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The latest issue of the Australian Law Journal (Volume 90 Part 9) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- Renewed debate about s 18C
- Royal Commission into Child Protection and Youth Detention Systems in the Northern Territory
- The High Court on penalties
- Australia is a good place to enforce contracts
- Judges as perpetrators and victims
- An innovative law firm funding model
- A glass ceiling shatters in the Palace of Westminster
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Deposits: A hard case?
- Estate agent’s limited authority
- Concurrent leases
- Purchaser’s interest under a contract for sale of land
CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO
- What is the fuss about culture all about?
RECENT CASES – Editor: Ruth C A Higgins
- Waltons Stores today
Anti-Semitism, Hate Speech and Pt IIA of the Racial Discrimination Act – Ronald Sackville AO QC
In Australia, hate speech laws such as Pt IIA of the Racial Discrimination Act 1975 (Cth) have always generated controversy. Those laws and the international human rights regime that underpin them have been strongly influenced by the experience of the Holocaust and by the dangers of anti-Semitism. An understanding of the nature of anti-Semitism and of the Australian case law dealing with anti-Semitic speech sheds light on the debate as to whether the curiously drafted Pt IIA should be retained, amended or discarded. The article argues that there are powerful policy reasons for retaining Pt IIA and other hate speech laws, but that the legislation should be amended to substitute objective tests for subjective criteria. The amendments would achieve a more defensible balance between the legitimate protection of vulnerable groups from serious hate speech and the values of free speech.
In insolvency practice, there is tension between the interests of creditors and liquidators. In his 2011 article (“Peak indebtedness” theory: An abuse of the “running account” defence? (2011) 85 ALJ 374), the author explained how liquidators were using the “peak indebtedness” doctrine to intimidate “mum and dad” creditors despite their “running account” defences. In this article, he draws attention to the ongoing concerns of the New South Wales Supreme Court about liquidator charging practices. Palmer J expressed concerns about the potential for liquidators to “churn and burn” in his decision in Hall v Poolman (2007) 215 FLR 243 and Brereton J expressed similar concerns in a string of cases in 2014. Though Palmer J’s direction that there be an inquiry into the liquidator’s practice in Hall was appealed, it was not wholly overruled and the Court of Appeal concurred in much of what he said. More recently, Brereton J has interpreted post-2008 amendments to the Corporations Act to mean that the Court should not approve liquidator remuneration claims premised only on standard liquidator and lawyer charge out rates. None of these decisions have been appealed. That may mean that the insolvency profession has accepted Brereton J’s adaptation of 1960s scale and value billing practices even though they are not expressly prescribed by the Corporations Act.
Should Lower Court Judges Bind Magistrates and Tribunals? – Oliver Jones
It is over 20 years since the Supreme Court of New South Wales, in Valentine v Eid (1992) 27 NSWLR 615, overruled previous authority and held that the reasons for judgment of the District Court of New South Wales were not binding on the magistrates of that State. Valentine continues to be applied in Australia, most recently by the Queensland Magistrates Court and, in relation to the Federal Circuit Court, by the Commonwealth Administrative Appeals Tribunal. This article argues that Valentine cannot withstand contemporary scrutiny. The reasons for judgment of the District Court of a State should, with the exception of South Australia, bind the magistrates of the State. Those reasons should also be applied by District Courts and magistrates interstate. On the other hand, a federal tribunal should only consider itself bound by the Federal Circuit Court where the tribunal is subject to the supervisory jurisdiction of that Court.
BOOK REVIEWS – Editor: Angelina A Gomez
- The International Law of the Sea, by Donald R Rothwell and Tim Stephens
- Locating Crime in Context and Place: Perspectives on Regional, Rural and Remote Australia, by Alistair Harkness, Bridget Harris and David Baker
- Whispers from the Bush, by Skye Saunders
- The Hon James Frederick Staples
For the PDF version of the table of contents, click here: ALJ Vol 90 No 9 Contents.