Australian Law Journal update: Vol 90 Pt 5

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The latest issue of the Australian Law Journal (Volume 90 Part 5) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

  • Farewell to the retiring General Editor from his successor
  • Some new contributors
  • Rights and freedoms: An important report and a recent speech
  • Elder law
  • Discovery and predictive coding
  • Federal Court administration
  • Two new reports from the Judicial Council on Cultural Diversity
  • Asian Business Law Institute
  • Australian Academy of Law essay prize

CONVEYANCING AND PROPERTY – Editor: Peter Butt

  • Relief against forfeiture of lease
  • No apportionment of rent payable in advance
  • Tenant not entitled to valuable graffiti

AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt

  • Links with Canberra: Tasmanian cases in the High Court

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

  • An interesting “intersection” between competition law and corporate law: The re-regulation of the Queensland sugar industry

OVERSEAS LAW – Editor: Colin Picker

  • China’s regulation of digital financial services: Some recent developments

AROUND THE NATION: WESTERN AUSTRALIA – Editor: Justice Kenneth Martin

  • New location for the Supreme Court of Western Australia: July 2016
  • Leading case for 2015: Knowledge by an accused about a “prohibited drug” in the context of possession or supply offences

HUMAN RIGHTS – Editor: Simon Rice

  • Australia’s Universal Periodic Review 2015

RECENT CASES – Editor: Ruth C A Higgins

  • Criminal law: Evidence – Competence and compellability – Oath – Children – Presumption of competence
  • Public international law: Whether rule of international law – Terra nullius – Customary international law
  • Trade practices: Price fixing – Meaning of a “market in Australia”
  • Deed: Proper construction – Non-party claiming benefit of deed – Property Law Act 1969 (WA), s 11(2) – Doctrine of lost modern grant

Articles

Retirement of the Hon Peter W Young AO QC: Seventh Editor of the Australian Law Journal – Hon Michael Kirby AC CMG

Justice Peter Young has stood down as General Editor of the ALJ, after a record 24 years of service. In this reflection, the author (who also farewelled his predecessor J G Starke QC) notes the remarkable features of Peter Young’s service to the ALJ. It included monitoring and reporting on changes in the law and judiciary over more than two decades; providing regular notes on the growing impact of technology and changing values on the law; attempts to cater for the vast and diverse interests of the Australian legal profession; and adjusting to the growing demands of digital law. The fact that the editorial duties were performed alongside extremely busy judicial activities, as well as writing important legal texts and participating in legal education and Church affairs, speaks volumes for his fidelity to duty and devotion to work for others. A few hints are offered on the possible future interests and activities of Peter Young, to whom Australian lawyers owe a huge debt of gratitude.

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The Interaction of Statute Law and Common Law – Hon Sir Anthony Mason AC KBE GBM

This is a tripartite discussion of the interaction between common law and statute. Part I deals with the constitutional dimension, demonstrating ways in which the Constitution shapes and influences the content of the common law, just as it impacts upon statute law. Most notably the Constitution constrains the principles of statutory interpretation and mandates a “uniform” common law. Part II illustrates the way in which the common law moderates legislative intention by presumption and rules of statutory interpretation. Part III discusses analogical development of the common law by reference to statute and likewise common law development by reference to statutory policy. The discussion identifies the considerations relevant to such development, including the doctrine of coherence and the relevance of statutory intention.

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Contours and Prospects for Indigenous Recognition in the Australian Constitution and Why it Matters – Fr Frank Brennan SJ AO

The Australian Constitution does not mention Aboriginal and Torres Strait Islander peoples. Amendment of the Constitution is notoriously difficult to achieve. The 1967 referendum deleted the two adverse references to Aboriginal people. The 50th anniversary of that referendum provides an impetus for the Australian Parliament to consider a further referendum after the 2016 election. The 2012 Expert Panel recommended the insertion of a racial non-discrimination clause in the Constitution. Such a clause is unworkable and unachievable. Constitutional recognition of an Indigenous body advisory to Parliament has also been suggested. A legislative trial of such a body is warranted and should precede any attempt at constitutional entrenchment. The preamble of the Commonwealth of Australia Constitution Act should not be altered. A preamble for the Constitution should be considered only when it is severed from the Imperial Act. Now is the time to consider the insertion of an Acknowledgment of Aboriginal and Torres Strait Islander peoples, their history and aspirations at the commencement of the Constitution. The Commonwealth Parliament’s s 51 power to make laws could then include the power to make laws with respect to the peoples and matters acknowledged.

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How Should Academia, the Practising Profession and the Courts Assist Each Other in the Education of Australian Lawyers? – Ailsa McKeon

This article identifies four proposals for increased engagement between academia, the practising profession and the courts for the furtherance of Australian lawyers’ education. These proposals are, in sum: increased involvement between professional regulation bodies and university students; greater emphasis on critical thinking and problem-solving skills through taught law courses and pro bono activities; greater student engagement with the operation of courts and tribunals; and the training of solicitors from law firms by those within community legal centres in relation to their pro bono activities. The philosophical foundations of the law support such steps, which would be of direct advantage to students and broader benefit to the community.

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For the PDF version of the table of contents, click here: ALJ Vol 90 No 5 Contents.

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