The latest issue of the Australian Law Journal (Volume 86 Part 3) contains the following material:
The enduring importance of the rule of law in times of change – Hon Justice Brian J Preston
In light of examples of government action to circumvent compliance with environmental and planning laws, by executive fiat or legislative amendment, this article takes a timely look at the enduring importance of the rule of law. Formulations of the rule of law fall into formal and substantive versions. Formal versions include: rule by law, formal legality and legality with democracy. In its most formal sense (rule by law), the rule of law involves two components: the government must abide by currently valid law and the government may only change law within the legal constraints of the law making power. The formal legality conception goes further and recognises that, in order for the rule of law to be realised, the law must conform to certain standards, including certainty and predictability; there must be adequate machinery to enforce the law, including an independent and impartial judiciary; and there must be congruence between action and the law. Formal legality and democracy further prescribes the democratic procedure by which the content of the law is determined. Substantive formulations of the rule of law incorporate the formal requirements of formal versions of the rule of law but add requirements about the content of the law. These include human rights. Substantive formulations are more controversial. The article concludes that, despite its elusive meaning, the rule of law serves as an anchor in the swirling currents of change.
Arresting a “ship”: Boats, bunkers and barometers – Matthew N C Harvey
What is a ship? What property on board is part of a ship? These questions are critical, when an in rem proceeding is commenced against a ship. Frequently, little attention is paid to these questions; however, whether a vessel is a ship, whether it is used in navigation, and whether it navigates waters have been vexing questions, producing different answers. This article examines the statutory elements of the definition of “ship” in the Admiralty Act 1988 (Cth) and the differing judicial interpretations given to them.
The evolving office of the New South Wales Attorney General – John Hatzistergos
The office of the Attorney General of New South Wales is one of the oldest offices in the State. However, sitting at the junction of law and politics has its challenges. The distinct responsibilities which attach to the office set it apart from other ministries and give rise to certain expectations of its holders. In this article, the recently retired Attorney General, John Hatzistergos, traces the evolving nature of the office and recounts his own personal reflections and experience.
CURRENT ISSUES – Editor: Mr Justice P W Young AO
- Opening remarks
- Constitutional amendment to recognise indigenous people
- Laypeople and the law
- Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
- Getting the balance right
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Contract and strata title: A view from another jurisdiction
- Easements: Abandonment and interpretation
- Notice properly served although not received
- Three recent English cases
- No amendment of caveat
FAMILY LAW – Editor: Anthony Dickey QC
- Further consideration of a de facto relationship
- Is an “intended parent” under s 60H a parent for the purpose of the Family Law Act?
INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz
- Obligations towards trafficking victims
RECENT CASES – Editor: Mr Justice P W Young AO
- Appointment of receivers
- Criminal procedure: Counsel’s incompetence
- Equitable estoppel
- Tort: Assault and battery – Whether contributory negligence a defence
- Partners as joint tenants at law
- Sovereign states: Immunity from suit
- Undertakings to the court: Limitation of use
BOOK REVIEWS – Editor: Angelina Gomez
- Case Management and Complex Civil Litigation, by Michael Legg
For the pdf version of the table of contents, click here: ALJ Vol 86 Pt 3 Contents.