Established in 1953, the Sydney Law Review is a leading Australian generalist law journal. Emphasising Australian law, the Review publishes high-quality, timely articles that make an original contribution to legal scholarship. Peer-reviewed content includes articles, review essays and the 'Before the High Court' column. The column is a forum for some of Australia's leading academics to provide commentary on cases currently before the High Court of Australia. Students enrolled in the Sydney Law Review unit of study have the opportunity to publish case notes and comments in the Review.
Unearthing Language Rights Protections in the Racial Discrimination Act 1975 (Cth)
The Racial Discrimination Act 1975 (Cth) (‘RDA’) has been ineffective at preventing discrimination based on language. Australian courts have adopted narrow approaches to deny language-based claims by misconstruing the relationship between language and racial discrimination. These approaches portray language as an individual characteristic, subject language rights to proportionality analysis, require the positive existence of a language right, or narrow the scope of rights protected by the RDA to exclude language claims. This article argues that these denials have no basis. Historically, the use of language as a proxy for race has been a means of effecting exclusionary policies which fail to defend against racial and linguistic discrimination. Recognition of these dimensions of language supports the deconstruction of the doctrinal arguments which have been deployed to deny protection from racial discrimination in the context of language.
Scrutinising the Scrutiny Process in the Courts
In every Australian jurisdiction, a dedicated parliamentary committee scrutinises delegated legislation. When interpreting delegated legislation, courts may make assumptions about the nature and quality of the scrutiny performed by these committees. We argue courts should be cautious about reaching these conclusions. The article uses the High Court of Australia’s decision in Disorganized Developments Pty Ltd v South Australia as a case study. We show that, while a scrutiny committee might hold the promise of providing effective parliamentary oversight of delegated lawmaking, the reality may fall short of the ideal. With limited time and resources to scrutinise a large volume of instruments as well as to perform other functions, and with no guarantee of engagement from the Parliament or executive, scrutiny committees may not be able to scrutinise delegated legislation in a thorough or timely manner. Building on these insights, we consider the circumstances, and manner, in which a court might be justified in making findings about the process of scrutiny of delegated legislation.
An Indigenous Right to Be Heard on the International Stage?
In the early 20th century, Indigenous peoples were effectively locked out of international organisations. In Self-Determination As Voice, a hugely valuable work of scholarship, Natalie Jones surveys the extent to which that has changed. Mechanisms for Indigenous participation in the United Nations and other organisations have proliferated since the creation of the Working Group on Indigenous Populations in 1982 and especially since the United Nations Declaration on the Rights of Indigenous Peoples of 2007. Jones concludes that it is arguable that there is now sufficient practice and opinio iuris to evidence a rule of customary international law about Indigenous participation in international governance. In this review essay, it is suggested that some might not fully agree with her analysis, either because they are more doubtful about the opinio iuris or because they place more weight on the practice of economic organisations and treaties that continue to exclude Indigenous peoples. But in any case the book identifies an accelerating trend. It also raises challenging questions about the role of soft law and how much it differs from international law in the strict sense.
When Indigenous nations’ sacred and cultural sites are threatened, legal disputes often frame land in one of two ways: either land is sacred, or it is property. In Land Is Kin, Dana Lloyd argues that this positioning is inadequate. Not only does it facilitate the damage and destruction of sacred sites, but it fails to appreciate the familial responsibilities we all have to Country. In this review essay, I outline Lloyd’s argument and suggest that emerging treaty processes in Australia offer one way to ground a deeper appreciation of land within Australian law and society.
Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas
The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.
An Empirical Study of the Distribution of Superannuation Death Benefits
In Australia, if a superannuation member dies before retirement, they will leave superannuation death benefits that must be distributed. Death benefits are usually distributed at the discretion of the trustee or, on appeal, by the Australian Financial Complaints Authority (‘AFCA’). Analysis of the distribution of death benefits is exceedingly scarce in the literature. There is some practitioner commentary and case law, but it is not consistent on how this discretion is, or should be, exercised. General trust law holds that trustees exercise broad discretions and have duties to consider all relevant matters, including any non-binding nomination of beneficiaries by the deceased. Other evidence suggests that AFCA does not follow this approach. This article undertakes the first empirical examination of the distribution of death benefits by AFCA. Key findings are (1) there is no evidence that the deceased’s wishes expressed in non-binding nominations have any association with distribution outcomes; and (2) there is a very strong association between receiving a distribution and AFCA’s view that someone was financially dependent on the deceased.
Australian Financial Complaints Authority
The High Court of Australia is yet to resolve the time when constitutional facts should be assessed. Instead, the Court examines constitutional facts at various points in time, including (1) the legislation’s enactment; (2) the relevant application of the legislation to the plaintiff; and (3) the High Court’s hearing. The time at which constitutional facts are assessed is important, as legislation can shift from valid to invalid over time where the constitutional facts underpinning the legislation’s validity change. This article contends that, generally, constitutional facts should be assessed up until the High Court’s hearing. It is argued that doing so is appropriate because such a timeframe is common to all persons, and enables the Court to reflect changing circumstances by assessing the validity of legislation in its most current context.
Unmet Need for Building, Home Contents and Comprehensive Car Insurance among Uninsured Australians: Survey Findings and Options for Reform
Home contents and comprehensive car insurance are not legally mandated in Australia. With the exception of strata title properties, there is also no legal requirement for homeowners to purchase building insurance. While these insurance products are widely regarded as ‘essential’ for managing the risk of disasters and other unexpected events causing property damage, significant proportions of Australians lack these types of coverage. In this article, we examine the extent of unmet need for insurance among this group, who remain vulnerable to devastating financial losses despite the availability of social security and other safety nets in the disaster context and beyond. In doing so, we draw upon the findings of a survey of uninsured Australians whose limited financial resources indicate a high level of exposure to financial loss in case of emergencies causing severe property damage. By contrast to industry assumptions of limited interest in insurance among those without coverage, our findings suggest most uninsured Australians would prefer to have some cover if it was affordable. We examine law and policy reforms that could address such unmet need, arguing that direct subsidies for Australians on low incomes, perhaps supported by statutory recognition of insurance as an ‘essential’ service, would be the most effective means of improving premium affordability for this group.
Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd
The High Court of Australia appeal in Naaman v Jaken Properties raises the question whether a successor trustee owes a ‘fiduciary duty’ to the former trustee to not destroy, jeopardise or diminish the former trustee’s right of indemnity over trust assets. That question arises to determine whether third parties are liable to account in equity as knowing recipients of property dissipated to frustrate the former trustee’s indemnity. It is argued in the appeal that the successor trustee holds the trust assets on express trust for the former trustee to the extent of the former trustee’s indemnity. That conclusion does not account for the variety of equitable interests. Three main points emerge. First, a current trustee has a ‘beneficial interest’ in trust assets only in a superficial sense. Second, upon transfer, that ‘beneficial interest’ is not ‘retained’ by the former trustee; the entitlement of a former trustee over the trust fund changes, and becomes analogous to a charge over a fund. The language of ‘beneficial interest’ in each case is misleading and should be eschewed. Third, it is unnecessary to ask, for the purposes of Barnes v Addy liability, whether any ‘duty’ owed by a successor to a former trustee is a ‘fiduciary duty’.
Sims v Commonwealth: The Ultimate Foundation of Australian Law and the Recovery of Ultra Vires Payments by the Commonwealth Executive
The application of a statutory limitation period to the recovery of mistaken payments by the Commonwealth to a former naval serviceman is not a place one would expect to locate the practical influence of jurisprudence. Yet it emerges in Sims v Commonwealth. The issue concerns the accurate identification of the ultimate foundation of Australian law. It is contended that the foundation is materialised by the interaction between the Australian Constitution and the common law: the Constitution is incomplete without common law doctrines. Therefore, there must be limits to the extent to which legislatures can abolish or amend the operation of common law rules in order to safeguard the constitutional allocation of powers. This necessarily includes limitation of action provisions. The contention is derived from recent High Court authority which was apparently not cited on appeal in Sims. A limitation period must be sourced elsewhere in the interaction between the Constitution and the unified common law of Australia.
Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia by Alice Taylor
Stare Decisis and Constitutional Guarantees: Commonwealth v Yunupingu
In Commonwealth v Yunupingu, the High Court of Australia will consider, inter alia, whether the requirement in s 51(xxxi) of the Australian Constitution that acquisitions of property must be on just terms applies to a Commonwealth law that is supported by the territories power in s 122 and no other head of power in s 51. Whether the just terms requirement applies to laws made under the territories power is a question of enormous significance. This question is in part answered by whether either Wurridjal v Commonwealth or Teori Tau v Commonwealth is good law, and whether either or both of those cases should be reopened and overruled. This column analyses this question in light of novel insights into the Court’s current approach to stare decisis in the constitutional setting drawn from the Court’s recent application of the doctrine in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, Vanderstock v Victoria and Vunilagi v The Queen.
Rethinking “On Just Terms”: Commonwealth v Yunupingu
Commonwealth v Yunupingu raises a number of constitutionally significant issues concerning the scope of the Commonwealth Parliament’s power under s 51(xxxi) of the Australian Constitution and its relationship to the territories power in s 122. One issue that is not directly raised by the questions before the High Court of Australia, but that will nevertheless inform the Court’s answers, concerns the meaning of ‘on just terms’. Is ‘on just terms’ a narrow and inflexible requirement to provide full market-based compensation? Or does it permit a broader and more flexible approach to determining the obligations of the Commonwealth and territory governments, which would allow for structural reparations and non-pecuniary remedies? We suggest that a broader and more flexible approach is generally to be preferred as a matter of both principle and prudence and that such an approach is especially relevant for the Court as it considers the consequences of its answers to the questions before it.
Critical Perspectives on the Uniform Evidence Law by Andrew Roberts and Jeremy Gans
This review essay discusses various aspects of the edited collection of essays on the Uniform Evidence Law (‘UEL’). First, some general observations on the UEL are offered. Second, the chapters on the origins, development and future of the UEL are used to discuss the UEL’s place in Australia and the world. Third, the role of probative value is considered with respect to Andrew Roberts’ chapter. Fourth, David Hamer’s views on tendency and coincidence evidence are critically discussed. Finally, some concluding remarks are offered.
In Whose Interests? Fiduciary Obligations of Union Officials in Bargaining
This article examines the proposition that trade union officials owe fiduciary obligations to those they represent in enterprise bargaining under the Fair Work Act 2009 (Cth), as held by the Royal Commission into Trade Union Governance and Corruption. It is argued that there are several formidable hurdles to such a conclusion, including the character of the bargaining regime under the Act, and the potential clash between the contention of the Royal Commission and the existing view of union officials as owing fiduciary obligations to the union as a continuing organisational entity. The importation of individualistic private law norms, if the fiduciary view of union bargaining were to be adopted by the courts, would challenge some fundamental conceptions of collective bargaining and the role of unions. While ‘sweetheart deals’ of the kind exposed by the Royal Commission may call for new legal responses, this article concludes that fiduciary law is not an appropriate legal tool for regulating union behaviour during bargaining.
“Restoring the Rule of Law” through Commercial (Dis)incentives: The Code for the Tendering and Performance of Building Work 2016
This article examines the Australian Coalition Government’s attempt to restore the rule of law in the building and construction industry, through the procurement requirements in the Code for the Tendering and Performance of Building Work 2016 (Cth) (‘2016 Code’). It traces the evolution of the separate scheme of construction regulation adopted in 2005 following the Cole Royal Commission, the subsequent Labor Government changes to this scheme, and the initiatives of the Coalition Government since 2013. The article then considers the use of procurement guidelines to implement workplace reform in the construction industry since 1997, followed by a detailed explanation of the new procurement rules in the 2016 Code. The concept of the rule of law is examined as a basis for analysis of arguments in support of its reinstatement in the Australian construction industry. The article concludes that the Government’s use of the procurement rules in the 2016 Code is partly aimed at restoring the rule of law — narrowly conceived as ensuring compliance with the law — but is also a mechanism to reduce union power and enhance productivity in the Australian construction industry.
Building and Construction Industry (Improving Productivity) Act 2016
Financial Robots as Instruments of Fiduciary Loyalty
Retail financial consumers increasingly interact with financial services providers via a financial robot that is driven by an algorithm or other mathematical model (‘robo financial advice’). In this sector, the focus of industry and legal participants is on statutory regulation under the Corporations Act 2001 (Cth) and associated class orders and guidance issued by the Australian Securities and Investment Commission. We argue that despite compliance with this regime, significant legal risk remains. Equity continues to operate in a domain where fiduciary obligations, and attendant poorly managed fiduciary conflicts, arise systemically. This article considers the application of the fiduciary norm to robo financial advice. In doing so, it explores the interaction of equitable principle and statute, and pursues a deeper understanding of the application of equitable fiduciary principle to robo financial advice.
Taking the Human Out of the Regulation of Road Behaviour
Autonomous vehicles (‘AVs’) are likely to pose a significant challenge to the regulation of road behaviour in the medium to long term. The extent of that challenge depends, in part, on the categorisation of the change that they represent. This article, through taking an expansive regulatory approach, argues that the replacement of the human driver, by a machine, is not as radical as it may appear. Using Black’s notion of decentred regulation, the article concludes that the role of the human decision-maker is only a relatively small part of the overall system that guides behaviour on the roads. The infrastructure, the design of the cars, the associated systems around insurance and enforcement intersect to the extent that the ‘human’ aspect of current drivers is of lesser relevance to the regulatory efforts. This is not to say that the transition to an all-autonomous fleet will be simple; instead, the claim is that the reoriented perspective offered here provides a better context for the key difference between AVs and humans, being the processes by which decisions are made by each category of entity.
The Noongar Settlement: Australia’s First Treaty
There has been a resurgence in debate over the desirability and feasibility of a treaty between Aboriginal and Torres Strait Islanders and the Australian State. The discussion has proceeded on the assumption that no such treaties exist. But is this correct? In this article, we examine the concepts and ideas underlying a treaty, with a view to determining a standard against which agreements and negotiated settlements can be assessed. The standard we apply is informed by the modern treaty-making process in Canada to locate it in contemporary practices and values. We then examine whether any agreement reached in Australia can be regarded as a treaty, including settlements reached under the Native Title Act 1993 (Cth) and more recent agreements made outside that regime. We conclude that the South West Native Title Settlement, a negotiated agreement between the Noongar people and the Western Australian Government, is Australia’s first treaty.
The “Australian Position” Concerning Criminal Complicity: Principle, Policy or Politics?
This article examines the differences that have recently emerged between the United Kingdom Supreme Court and the High Court of Australia concerning the law of criminal complicity. It contends that, if we are accurately to analyse the decisions of those Courts in, respectively, R v Jogee [2017] AC 387 and Miller v The Queen (2016) 259 CLR 380, we must acknowledge the extra-legal considerations that influenced these highly-respected tribunals. To criticise what Justice Keane has called ‘the Australian position’ is to reveal a partial truth. Certainly, that position is questionable. Indeed, here it is argued that the ‘change of normative position’ justification for the extended joint criminal enterprise doctrine does not withstand critical scrutiny. Nevertheless, the divergent results in Jogee and Miller probably owe more to public opinion, politics and widely-held judicial views about when an ultimate court of appeal is entitled to reverse an established common law rule, than they do to any fundamental differences between London and Canberra concerning principle and/or policy.
accessorial liability and joint criminal enterprise
Illegal Phoenix Activity: Practical Ways to Improve the Recovery of Tax
Illegal phoenix activity generally involves closing one debt-laden company and continuing its business through another company minus those debts. Its propensity to cause losses of federal revenue has recently been highlighted by the Australian Government Treasury announcement of a suite of measures to combat it. However, there is already an extensive array of legislative and administrative tools that are available against illegal phoenixing. This article considers both the existing and proposed measures and makes some practical suggestions to improve the recovery of tax. However, solutions are not found exclusively in tax law and its administration. Since illegal phoenix activity is facilitated by the creation and demise of companies and their controllers are regulated by the Corporations Act 2001 (Cth), suggestions are made regarding corporate law and its administration by the Australian Securities and Investments Commission.
Australia’s Position on Investor–State Dispute Settlement: Fruit of a Poisonous Tree or a Few Rotten Apples?
This article critically analyses the methodology and substantive basis of Australia’s initial rejection of, and subsequent ambivalence towards, investor–State dispute settlement (‘ISDS’) mechanisms contained in international investment agreements. The analysis focuses on the Australian Government Trade Policy Statement of 2011, as well as the 2010 and 2015 reports of the Australian Productivity Commission that largely informed the conclusions of the Trade Policy Statement. The article reveals that Australia’s analysis was incomplete and lacking meaningful discourse on the general concerns and benefits of ISDS in light of Australia’s regional relationships and the global political economy. Consequently, an adequate debate on the virtues of ISDS has yet to take place in Australia. In the absence of a clear and consistent investment policy, this article provides guidance for Australia’s future policy, such as threshold criteria for the inclusion of ISDS and a model investment treaty. With the European Union and United States expressing dissatisfaction with the present system of ISDS, this article is timely and has broad relevance.
Temporary Migrant Labour and Unpaid Work in Australia
Increasing attention is being given to the exploitation of temporary migrant workers in Australia, especially in relation to wage underpayments and ‘cash-back scams’ where visa holders are coerced into returning a portion of their wage to their employer. However, very little focus has been given to the incidence of unpaid work performed by temporary migrants. This article examines how previous forms of regulation affecting visas for working holiday makers and international students actively encouraged the performance of unpaid work by allowing unpaid work to count towards either permanent residency or an extension of a visa holder’s temporary stay. The article also assesses the current regulation of temporary migrant workers and the likelihood that it creates incentives for this cohort to perform unpaid work. We argue that this likelihood largely stems from the employer-driven nature of Australia’s temporary and permanent migration program, and the ability for visa holders to achieve a favourable migration outcome through the performance of paid work, for which unpaid work is often a gateway.
Australia’s National Registration and Accreditation Scheme for Health Practitioners: A National Approach to Polycentric Regulation?
This article analyses the National Registration and Accreditation Scheme (‘NRAS’) for Australian health practitioners that commenced in July 2010. The article argues that the Scheme represents not only an interesting case study in the development of a national approach to regulation within a federal legal system, but also an example of polycentric regulation given the complex and multilayered nature of health practitioner regulation in Australia. The article analyses the NRAS within the broader regulatory context for health practitioner regulation and the administration of public regulation more generally, and explores the challenges posed by polycentric regulation within a federal system.
Using the theory of inequality developed by Wilkinson and Pickett in The Inner Level: How More Equal Societies Reduce Stress, Restore Sanity and Improve Everyone’s Well-being, this review essay canvasses two recent normative contributions that claim a way forward for the concept and law of private property: Alexander’s defence of private property as fostering human flourishing through the living of a good life, as advanced in Property and Human Flourishing, and Posner and Weyl’s radical liberal overhaul of the very content of property found in Radical Markets: Uprooting Capitalism and Democracy for a Just Society. The essay assesses Alexander’s focus on the role of obligation as a component of private property necessary to fostering the living of a good life, and Posner and Weyl’s proposal that private property be replaced with a new ideal-typic form of property known as ‘partial common ownership’. It concludes with a reflection on the ubiquity of inequality in any proposal one might adopt for either the overhaul or the replacement of private property.
“All Necessary Measures” to Avoid Fragmentation: Reflections on the UK Supreme Court’s 2017 Al-Waheed Decision
This case note argues that the decision of the United Kingdom Supreme Court in Al-Waheed v Ministry of Defence [2017] AC 821 (‘Al-Waheed’) underscores the uncertainty that plagues the interaction between United Nations (‘UN’) Security Council resolutions (‘SCRs’) and international human rights law. It is argued that the Al-Waheed majority’s interpretation of the relevant SCRs with respect to Iraq and Afghanistan is correct, but would have benefited from more integration of fundamental principles of human rights law and a clearer interpretative framework. Similarly, while the majority took a pragmatic approach in adapting art 5 of the European Convention on Human Rights (‘ECHR’) to the circumstances of armed conflict, they avoided the pivotal significance of UN Charter art 103 and thereby missed an opportunity to strengthen the Court’s analysis of the interaction between the SCRs and the ECHR. The decision in Al‑Waheed prompts consideration of new possibilities for coherent, practical interpretations of international legal instruments: interpretations of SCRs that take account of fundamental, universal principles of human rights law; and interpretations of human rights treaties which recognise the primacy afforded to the Security Council in maintaining international peace and security.
Abortion Protests and the Limits of Freedom of Political Communication: Clubb v Edwards; Preston v Avery
Two cases currently before the High Court of Australia — Clubb v Edwards and Preston v Avery — raise the validity of state laws that seek to prohibit certain communication and protest outside abortion clinics. The laws are justified on the basis that they protect the ‘safety’, ‘dignity’, ‘well-being’ and ‘privacy’ of those seeking abortion services. The cases therefore pose the question of how these values are accommodated within the Australian system of representative and responsible government.
Government-Funded Health Research Contracts in Australia: A Critical Assessment of Transparency
Australian governments claim to be committed to improving transparency and democratic accountability. Yet they are increasingly contracting out research to external consultants, ‘think tanks’ and universities and the contractual relationships formed can, in fact, promote secrecy and undermine the goals of transparency and public scrutiny of government actions. This article reports on a first-in-kind study of research contracts between Commonwealth and New South Wales Government entities and external providers. Our analysis reveals that ‘control clauses’ are prevalent: contractually, governments can insist on the rights to determine whether, when and how the results of research are publicly disseminated, to claim intellectual property rights over work produced, and to terminate contractual relationships at will and without cause. These findings have troubling implications for government openness and accountability, for academic freedom when university researchers face restrictions on publication, and for evidence-informed policymaking. We propose solutions for proactive information disclosure to ensure that government transparency promises are realised in practice. We advocate for comprehensive public release of contract details and urge governments to publish the findings of contract research in an online repository.
Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of Doli Incapax
Despite existing since ancient times the presumption of doli incapax — that is, the presumption that children lack the moral and intellectual development to have the capacity to be guilty of crime — appears to be a relatively nebulous concept. Criticisms that the presumption is both over- and under-protective of children reveal diverse views and uncertainty about exactly how the presumption (and its legislative equivalents) does, and should, operate. This article takes the occasion of the recent High Court of Australia case of RP v The Queen (2016) 259 CLR 641 as a prompt to address this lack of clarity. It comprehensively reviews current case law to critically evaluate the sort of factors that have been used to establish that a child is sufficiently developed to be found criminally responsible.
Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution
The idea that parties bargain in the shadow of the law has been highly influential in research on dispute resolution and family law. Critics have questioned the utility and coherence of the concept, but it continues to be widely accepted. This article draws on an empirical study of access to legal information in a post-separation context to argue for a broader and more realistic understanding of how the shadow of the law influences parties’ expectations and strategies in family law matters. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). It follows that there is not just one shadow of the law; rather, there are multiple shadows. These findings hold important implications for government agencies, family dispute resolution providers and others involved in providing information and advice on post-separation issues.