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The latest issue of the Australian Law Journal (Volume 99 Part 8) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

  • AUSTLII Turns 30
  • AustLII – 30 Years of Free Access to Law
  • The Curated Page

CONVEYANCING – Editors: Robert Angyal SC and Brendan Edgeworth

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

FROM THE LAW SCHOOLS – Editor: Emeritus Professor David Barker

Articles

Legislative Purpose, Fact-finding and Preventative Detention Following Lim-NZYQ – Ashleigh Barnes

The purpose of the law of preventative detention is two-fold: it aims to strike a balance between the protection of the community and individual liberty. To achieve this, a doctrinal framework that allows for the appropriate balancing of these dual objects is needed. In Australia, this balancing exercise is struck by Parliament and supervised by the judiciary. The judiciary requires a workable framework and set of standards against which to measure the constitutional validity of a preventative detention regime. This framework must be capable of being applied in a coherent and consistent manner. This essay argues that one problem with the Lim-NZYQ framework, as applied to the law of preventative detention in Australia, is that it rests on a fiction around constitutional facts. It should be clarified and reformed by reference to the cardinal principles of coherence and transparency in judicial reasoning.

The Federal Court’s Defamation Jurisdiction: Revisiting Crosby v Kelly – Myles Pulsford

The interpretation in Crosby v Kelly of s 9(3) of the Jurisdiction of Courts (Crossvesting) Act 1987 (Cth) as a law of the Commonwealth for the purposes of s 76(ii) of the Constitution has had significant consequences for the Australian Judicature, including, most notably, the establishment of the Federal Court’s defamation jurisdiction. This article considers and tests the conceptual underpinnings of Crosby v Kelly’s reasoning. While the Commonwealth Parliament undoubtedly has legislative power to confer jurisdiction on the Federal Court with respect to defamatory publications in the territories, this article argues that there is considerable doubt that, as a matter of statutory construction, that power was exercised in the enactment of s 9(3). If the Federal Court’s jurisdiction cannot be sustained under s 9(3), this article argues that there would not appear to be a clear and established basis for the Federal Court to hear and determine defamation proceedings.

Civil Penalties: A New Doctrine of Deterrence? –  John Sheahan KC and Tim Rogan

The High Court’s decision in Australian Building and Construction Commissioner v Pattinson established that deterrence is the sole purpose of civil penalties. While this was treated as confirmation of an orthodoxy dating back to the decision of French J in Trade Practices Commission v CSR Ltd, Pattison marked a departure from the pattern of established cases in civil penalties. The deterrence-alone paradigm in civil penalties presents new challenges for courts and litigants, the dimensions of which are not widely appreciated. This article seeks to outline the mode of addressing penalties that is called for by a deterrence paradigm, and to suggest some tools for addressing the challenges to which it gives rise.

For the PDF version of the table of contents, click here: New Westlaw Australia – ALJ Vol 99 No 8 Contents

Click here to access this Part on New Westlaw AU

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