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The latest issue of the Australian Law Journal (Volume 95 Part 8) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- Rethinking COVID-19 State Border Closures
- From the Law Schools – A New Editor
- Excluded: The Democratic Deficit in Interstate Border Closures
- The Curated Page
FROM THE LAW SCHOOLS – Editor: Emeritus Professor David Barker
- Australian Legal Education – Moving Forward in 2021
ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean
- Admiralty and Maritime and the South China Sea
TECHNOLOGY AND THE LAW – Editor: Lyria Bennett Moses
- Designing for Consumers: Australian Competition and Consumer Commission v Google LLC (No 2)
FAMILY LAW – Editor: Richard Ingleby
- A Financial Agreements Conundrum
INTERNATIONAL FOCUS – Editor: Professor Stuart Kaye
- Australia’s New Foreign Relations Legislation
Aboriginal Australians and the Common Law – The Honourable Margaret Beazley AC QC
From the earliest days of the colony of New South Wales, the interaction of Aboriginal Australians with a system of law which was alien to them and conducted in a language which they did not speak was fraught. The wrongly attributed common law notion of terra nullius to the lands of which the British Crown took possession has been the source of disadvantage to Aboriginal communities which has outlived its reversal in Mabo v Queensland (No 2). This article examines the early beginnings, and traces the history of, Aboriginal interaction with the common law through to the 21st Century in case law and legislation, with a focus on Aboriginal identity and sovereignty. The topic is huge and it was necessary to be selective. I trust, however, that the issues I have chosen will make a contribution to a fuller understanding of our history.
The Rise of the Anti-arbitration injunction – Justice AS Bell
There are broadly two “heads” of jurisdiction for relief against forfeiture in the modern context: where there is fraud, accident, mistake or surprise; or where the object of the relevant transaction is to secure a stated result. In respect of the latter, although not definitively resolved in Australia, the courts in England hold that the forfeited right must be sufficiently “proprietary” or “possessory” and not “merely contractual”. It is argued that this approach should not be adopted in Australia. Such an approach is not required to uphold the underlying rationale of relief against forfeiture to mitigate against the unconscientious exercise of contractual power. It is unclear why the courts of equity should protect property rights above others. It also leads to courts engaging in confusing debates about what is sufficiently “proprietary” or “possessory” to enliven the jurisdiction to grant relief.
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