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The latest issue of the Australian Law Journal (Volume 94 Part 11) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

  • The View from the Academy
  • New Assistant Editor
  • Impact of COVID-19 on Academia
  • Pedantic Points
  • The Curated Page

AROUND THE NATION: NORTHERN TERRITORY – Editor: Hon Dean Mildren AM RFD QC

  • Appointment of Sonia Brownhill SC as a Judge of the Supreme Court
  • Restoration of Jury Trials
  • Electronic Filing
  • Online Publications

FAMILY LAW – Editor: Richard Ingleby

  • Does a Family Court Judge Have Power to Refer Financial Proceedings to Mediation?

CLASS ACTIONS – Editor: Justice Michael B J Lee

  • When Does a Person Have a “Claim” under s 33c of the Federal Court of Australia Act?

STATUTORY INTERPRETATION – Editor: The Hon John Basten

  • Statutory Interpretation and Dictionaries

TECHNOLOGY AND THE LAW – Editors: Lyria Bennett Moses and Anna Collyer

  • Accountability in the Age of Artificial Intelligence: A Right to Reasons

Articles

Engineers: One Hundred Years Old And Still Going Strong: A CommentaryThe Hon Sir Anthony Mason AC KBE GBM QC

The High Court’s decision in Engineers stands for six propositions: (1) the rejection of the strong doctrine of State intergovernmental immunities, upheld in the earlier cases; (2) Commonwealth powers are not limited by State reserved powers; (3) the Constitution is an Imperial statute; (4) the Constitution should be interpreted in accordance with British principles; (5) the Constitution should be interpreted literally; and (6) Commonwealth powers are plenary. This comment explores each of these propositions and their current standing in Australian constitutional law. Like Professor Aroney, it suggests that several of these propositions lack ongoing force, but that propositions 1 and 2 retain full force, and thus evidence the enduring significance of the Engineers decision.

The Continued Legacy Of The Engineers Case: A Dynamic Approach To Federal PowerRosalind Dixon and Brendan Lim

We comment on Professor Nicholas Aroney’s appraisal of the Engineers Case in the Australian Law Journal’s September 2020 edition in which he argued for a “balanced interpretive perspective” for the construction of the Commonwealth’s legislative powers in which “federal principles” receive greater consideration. According to Aroney, little of the reasoning in Engineers remains good law, such that this “balanced” constructional approach is ripe for rediscovery. We suggest that Aroney’s argument insufficiently appreciates the enduring significance of what Engineers did, as distinct from what it said. Any contemporary agenda for devolution is necessarily committed to articulating a substantive conception of the federal structure and defending it by reference to contemporary constitutional values. That exercise would be an application of Engineers, rather than a repudiation of it. The Engineers Case endures because it recognised the federal structure’s adaptability and gave effect to it in an enduring compromise of different values and traditions.

“Wait[ing] For The Heavens To Fall”: The Engineers Case And Intergovernmental Immunity – Sarah Murray

This article responds to Professor Nicholas Aroney’s anniversary contribution on the High Court’s decision in the Engineers case. While accepting Aroney’s statement that “the High Court has effectively abandoned the sweeping terms in which the idea of intergovernmental immunities was rejected in Engineers”, it explores the degree to which this much-cited 1920 decision can still allow us to better understand the development of the intergovernmental immunity doctrine. In so doing, it traces the extent to which the doctrine’s progress draws on, at least in some respects, observations made by the Court in the Engineers case.

Money Had And Received – And Retained? The Role Of Retention At Notice For Personal Common Law Liability – Eleanor Makeig

This article considers whether a volunteer’s dissipating of the property of another prior to taking notice of its character as such affects that volunteer’s primary liability under the common law claim for money had and received. A survey of the history of the action suggests that the volunteer should be strictly liable for the whole of the property received, subject to the change of position defence. Recent decisions of Australian first instance and intermediate appellate courts suggest that is not the position. These decisions indicate the volunteer is primarily liable only for the property retained when the volunteer is put on notice. This article critiques the model relied upon in these recent decisions. First, it is demonstrated that it is unhistorical and not easily justified on the basis of precedent. Second, it is argued that the relationship drawn in recent decisions between the common law claim and equitable personal liability under Black v Freedman is problematic as a matter of principle. Third, the article considers whether the new model is to some extent capable of being reconciled with the orthodox model. The limitations of such a reconciliation are explored.

Justifying Trade Restrictions Under s 92 Of The Australian Constitution: A Comparative Law-Based Proposal For A Coherent Doctrine – Csongor István Nagy

This article, by means of comparative analysis of federal markets, proposes a general doctrine for the public interest analysis under s 92. The article uses the framework established by the jurisprudence of the High Court and carries out comparative law analysis from the perspective of what the Court perceives as the federal purpose of s 92. It demonstrates that an object-based public interest analysis would be incoherent, given that trade restrictions are usually based on both protectionist and legitimate considerations and, hence, the measure’s object should have a supplementary role. It argues that in the Australian federal system the courts’ mandate is to maximise the “federal surplus” and, hence, they should engage in evaluative balancing, which entails no unsurmountable difficulties.

For the PDF version of the table of contents, click here: ALJ Vol 94 No 11 Contents.

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