*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 99 Part 7) contains the following material:<\/p>\n
CURRENT ISSUES<\/a> \u2013 Editor: Justice Fran\u00e7ois Kunc<\/strong><\/p>\n CONVEYANCING \u2013 Editors: Robert Angyal SC and Brendan Edgeworth<\/strong><\/p>\n INTERNATIONAL FOCUS \u2013 Editor: Devon Whittle<\/strong><\/p>\n Why Is There \u201cBut One Common Law in Australia\u201d?<\/em><\/strong><\/a> \u2013\u00a0Lucas Clover Alcolea<\/p>\n The High Court has repeatedly confirmed that \u201cThere is but one common law in Australia which is declared by this court as the final court of appeal\u201d so the fact that \u201cDifferent intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law\u201d does not mean that \u201cthere are as many bodies of common law as there are intermediate courts of appeal\u201d rather it merely means \u201cthat not all of these courts will have correctly applied or declared the common law\u201d. Moreover, that common law exists even before the High Court\u2019s 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\u2019s approach is firmly entrenched in, and can only be explained by, classical common law theory.<\/p>\n Going Out on a Lim: Reconceptualising the Constitutional Limit<\/strong> on Preventive Detention <\/strong><\/em><\/a>\u2013\u00a0Zachary Gomes, Aryan Mohseni and Charlie Ward<\/p>\n 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 \u201clegitimate\u201d nonpunitive purpose provokes questions about the work \u201clegitimate\u201d is to do. The Court has also persisted with the language of \u201cpunishment\u201d \u2013 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\u2019s promise of a categorical prohibition on non-judicial detention be diluted.<\/p>\n The Doctrine of Election before and after Allianz \u2013 PART II <\/em><\/strong><\/a>\u2013\u00a0The Hon Kevin Lindgren AM KC and Elisa Holmes SC<\/p>\n 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\u2019s 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 \u201cDominant Rationale\u201d 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.<\/p>\n\n
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