*Please note that the links to the content in this Part will direct you to Westlaw AU.
The latest issue of the Australian Law Journal (Volume 90 Part 11) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- Commemoration and controversy
- Commonwealth inquiry into Indigenous incarceration rates
- Fine default and Indigenous incarceration in Western Australia
- Same-sex marriage
- Privatising a land titles office
- Community legal centres can’t help everyone
- From the law schools
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Solicitor’s duty of care to an intended beneficiary when drafting a will
- Landlord’s covenant to repair: No breach without notice?
FROM THE LAW SCHOOLS – Editor: Professor Michael Coper
- Does Australia have too many law schools?
HUMAN RIGHTS – Editor: Simon Rice
- A snapshot of Australia and the death penalty in 2016
EQUITY AND TRUSTS – Editor: Justice Mark Leeming
- The Primary Judge in Equity
ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean
- Damage done by ship
RECENT CASES – Editor: Ruth C A Higgins
- Criminal law: Criminal liability – Whether jury’s verdict unreasonable – Whether jury entitled to be satisfied beyond reasonable doubt
- Migration: Administrative Appeals Tribunal – Reconsideration of earlier AAT decision – Where earlier decision relied on judicial authority which subsequently was overturned
- Admiralty: Jurisdiction – Admiralty Act 1988 (Cth), s 15 – Whether a proceeding is on a “maritime lien” – Private international law – Characterisation of issues
This article reviews some of the key principles underpinning the law of procedural fairness in Australia and also charts some significant new developments. Taking the High Court’s landmark decision in Kioa v West (1985) 159 CLR 550 as a starting point, this article traces the key developments in the law of procedural fairness as to the source of the obligation to afford procedural fairness; the criteria that attract the obligation and the scope of the obligation. A particular focus of this article is on charting the rise and fall of legitimate expectation as an analytical construct in determining whether an obligation of procedural fairness arises in the first place, and if it does, what the content of that obligation is in the circumstances. In short, given the breadth of the interest now accepted as attracting the obligation to afford procedural fairness, the key questions are now whether a legislative intent can be discerned to exclude that obligation, and if not, what the content of that obligation is in the particular circumstances of the case.
His or Her Duty to Keep Secret – Julie Kinross and Peter Davis QC
Public officers may be disciplined, and/or face criminal sanction for unauthorised disclosure of information. Specific offence provisions detail the type of information legislatures consider criminal to disclose. General secrecy offences require a “duty to keep secret” element to be proved. Prosecutors have started to use codes of conduct to establish the duty element. This approach clouds the long held distinction between conduct attracting disciplinary sanction and serious conduct warranting criminal sanction. Tasmania v Johnston (2009) 18 Tas R 195 provides judicial authority against this approach. A contextual analysis is applied to the original 1899 “Disclosure of other official secrets” offence to support that finding. Johnston and the analysis have national implications for the success of future prosecutions of the general secrecy offence.
BOOKS RECEIVED – Editor: Angelina A Gomez
BOOK REVIEWS – Editor: Angelina A Gomez
- Scholarly Misconduct: Law, Regulation, and Practice by Ian Freckelton QC, reviewed by Gino Dal Pont
- When Doctors and Parents Disagree: Ethics, Paediatrics and the Zone of Parental Discretion by Rosalind McDougall, Clare Delany and Lynn Gillam, reviewed by Scott Aspinall
- Australian Domain Name Law by Alpana Roy, reviewed by Nicholas Smith
- Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and Guide to Future Litigation by Miiko Kumar and Michael Legg, reviewed by B C Cairns
- James Donald Merralls AM, QC, LLD (Hon)
For the PDF version of the table of contents, click here: ALJ Vol 90 No 11 Contents.