law been Misapplied to Dispossess the
  Aboriginals?
  Kent McNeil

  Proof of Deception and Character Merchandising Cases
  Mark Davison and Maree Kennedy
  Case Notes
  McMahon v Ambrose
  Joycey Tooher
  Port MacDonnell PFA Inc v South Australia
  Richard Cullen


  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 16 (2) 1990
  Articles
  Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the
  David Case
  C R Williams

  The Independent Discretionary Function Principle and Public Officers
  Susan Kneebone

  The Impact of an Entrenched Bill of Rights: The Canadian Experience
  Gerry Ferguson

  The Use of Video Technology for Child Witnesses
  Judy Cashmore

  Will Mercy Season Justice? An Analysis of Victorian Proposals Relating to the
  Physical Examination of Suspects
  Jonathan Clough

  Unconscionable Conduct and Unjust Enrichment as Grounds for Judicial
  Intervention
  Joshua Getzler




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 17 (1) 1991
  Articles
  Legal Education: Pulling its Weight in the Nineteen Nineties and Beyond
  The Hon Mr Justice R E McGarvie

  Living Together – The Legal Effects of the Sexual Division of Labour in Four
  Common Law Countries
  Marcia Neave

  The Cross-vesting Scheme and Federal Jurisdiction Conferred Upon State
  Courts by The Judiciary Act 1903 (Cth)
  G J Lindell

  Deferred Indefeasibility of Title in Victoria?
  Gim Teh

  Good Legal Writing: A Guide for the Perplexed
  S K Murumba

  Order Out of Chaos: Victoria‟s New Maximum Penalty Structure
  Richard G Fox

  New Developments in Directors‟ Duties – The Victorian Stance on Financial
  Competence
  Julie Dodds

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 17 (2) 1991
  In memoriam to Sir Richard Moulton Eggleston QC


  Articles
  Law and Economics: Monash Law School Foundation Lecture
  The Honourable Sir Anthony Mason AC KBE

  Jewish Divorce in Australian Family Law: The Enforceability of Jewish Nuptial
  and Prenuptial Contracts
  Andrew Strum

  Some Reflections on Consumer Protection and the Law Reform Process
  AJ Duggan

  The Liability of a Public Authority for the Failure to Carry Out a Careful Exercise
  of its Statutory Powers: The Significance of the High Court‟s Decision in
  Sutherland Shire Council v Heyman
  Karen A Hogg

  Reciprocal Social Security Agreements Entered into by Australia: Extending
  Income Support or Winding Back the Welfare State?
  Brian Simpson




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 18 (1) 1992
  Articles
  The Interventionist Court and Procedure
  The Honourable Mr Justice K H Marks Supreme Court of Victoria

  The Defendants‟ Liability for Negligently Caused Nervous Shock in Australia –
  Quo Vadis?
  Danuta Mendelson

  Legitimate Expectations and Fairness: New Directions in Australian Law
  Moira Paterson

  „Chinese Walls‟ and Conflicts of Interest
  Lee Aitken

  Ministerial Power to Amend Planning Schemes Without Notice: What Limits?
  Tannetje Lien Bryan and Susan G Streets

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 18 (2) 1992
  Articles
  The Quistclose Trust: Intention and the Express Private Trust
  Fiona R Burns

  Restitutionary Principles in Tort: Wrongful User of Property and the Exemplary
  Measure of Damages
  John Glover

  Making Sense of Copyright Law Relating to Parody: A Moral Rights Perspective
  Moana Weir

  Making Sense of Religion and the Constitution: A Fresh Start for S116
  Stephen McLeish

  Case Notes
  Proximity and Illegality in Negligence
  Greg Bosmans and Fiona Lewis

  Gala v Preston
  Shaun Ginsbourg and Bradley J Newton

  Mabo v Queensland
  Pamela O‘Connor

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 19 (1) 1993
  Articles
  The Evolution of a Separate Australian Crown
  George Winterton

  The Challenge of Medical Uncertainty: Factual Causation in Anglo-Australian
  Toxic Tort Litigation
  Elizabeth Adeney

  Methodology in Evidence – Facts in Issue, Relevance and Purpose
  Graham B Roberts

  Women and Crime: the Failure of Traditional Theories and the Rise of Feminist
  Criminology
  Carolene Gwynn

  Resolving Gender Bias in Criminal Defences
  Stanley Yeo

  A Consideration of the Emergence and Exercise of Judicial Authority in the Star
  Chamber
  Michael Stuckey

  Determining the Content of Procedural Fairness
  Bruce Dyer

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 19 (2) 1993
  Articles
  A Critique of Criticism
  The Honourable Sir Gerard Brennan High Court of Australia

  Proprietary Rights in Body Parts: The Relevance of Moore’s Case in Australia
  Debra Mortimer

  Dietrich, the High Court and Unfair Trials Legislation: A Constitutional
  Guarantee?
  Gideon Boas

  Supranational Federations: The European Community as a Model
  Jenny Siourthas

  Case Notes
  The Meaning of „Social Group‟: The Federal Court‟s Failure to Think Beyond
  Social Significance
  Savitri Taylor

  Judicial Acceptance of Immediate Indefeasibility in Victoria
  Jenny Schultz

  Law Reform
  A Clear Policy: Plain English and Life Insurance
  Bryan Dwyer

  Review of the Adoption Information Act 1990 (NSW), July 1992
  J Neville Turner

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 20 (1) 1994
  Articles
  The State of the Judicature
  The Honourable Sir Anthony Mason

  The Judiciary and the Media
  The Honourable John Harber Phillips

  Relitigation in Government Cases: A Study of the Use of Estoppel Principles in
  Public Law Litigation
  Enid Campbell

  The Public Interest Exception to the Breach of Confidence Action: Are the Lights
  About to Change?
  Jason Pizer

  Section 85 Victorian Constitution Act 1975: Constitutionally Entrenched
  Right…or Wrong?
  Carol A Foley

  The Defence of Truth and Defamation Law Reform
  David J Brennan

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 20 (2) 1994
  In tribute to His Excellency Judge CG Weeramantry


  Articles
  The World Court: Its Conception, Constitution and Contribution
  His Excellency Judge C G Weeramantry

  Judicial Reasonings and Responsibilities in Constitutional Cases
  Dennis Rose

  HIV and Hepatitis in Sport: A Legal Framework for Resolving Hard Cases
  Roger S Magnusson and Hayden Opie

  „Sterilisation‟ of Young Intellectually Disabled Women
  Elizabeth Handsley

  Protection of Equitable Interests Under the Torrens System: Polishing the Mirror
  of Title
  Les A McCrimmon

  Case Note
  Rylands v Fletcher into Negligence: Burnie Port Authority v General Jones Pty
  Ltd
  Jeannie Marie Paterson

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 21 (1) 1995
  Articles
  Towards 2001 – Minimalism Monarchism or Metamorphism?
  The Honourable Sir Anthony Mason

  The Disability Discrimination Act: Ensuring Rights of Australians with
  Disabilities, Particularly Hearing Impairments
  Bonnie P Tucker

  Commonwealth and State Powers in Health – A Constitutional Diagnosis
  Karen Wheelwright

  Mabo, Native Title and Compensation: Or How to Enjoy Your Porridge
  B A Keon-Cohen

  The Duty to Govern and the Pursuit of Accountable Government in Australia and
  the United Kingdom
  David Kinley

  Law Reform
  Review of Trade Practices Act 1974 (Cth) – Enforcement and Compliance
  Mark J Davison

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 21 (2) 1995
  Articles
  Proximity as a Determinant of Duty: The Nervous Shock Litmus Test
  Des Butler

  „Other Remedies‟ Under the Trade Practices Act – The Rise and Rise of Section
  87
  Diane Skapinker

  Federal Class Actions, Contingency Fees, and the Rules Governing Litigation
  Costs
  Vince Morabito

  Warning: Law School Can Endanger Your Health!
  Andrew Goldsmith

  The Insolvency Factor in the Avoidance of Antecedent Transaction in Corporate
  Liquidations
  Andrew R Keay

  Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 22 (1) 1996
  Articles
  Towards a Unifying Purpose for Estoppel
  Andrew Robertson

  Revocation and Variation of Administrative Decisions
  Enid Campbell

  The Territorial Application of Statutes
  Stuart Dutson

  A History of Land Use Planning Legislation and Rights of Objection in Victoria
  Murray Raff

  The Section 1323 Injunctive Power of the Australian Securities Commission: Its
  Operation and Shortcomings
  Paul von Nessen

  Legislative Comment
  The Evidence Act 1995 (Cth): Should Computer Data Be Presumed Accurate?
  Lynda Crowley-Smith

  Case Note
  National Australia Bank Ltd v Maher and Section 44(1) of the Transfer of Land
  Act 1958 (Vic)
  Joycey Tooher

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 22 (2) 1996
  Articles
  Social Conflict and Constitutional Interpretation
  Leslie Zines

  Mistaken Payments Return to the High Court: Commissioner of Revenue v Royal
  Insurance
  Mitchell McInnes

  International Product Liability Litigation: The Territorial Application of Part VA of
  the Trade Practices Act 1974 (Cth) and Part 1 of the Consumer Protection Act
  1987 (UK)
  Stuart Dutson

  The Response of Torrens Mortgagors to Improper Mortgagee Sales
  Sharon Rodrick

  Legal Aid Franchising: Food For Thought or Production Line Legal Services?
  Jeff Giddings

  Thawing the Big Chill: Reform, Rhetoric and Regression in the Security
  Intelligence Mandate
  Greg Carne

  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 23(1) 1997
  Special Edition Dedicated to Professor Louis Waller


  Articles
  Euthanasia and the Quality of Legislative Safeguards
  Kumar Amarasekara


  The Continuing Saga of the Chamberlain Direction: Untangling the Cables and
  Chains of Criminal Proof
  David Hamer


  When Can Doctors Treat Patients Who Cannot or Will Not Consent?
  Loane Skene


  The Law and Male Circumcision in Australia: Medical, Legal and Cultural Issues
  Les Haberfield


  An Introduction to Law and Economics
  Michael J Trebilcock


  Determining the Standard Compensation for the Expropriation of Nationalised
  Assets: Themes for the Future
  Patrick Smith


  Child Sexual Abuse Prosecutions and the Presentation of the Child's Story
  Andrew Palmer


  Admissibility of Implied Assertions: Towards a Reliability-based Exception to the
  Hearsay Rule
  Brenda Marshall


  Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
  Volume 23(2) 1997
  Celebratory Edition Dedicated to Professor Enid Campbell
  Sir Isaac Isaacs Chair of Law Monash University 1967 – 1997


  Articles
  The Australian Constitution - A Centenary Assessment
  The Honourable Justice Michael Kirby


  The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process
  in Australia
  Fiona Wheeler


  The Choice Not To Chose: Commonwealth Electoral Law and the Withholding of
  Preferences
  Graeme Orr


  State Constitutions in an Australian Republic
  Anne Twomey


  Framing the First Victorian Constitution, 1853-5
  John Waugh


  Constitutional Implications and Freedom of Political Speech: A Reply to Stephen
  Donaghue
  Jeffrey Goldsworthy


  Constitutional Values in Turbulent Asia
  HP Lee


  Constitutional Protection of State Courts and Judges
  Enid Campbell


  Law Reform
  Equality Before the Law: Mission Impossible? A Review of the Australian Law
  Reform Commission's Report Equality Before the Law
  Bronwyn Naylor


  Case Notes
  Langer v The Commonwealth
  Jacqueline Lipton


  The Use of Criminal Law Principles in Military Discipline
  Chief of General Staff v Stuart
  Mathew Groves
  Book Reviews



Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 24(1) 1998
In tribute to Professor Charles (Bob) Williams


Articles
„All Debts‟ Clauses in Contracts of Guarantee
Berna Collier


Culture, Custom and the Clinic – a Model for Legal Education in the South Pacific
Richard Grimes


Problems with Defamation Damages?
Andrew Kenyon


Female Genital Mutilation: Grounds for a Grant of an Australian Protection Visa?
Nick Pengelley


Knowledge and Unconscionability in a Unified Estoppel
Andrew Robertson


Universities and the Validity of Their Claims to Student Intellectual Property Rights
Ann Monotti

Case Notes
Storey's case
Richard Fox


Commissioner, Australian Federal Police v Propend Finance
Caron Beaton-Wells


Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 24(2) 1998
Articles
Instant Justice? The Desirability of Expanding the Range of Criminal Offences
Mirko Bagaric


Collateral Challenge to the Validity of Government Action
Enid Campbell


Revision of the Uniform Commercial Code in the United States and its Implications for
Australia
Henry Gabriel


Proceedings for Prison Disciplinary Offences: The Conduct of Hearings and Principles
of Review
Matthew Groves


Windfall by Wager or Will? Unilateral Severance of a Joint Tenancy
Joycey Tooher


Testate or Intestate: Is There Anything Left for the Estate? Unilateral Severance of a
Joint Tenancy
Joycey Tooher


Promoters, Prospectuses and Pragmatism: Updating Fiduciary Duties in a Time of
Economic Reform
Michael Whincop


Case Note
Kruger v The Commonwealth
Sarah Joseph


Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 25(1) 1999


Articles
When Justice Sheds a Tear: The Place of Mercy in Sentencing
Richard G Fox


What do Judges Cite? An Empirical Study of the 'Authority of Authority' in the
Supreme Court of Victoria
Russell Smyth


On Camera Proceedings: A Critical Evaluation of the Inter-Relationship Between the
Principle of Open Justice and Televisation of Court Proceedings in Australia
Christopher Lane


Natural Justice and the New Property
Ian Holloway


Re-assessing the Uses of the Resulting Trust: Modern and Medieval Themes
John Glover


Testate or Intestate: Is There Anything Left for the Estate? Unilateral Severance of a
Joint Tenancy
Joycey Tooher


Oaths and Affirmations of Public Office
Enid Campbell


Law Reform
A Review of the New South Wales Law Reform Commission's Report People with an
Intellectual Disability and the Criminal Justice System
Bernadette McSherry


Case Commentary
The MUA Cases
Joo-Cheong Tham


Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 25(2) 1999


Articles
Maintaining Public Confidence in the Judiciary: A Precious Equilibrium
Justice Susan Kenny


Leave Your Hat On? Head of State Immunity and Pinochet
Andrew D Mitchell


The Australian Constitution: Growth Adaptation and Conflict
Geoff Lindell


Of Principle and Prima Facie Tort
Christian Witting


1975 And All That - Partisan Perspectives on the Dismissal and Their Implications for
Further Debate on the Constitution
JB Paul


A Hitchhiker's Guide to the Native Title Act
Justice RS French


Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 26(1) 2000
Articles
Seven Ages of a Lawyer
Justice Michael Kirby
The author traces the seven ages of his life. The first age was as a law student and clerk
where he learnt a fascination with the law and an admiration of its institutions. The second
age was as a solicitor where he learnt the importance of dealing with and helping clients. The
third age, as a barrister, involved intense instruction in the art of advocacy and the task of
efficient time management. The fourth age as a law reformer taught the importance of
conceptual thinking, and of the way each piece of the law fits into a large mosaic. The fifth
age as an appellate judge offered instruction in the possibilities and limits of judicial exposition
and development of the law. The sixth age on the High Court has brought home the choices
which a final court must make in our system of law and the importance of legal principle and
policy in making such choices. The final point is reached in the seventh age when it is
realised that all of life‘s endeavours are nothing without insistence on one‘s own human
dignity. Lawyers as human beings have a duty to uphold fundamental human rights and
human dignity.


Reintroducing Releases of Officer Liability into Australian Corporate Law
Michael J Whincop
Recent debate about the legal treatment of officer liability for negligence has suffered from
inadequate evaluation of non-legal incentives to act carefully, including norms and markets;
imprecision in delineating and differentiating types of negligence cases; and a failure to
consider a full range of appropriate options for limitation of officer liability. In particular, reform
bodies should have considered waiving the statutory prohibition against releases of officer
liability for negligence. This paper provides a taxonomy of negligence cases, and evaluates
the problems and limitations of legal rules in each type. It then evaluates empirical evidence
from Australia‘s early corporate history during which time liability releases were permitted.
Despite significant standardisation there is little evidence of systematic unfairness or of terms
unsuited to governance. After reviewing recent experience with liability releases in the United
States, the paper then analyses the appropriate path for reform in Australia.


Wittengstein, Rape Law and the Language Games of Consent
Ian Leader-Elliott and Ngaire Naffine
This paper is concerned with the legal meaning of consent within the law of rape. Both in
ordinary language and in law, inquiries about consent appear to oscillate between reliance on
the outward manifestations of consent and a search for some inner moment which lies behind
the outward appearance. A central purpose of this paper is to examine the nature of this
conceptual instability of ‗consent‘ in mainly English and Australian rape law. We will consider
how the concept has altered over time (especially with the modernisation of sex roles), in a
manner which suggests a growing legal interest in the woman‘s mental state or point of view,
rather than mere appearances, and the degree to which the concept now serves in fact to
protect the sexual autonomy of women.


A Concise History of the Solicitors' Guarantee Fund (Vic): A Marriage of Principle and
Pragmatism
Adrian Evans
Action in the public interest is at the apex of legal professional aspiration and represents the
moral basis for the assertion by lawyers of their professional autonomy. Compensating
clients for thefts by their lawyers is a crucial aspect of legal professional accountability. The
history of defalcation compensation in Victoria is an 80 year story about clients and their
lawyers, politicians and consumers, ethics and pragmatism. It is a history of an essential
Victorian Law Institute initiative in the public interest. It is also a vehicle for the study of some
vexed conflicts between public and private purposes in the funding of the entire legal
regulatory structure in Victoria. In commenting on these conflicts, this article suggests a new


Monash University Law Review (Contents and Abstracts of Past Editions)
ethic to govern the on-going tension between private and public interests.


Barriers to the Recognition of Indigenous Peoples' Human Rights at the United Nations
Julie Debeljak
Within the United Nations system, work to secure the recognition and effective protection and
promotion of the human rights of indigenous peoples continues. This article assesses the
progress of the United Nations Draft declaration on the rights of indigenous peoples, and
explores the initial stages of the negotiation of a permanent forum for indigenous peoples
within the United Nations framework. If the human rights of indigenous peoples are to
improve, a comprehensive legal framework for indigenous peoples‘ rights should be adopted
and a permanent forum, dedicated to indigenous issues, established. Neither outcome has
occurred because States cannot reach agreement on certain fundamental principles: the right
of all peoples to self-determination, the validity of collective rights and the scope and definition
of ‗indigenous peoples‘. States must be more courageous and forward-looking when
recognising for indigenous peoples what all non-indigenous peoples take for granted.


Law Reform
Treason: Defunct or Dormant?
Adam Reynolds
The law relating to high treason – ‗the most heinous of all crimes1 – traces its origins to some
of the earliest statute law in England. Despite this, it is still the subject of on-going law reform.
Laws relating to treason are found in Victorian and Commonwealth statues, but not in all other
states of Australia. Successful prosecutions in Australia and the United Kingdom this century
are rare, and convicted offenders have often been pardoned. So is the law of treason defunct
– anachronistic in a time when Australia has not been at war for some decades? Or is it just
dormant, as it was after the Middle Ages, waiting to be adapted to a new set of
circumstances? In a review of the law of treason, this paper examines one such area – its
possible application to twentieth century terrorist activities.


The Sanctity of the Single Legal Rule/Single Sentence Structure?
Edwin Tanner
Some lawyers still believe that the components of a legal rule have clearer semantic
connections when expressed in a single sentence rather than in a series of sentences. This
claim is evaluated in the light of some aspects of current linguistic knowledge. Provisions
from three statutes have been selected and recast in multi-sentence structures. Both forms of
two of these provisions have been analysed using one method of discourse analysis. A
different form of discourse analysis is used for the two forms of the other provision. Semantic
connections between the components of a legal rule are shown to be clearer when expressed
in multi-sentence structures.


Case Commentary
Let Mortgagees and their Buyers Beware: Figgins Holdings Pty Ltd v SEAA Enterprises
Pty Ltd
Joycey Tooher
A registered mortgage of Torrens land is in the nature of a charge and does not operate as a
transfer of the mortgagor‘s interest1. However, the consequential provisions enacted in each
jurisdiction to accommodate the rights and interests of the parties under the Torrens statutory
mortgage are not identical. The recent decision of the High Court of Australia in Figgins
Holdings Pty Ltd v SEAA Enterprises Pty Ltd focuses on a statutory provision which appears
only in the Torrens legislation of Victoria and Western Australia. 2 Under the relevant
provision, a registered mortgagee of Torrens land has, during the currency of the mortgage
and subject to a right in the mortgagor for quiet possession until default, the same rights and
remedies at law and in equity as the mortgagee vested with legal title would have had or been



Monash University Law Review (Contents and Abstracts of Past Editions)
entitled to have. The provision uses general law terminology in the context of a Torrens
statute. The facts before the High Court required judicial interpretation of this obscure
provision and resulted in a reversal of the decision of the Victorian Court of Appeal. This
paper examines the various opinions expressed by the Court and concludes that the result,
although correct in principle, is not necessarily a desirable one for either mortgagees or
buyers at mortgagee‘s sales.


Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 26(2) 2000
Articles
Why is there no Common Law Right of Privacy?
Greg Taylor
This is a case study of the conditions under which Australian judges change the common law.
It is written in the belief that ‗the real focus of attention of contemporary lawyers should be
upon the extent of legal creativity, its proper occasions and the techniques that may be used
to achieve and justify it. By means of a comparative survey, it will be shown that one of the
chief forces driving the development of the common law is constitutional law, at least in the
area under study here, namely privacy.


The Bank Manager Always Rings Twice: Stereotyping in Equity After Garcia
Richard Haigh and Samantha Hepburn


Rules of Evidence and the Constitution
Enid Campbell
In the exercise of its incidental powers the Parliament of the Commonwealth of Australia may
enact legislation on the rules of evidence to be applied by federal courts and by State Courts
when they are exercising a federal jurisdiction. The federal Parliament‘s power to enact such
legislation is however, constrained by implications found in Chapter III of the federal
Constitution – the Judicature Chapter – and notably by the implication that the Parliament
cannot legislate in ways which impair the exercise by courts of judicial powers of the
Commonwealth. This article explores the impact of that implied constitutional constraint on
the powers of the federal Parliament to enact rules of evidence which are to be applied by
courts. It also considers the impact of the same constraint in proceedings before State courts
exercising federal jurisdiction and which, under s 79 of the Judiciary Act 1903 (Cth), are
directed to apply State rules of evidence.


Australian Citizenship: Past, Present and Future
Sir Ninian Stephen


The Legality of Humanitarian Intervention and the Use of Force in the Absence of
United Nations Authority
Andrew Field
The use of force last year by the North Atlantic Treaty Organisation (NATO) in Serbia as an
act of humanitarian intervention to arrest the infliction of atrocities upon the inhabitants of
Kosovo, by reason of it occurring in the absence of United Nations‘ authority, raises the
question as to whether such a use of force is legal under international law. This article
discusses that question, by firstly noting that prior to the foundation of the United Nations
there appeared to be a developing consensus among jurists who recognised a doctrine of
humanitarian intervention, and then examining whether that doctrine continues to exist. In
fact, despite the attractiveness of the ‗legalist‘ arguments, which would suggest that the
doctrine has been subsumed in the United Nations‘ framework, there do still exist compelling
reasons justifying the continued existence of such a doctrine.


Case Commentaries
Freedom of Speech and Defamation: Developments in the Common Law World
George Williams and Adrienne Stone
This comment traces the relationship between freedom of speech and the common law of
defamation in India, Australia, South Africa, Canada, the United Kingdom and New Zealand.
A central theme is the treatment of the iconic decision of the United States Supreme Court in


Monash University Law Review (Contents and Abstracts of Past Editions)
New York Times v Sullivan. This comment shows that while the use of foreign precedent by
judges in common law countries is widespread, the use of such precedent is, in the main, not
uncritical. The reaction of common law courts to New York Times signals that these courts
will usually reassess and exercise their own judgment in relation to even the most revered
aspects of the American constitutional tradition.


Res Ipsa Loquitur in Australia - the Maxim Remains
Leigh Schulz


An Analysis of Obviousness in Aktiebolaget Hassle v Alphapharm: Implications for the
Pharmaceutical Industry
Michael Papházy
LosecTM is the world‘s largest selling pharmaceutical drug and the second largest beneficiary
of the pharmaceutical benefits scheme in Australia1. This article concerns a judgment given
by a single judge of the Federal Court and its impact on patent law in Australia. In particular,
the finding on obviousness by Lehane J in Aktiebolaget Hässle v Alphapharm has potentially
serious implications for the pharmaceutical industry in Australia.


Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 27(1) 2001
Addresses
The Shape of Representative Democracy
Chief Justice Murray Gleeson


Letting Justice Be Done Without the Heavens Falling
Justice Kenneth Hayne


Articles
Giving Substance to Murphy's Law: The Question of Australian Sovereignty
John Tate
This paper argues that the focus on the identity of the head of state which has characterised
the Australian republican debate fundamentally misses the point about Australian sovereignty
and independence. It is not the foreign status of the British head of state but the imperial
status of the Commonwealth of Australia Constitution act 1900 (UK) which is the fundamental
limitation on Australian sovereignty. This is so despite the High Court judgments emerging in
the wake of the Australia Acts on 1986 which proclaim that Australian sovereignty now
resides entirely with the Australian people. Such judgments may have legality within
Commonwealth law but they are fundamentally irrational in terms of the wider constitutional
tradition of which they are a part. This is because they violate the hermeneutic limits which
provide the rational framework for all High Court judgments. This paper therefore concludes
that, ultimately, the only way that the evolution of Australian legal independence from Britain
can actually produce a revolution in sovereignty is if there is an alteration of the ultimate rules
of recognition of the Commonwealth of Australia Constitution Act 1900 (UK) at referendum.


The Constitutional Basis of the Competition Code
Brendan Sweeney
The Competition Code was introduced to fill in some of the gaps left exposed in the
competition provisions of the Trade Practices Act 1974 (Cth) because of constitutional
limitations. A significant objective of the Code was that Australia‘s competition laws be
administered by a single national authority. The Australian Competition and Consumer
Commission (‗ACCC‘) was created for this purpose. Under the Code the States not only filled
in the gaps in the law but also handed exclusive power to the ACCC to administer the Code.
In this respect the Code follows the legislative device used in the Corporations Law. The
effectiveness of that device is now under question following challenges to some of the
enforcement provisions of the Corporations Law. This article investigates the extent to which
the administration and enforcement provisions of the Code are constitutional.


Universities and Market Discourse
Kathryn McMahon


Case Commentary


Bank of Credit and Commerce International (Overseas) Ltd v Akindale
Charles Zhen Qu


Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 27(2) 2001
Articles
The Legalisation of Euthanasia in the Netherlands: Lessons to be Learnt
Kumar Amarasekara and Mirko Bagaric
The euthanasia debate has been re-ignited by the decision of the Dutch Parliament to legalise
the practice. This will make the Netherlands the first nation in the world to legalise
euthanasia. This paper explains the key aspects of the legislation and considers whether it
provides a viable model for reform.


Ordinary and Reasonable People: The Design of Objective Tests of Criminal
Responsibility
Eric Colvin
This paper reviews the design of objective tests of criminal responsibility for serious offences.
It is argued that their design should reflect two fundamental principles. First, there is the
principle that there should be no penal liability without fault. It follows from this principle that
there should be no responsibility for failure to attain a standard that was beyond the
capacities of the accused. Secondly, there is the principle of proportionality between
culpability and penal liability. It follows from this principle that, if objective tests are to be used
for serious offences, responsibility should be restricted to breaches of minimal standards of
conduct that were attainable with reasonable ease. We should reject major penal sanctions
for failure to attain idealistic or difficult standards. Moreover, in order to ensure that a
standard could have been attained with reasonable ease, objective tests should be adaptable
for any special handicaps of the accused. The paper uses these ideas to review the
formulations of criminal negligence and of the objective elements in the defences of self-
defence, provocation, duress and necessity.


Contemporary Australian Abortion Law: The Description of a Crime and the Negation
of a Woman's Right to Abortion
Mark J Rankin
This article provides an up-to-date statement of the law with regard to abortion in Australia.
The law in each jurisdiction is canvassed and discussed, with particular emphasis upon the
most recent developments in the law.
In doing so, two aspects of Australian abortion law are highlighted: first, that abortion is a
criminal offence; and second, that therefore Australian law denies women a right to abortion.
The article dispels the myth that there exists ‗abortion-on-demand‘ in Australia, and argues
that any ‗rights‘ that exist with respect to the practice of abortion are possessed and exercised
by the medical profession, and not by pregnant women.


A Smallish Blow for Liberty? The Significance of the Communist Party Case
Roger Douglas
The Community Party Dissolution Act 1960 (Cth) was presented by some of its critics as a
first step towards totalitarianism, and the High Court‘s decision in the Communist Party case
has been welcomed as having possibly saved Australia from that fate. In this article, I argue
that, except insofar as it related to the Communist Party itself, the Dissolution Act was less
repressive than many of its critics maintained. Had the Act survived, the Commonwealth
would have been hard-pressed to use it against bodies other than the Communist Party, and
against people who had not been members of the party. The under-enforcement of previous
pieces of anti-communist legislation suggests the government would have been wary about
making use of its powers under the Act.
The High Court‘s decision itself reaffirmed its commitment to the rule of law, and in doing so
protected Australian democracy. However, in doing so, it affirmed the non-reviewability of
decisions by the Governor-General, and it left the Commonwealth (and the States) with
considerable powers which they could use against communists. The subsequent failure of
the Commonwealth and the States to make much use of their legislative powers highlights the


Monash University Law Review (Contents and Abstracts of Past Editions)
degree to which government was subject to political as well as legal constraints. However,
the Commonwealth‘s use of its discretionary powers highlights the degree to which it was
nonetheless able to pursue a limited anti-communist agenda.


Justice Kirby, Human Rights and the Exercise of Judicial Choice
Leigh AH Johns
In 1988 the Hon Justice Michael D Kirby1, President of the Court of Appeal of the New South
Wales Supreme Court delivered a paper to a judicial colloquium in Bangladore, India,
convened by the Commonwealth secretariat and the Government of India on the domestic
application of international human rights norms. The colloquium resulted in the adoption of
the ‗Bangladore Principles‘. In February 1996 Kirby J was appointed to the High Court of
Australia. Since that time he has delivered in excess of 250 judgments which have been
reported in the Commonwealth Law Reports. This research paper explores the extent to
which, since his appointment to the High Court, Kirby J has sought, through his judgments, to
ensure compliance by the High Court with Australia‘s international obligations.


Causation in the Law of Negligence
Steven Yannoulidis
This article seeks to understand the way in which a causal connection between an actor‘s
conduct and the event for which he is responsible is considered to be a necessary condition
of liability. The High Court has sought to place the choice of such conditions on a principled
footing by its espousal of ‗common sense‘ notions of causation. Yet, it is argued, the High
Court‘s belief that causal notions are questions of fact to be resolved as a matter of common
sense reveals a process of ad hoc decision-making. Nevertheless, it is contended, a view of
causation as a starting point of any ascription of responsibility is fundamental, for it is
grounded in our belief in a link between our actions and the sense we have of ourselves as
persons.


Regulating Damage on the Internet: A Tortious Approach?
Dane McLeod
The aim of this article is to show that a legislative approach to regulating conduct that causes
property damage is fraught with difficulties in the context of the Internet environment. Further,
the criminalisation of such behaviour may be undesirable given the social costs that will
result. It is hard to philosophically justify such criminal regulation of civil wrongs. I will
examine the recent proposal of the Standing Committee of Attorneys General regarding the
incorporation of computer offences into Chapter 4 of the Model Criminal Code. I will illustrate
that, given the inflexibility of a legislative response to both keep pace with technological
change, and adequately define the harm, the common law is best equipped to deal with these
harms. Further, civil actions and the use of tort law are of even greater utility given both the
commercial imperatives involved and the incentive to corporations to protect their own
interests. Any legislative response should be more appropriately targeted to (i) recognising
that intangible property is capable of being the subject of civil tort actions and (ii) providing a
safety net for individual users who may fall victim to corporate abuses of power. The Internet
suggests the necessity to legislatively embrace provisions for computer damage in each
State‘s equivalent of the Wrongs Act 1968 (Vic) and further, to extend the traditional notion of
property beyond the tangible. The definition of property should be synchronized between the
criminal and civil law.


Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 28(1) 2002
Address
Women and Human Rights
Elizabeth Evatt
An exploration of the gap between rhetoric and reality as regards women and human
rights. Over the years measures have been taken to combat violence against women and
to bring women‘s rights into mainstream human rights. The article considers these
measures and then proceeds to examine Australia‘s compliance with its obligations under
the Women‘s Convention. The author then considers the implementation of human rights
standards by treaty bodies and ways to further increase compliance with human rights
obligations both at home and abroad.


Articles
Compensation and Compulsory Acquisition Under the Native Title Act 1993
Brian Keon-Cohen
The question of upon what principles traditional owners should be compensated for loss
or impairment of native title rights and interests, due to acts of the Crown or third parties,
remains unresolved. In this article, the author examines one aspect of this problem which
arises under the Native Title Act 1993 (Cth). That aspect is how compensation might be
assessed when areas of land (or waters) under claim are compulsorily acquired pursuant
to state or territory land acquisition legislation. The relationship between those laws and
the sometimes overriding impact of the Commonwealth Native Title Act is examined, as
are relevant aspects of the long standing jurisprudence arising, particularly in Victoria,
under state compulsory acquisition legislation. The author suggests some preferred
approaches to assessing compensation in this context, drawing on the American
experience as well as Northern Territory personal injuries decisions where compensation
has been provided for loss of cultural enjoyment.


The State and the Stolen Generation: Recognising a Fiduciary Duty
Amanda Jones
This article examines the liability of the State as fiduciary for the Stolen Generation. The
Stolen Generation is a term usually used to describe indigenous people removed as
children from their families. Anglo-Australian fiduciary law is designed to protect economic
interests, but it is the fundamental human interests of the Stolen Generation that are in
need of protection. A re-formulation of the fiduciary principles, by imposing positive duties,
is needed in order to protect these non-economic interests.
There has been limited recognition of a fiduciary duty owed to indigenous people, based
in native title and possible more broadly applicable. The Canadian development of
fiduciary principles provides useful guidance for the extension of fiduciary law. Canadian
courts have recognised that fiduciary law protects non-economic interests, and have done
this through the imposition of prescriptive, or positive, duties on fiduciaries.
The role of guardian is a sub-type of fiduciary, carrying additional, more onerous duties
than other types of fiduciary. The law of guardianship carries specific positive fiduciary
duties relating to the care and protection of wards. This law is particularly applicable to the
Stolen Generation. This is a sound basis on which fiduciary law can develop in a
principled manner to protect the non-economic interests of the Stolen Generation. The
application, specific to the situation of the Stolen Generation, would be a controlled
development of the doctrine, enabling the legitimate, non-economic interests of the Stolen
Generation to be recognised under appropriate doctrine of fiduciary duties.


International Law as a Tool of Constitutional Interpretation
Kristen Walker
Justice Kirby of the High Court of Australia has recently begun to use international law in



Monash University Law Review (Contents and Abstracts of Past Editions)
his interpretation of the Australian Constitution. This article analyses this development in
light of prior case law and the views of other current members of the High Court. It briefly
outlines the cases in which members of the High Court have, over the years, drawn on
international law in interpreting the Constitution. It then explores in greater detail Kirby J‘s
approach to the use of international law in constitutional interpretation and considers the
reaction to that approach by other members of the High Court. Finally, it provides a
normative argument concerning the interaction of international law and constitutional law.
The article argues that, although the use of international law in constitutional law is not
novel, Kirby J‘s articulation of an interpretative principle is novel. It concludes that, while
international law has had and should have a role to play in constitutional interpretation, a
robust role for international law is unlikely to be accepted by a majority of the Court as
presently constituted.


New Crimes or New Responses?: Future Directions in Australian Criminal Law
Richard G Fox
Australian criminal law has to respond to new technology, social conditions, and threats.
The opening decades of the twenty-first century will see an accelerated shift from local, to
national and international sovereignty over the criminal law; an expansion of Federal
criminal power; a continuing struggle to apply substantive criminal law and appropriate
penal sanctions to corporate wrongdoing; greater use of civil sanctions to supplement
criminal ones; increased emphasis on regulatory rather than punitive modes of
responding to breaches of the law; managerial approaches to court procedure; and a
rethinking of the values, doctrines and purposes of the criminal law.


„Fidelity‟ in the Post-Industrial Age: Developments in Case Law on Employee
Disclosure of Confidential Information
Adrian Brooks
Confidential information can be protected against use or disclosure by employees, usually
by injunction. However, courts refuse the injunction where the information has become
part of the employee‘s own stock of knowledge. This clear position was confused with the
case of Faccenda Chicken v Fowler [1987] 1 Ch 117, which suggested that there were
two types of confidential information, of which only the ‗more confidential‘ type could be
protected against use or disclosure once the employment was terminated. Since then,
courts have quietly re-absorbed Faccenda into the traditional approach. With the
increasingly ‗knowledge-based‘ nature of employment, much confidential information will
have been created by the employees themselves, raising questions as to the approach of
treating it as the employer‘s property, even when the court declines, in its discretion to
protect that property by injunction.


Law Reform
Tracy Maund Lecture
Louis Waller
This lecture begins with an examination of the impact of judge made law on the practice of
medicine, and of medicine on case law, using recent cases on informed decision making
as the example. Then it contrasts the force and effect of legislation enacted on medical
issues, especially Victoria‘s enactments on assisted reproduction. The lecture concludes
with the argument that the law must not lag behind developments in medical science and
clinical practice. It contends that the legislature in a modern, democratic society has both
the power and the responsibility to ensure that that does not happen.


Case commentary
Possum Processing, Picture Pilfering, Publication and Privacy: Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd
William M Heath



Monash University Law Review (Contents and Abstracts of Past Editions)
The decision of the High Court of Australia in Australian Broadcasting Corporation v Lenah
Game Meats Pty Ltd contains important jurisprudential developments in the fields of equity,
media law and privacy. In exploring the availability of interlocutory relief to restrain media
publication, the majority decisions expound a fixed rule for the award of interim injunctions
and cast doubt on the role of broad judicial discretion, unconscionability and a tort of privacy.
Additionally, the contrasting judgments of Kirby J and Callinan J offer insight into the
fundamental tension in media law: namely, the protection of privacy interests versus the
public interest in free speech.




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 28(2) 2002
In memoriam to Kumar Amarasekara


Articles
Ombudsmen‟s Jurisdiction in Prisons
Matthew Groves
This article examines the operation of Ombudsmen, using examples drawn from their
work within prisons. The article commences with an explanation of the principle of
administrative justice, which encompasses the goals that the various elements of
administrative justice, which encompasses the goals that the various elements of
administrative law such as the Ombudsman seek to foster. It then explains the
jurisdiction, powers and procedures of Ombudsmen. The article argues that, while
Ombudsmen are not granted determinative powers, they use informal and flexible
procedures to work effectively with administrative officials to review and reconsider
decisions. The article also considers whether Ombudsmen foster or ‗deliver‘
administrative justice. The article concludes that the informal procedures and negotiation
used by Ombudsmen are effective to deal with the individual complaints of citizens, while
also providing a useful mechanism to improve administrative practices on a wider scale.
It is also argued that Ombudsmen should not be granted determinative powers because
such powers might impede their neutrality and, therefore, their ability to influence the
administrative officials they must work with.


Defender of the Faith? The Role of the Attorney-General in Defending the High
Court
Ben Heraghty
The refusal of the Federal Liberal Attorney-General, Honourable Daryl Williams QC, to
defend Justice Michael Kirby of the High Court of Australia in the fact of a direct personal
attack from a Senator under parliamentary privilege in March 2002, raised many important
questions relating to the role of the Attorney-General in defending the High Court from
attack. There has also been much debate in the legal profession in recent years over
political attacks on the decisions of the High Court, especially in response to the Mabo
(no2) and Wik decisions. In this article, the author surveys the development of the office
of the Attorney-General in the British and Australian context, noting differences in the
modern version of the office, and examines the extent of the doctrine of independence.
The author then explores the debate over the role of the Attorney-General in defending
the High Court, with particular reference to the views of the past three Chief Justices of
the High Court and the present Attorney-General, the Honourable Daryl Williams QC prior
to the attack on Justice Kirby. The article concludes that it is both appropriate and
necessary for the Commonwealth Attorney-General to defend the judiciary from sustained
political attack that may undermine the rule of law and damage the integrity of the courts.
While the Attorney-General is primarily a politician and does not necessarily have to agree
with the substantive decisions made by the High Court, as Chief Law Officer, the
Attorney-General has a duty to prevent damaging conflict between the fundamental
institutions of Australian constitutional government. The Attorney-General must act as
both a bridge and a gatekeeper to uphold the proper functioning of the separation of
powers.


Fiduciary Law and Non-Economic Interests
Richard Joyce
Australian courts have recently rejected claims in fiduciary law relating to the mistreatment
of children on the basis that the claims related to ‗non-economic‘ interests. This article
critically examines the approach of recent Australian decisions. Part I of the article
illustrates the implications of the way courts conceive ‗fiduciary relationships.‘ The author
sets out three main approaches to classifying fiduciary relationships: the ‗established
categories‘ approach, the ‗diagnostic‘ approach and the ‗functional‘ approach. It is argued


Monash University Law Review (Contents and Abstracts of Past Editions)
that the latter approach best allows courts, when faced with novel claims involving non-
economic interests, to adopt a flexible approach that accords with the nature and purpose
of the equitable principles underlying fiduciary law. Part II briefly compares the approach
of Canadian and Australian courts to the question of whether non-economic interests can
fall within the ‗scope‘ of fiduciary obligations. In Part III the author identifies three
propositions which underlie the Australian approach in the post-Breen v Williams era:
firstly, that the High Court in Breen v Williams rejected the possibility that fiduciary law
could cover non-economic interests; secondly, that the Canadian approach to fiduciary
law in respect of non-economic interests imposes positive or prescriptive obligations; and
thirdly, that fiduciary law adds nothing to existing doctrines of contract and tort law in
relation to non-economic interests. The author argues that these propositions do not
provide the support required to justify the Australian approach. It is argued that the use of
the distinction between economic and non-economic interests rests upon a misapplication
of Breen v Williams and a simplistic characterisation of the Canadian approach and fails
to address the fundamental nature and purpose of fiduciary law. In particular, the author
argues that the question of whether fiduciary law can cover non-economic interests
should be separated from the debate on the proscriptive/prescriptive models of fiduciary
law.


Is White Justice Delivery in Black Communities by „Bush Court‟ a Factor in
Aboriginal Over-Representation Within our Legal System?
Natalie Siegel
Finding causes of indigenous over-representation in the criminal justice system inevitably
raises numerous issues. This article focuses upon the different court process
administered to remote living Aboriginal people as a key contributory. Based on field
research conducted throughout remote lying Aboriginal communities, the author evaluates
the Bush Court system operating throughout the NT and WA. Bush Court refers to the
circuiting Magistrate, Prosecution and Aboriginal Legal Service visiting communities once
a month and once a quarter, to conduct court (predominantly criminal) over a single day.
Inadequate ability for defence services to be provided to the residents of these
communities and various obstacles to due process are suggested causes of the
disproportion of indigenous people subject to criminal penalties. Further, the article
explores issues faced by remote living indigenous Australians that lead to immense Bush
Court case numbers and the majority of public order and driving offences. Police
practices and administrative court policies are investigated with respect to potential
human rights abuses and their ability to continue in an unchecked environment.


Mare Liberum and Opinio Juris: A Grotian Reading of the North Sea Continental
Shelf Cases
Eric Wilson
This essay is concerned with the lingering, albeit largely unrecognised, influence of
Natural Law upon contemporary internationalist jurisprudence in judicial discourse.
Following an agenda that is broadly Derridean in nature, the paper strives to provide a
critical reading of a pivotal contemporary ―positive‖ ICJ ruling. The North Sea Continental
Shelf, illustrating the myriad ways in which the allegedly post-naturalist language of the
World Court in fact replicates nearly all of the primary metaphysical assumptions of
naturalist jurisprudence. This is most notable in the ICJ‘s strategic deployment of a
reading of opinion juris that is blatantly ―post-metaphysical‖, with the Presence of the One
mimetically substituted with the equally monistic Will of the State. These considerations
are underscored by the critically juxtaposition of select vital passages of North Sea with
an extended critical exegesis of the openly Naturalist international maritime treatise Mare
Liberum of Hugo Grotius. By reading Grotius, the alleged ―Father‖ of International Law,
―against himself‖, both Grotius and much of contemporary international jurisprudence will
be revealed as being the (unwitting?) replicators of supposedly archaic modes of juro-
political discourse.


Whither the Common Law Privileges: Vale Client Privilege in Tax Investigations?


Monash University Law Review (Contents and Abstracts of Past Editions)
Rodney Fisher
Legal professional privilege is a long established common law doctrine service to protect
the confidentiality of certain communications between a client and legal adviser. Although
there has always existed a degree of tension surrounding the conflict created by the
privilege between competing public interests, conventional wisdom has suggested that
abrogation of the privilege requires clear legislative direction, with no option for judicial
abrogation of such a deeply entrenched doctrine.
While in the past courts have traditionally acted to preserve and even expand the scope of
the doctrine, there has arguably been an emerging trend for courts to be more readily
prepared to find an implied exclusion of professional privilege.
In taxation law, the wide access and information powers provided to the Commissioner
have typically been seen as subject to professional privilege. However recent judicial
comment has potentially created uncertainty as to the availability of professional privilege
in tax bureaucratic investigations.
This article reviews the path taken in the development of professional privilege in
Australia, and questions whether the trend for courts to find an implied exclusion of the
privilege should potentially cause concern as to the future of professional privilege as a
defence against administrative investigations.


Mass Rort Class Actions Under the Federal Court of Australia Act: Justice for All or
Justice Denied?
Barry Lipp
When the Commonwealth Government enacted its class action legislation in 1992 under
Part IVA of the Federal Court of Australia Act 1976 (Cth), the Minister announced that a
prime purpose of the legislation was to provide access to justice for those who would
otherwise be denied it because their claims were not individually recoverable. However,
for ‗mass‘ tort claimants these same procedures, intended to facilitate access to justice,
may in practice create restrictive barriers to commencement of settlements to ensure that
the interests of all class members are protected. This article recommends that the
commencement procedures in Part IVA be interpreted less restrictively so that mass tort
claimants are not denied access to the courts, and that there be greater judicial scrutiny
and control of settlements to ensure that Part IVA provides a fair and efficient mechanism
for the resolution of mass tort claims.


Law Reform
Seventeen Years On: Is Victorian Legislation Less Grammatically Complicated?
Edwin Tanner
Has the work of the former Law Reform Commission of Victoria on drafting resulted in
shorter and less grammatically complex sentences in Victorian legislation? A sample of
recent Victorian legislative drafting has been analysed and the results compared with
those from two earlier statues. There has been some improvement, but problems still
remain.




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 29(1) 2003
Address
Sir Isaac Isaacs and the Workings of the Australian Constitution
Sir Zelman Cowen


Articles
Decision-Making in a Vacuum?
Justice Raymond Finkelstein
Like everyone else, judges are the product of their social experience, background,
education and heritage. These factors will underline at least some aspects of the
decision-making process. To deny that judges have regard to social justice, the public
good or other ideals is to deny a fundamental part of their role. Juges are commonly
required to choose between several different and opposing legal principles that may be
equally applicable. This inevitably involves a value judgment. Similarly, judges must
strive to ensure that outdated principles and standards that no longer confirm with current
attitudes are not perpetuated. This is the surest way to secure judicial decisions that are
consonant with generally accepted notions of social justice, as well as those ideals to
which our legal system ought to aspire.

The Australian „Single Law Area‟
Justice Bradley Selway

The accepted wisdom in Australia is that Australia comprises a number of separate law
areas for the purpose of private international law. On this approach the question whether
the court of an Australian State should apply the statute law of another Australian State is
to be determined by the common law rules relating to conflict of laws. However, the
approach and reasoning of the High Court in a number of recent cases, particularly
Pfeiffer and Mobil Oil, at least suggests that Australia should be treated as a single law
area and that the rules to resolve conflicts between State statues are constitutional rules,
not common law rules. The nature, details and effect of such constitutional rules is
considered.

The Retrospectivity of Judicial Decisions and the Legality of Governmental Acts
Enid Campbell

Agents of government may have acted in reliance on powers conferred by legislation
which has later been declared by a court to be ultra vires or inoperative. Or else they may
have acted in reliance on a judicial interpretation of legislation which has subsequently
been held to be erroneous. In either case the agent of government may possibly incur a
civil liability for the action it took, and which was found to have been unauthorised. The
article examines ways and means by which courts in a number of jurisdictions have
sought to temper the retroactive effect of their rulings on what the controlling law was at
the relevant time in the past.

Heydon‟ Seek: Looking for Law in the Wrong Places
Allan C Hutchinson

What judges think they are doing has considerable effect on what they actually do.
Accordingly, the appointment of Dyson Heydon to the High Court of Australia is a useful
occasion on which to examine the connection between one judge‘s thought and his
actions. Heydon‘s extra-judicial writings call for a nostalgic return to the formalist virtues
of an earlier era. However, his early judicial opinions on the High Court not only
demonstrate the intellectual shortcomings of such a formalist approach, but also
emphasise that adjudication is an inescapably political and contested activity – judicial
conservatism is no less ideological than its activist counterpart.

The Declining Influence of ILO Standards in Shaping Australian Statutory



Monash University Law Review (Contents and Abstracts of Past Editions)
Provisions on Unfair Dismissal
Anna Chapman

This article explores the role that International Labour Organisation standards have
played in shaping the development of federal termination of employment protections. In
particular, the article analyses the influence of ILO Convention 158 and Recommendation
166 in the enactment and subsequent development of the federal statutory unfair
dismissal and discriminatory dismissal provisions. The inception of the statutory
protections with the Industrial Relations Reform Act 1993 (Cth) is examined, as is their
current form in the Workplace Relations Act 1996 (Cth).

The Structure and Strength of the Propensity Inference: Singularity, Linkage and
the Other Evidence
David Hamer

This article brings some coherence to the law of similar fact evidence through a close
focus on the logical structure of the propensity inference. For the inference to operate,
the defendant must be linked with other misconduct which shares sufficient singularity
with the charged offence. Any assessment of the inference must also have regard to the
other evidence. The other evidence may play a contributing role, narrowing the issues
and lessening the work demanded of the propensity inference. Alternatively, it may have
the effect of rendering the propensity inference. Alternatively, it may have the effect of
rendering the propensity inference unnecessary. Where the propensity inference is
supported by other independent incriminating evidence, it will not be necessary for the
linkage and singularity components to satisfy the criminal standard of proof on their own.
The analysis in this article has application to both the propensity and coincidence variants
of the inference, and to both the admissibility and proof stages of the trial. The English
Law Commission‘s draft Bill and Chapter 1 of Part 11 of the Criminal Justice Bill are
criticised for failing to take account of the logical structure of the inference.


Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 29(2) 2003
Anniversary Issue Celebrating 30 Years of the Monash
University Law Review


Address
The Australian Judicature – Some Challenges
Chief Justice John Doyle


Articles
Insights for International Law from Religious Reflections on Peace
Judge Christie Weeramantry

This article seeks to show how the world‘s major religious traditions concur in their
emphasis on peace as an imperative of human relations. Peace means not merely the
avoidance of conflicts but the removal of their causes and is based on concepts such as
the infinite value of human life, the unity of the human family, equality, forgiveness and
assistance to those in distress. All religions concur in their emphasis on and rich
treatment of these concepts. Neglect of these principles is a fertile source of armed
conflicts, and international law could strengthen its universal appeal and enrich its
conceptual base through the expositions of these concepts enshrined in the literature of
the great religions.

Corporate Governance – Is this the Answer to Corporate Failures?
Bob Baxt

The financial collapse of a number of very large companies overseas and in Australia in
recent years had led to increased calls for stronger corporate governance rules to improve
the rights of shareholders. Corporate governance, whilst a critical and important
development in our corporate law, if over-relied on can in fact lead to unnecessary
tensions and conflict with the rules of the common law and the Corporations Act 2001
(Cth), with potentially dire consequences for company directors and officers. Our courts
should be prepared to provide a more sensitive and sensible interpretation of the law to
overcome the too ready reliance on tortuous and lengthy legislative over-reaction or soft
non-binding rules which may confuse rather than assist the regulatory regime.

Reining in the Concept of Appropriation in Theft
Bob Williams

The concept of appropriation as a defining element in the offence of theft needs to be
understood in such a manner as to draw a proper borderline between those forms of
interference with property rights which ought to be the concern of the criminal law and
other forms of misconduct which should be actionable only, if at all, by civil litigation. To
regard an appropriation as occurring where an act is performed which amounts to an
assumption of any one of the rights of an owner is to define the actus reus of theft too
widely. Rather, the concept of appropriation should be regarded as incorporating an
element of adverse interference with or unsurpation of a right of an owner.

Ancora Imparo: The Historical Role of the Law Review in University Scholarship
Marilyn Pittard and Peter Heffey

The Monash University Law Review celebrates its 30th anniversary in 2004. This article
traces the historical development and scholarly contribution of the Law Review since its
inception in 1974 and where appropriate places this in the wider context of developments
concerning issues facing university law reviews today. It examines the governance of the
Review, in comparison with the diverse models of other Australian university reviews, the
categories of its authors and the topics they have explored in illuminating legal debate, the


Monash University Law Review (Contents and Abstracts of Past Editions)
evolution of its cover design, its sources of support and sponsorship, its annual
celebratory dinner speech, and its future. Following surveys of data, and research,
relevant data, set out in tabular form, is provided in respect of various matters including
the following comparative matters: the chronological order for commencement of
Australian mainstream university law reviews; comparative governance models of
Australian law reviews; and online accessibility of law reviews in Australia.

Talking about Social Responsibility: Liability for Misleading and Deceptive
Statements in Corporate Codes of Conduct
Tamieka Spencer

Changing attitudes, of both investors and consumers, to the role of corporations in society
has led many organisations to adopt corporate codes of conduct to address corporate
social responsibility issues. While on their face these documents would appear to have
little legal consequence, the recent US decision of Nike v Kasky suggests that misleading
statements in such codes (or other corporate ‗image‘ advertising) will carry legal penalties.
This possibility is even stronger in Australia, where such statements are likely to
contravene the Trade Practices Act 1974 (Cth), leaving the organisation liable to
significant penalties. Accordingly, organisations should be aware of the risk of talking
about social responsibility, without any commitment to action.

Recent Developments in Australian Abortion Law: Tasmania and the Australian
Capital Territory
Mark Rankin

This article follows in from a previous article, ‗Contemporary Australian Abortion Law: The
Description of a Crime and the Negation of a Woman‘s Right to Abortion‘, published in
(2001) 27(2) Monash University Law Review.

The predominant aim of the 2001 article was to provide an up-to-date statement of the law
with regard to abortion in each Australian jurisdiction. However, since that article was
published there have been significant legislative developments in Tasmania and the
Australian Capital Territory relating to abortion, with the consequence that the 2001 article
no longer completely satisfies this goal.

This present article aims to satisfy this goal by providing an up-to-date statement of the
law with regard to abortion in the jurisdictions of Tasmania and the Australian Capital
Territory. In doing so, comparisons are made with abortion laws in other Australian
jurisdictions, and adopting the perspective of the 2001 article, inquiry is also made as to
the effect of the recent legislation of the criminality of abortion, and the influence it has
upon a woman‘s right to abortion.

The Equitable Doctrine of Unconscionable Dealing and the Elderly in Australia
Fiona Burns

As the overall population ages, it will be necessary to reappraise the effectiveness of legal
doctrines and legislation from the perspective of the elderly claimant. The purpose of this
article is to evaluate the current operation of the equitable doctrine of unconscionable
dealing by a review of recent cases involving elders decided in the High Court, the
Federal Court and, in particular, the State Supreme courts. It will be argued that despite
the attempts of the High Court to read the criteria for unconscionable dealing broadly,
lower courts have tended overall to interpret and apply the criteria strictly. Therefore,
there has been an ongoing tension between laissez-faire attitudes and equity‘s role to
protect vulnerable persons with the result that it is questionable whether the doctrine has
been used consistently and adequately to protect elders who suffer from a special
disadvantage.




Monash University Law Review (Contents and Abstracts of Past Editions)
Harris v Digital Pulse: The Availability of Exemplary Damages in Equity
David Morgan

The question of whether equity possesses a power to make an award of exemplary
damages requires a consideration of the source and purpose of remedies in equity.
Stated broadly, the choice is between adherence to equity‘s traditional refusal to award
compensation by way of damages, and a more flexible approach to shaping remedies so
as to assuage the consciences of the parties. This choice raises the contentious issue of
the degree, if any, to which equity has been or should be influenced by the common law.
The highest courts of Canada and New Zealand have both made awards of exemplary
damages against defaulting fiduciaries. However, in the recent Harris v Digital Pulse
decision, the New South Wales Court of Appeal held that it had no such power, at least in
situations where the parties are subject to a contract of employment. This article analyses
the detailed judgments in Harris v Digital Pulse and concludes that the dissenting
judgment of Mason P, which favoured a flexible and incremental approach to the
development of remedies in equity, should be favoured over those of the majority.


Case commentary
Towards a Real Right of Privacy
Jonathan Horton




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 30(1) 2004


Address
The Eleventh Lucinda Lecture
„… Such Other Federal Courts as the Parliament Creates‟: 100 Years of Evolution
Chief Justice Michael Black


Articles
Australian Racial Hatred Law: Some Comments on Reasonableness and Adjudicative
Method in Complaints Brought by Indigenous People
Anna Chapman

This article examines the adjudication of complaints of racial hatred brought by Indigenous
applicants under the Racial Discrimination Act. The objective is to analyse how the legislative
rules are interpreted and applied through the processes of adjudicative decision-making. The
article focuses on ways in which the concept of reasonableness in the legislation is
interpreted by adjudicators, in addition to some aspects of the broader processes and
practices of adjudication. It is argued that the law in practice in these cases is problematic, in
several interrelated respects.

A Critical Morality for Lawyers: Four Approaches to Lawyers‟ Ethics
Christine Parker

Drawing on the scholarship of legal ethicists and case studies of Australian legal practice, this
paper proposes a set of conceptual tools for assessing the ethics-in-practice and moral
judgment of Australian lawyers. The paper proposes that different approaches to legal ethical
reasoning can be distinguished by the ways they answer the following questions: (1) to what
extent should lawyers‘ ethics be determined by a special and particular social role that
lawyers should play? (2) how should lawyer and client relate to one another in relation to
ethical issues? Should one‘s view of morality prevail over the other? (3) what is the lawyer‘s
obligation towards law and justice? (4) to what extent should lawyers in their daily work make
sure they care for people and relationships? On this basis I identify four broad approaches to
ethical reasoning in legal practice: adversarial advocate; responsible lawyer; moral activism;
and ethics of care. A fifth approach, based solely on the law of professional responsibility and
rules of professional conduct, is discussed and dismissed as an invalid ethical approach.

Duties of Committee Members under the Associations Incorporation Acts
Charles Parkinson

Australia has state based statutory regimes, known as the Associations Incorporation Acts,
for the regulation of non-profit associations. Each state regulates the duties of committee
members differently, ranging from partial codification of their duties to total reliance upon the
general law. Committee members are generally held to a company director standard. This
article argues that committee members of associations with an annual turnover less than A$1
000 000 should be held to a lower standard than company directors. It sets out a principled
basis for determining the appropriate level of regulation for committee members by examining
committee composition and the reasonable expectations of committee members.

Cross-vesting Civil Proceedings – A Practical Analysis of the Interests of Justice in the
Determination of Cross-vesting Applications
Stuart Miller and Olivia Nicholls

The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and legislation of the same name in
each Australian State and Territory were introduced in 1987 to establish a uniform scheme for
the cross-vesting of civil proceedings in Australia. Among other things, the cross-vesting
scheme allows civil proceedings to be transferred from the Supreme Court of one State or
Territory to the Supreme Court of another State or Territory if certain cumulative criteria are


Monash University Law Review (Contents and Abstracts of Past Editions)
met. The exception in the legislation is s 5(2)(b)(iii), which provides that the ‗interests of
justice‘ is a separate and specific ground for a transfer. Judicial interpretation of this popular,
apparently catch-all provision has given rise to an almost formulaic list of factors that a court
will take into account when determining a cross-vesting application under s 5(2)(b)(iii).

Unhelpfully, and despite the uniformity of the legislation itself, the cases indicate that State
and Territory courts are not adopting a wholly consistent approach in their consideration and
application of these factors. This paper examines the particular tests that have been
developed to determine whether a proceeding should be transferred in the interests of justice,
including the factors a court will take into account when applying the tests. The analysis
necessarily covers a review of the case law across all the Australian jurisdictions.

Despite some judicial inconsistencies, the conclusion is reached that there are now some
very clear, established considerations by which the courts assess the ‗interests of justice‘. As
discussed in this paper, in the majority of cases, the courts‘ approach to these considerations
should allow litigants to assess, with a reasonable degree of certainty, the prospective
success or failure of a cross-vesting application under s 5(2)(b)(iii) of the Act.

Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 30(2) 2004
Tribute
Peter Balmford: Academic, Lawyer and Monash University Law Review Contributor
Marilyn Pittard


Articles
Property in Human Tissue and the Right of Commercialisation: The Interface between
Tangible and Intellectual Property
Dianne Nicol

This article considers the legal consequences of recognising property rights in human tissue
in relation to the specific issue of control of the commercialisation of the results of research
using that tissue. Ethical guidelines and privacy laws do not deal directly with this issue.
Legal recognition of a tissue source‘s ownership of their tissue might enable actions to be
brought for breach of bailment and conversion. However, this article concludes that even if
these actions could be sustained, they may not provide adequate remedies to a source who
objects to the commercialisation process or wants to take a share of the profits of
commercialisation. Moreover, legal recognition of a source‘s intangible right of
commercialisation may not assist if it conflicts with patent rights held by others. Other options
are considered, including the imposition of a requirement in patent law to verify consent to
patenting and the establishment of structures to facilitate benefit sharing.

Gene Technology Regulation and the Environment Protection and Biodiversity
Conservation Act 1999 (Cth)
Karinne Ludlow

Diverse risks arise from the release of genetically modified organisms into the environment,
including possible environmental and socio-economic impacts. Not all risks are addressed by
the national GMO regulatory regime created by the Gene Technology Act 2000 (Cth). Some
risks, namely socio-economic impacts, are instead addressed by recently introduced State
moratorium legislation. Yet others, in particular some environmental concerns, are assessed
under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) but only if the
operation of that Act is triggered. This article considers the interaction of the regulation of
agricultural GMO releases by the Gene Technology Act 2000 (Cth), State moratorium
legislation and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Customary and Indigenous Law in Transitional Post-Conflict States: A South Sudanese
Case Study
Alexander P Danne

Post-conflict societies and transitional states, including those in our region the Pacific, are
increasingly seen as fertile ground for the imposition of externally designed legal systems.
Imposition can occur as a result of NGO advocacy, the transposition of ‗ready made‘ legal
systems by the international civil society or by supra-national and international organisations.
Not only is the existence of local customary legal systems often ignored during this process,
but the strengths and inherent infrastructure of customary systems are often not capitalised
on during the implementation phase of the new system, ultimately to the detriment of the
state‘s legal system. The result of these failures is that establishment of law and order proves
more elusive than it otherwise could be. Customary and traditional legal systems, in their
many varied forms, continue to provide a source of social stability and a basis on which
indigenous legal development could occur in numerous post-conflict and transitional states
around the world. Additionally, customary law also functions as a central element of peoples‘
cultural integrity and heritage. By using transitional South Sudan as a research case study,
important lessons are brought to the fore about the advantages and importance of both
acknowledging and building on existing local legal systems in transitional states. Customary
legal systems can potentially provide a key avenue through which to expedite rule of law and
judicial development in post-conflict and transitional states. Insights into this process are


Monash University Law Review (Contents and Abstracts of Past Editions)
provided by an examination of the interfaces in South Sudan between local customary legal
systems, nascent statutory regimes and internationally promoted human rights standards.

Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for
Single Women and Lesbian Couples
Adiva Sifris

In Victoria, single women and lesbian couples are prohibited from accessing clinically based
assisted reproductive services unless they are classified as ‗clinically infertile‘. This article
argues that recent judicial decisions illustrate that the discrimination perpetrated against these
women may create serious legal and social issues. A maze of legislation regulating the legal
parentage of children born as a result of assisted reproductive services is examined. It is
argued that amending the Infertility Treatment Act (Vic) to eradicate the need for ‗clinical
infertility‘ is the first small step towards dismantling existing discriminatory barriers.


Continuous Disclosure: Has Regulation Enhanced the Australian Securities Market?
Entcho Raykovski

In order to ensure that the Australian securities market produces the optimal amount of timely
information, mandatory continuous disclosure is essential. Whilst the market arguably
produces a sufficient amount of information on its own, the evidence on irrationality of
investory, the public good characteristics of information and the incentives for managers to
withhold ‗bad‘ news all suggest otherwise. It is for these reasons that Australia has adopted a
framework of continuous disclosure via the Corporations Act 2001 (Cth) and the Listing Rules
of the Australian Stock Exchange. Historically, the framework of enforcement under the two
regimes had fallen short of what is required to ensure that the full range of breaches can be
rectified by adequate sanctions. The CLERP 9 reforms have sought to resolve this problem
by increasing the range of remedies available under the Corporations Act 2001 (Cth). The
ASX has also attempted to widen its power and to ensure compliance with its Listing Rules
through the ‗false markets‘ requirement, which came info force on 1 January 2003.
Unfortunately, the requirement has little, if any, residual operation over and above the rules
already in place prior to that date. It is proposed that widening the range of actions available
to the ASX would be preferably to the existence of the ‗false markets‘ rule. Additionally, the
ASX needs to address the problems associated with the perceptions of a conflict between its
commercial and regulatory functions. The best way to eliminate such perceptions would
involve the continual external supervision of its activities and the adoption of a policy to
provide reasons for its decisions, even though it may not be required to provide these by law.
This will guarantee transparency in its operations and will maintain the integrity of the market.

Economic Guidelines for Awarding Exemplary Damages
Michael J Legg

Australian and American law both recognise that where exemplary damages are available their
purpose is deterrence and punishment. In the United States the goal of exemplary damages and
the effectiveness of the legal system in achieving that goal have been the subject of extensive
research. The idea of exemplary damages being imposed to punish or seek retribution against an
individual for a gratuitous moral wrong has been questioned due to the prevalence of the corporate
form. In the case of corporate wrongdoing economic theory has been invoked to argue that the
focus of exemplary damages should be optimal deterrence. According to the economic analysis of
deterrence, the socially correct or optimal level of deterrence is created by compelling the
responsible party to internalise the full social cost of its conduct, but nothing more than that. It
further follows that the financial circumstances of a corporate defendant are irrelevant. In trying to
give effect to the economics of deterrence, there has been research into the decision-making
processes of jurors which concluded that placing the exemplary damages decision in the discretion
of the jurors leads to arbitrary awards. Accordingly, this article seeks to draw on the economics of
deterrence and cognitive psychology research to provide guidance to Australian courts faced with
a claim for exemplary damages.

Book Review



Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 31(1) 2005


Address
The Twlefth Lucinda Lecture
What Separation of Powers
Chief Justice Marilyn Warren


Articles
Managerialism in Australian Criminal Justice: RIP for KPIs
Arie Freiberg

Over the last twenty-five years, managerialism, or new public management, has produced
sweeping reforms in the criminal justice system. However, it has been relatively unremarked,
probably because it has been embedded in a broader modernising process of government.
This article examines the substantive effects that managerialism has had on the criminal
justice system. Of particular concern is its influence on the concepts of justice and on the
criminal justice system, viewed both as a system and in terms of its constituent arms and
processes: law enforcement, the courts, sentencing and corrections. It argues that the
influence of managerialism has been pervasive, powerful and in some cases, pernicious. On
the other hand, where it has been allied with good management, it has brought efficiency,
effectiveness, economy and clarity of purpose which was lacking from many parts of a system
which was very far from perfect. Finally, it argues that a post-managerialist system can
potentially take the best of reforms of the last few decades to create a hybrid combining good
governance with humanity and justice.

Guideline Judgments in Victoria
Beth Crilly

The Sentencing (Amendment) Act 2003 (Vic) commenced on 1 July 2004, giving the Victorian
Court of Appeal the statutory power to hand down guideline judgments. This article examines
the issues arising from this reform. In particular, it discusses whether guideline judgments
can achieve their aim of improving consistency in sentencing, concluding that while guidelines
are unlikely to increase consistency of result, they may lead to increased consistency of
approach to sentencing. The aim of increasing public confidence is also examined, and it is
found that guideline judgments have the capacity to act as an excellent tool for increasing
public confidence in sentencing. The article also explores the specific legal difficulties that
guideline judgments present for Victoria, including the hostility of the judiciary towards
guidelines, the seeming incompatibility of guideline judgments with the instinctive synthesis
approach to sentencing and the issues guideline judgments present for individualised justice.
Finally, a range of suggestions are presented for how guideline judgments can be
successfully and usefully implemented by the Court of Appeal. While the article is primarily
aimed at the Victorian jurisdiction, much of its content can be extrapolated to other Australian
jurisdictions, whether they currently use guideline judgments, or are considering utilising them
in the future. This article endeavours to state the law to at least May 2005.

Eagle or Ostrich? The Application of the Geneva Convention (III) in the Jurisprudence
of the United States Supreme Court
Sandro Goubran

This article will examine the extent to which the Geneva Convention (III) (Convention relative
to the Treatment of Prisoners of War) has been applied, if at all, by the United States
Supreme Court. While the direct application of the Convention will be considered, emphasis
will be given to other, arguably less direct, instances of application. For instance, the use of
the well-established canon of statutory interpretation that Acts of Congress be read, as much
as possible, in conformity with international law. In this context, the recent judgments of the
Court in Hamdi v Rumsfeld and Rasul v Bush will be considered.



Monash University Law Review (Contents and Abstracts of Past Editions)
It will be observed that enforcement of the Convention, which is an example of direct
application, is often left to military commissions rather than the Court itself. That is not to say
the Court does not perform an oversight function at the fulcrum of the United States judicial
hierarchy. However, the level of oversight is dependent on a multitude of factors that include
whether the victim/detainee is a United States citizen, whether the detention is on United
States‘ sovereign territory, etc. The paper will consider these ‗threshold‘ factors.

In a nutshell, the contention will be that the Court has shown a surprising deference in its
jurisprudence to the Convention. Of course, its deference has been within the constraints of
the over-arching United States‘ constitutional structure, which divides power amongst three
arms of government, namely, the executive, legislature and judiciary. Within this framework,
as we will see, the Court has a limited but important role to play.

Freeport in West Papua: Brining Corporations to Account for International Human
Rights Abuses under Australian Criminal and Tort Law
Joanna Kyriakakis

This article surveys and promotes the utility of Australian tort and federal criminal law as a
means of bringing to account corporations operating in developing countries, failed, weak or
corrupt states, where there are claims of serious corporate human rights abuses. In particular
it addresses this question through the case of the mining operations of Freeport McMoran
Copper and Gold Inc in West Papua, Indonesia. In that case there are allegations against the
corporation, in complicity with the Indonesian State, that border on crimes against humanity
and genocide; such is the context and severity. Arguably as a result of Freeport‘s presence,
the company‘s concession area is the most militarised of all of Indonesia. This article argues
that, in light of existing insufficiencies in international criminal law and relying on ‗host states‘
to regulate and discipline corporations, Australia‘s laws could be better utilised as a means of
such regulation.

Perceptions of the civil Jury System
Jacqueline Horan

There is an Australian wide trend of reducing the right to civil jury trial. The only jurisdiction
where civil jury trials remain commonplace is Victoria. Some critics find it hard to believe that
Victoria will not follow the trend and reduce the right to civil jury trial. The demise of the civil
jury in Australia has prompted a debate as to the value of the civil jury system to the
community. One of the most common arguments made in support of the retention of the civil
jury system is that the civil jury is important to the community as it promotes legitimacy of the
civil legal system. This article explains the legitimacy argument and explores the validity of
the argument through the presentation of the results of an empirical study. In 2001, the
author conducted an empirical study of the Victorian civil jury in operation. Civil jurors, judges
and court staff were asked a series of questions designed to explore their perceptions of the
civil jury system. Their responses are presented in the context of the historical and
contemporary perspectives of the value and place of the civil jury system in Victoria.

Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 31(2) 2005
Address
The Thirteenth Lucinda Lecture
How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary
Justice Ronald Sackville


Articles
Increasing the Supply of Transplant Organs by Way of Financial Incentives
William Potts

The article begins by exploring the organ shortage and its possible causes and suggests that
the ever expanding gap between supply and demand could be alleviated by offering financial
inducements. The numerous arguments against paid organ donation are deconstructed in an
effort to show that such arguments are not strong enough to justify the failure to seriously
consider a market system. Particular attention is given to the concept of 'no property' in the
human body and the extent to which unquestioning adherence to this principle does more
harm than good. The question of whether society is prepared to accept paid organ donation is
considered before moving on to examine the practical considerations involved with the
commerce of organs and the question of regulation. The conclusion states that a market in
body parts, which is limited to transactions in cadaveric donations and closely regulated by
the state, represents the best solution to the organ shortage.

Construction Litigation: Can We Do It Better?
Paula Gerber & Bevan Mailman

In recent years, alternative dispute resolution, most notably mediation, has become a popular
way of keeping disputing parties out of the Australian courts. Despite these advances
numerous disputes still end up in litigation. This is particularly true when it comes to complex
construction cases. While Australia‘s focus on mediation is admirable, it has come at the
expense of a broader debate regarding litigation reform. In the United Kingdom, where
mediation has not been embraced with the same enthusiasm, there have been many
innovative reforms to civil procedure rules. In particular, the Pre-Action Protocol for
Construction & Engineering disputes is proving to be successful in reducing the amount of
litigation and improving the conduct of cases that do proceed to trial. This article considers
whether similar civil procedure reforms are warranted in Australia.

Strategy, Choice and the Skilled Legal Negotiator
Larry Crump & Jeff Giddings

This article provides an overview to competitive or distributive negotiation strategy and
integrative or problem solving negotiation strategy and then asks; what factors determine the
strategy that should be selected in a specific negotiation? This article develops a framework
of primary and secondary factors that can influence each side in choosing a negotiation
strategy. This list may be of some value to negotiation researchers, but also offers guidance
to assist the legal negotiator to engage their client in a discussion so that they are able to
make this fundamental decision on strategy together. This guidance can also assist the legal
negotiator in preparing for the negotiation strategy that will be selected by the other side.

Trade Marks: Property Rights and Their Limitations
Patricia Loughlan

Disqualification of Members of Parliament in Victoria
John Waugh

Laws restricting eligibility for membership apply to all Australian parliaments, but their
meaning and effect are often uncertain. The laws governing membership of the Parliament of
Victoria are particularly archaic and confused. Successive amendments have been poorly



Monash University Law Review (Contents and Abstracts of Past Editions)
integrated, creating awkward problems of interpretation. Most of the grounds of
disqualification were originally derived from British models, but some have remained in
Victorian law long after their abolition in the United Kingdom. Questions about their effect
arise regularly, but few cases reach the courts, partly because of limitations on justiciability.
This article explores the Victorian disqualifications, considering in particular the position of
government office-holders and government contractors, and avenues for raising
disqualification questions.

Seeds, Weeds and Unlawful Means: Negligent Infliction of Economic Loss and
Interference with Trade and Business
Francesco Bonollo


The purpose of this article is to examine the decision of the High Court in Perre v Apand
Pty Ltd (1999) 198 CLR 180 and subsequent cases and developments, including Dovuro
Pty Ltd v Wilkins (2000) 105 FCR 476; [2003]; 215 CLR 317, Johnson Tiles Pty Ltd v
Esso Australia Pty Ltd [2003] VSC 27 and Woolcock Street Investments Pty Ltd v CDG
Pty Ltd (2004) 216 CLR 515 relating to the negligent infliction of pure economic loss and
to compare the principles and policies identified in those cases with those in the ‗genus‘ or
‗innominate‘ tort of interference with trade and business by unlawful means. In this
respect, Part I of the article will seek to examine the approach of the High Court to the
determination of questions relating to the duty of care in cases of pure economic loss – in
particular, the search for a universal approach or methodology and the ‗factors‘ or ‗salient
features‘ indicative of the duty in such cases. Part II will examine the unlawful
interference tort with particular emphasis on the ‗unlawful means‘ and ‗intention‘ elements
of the tort. Assistance will also be drawn from relevant concepts in the tort of interference
with contractual relations. In Part III, comparisons between the operation of various
concepts in the negligence tort and the intentional torts under consideration will be drawn
and distinctions and overlapping concepts highlighted, in particular in relation to the
knowledge requirements and the operation of unlawful or otherwise illegitimate conduct.
The article will conclude that, on account of conceptual and practical difficulties, these
intentional torts should remain separate and distinct from the negligence framework and
not be subsumed within the negligence tort.


Book Reviews




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 32(1) 2006
Addresses
Minute of Appreciation: Professor Richard G Fox
C R Williams


Sentencing in the Garden of Eden
Richard G Fox
The Biblical story of Adam and Eve is symbolic of the first breach of the law; the first criminal
prosecution; the first sentencing decision; and of the earliest known act of clemency. The
death penalty threatened for the offence in question was not imposed – another penalty was
substituted. It involved lifelong banishment under harsh conditions. This paper explores
whether the sanctions imposed on Adam and Eve would be considered free of error by a
modern Court of Appeal applying the sentencing principles which have evolved in this
jurisdiction since that classic case. By examining the adequacy of the procedural steps taken
in arriving at the sentence, the paper uses the case to illustrate present day disputes
regarding the appropriate methodology of sentencing. The substantive sentences imposed on
the parties are then examined to test whether they are proportional to the wrong doing and
satisfy the principle of parsimony, namely that a sentence should not be ‗more severe than
that which is necessary to achieve the purpose or purposes for which the sentence is
imposed‘. On this test, the sentences are found wanting as being excessive, both in their
duration and in the inclusion of conditions, particularly in respect of Eve, that are unrelated to
the original offence, cruel in their scope and unusual in their reach to third parties.

The Dreyfus Case a Century on – Ten Lessons for Australia
The Hon Justice Michael Kirby AC CMG
It is a century since Captain Alfred Dreyfus was exonerated of passing French military secrets
to Germany. The story of his arrest, trials, humiliation and ultimate vindication are retold here.
He was the victim of anti-Semitic prejudice and institutional failings. In this article the author
reviews the lessons for contemporary Australia of the decade long ordeal. The lessons
include many relevant to lawyers. We must be vigilant against miscarriages of justice; alert to
stigma against minorities; cautious about closed trials; ready to protect those who question
legal outcomes; careful to scrutinize authority; scrupulous in upholding the secular and
impartial character of public institutions; attentive to media strengths and weaknesses; ready
to consider change where institutions fail; and willing to offer apologies when injustice is
proved.

Articles
Implied Assertions in Criminal Cases
C R Williams
The application of the hearsay rule to implied assertions has long been problematical. Prior to
the decision in Walton v The Queen (1989) 166 CLR 283, the balance of authority supported
the view that the hearsay rule, while strict in its application, did not extend to implied
assertions. In Walton v The Queen, the High Court moved to the position that the hearsay
rule did extend to implied assertions, with a body of judicial opinion favouring a flexible,
reliability based approach to the admissibility of implied hearsay. In Bannon v The Queen
(1995) 185 CLR 1, the High Court affirmed the applicability of the hearsay rule to implied
assertions but returned to a strict approach to admissibility. In contrast, the Evidence Act
1995 (Cth), Evidence Act 1995 (NSW) and Evidence Act 2001 (Tas) restrict the application of
the hearsay rule to express assertions, with admissibility being further extended by significant
statutory exceptions to the rule. This approach is affirmed in the recent review of this uniform
legislation carried out by the Australian, New South Wales and Victorian Law Reform
Commissions.

It is submitted that when regard is had to the purposes which the hearsay rule is designed to
serve, the rule should be treated as extending to implied oral and written assertions, but not to



Monash University Law Review (Contents and Abstracts of Past Editions)
assertions to be implied from conduct. It is suggested that the hearsay rule is properly
regarded as formalistic in nature, and that the rejection in Bannon v The Queen of a flexible
approach to admissibility is correct in principle. Leeway should however exist, allowing for
admissibility in appropriate cases. This is best achieved not by judicial flexibility, but rather by
statutory provisions, such as those contained the Evidence Act 1995 (Cth), Evidence Act
1995 (NSW) and Evidence Act 2001 (Tas), which should be carefully construed having regard
to the primary principle of exclusion.


Judicial Responses to Class Action Settlements that Provide no Benefits to some
Class Members
Vince Morabito

Class proceedings may be instituted in only two Australian Courts, the Federal Court of
Australia and the Supreme Court of Victoria. The settlement of class proceedings raises
unique and challenging issues given that the outcome of such proceedings binds not only the
formal parties – the class representatives and the defendants – but also the claimants
represented by the class representatives, the class members. This is one of the reasons why
a class proceeding may not be settled without the approval of the Court. The aim of this
article is to explore the approach of these two Courts when confronted with settlements that
provide no benefits to some categories of class members. Federal Courts in the United States
have been required to approve class action settlements since 1938. This has resulted in an
extensive, and extremely useful, body of case law and legal literature on class action
settlements. Consequently, the US jurisprudence on class action settlements is also
considered in some detail.

Class actions differ from ordinary lawsuits in that the lawyers for the class, rather than the
clients, have all the initiative and are close to being the real parties in interest. This
fundamental departure from the traditional pattern in Anglo-American litigation generates a
host of problems.

[C]lass actions accomplish many salutary goals; at the same time, they can cause great
mischief. In both instances, the legal profession, judges and lawyers alike, are responsible for
the result.


What Could Have Been? The Common Law Doctrine of Native Title in Land under Salt
Water in Australia & Aotearoa/New Zealand
Jacinta Ruru

Once upon a time, the Indigenous peoples of Australia and New Zealand had exclusive
occupation and use of their homelands. They did not distinguish between land on dry soil and
land under water – it was all considered to be one garden. In recent years, both peoples have
attempted to use the courts in their respective countries to reaffirm their connection with this
landscape. This article examines the contemporary interpretation of the common law doctrine
of native title and its applicability to one part of this space: land under salt water.


The Social, Political & Theoretical Context of Drug Courts
Clare Cappa

This paper situates the drug court phenomenon within the social, political and theoretical
framework in which it operates. It addresses the philosophical underpinnings of drug courts
within the context of criminal punishment, drawing on influences from recent criminological
theory. The importance of understanding the background and rationale for drug courts cannot
be underestimated if they are indeed, as the author suggests, a possible template for the
criminal justice system of the future.




Monash University Law Review (Contents and Abstracts of Past Editions)
How Statutory Civil Liability is Attributed to a Company: An Australian Perspective
Focusing on Civil Liability for Insider Trading by Companies
Charles Zhen Qu

Where human servants of a company engage in insider trading activities in the course of their
employment, the problem may arise as to, inter alia, the civil liability of the company.
Questions on the ways in which the act and the knowledge of the person(s) who did the act
and/or had the relevant knowledge may be attributed to the employing company will be at
issue in determining the company‘s liability. This article makes an attempt to answer these
questions. The article discusses the reasons why rules of agency will only have limited
applications in insider trading liability attribution and how the tests that the Privy Council
stipulated in Meridian Global Funds Management Asia Ltd v Securities Commission may
assist in determining the company‘s general law and statutory liability for insider trading. The
paper argues that it is possible to apply the doctrine of aggregation to combine the act of one
servant and the knowledge of another for the purpose of establishing a company‘s civil liability
for insider trading in Australia. It also contends that a company will not lose its memory where
it acquires the relevant knowledge through a servant who ceases his or her employment after
making relevant business decisions with the knowledge acquired, if the company innocently
implemented the decisions after the departure of the servant.


The Unexpected Enactment of New Treason Provisions: Can it Possibly be Justifiable?
Nathaniel Y Khng

For four decades, the offence of high treason in Australia remained unchanged. However, in
2002 the Commonwealth Parliament enacted new treason provisions as part of new counter-
terrorism legislation. The new legislation has broadened the scope of the offence of treason in
Australia. Thus far, the only reason given by the Government for legislating new treason
provisions is that the offence of treason had to be modernized to reflect the nature of modern
conflict. Any further elucidation of the rationale for the legislating of the new provisions cannot
be found in the deliberations of the Senate Legal and Constitutional Legislation Committee or
the parliamentary debates on the counter-terrorism legislation. Modernisation would appear to
be an insufficient justification for the enactment of the new provisions, due to the nature of the
offence. An examination of relevant jurisprudence and commentaries reveals the presence of
four possible contentions which indicate that the enactment of the new treason provisions
may not be justifiable. This paper will show that these contentions may be refuted.

Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 32(2) 2006
Address
The Fourteenth Lucinda Lecture
‘Concerning Judicial Method’ – Fifty Years On
Hon Justice Kenneth M Hayne AC


Articles
Sex, Drugs and „Evil‟ Souls: The Growing Reliance on Preventive Detention Regimes
Professor Bernadette McSherry

Since the terrorist attacks of 11 September 2001, legislatures around the world have
increasingly invoked preventive detention measures to address perceived security risks to the
community. Australia has been no exception to this trend. Whilst not a new phenomena, the
growing use by States of such exceptional powers raises important policy questions. This
article traces the rise of current preventive detention regimes in Australia as they have been
applied to various categories of ‗dangerous persons‘, in particular as they relate to sex
offenders, the involuntary detention of those with infectious diseases or mental illness, those
with alcohol and drug problems, ‗unlawful non-citizens‘ and in relation to terrorism. Policy
issues that arise from these regimes are considered, including the conflict between preventive
detention regimes and the international human right to freedom from arbitrary detention.


Jurisdiction and Power: Habeus Corpus and the Federal Court
David Clark

This paper criticises the distinction made in Ruddock v Vadarlis that the Federal Court may
not issue a writ of habeas corpus, though it may issue an order in the nature of a writ of
habeas corpus. The paper argues that the Federal Court may issue a writ of habeas corpus
and identifies three statutory bases for this conclusion. The paper also argues that the court in
Ruddock v Vadarlis misunderstood the writ in assuming that it was less flexible than it actually
is; and that the conclusion reached in that case was unnecessary given the findings actually
made by the court.

United Nations Governance of Failed States: Proposing the Foundations of a
Comprehensive Framework
Darren Lim

This paper proposes the foundations of a broader legal framework of United Nations
governance of failed states. The author considers the background to the post-Cold War
interventionism that has sparked this phenomenon, before turning to the wider theoretical and
historical contexts against which such governance occurs. The author argues that the
skeletal framework of black-letter law that currently oversees the international administration
of failed states is insufficient because it lacks constraints on the way governance occurs. This
renders it susceptible to the normative criticisms of trusteeship and neocolonialism and
reduces the likelihood that such missions will achieve their stated aims. Accordingly, the
author seeks to critically situate the black-letter sources of law and recent case studies of
transitional post-conflict governance within these broader contexts, in order to propose basic
normative principles that can credibly constrain the current positivist framework. These
principles are designed to address the central challenge of UN governance: to confer on the
international body the legal authority needed to maintain peace and security and improve the
welfare of citizens, but to avoid the risk of a regime that politically symbolises a form of
western, neo-colonialist subjugation.




Monash University Law Review (Contents and Abstracts of Past Editions)
The Ostensible „Flexibilities‟ in TRIPS: Can Essential Pharmaceuticals Be Excluded
from Patentability in Public Health Crises?
Caroline Henckels

The requirement that a country sign up to the complete package of World Trade Organization
(‗WTO‘) agreements in order to join the organization has been problematic for developing
countries, entailing institutional reforms which, it can be argued, are ill-suited to their needs,
particularly those of the least developed members. The WTO has emphasised that the
‗flexibilities‘ provided by the compulsory licensing provisions in the Agreement on Trade-
Related Aspects of Intellectual Property Rights (‗TRIPS‘) allow developing countries to
determine their own national health policies and access essential pharmaceuticals. While
political attention currently focuses on compulsory licensing under TRIPS, this article
examines the article 27(2) of TRIPS, which allows members to exclude inventions from
patentability if certain criteria are met. The article argues the approach of future dispute
settlement panels and the Appellate Body will be shaped by jurisprudence on both the
General Agreement on Tariffs and Trade (‗GATT‘)‘s exception provision and the European
Patent Convention. This jurisprudence shows that a very high threshold must be met in order
to invoke unilateral trade restrictions or exclude an invention from patentability. This means it
is likely that developing countries would have significant difficulty invoking article 27(2) of
TRIPS to exclude certain pharmaceuticals from patentability in order to enable affordable
access for those affected by diseases such as HIV-AIDS.

Anti-Doping and Human Rights in Sport: The Case of the AFL and the WADA Code
Paul Horvath

In 2005, after considerable pressure from the Federal Government, the Australian Football
League (AFL) agreed to adopt the World Anti-Doping Agency Code 2003 (‗WADA Code‘).
This came into effect for the 2006 AFL season. There was substantial opposition to the new
WADA Code from both the AFL and the AFL Players‘ Association. One reason was that the
AFL already had an effective anti-doping code of its own in place. A second was that the AFL
had implemented at the beginning of 2005 its own Illicit Drugs Policy (‗IDP‘). Given that the
AFL already had its own framework for dealing with drug infringements, a framework based
on long and careful research, the need for the WADA Code was questionable. In some
respects, the AFL‘s own IDP was tougher than the WADA Code: it operated 44 weeks per
year. The WADA Code is designed only for ‗in-competition‘ infringements. Ultimately, as the
WADA Code will be applied to AFL football, the question is its legality in certain
circumstances. This paper questions whether any suspension of an AFL player for taking
recreational drugs in circumstances where there will be no performance benefit can be
defended as lawful. There are good reasons to think that any such suspension will be an
unlawful restraint of a player‘s trade as an AFL footballer.

The Numerus Clausus Principle in Contemporary Australian Property Law
Brendan Edgeworth

The numerus clausus principle is one of key metaprinciples of the property law of common
law systems. It refers to a ―closed list‖, or a set menu, of finite types of property rights. In land
law, it limits the number to less than a dozen comprising the estates, the servitudes and the
security interests. The rationale that underpins this metaprinciple is the idea that by
simplifying the range of rights, it is easier for prospective purchasers to discover how rights
over land have been fragmented. This article examines the contemporary application of the
numerus clausus principle in recent Australian case law. It argues that while historically it may
have operated to impose an optimal standardisation on the number of property rights, it now
unduly restricts the development of property law. The basic reason for this is that cheap and
efficient registration systems have substantially removed the problem the numerus clausus
principle was originally meant to solve. These systems not only make it comparatively easy to
discover idiosyncratic packages of rights over land, but it forces those who create them to
register if they are to be enforceable against third parties.


Book Review


Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 33(1) 2007
Articles

Parliamentary Sovereignty and Dialogue under the Victorian Charter of Human Rights
and Responsibilities: Drawing the Line between Judicial Interpretation and Judicial
Law-Making
Julie Debeljak

In 2005, the Victorian Government established the Human Rights Consultation Committee to
undertake a community consultation about the state of rights in Victoria. The main
recommendation of the Committee was the enactment of a domestic rights instrument for
Victoria. The Victorian Government accepted the recommendation and, by mid-2006, the
Victorian Parliament had enacted the Charter of Human Rights and Responsibilities Act 2006
(Vic). The Charter is based largely on the British Human Rights Act 1998 (UK) (‗HRA‘). This
article explores some of the substantive difficulties with the adoption of the British model
given the twin stated aims of the Victorian Government to preserve parliamentary sovereignty
and to establish an educative interinstitutional dialogue. In particular, it explores how the
mechanisms adopted to preserve parliamentary sovereignty – the s 32 judicial power of rights
compatible interpretation and the s 36 judicial power of declaration – may, in fact, undermine
parliamentary sovereignty, threaten the educative dialogue amongst the differently placed,
skilled and motivated arms of government, erode the justificatory and accountability aspects
of rights instruments, and undermine the protection of rights.

Suffering in Silence: Prohibitions on Interviewing Prisoners in Australia, the US and
the UK
Tamara Walsh

In all Australian States and Territories, journalists and researchers can be charged with a
criminal offence if they interview a prisoner without government permission. The dangers of
such laws, both in terms of free speech and preventing miscarriages of justice, have been
recognised in both the US and the UK. Yet in 2005, an Australian investigative journalist was
charged with unlawfully interviewing a prisoner in Queensland. This article contrasts the
Australian position with that of the US and the UK and examines the constitutional,
administrative and human rights law arguments against these oppressive Australian laws.

Victim Impact Statements and Sentencing
Sam Garkawe

Legislation allowing for victim impact statements (‗VIS‘) to be presented during sentencing
hearings has been introduced into the criminal justice systems of most common law nations,
notwithstanding many reservations from defence lawyers and civil libertarians. Despite such
legislation being widespread throughout the common law world, the use of VIS remains
controversial. The main purpose of this article is to utilise basic sentencing principles in order
to critically analyse the question of whether, and if so, to what extent, VIS are relevant to an
offender‘s sentence and thus should influence sentencing decisions. It will be shown by the
use of a hypothetical that there are a minority of circumstances where a VIS may
appropriately be relevant to sentence. In such cases adequate procedural safeguards need to
be instituted to ensure that offender‘s rights are not compromised. It will also be shown that
despite the VIS being irrelevant to sentencing in the majority of cases, it is still justified to
allow victims to submit a VIS in all cases as they serve an important therapeutic role for
victims in that they provide an opportunity for victims to participate in the criminal justice
system, thereby reducing their sense of powerlessness and enhancing their cooperation with
the system. It will be acknowledged, however, that there are problems with allowing victims to
submit VIS, knowing they should not be taken into account for sentencing purposes in the
majority of cases. The article will suggest some solutions to these problems. The writer thus
generally takes a supportive view of VIS, believing that the ability of victims to prepare and
present VIS can enhance their satisfaction with the criminal justice system, while a careful
examination of the limits that victim impact material should have on the court‘s sentencing
discretion will mean that they ought not impinge upon the civil liberties of offenders.



Monash University Law Review (Contents and Abstracts of Past Editions)
A comparative Analysis of the Australian Patent Office‟s Examination of biotechnology
Reach-Through Patent claims
Amanda S Y Lim and Andrew F Christie

In an earlier study we analysed how the United States Patent and Trade Mark Office, the
European Patent Office and the Japan Patent Office (jointly referred to as the ‗Trilateral
Offices‘ or TOs) assessed reach-through patent claims in biotechnology, under the
requirements of ‗utility‘, ‗written description‘ and ‗enablement‘ (as they are referred to in the
US). We found that any claim that was a reach-through claim was assessed to be invalid by
the TOs, and therefore filtered out from grant. This study analyses how the same claims from
the TOs‘ study are assessed by the Australian Patent Office (APO), under the equivalent
Australian requirements of ‗manner of manufacture and description of use‘, ‗clarity,
succinctness and fair basis‘, and ‗full description and best method‘. We find that under
Australian practice not all types of reach-through claims are filtered out from grant of a patent.
This suggests that one or other of the patent offices is applying the wrong standard in
examination of these claims. In our view, the examination standard applied by the APO is too
lenient. The Australian legislation should be reformed by adopting patentability requirements
that mirror the utility, written description and enablement requirements of the TOs.


Assessment of Law Relating to the Transfer of Mortgagee‟s Rights to the Trustee
Issuer in Mortgage Securitisation
Pelma Jacinth Rajapakse

Securitisation is the process by which a credit institution – either a bank or an independent
mortgage provider (IMP) – sells assets on its loan book – specifically, accounts receivable on
its loan book – to another financial intermediary established specially for securitisation
transactions, known as a special purpose vehicle (SPV), which then funds its holdings by
issuing asset-backed securities to investors. One of the key steps in a residential mortgage
securitisation process is that the originator transfers its mortgagee rights in the loans to the
SPV. The mortgagee rights form the backing for the residential mortgage backed securities
(RMBSs) issued by the SPV. In practice, the transfer of mortgagee rights is effected by an
equitable assignment. The mortgagor is not a party to the sale agreement and is not notified
of its existence. The assignment or transfer is structured so as to be ―bankruptcy-remote‖ to
gain investor acceptance in the capital market securities. In general, this is achieved by
ensuring that the assignment or transfer constitutes a ―true sale‖ by the originator to the SPV.
Firstly, the article examines the ways in which the originating mortgagee‘s rights and the
underlying collateral can be transferred to the trustee-issuer (SPV) and considers the main
legal issues that can arise in an RMBS program in Australia. Secondly, it focuses on a
qualitative assessment of the extent to which the current legislative and regulatory provisions
governing the transfer of mortgagee rights to the SPV either impede or facilitate the operation
and growth of the RMBS market in Australia. The existing legislative and regulatory provisions
governing the transfer of mortgages are assessed using a ―public benefit test‖ framework.
This framework is based on the Australian Commonwealth-State Competition Principles
Agreement 1995 and the Statutory Instruments Act 1992 (Queensland). Finally, the article
provides a summary of the legal and regulatory issues involved in the transfer of mortgagee
rights and concludes the article with some suggestions for reform of the consumer credit
legislation in Australia.


A Universal Duty of Good Faith: An Economic Perspective
Arlen Duke

The liberal political environment of the nineteenth century and a belief in the economic model
of the free market is still strongly reflected in modern contract law doctrine, including those
doctrines relating to the implication of terms.1 Contract law rules were designed to provide
incentives to rational, self-interested contracting parties to perform obligations they had
voluntarily and expressly consented to. The strict enforcement of express contractual
promises has traditionally been seen as the best way to provide these incentives and the
recognition of an implied duty of good faith has been seen as unnecessary and undesirable



Monash University Law Review (Contents and Abstracts of Past Editions)
judicial intervention. However, the assumption of self-interest that underpins the economic
model of the free market has come under increasing attack from the ‗second wave of law and
economics‘.2 Empirical studies suggest that preferences are in fact heterogeneous; some
individuals are self-interested whilst other have a preference for reciprocal fairness.3 This
article considers various economic studies and theories from the ‗second wave‘. It argues that
if courts enforce express promises in a literal manner, self-interested norms will crowd out the
preference for reciprocal fairness and that the recognition of a universal duty of good faith
would overcome these crowding effects.


Book Review
James c Hathaway, The Rights of Refugees Under International Law
Maria O‘Sullivan




Monash University Law Review (Contents and Abstracts of Past Editions)
Volume 33(2) 2007

Tribute
Peter Heffey
Vidal Vanhoof and Professor Marilyn Pittard

Address
The Fifteenth Lucinda Lecture
Protecting Human Rights in a Federation
Pamela Tate SC


Articles
Inflexibly Inflexible: Why Choice of Law in Tort Questions Still Won‟t Go Away
Janey Greene

The High Court of Australia recently changed the common law rule for choice of law in tort
matters to a rule which requires the application of the law of the place of the tort. The change
for domestic or intranational choice of law came in 2000 in John Pfeiffer Pty Ltd v Rogerson,
and the change for international cases came two years later in Regie Nationale des Usines
Renault SA v Zhang. In both contexts, the High Court opted for an inflexible rule which leaves
Australian judges no discretion to apply any other law than that of the place where the tort
occurred. Four choice of law in tort cases decided by the High Court since Zhang, however,
have made it very clear that flexibility can and does come in, even though the rule purports to
deny it. This paper looks at these back-door varieties of flexibility and argues for a
reconsideration of the value of an openly and transparently flexible rule.


The Sentencing Provisions of the International Criminal Court: Common Law, Civil
Law, or Both?
Adrian Hoel

The sentencing provisions of the Rome Statute of the International Criminal Court combine
features of both common law and civil law systems. This paper compares the sentencing
provisions of representative common law and civil law jurisdictions with those of the
International Criminal Court (‗ICC‘) as a means of determining how the as yet untested ICC
sentencing provisions will operate and determining what potential deficiencies they may have.
This article also considers how the ICC sentencing provisions will be perceived by
participants in the process (common and civil lawyers sitting as judges or acting for
prosecuting or defence) and by the wider public. Some recommendations are made in the
conclusion of this article in respect of addressing shortcomings in the ICC sentencing
provisions.


Prejudice to Honour or Reputation in Copyright Law
Dennis Lim

This article examines the author‘s right of integrity of authorship contained in the Copyright
Act 1968 (Cth), which is the right of an author to object to a ‗derogatory treatment‘ of his or
her work. A treatment of a work is derogatory if it is ‗prejudicial to the author‘s honour or
reputation‘. No Australian court has decided upon an issue of prejudice to honour or
reputation yet. To reduce the uncertainty that currently surrounds the right of integrity, this
article will thoroughly interpret the phrase ‗prejudicial to the author‘s honour or reputation‘ and
establish tests for determining whether a treatment is prejudicial to an author‘s honour or
reputation.




Monash University Law Review (Contents and Abstracts of Past Editions)
The Torrens System‟s Migration to Victoria
Greg Taylor

2008 will see the 150th anniversary of the invention of South Australia‘s revolutionary Torrens
system of lands titles registration. It quickly spread from its home to the other Australian
colonies. It was introduced in Victoria in October 1862, four-and-a-half years after its adoption
in South Australia. While the adoption of the Torrens system in Victoria may, from this
historical distance, seem rapid and thus inevitable, it was not without considerable effort that
the proponents of the Torrens system in Victoria were able to overcome the tenacious
opposition to its introduction from certain lawyers. This article traces the seven stages in the
adoption of Torrens in Victoria and shows that the Torrens system succeeded because it was
truly the people‘s cause in Victoria, as it had been in its South Australian home.




Volume 34(1) 2008

Articles

Implications of the Crown‟s Radical Title for Statutory Regimes Regulating the
Alienation of Land: „Crown Land‟ v „Property of the Crown‟ Post-Mabo
Dr Ulla Secher

It is clear from the High Court‘s decisions in Wik and Ward that, for the purpose of the
statutory regimes regulating the alienation of land in Australia, ‗Crown land‘ means land in
respect of which the Crown has a ‗radical title‘. Although the concept of radical title had
emerged in Mabo, it was not unequivocally clear whether it denoted a bare legal title sufficient
to support the Crown‘s right to acquire and confer title or a full beneficial interest except to the
extent of native title. This article argues that, because both legal authority and principle
support the former interpretation of radical title in the context of general schemes of land
regulation, the pre-Mabo view that statutory definitions of ‗Crown land‘ refer to land which is
the ‗property‘ of the Crown no longer reflects the law in Australia. It will be seen that this
conclusion is consistent with the High Court‘s treatment of residuary rights to, and
resumptions of, Crown land in Wik and Ward, respectively, as well as the policy and purpose
of the legislation relating to Crown land and the post-Mabo High Court‘s analysis of it
generally and, in particular, the statutory trespass provisions. It is also consistent with the
constitutional settlement of the mid-nineteenth century, by which the Crown‘s prerogatives to
grant interests in land and to appropriate land to itself were displaced by statutory powers:
although this effected a transfer of political power and not title, the statutory definition of
‗Crown land‘, like the common law definition of ‗waste lands‘, presupposed, rather than
conferred, the Crown‘s title to unalienated land. Further support for the proposition that,
irrespective of the presence of native title, the Crown must exercise its sovereign power
before its radical title converts to full beneficial ownership, before ‗Crown land‘ becomes
‗Crown property‘, is provided by the Crown‘s power of eminent domain: a power which
compliments the Crown‘s radical title and shares the same underlying rationale.

Coordinate Citation Between Australian State Supreme Courts Over the Twentieth
Century
Russell Smyth and Dietrich Fausten

This paper examines the evolution of coordinate citations between the Australian state
supreme courts using data on decisions reported in the official state reports at decade
intervals from 1905 to 2005. We find that coordinate citations as a proportion of total citations
have increased in importance over time. We also find that the exchange of coordinate
citations is asymmetric; specifically, some states are large ‗suppliers‘ of coordinate citations,
while other states are large ‗consumers‘ of coordinate citations. The strength of citation flows
and the influence of specific courts also vary between different pairs of courts. We explain



Monash University Law Review (Contents and Abstracts of Past Editions)
these findings in terms of differences between the states along several dimensions. These
dimensions relate to geographical proximity, socio-economic complexity and cultural linkages
between states and the stock of precedent and reputation of each of the state supreme
courts.


What‟s in a Name? Goodwill in Early Passing Off Cases
Ian Tregoning

In 1915 in the landmark House of Lords‘ case of Spalding v Gamage, Lord Parker of
Waddington identified goodwill as an element of passing-off, but without invoking clear
authority for this view. This article goes in search of this authority. As a basis for this search, it
considers the meaning and nature of goodwill, with particular emphasis on its sources. Then it
examines passing-off cases before Spalding v Gamage, dating back to the earliest, to
determine whether harm to the sources of goodwill may be found. Considerable evidence for
harm to these sources and thus to goodwill itself is found in these cases. Accordingly, Lord
Parker of Waddington‘s identification, albeit equivocal, of goodwill as an element of passing-
off may be seen as well-founded in the case law.


Abolition or Reform: The Future for Directness as a Requirement of Trespass in
Australia
Albert Ounapuu

The requirement of directness in torts of trespass to the person is crucial for distinguishing
cases of trespass from case. Yet, while it is a formal requirement in all forms of trespass,
there is surprisingly little consideration given to it in the majority of cases, to the extent that it
is near impossible to formulate a consistent test. This article attempts to do just that,
considering cases as they pertain to battery, assault and false imprisonment, with a view to
examining the possibilities of either abolition or reform. Ultimately, despite the examples set
by Britain, the United States and Canada, an unwillingness on the part of the High Court to
overturn the seminal case of McHale v Watson may see reform—here a possibility—become
a reality.



Possibilities for Multidisciplinary Collaboration in Clinical Practice: Practical Ethical
Implications for Lawyers and Clients
Margaret Castles

The economic and commercial value of multidisciplinary partnerships between lawyers,
accountants and financial advisors has galvanised changes to legal practice rules in the USA
and Australia, with some jurisdictions in Australia amending restrictive practice requirements
to permit such structures. At the other end of the market, the value of multidisciplinary
practices in providing effective services to the disadvantaged is seen as imperative by
practitioners in that area, and many such practices have appeared in recent years. This has
occurred primarily in the United States, notwithstanding the ethical and professional barriers
to such arrangements. This article examines the development of such structures in practices
for disadvantaged persons, the development of models designed to address ethical conflicts
and the practical impact of the conflicting ethical duties of lawyers and other professionals in
such circumstances. This article evaluates practical and theoretical debate in the area,
concluding that the existing rules of ethical and professional conduct create a significant
barrier to truly multidisciplinary practice models.



Implied Undertaking: Express Reform Required
Robert Williams




Monash University Law Review (Contents and Abstracts of Past Editions)
Playing for Keeps? Tobacco Litigation, Document Retention, Corporate Culture and
Legal Ethics
Matthew Harvey and Suzanne LeMire

The Rolah McCabe case, in which a woman dying of lung cancer unsuccessfully sued a
tobacco company, has led to reforms in criminal law, the law of evidence, and legal conduct
rules in Australia. McCabe exposed British American Tobacco‘s policies of ‗document
retention‘ which led to the destruction of damaging evidence before litigation commenced.
This article considers how the legislative responses to McCabe could affect the process of
litigation against large corporations and the conduct of those corporations. Given the integral
role of lawyers, both in-house and external, in the ‗document retention‘ policies and the
process of discovery, it will also examine the implications for legal ethics. Finally, it will canvas
some other strategies that might prevent a repeat of the McCabe disaster.




Goldsmith Collins: Footballer, Fencer, Maverick Litigator
Simon Smith

The surge in ‗litigants in person‘ is a challenge for contemporary courts. At the extreme end
are a small group of vexatious litigants or querulents who persistently and unsuccessfully
pursue litigation until banned by the court. But who are they and what motivates them? This
article traces the story of one of this small band of persistent litigants, Goldsmith ‗Goldie‘
Collins (1901–1982). As a young man Collins was a champion Australian Rules Footballer
with the Fitzroy Football Club. He found later notoriety through his provocative legal
proceedings as a self-represented litigant against the Northcote City Council that rapidly
escalated into a legal assault against all persons and institutions drawn into that web. In 1952
Collins was the fourth Australian to be declared a vexatious litigant. As the first person
declared by the High Court, his declaration the next year by the Victorian Supreme Court (its
third) made him the first person to be declared in two jurisdictions. Despite his declarations
and being gaoled a number of times for contempt of court, Collins continued as a legal
‗maverick‘ into the 1970s. In providing context for Collins‘ litigation this article will demonstrate
the difficulties faced by other litigants, the profession and the judiciary when dealing with an
unpredictable, even aggressive, litigant who determinedly challenges authority. Drawing on
recent psychiatric literature it will also demonstrate that the vexatious litigant sanction is an
inadequate response to the challenge a litigant, such as Collins, presents to the courts.

Book Review




Monash University Law Review (Contents and Abstracts of Past Editions)

				
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