*Please note that the links to the content in this Part will direct you to Westlaw AU.<\/p>\n
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The latest issue of the Australian Law Journal (Volume 98 Part 11) contains the following material:<\/p>\n
CURRENT ISSUES<\/a> \u2013 Editor: Justice Fran\u00e7ois Kunc<\/strong><\/p>\n RECENT CASES<\/a> \u2013 Editor: Ruth CA Higgins SC<\/strong><\/p>\n CORPORATIONS AND SECURITIES \u2013 Editor: Dr Beth Nosworthy<\/strong><\/p>\n FAMILY LAW \u2013 Editor: The Hon Justice Grant Riethmuller AM<\/strong><\/p>\n FROM THE LAW SCHOOLS<\/a> \u2013 Editor: Emeritus Professor David Barker AM <\/strong><\/p>\n The Variety of Constitutional Implications, and How They Are Identified<\/strong><\/em><\/a> \u2013 Jeffrey Goldsworthy<\/p>\n In Zurich Insurance Co Ltd v Dariusz Koper<\/em>, a disagreement emerged on the High Court concerning an influential dictum of Mason CJ in Australian Capital Television Pty Ltd v The Commonwealth<\/em>. Mason CJ distinguished between \u201ctextual\u201d and \u201cstructural\u201d implications, the former able to be inferred from legislative intentions manifested according to accepted principles of interpretation, but the latter having to be \u201clogically or practically necessary\u201d to preserve the integrity of some constitutional structure. The majority in Zurich Insurance <\/em>endorsed that distinction, but a minority denied that there are different types of implication, subject to different rules, and reinterpreted \u201clogical or practical necessity\u201d as requiring merely that an implication be \u201csecurely based\u201d in the text and structure of the Constitution. I show that there are different kinds of implications, identified in different ways, and that a requirement of practical necessity is appropriate for one of them but not others.<\/p>\n Sounding Out a Presumption from Silence<\/strong><\/em><\/a> \u2013 Harry Sanderson<\/p>\n This note identifies a presumption that has arisen in Australian law, the presumption from silence: Where words in an Act have received a judicial construction and the legislature has not amended the provision following the decision, it is presumed that parliamentary intention accords with the construction. It charts the presumption\u2019s use in courts across America, England and Australia, noting its relationship to the presumptions from re-enactment and amendment. It argues the presumption is flawed as a matter of logic, proves useless as guide to parliamentary intention, contravenes rules on post-enactment material, and is otherwise unnecessary to the process of statutory interpretation.<\/p>\n The Intersection of Tort and Contract: History, Taxonomy and Statute<\/strong><\/em><\/a> \u2013 Michael Taurian<\/p>\n The role of statute in the historical development of the juridical divide between tort and contract has been under-studied and under-theorised. This article argues that the divide in Australia is to be understood as a product of what Leeming has elsewhere described as the \u201ccomplex entanglement\u201d of statute and the common law. It examines the processes, both legislative and judicial, which have informed and continue to inform this development, and argues that the convergence of the realms of tort and contract have extinguished the need for legislatures in the 21st century to maintain procedural distinctions between actions framed in tort and actions framed in contract.<\/p>\n For the PDF version of the table of contents, click here: New Westlaw Australia – ALJ Vol 98 No 11 Contents<\/a>.<\/p>\n Click here to access this Part on New Westlaw AU<\/a><\/p>\n\n
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