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The latest issue of the Australian Law Journal (Volume 94 Part 5) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- Law in the Time of Coronavirus
- COVID-19 and the Legislative Drafters
- The Curated Page
CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth
- Gifts: Conditional or Not? – Flourentzou v Spink
- Vale Solatium?
ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper
- Significant Environmental Decisions of the Federal Court
- New South Wales
- Northern Territory
- South Australia
- Western Australia
INTERNATIONAL FOCUS – Editor: Professor Stuart Kaye
- War Crimes in Afghanistan: Could Australian Soldiers Face Prosecution at the International Criminal Court?
This article provides an account of the literalist paradigm that prevailed before Owen Dixon was appointed to the High Court and compares Dixon’s legalism to the pre-existing norm. It uses a case study of Dixon’s judgment in Melbourne Corporation v Commonwealth to illustrate the way in which his legalism operated in comparison to the literalism expounded by the Court in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd. I argue Dixon’s legalism allowed for a more open acknowledgment of judicial choice than the literalist orthodoxy, and that the Mason Court’s clearer articulation of policy choices owed much to Dixon’s interpretative techniques. On this view, the perceived legitimacy of interpretative choices would appear to relate more to the political character of the decisions reached rather than the soundness of the judicial approach.
Should religious schools be allowed to discriminate against employees? While different legal systems offer varying answers to this question, the Australian federal regulation allows discrimination based on chosen attributes specified by the legislator. This solution has also been endorsed by the 2018 Religious Freedom Review. In the comparative context of the United States and the European Union, this article discusses three major options for regulating employment by religious schools: the solution in which the legislator foresees permissible grounds of discrimination (Australia), the model of broad exception for religious schools from discrimination laws (US) and the inherent requirements model (EU). I argue that both the theory of deliberative democracy and the requirements of human rights speak against the model of legislative specification of permissible discrimination grounds. Consecutively, I contend that international human rights support the preferability of the European inherent requirements model over the American model of general exception.
Public and private law converge in cases where causes of action and remedies from both sides of the divide might be brought to bear, such as where the same conduct might amount to both a tort and crime, or where demonstrating invalidity of an administrative decision is an element of tortious liability. This article canvasses a range of procedural tools that can be utilised to shape the relationship between public and private law; moving between independent, staged, prioritised and collaborative relationships. The question of whether these tools ought to be utilised in a given case is influenced by a range of policy concerns tied to the interests of the parties, the institution of the courts, and the wider public. Accordingly, the relationship between public and private law, and the question of what principles and remedies ought to apply at the interface, requires a delicate balancing act between these interests.
- The Hon John Cain
For the PDF version of the table of contents, click here: ALJ Vol 94 No 5 Contents.
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