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The latest issue of the Australian Law Journal (Volume 92 Part 9) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- Family Court Restructure Debate Continues
- Victorian Law Reform Commission Report on Class Actions
- Indigenous Recognition – Much Consulting Going Where?
- Commonwealth Targets for Briefing Female Barristers
- Muslims and the Legal Process
- Explanatory Note on the Judicial Process and Participation of Muslims Prepared by The Australian National Imams Council (ANIC)
ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean
- Ownership of Unclaimed Wreck
FAMILY LAW – Editor: Richard Ingleby
- Threats by Adult Children in Proceedings between Their Parents: Contempt or Miscarriage of Justice?
STATUTORY INTERPRETATION – Editor: The Hon John Basten
- Evidence Act s 165B: Interpretation in the Shadow of Longman
PERSONALIA – Editor: Emily Vale
- Justice Gail Sutherland
- Justice Kevin Lyons
- Justice John Vaughan
- Justice Jennifer Smith
On to Strasbourg or Back to Temple? The Future of European Law in Australia Post-Brexit – The Hon TF Bathurst AC and Bronte Lambourne
The decisions of the High Court in McCloy v New South Wales and Murphy v Electoral Commissioner represent a successive waxing and waning of the influence of European law on Australian public law. With Britain’s decision to sever its ties with the European Union, the question of whether Australian law will further embrace European principles remains a live issue. This article considers the way in which the European principle of proportionality has been received into Australian constitutional and administrative law and questions whether such a principle is compatible with the foundations of our legal infrastructure, specifically, the constitutional separation of powers, the absence of a Bill of Rights and the deductive methodological approach of the common law.
The searcher is a worker apart. He solves the problem of the “missing”. Many aching hearts are lightened or deadened as the result of his labours. With quick perception, keen eye, and silent tread, he moves about the hospitals, convalescent camps, bases, and detail camps, containing in his hand a slip containing perhaps a query as this: “Private” – No 24,537, missing at Pozieres?
Judicial Decision-Making in Times of War and Relative Peace – The Hon Susan Kiefel AC
During the two World Wars, the High Court gave a broad interpretation to the legislative power with respect to the naval and military defence of the Commonwealth and of the States. However, in some controversial decisions during World War II and in its aftermath, the Court held invalid statutory and regulatory measures. These cases may be seen to presage Australian Communist Party v Commonwealth (Communist Party Case), in which the Court said that what was necessary in time of war may not be in a time of ostensible peace. The Court’s discussion in the Communist Party Case of the role of the Court, in particular its role in determining constitutional facts, has assumed importance more recently in Thomas v Mowbray. That case may raise further questions for courts in the future.
Class action settlements must be approved by the relevant court. The very fact of settlement means that there will in general be no legally represented persons before the court seeking to test the settlement, aspects of the settlement distribution scheme, or any common fund order. Such settlements involve the determination of legal rights of group members, who are not generally represented. The courts naturally look to representatives of the applicant for assistance, but the interests of all group members are not necessarily uniform nor the same as those of the applicant. Conflicting interests and duties are rife. In this context, this article argues that courts should readily require the appointment of a contradictor to test the settlement proposal, and proposes some guidelines in that respect.
BOOK REVIEWS – Editor: Angelina Gomez
- The Place of Practice, Lawyering in Rural and Regional Australia, by Trish Mundy, Amanda Kennedy and Jennifer Nielsen (eds)
- Critical Perspectives on the Uniform Evidence Law, by Andrew Roberts, Jeremy Gans (eds)
For the PDF version of the table of contents, click here: ALJ Vol 92 No 9 Contents.
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