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The latest issue of the Australian Law Journal (Volume 99 Part 7) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- Who Will Write Law Texts?
- The Federal Court and AI
- The Curated Page
CONVEYANCING – Editors: Robert Angyal SC and Brendan Edgeworth
INTERNATIONAL FOCUS – Editor: Devon Whittle
Articles
Why Is There “But One Common Law in Australia”? – Lucas Clover Alcolea
The High Court has repeatedly confirmed that “There is but one common law in Australia which is declared by this court as the final court of appeal” so the fact that “Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law” does not mean that “there are as many bodies of common law as there are intermediate courts of appeal” rather it merely means “that not all of these courts will have correctly applied or declared the common law”. Moreover, that common law exists even before the High Court’s declaration of it. However, why (and how) is that so?? In order to answer this question, we analyse two competing theories of the common law, classical common law theory, and positivist common law theory. Ultimately, we suggest that the High Court’s approach is firmly entrenched in, and can only be explained by, classical common law theory.
Going Out on a Lim: Reconceptualising the Constitutional Limit on Preventive Detention – Zachary Gomes, Aryan Mohseni and Charlie Ward
NZYQ did much to return the constitutionality of preventive detention to the principles worked out in Chu Kheng Lim (Lim). However, the High Court did not go far enough. The introduction of a unifying test of being reasonably necessary for a “legitimate” nonpunitive purpose provokes questions about the work “legitimate” is to do. The Court has also persisted with the language of “punishment” – an unsatisfactory standard which is difficult to apply. There is a danger, in integrating the exceptions to the rule within the rule itself, with allowing the growth of an originally confined list of exceptions. This article grounds Lim in the values which underpinned it: the uniqueness of detention in constitutional history, and the role of judicial process in mediating that interaction between the individual and the State. These values should be borne steadily in mind, lest Lim’s promise of a categorical prohibition on non-judicial detention be diluted.
The Doctrine of Election before and after Allianz – PART II – The Hon Kevin Lindgren AM KC and Elisa Holmes SC
In this, the second part of this two-part article, we consider the content of the two necessary elements of an effective election to affirm: the unequivocality of the affirmer’s words or conduct, and the nature of the knowledge that the affirmer is required to possess. Then we address the High Court decision in Allianz, and venture to suggest that the rationale offered for the doctrine of election in pre-Allianz cases (called the “Dominant Rationale” in Allianz) seems to be the only proffered rationale that justifies the continued existence of the doctrine. Despite proffering an alternative rationale which might suggest its elimination as a practical matter, the majority of the High Court disavowed any intention to replace election with estoppel.
BOOK REVIEWS – Editor: Angelina Gomez
- Institutional Liability for Historical Child Abuse in Australia, by James Masur
- King & Wood Mallesons: A History, Two volumes: From across a Continent, 1829– 1970 and Choosing the Future, 1970–2012, by Patrick Mullens
PERSONALIA – Editor: Saskia O’Neill
For the PDF version of the table of contents, click here: New Westlaw Australia – ALJ Vol 99 No 7 Contents
Click here to access this Part on New Westlaw AU
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