The latest issue of the Australian Law Journal (Volume 85 Part 11) contains the following material:
The Northern Territory: A celebration of constitutional history – Chief Justice Robert French
The year 2011 marks the centenary of the establishment of the Northern Territory as a Territory of the Commonwealth of Australia and the creation of the Supreme Court of the Northern Territory. In the past century, the Northern Territory has been the site of significant constitutional, political and social questions, particularly concerning Australia’s indigenous population. Justice Martin Kriewaldt, in whose honour this lecture was delivered, made an important contribution to the recognition of cultural difference not only in the Territory but in Australia more broadly. This lecture reflects upon the constitutional history of the Northern Territory.
Truth and the law – Hon J J Spigelman AC
There are three views about the relationship between truth and the adversarial system. First that the system is not concerned with the truth at all but with “procedural truth”. Secondly, that the system is the most effective mechanism for the discovery of the truth. Thirdly, that the system seek the truth subject to qualifications. This article supports the third view. It discusses the restrictions on truth finding that arise by reason of the application of a variety of legal rules. The article compares common law and civil law systems and sets out the way in which the latter contain comparable restrictions on truth finding. Psychological research indicates both the frailty and fungibility of human memory and, accordingly, the process of establishing the truth must be approached with humility.
This article argues that the touchstone for “rarity” and “restraint” in Crown sentencing appeals, the High Court’s judgment of Griffiths v The Queen (1977) 137 CLR 293, needs to be fundamentally reconsidered in light of a sudden “spike” in Crown appeals in New South Wales in 1974-1976. In addition, it can be argued from first principles that principle” in House v The King (1936) 55 CLR 499, particularly when sentencing today involves the application of far more complex sentencing statutes than existed in the 1970s. The danger to the judiciary of failing to fundamentally re-assess the proper theoretical approach to Crown sentencing appeals is that Parliaments may extend their recent reforms in the area and restrict judicial sentencing discretion even further.
CURRENT ISSUES – Editor: Mr Justice P W Young AO
- The migration case
- Judges and the “social media”
- Problems with discovery
- Uniform real property Act
- Charter of Rights in Victoria
- Circle sentencing
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Planning vs property rights
- Rescission of “off-the-plan” contracts
- Exercise of an option to renew, holding over rights, or creation of a new lease?
- Severance of joint tenancy
- Termination of commercial lease due to “untenantability”
- Payment-out of surplus funds held in court
- When will a court decline to appoint trustees for sale of a jointly-owned property?
- An important drafting issue
PEOPLE IN THE LAW – Editor: Ian Davidson SC
- Hon T F Bathurst QC (NSW)
- Hon James Jacob Spigelman AC (NSW)
OVERSEAS LAW – Editor: Ross Buckley
- In the aftermath of the GFC: Proposed Financial Dispute Resolution Centre in Hong Kong
RECENT CASES – Editor: Mr Justice P W Young AO
- Tort: Causation – Materially increasing risk of injury
- Crime: Unlawfully obtained evidence overseas
- Crime: Bringing prohibited articles into a prison – Mens rea
- Crime: Common law offence of misconduct in public office – Can a volunteer be convicted?
- What is an enclosed public place?
- Crime: Confiscation of proceeds of crime – House in which getaway car garaged
- Vendor and purchaser: May purchaser require vendor to convey to sub-purchaser?
- Propensity evidence
- The writing is what matters
BOOK REVIEWS – Editor: Angelina Gomez
- Red Silk: The Life of Elliott Johnston QC, by Penelope Debelle
- Australian Real Property (5th ed), by Adrian Bradbrook, Anthony Moore, Susan MacCallum and Scott Grattan
- Zeitoun, by Dave Eggers
For the pdf version of the table of contents, click here: ALJ Vol 85 Pt 11 Contents.