Civil Law (Books and Journals)
- Global Policy From Nbr. 10-1, February 2019 to Nbr. 10-1, February 2019 Wiley, 2022
- Federal Law Review From Nbr. 50-2, June 2022 to Nbr. 50-2, June 2022 Sage Publications, Inc., 2021
- Edinburgh Law Review From Nbr. , September 2020 to Nbr. , September 2020 Edinburgh University Press, 2021
- African Journal of International and Comparative Law From Nbr. , November 2020 to Nbr. , November 2020 Edinburgh University Press, 2021
- Journal of Intellectual Disabilities and Offending Behaviour From Nbr. 11-2, February 2020 to Nbr. 11-2, February 2020 Emerald Group Publishing Limited, 2021
- Southampton Student Law Review From Nbr. 9-1, January 2019 to Nbr. 9-1, January 2019 University of Southampton, 2020
- SOAS Law Journal From Nbr. VII-I, January 2020 to Nbr. VII-I, January 2020 SOAS University of London, 2020
- La decisión de acusar. Un estudio a la luz del sistema acusatorio inglés by: Dykinson, 2014
The ‘Three RS’ in Malaysia’s Struggle for Constitutional Democracy
Race, religion and royalty (the Three ‘Rs’) have been salient aspects of Malaysia’s constitutional struggle. These elements have defined the country’s constitutional settlements during the pre-independence constitution-making process, generated constitutional crises and continued to figure into day-to-day governance and constitutional practice. There have been instances where operation of and...
- Thematic Issue Editorial Comment: Constitutional Struggles in Asia
Constitutional Struggles and Polarised Identities in Thailand: The Constitutional Court and the Gravitational Pull of Thai-Ness upon Liberal Constitutionalism
This article interrogates Thailand’s struggle between two conflicting constitutional identities, the identities of Thai-ness and liberal democracies, by examining how the Constitutional court implicitly and explicitly formulates and utilises both identities in its decisions from 2014 to 2020. Our analysis of these decisions shows that, instead of negotiating or synthesising the competing...
Deriving Constitutional Implications: The Role of ‘External’ Sources in the Text and Structure Approach
The High Court applies the ‘text and structure approach’ when deriving constitutional implications. This requires implications to be drawn from the ‘text’ and ‘structure’ of the document. A particular line of criticism has been made by some scholars that frames this approach as a falsehood. According to these scholars, judges claim to be drawing implications solely from the ‘text’ and ‘structure’
Constitutional Struggle in Sri Lanka
Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past 70 years. For 25 years after independence, the country functioned as a constitutional democracy with regular elections and power alternating between the two main political parties. Since 1972, political elites have used constitution-making as a method of consolidating their hold on political power....
The Long Struggle for Constitutional Change in Myanmar
The rigidity of the 2008 Constitution of the Republic of the Union of Myanmar is rightly notorious, as this rigidity was proven at least three times through failed attempts at reform. Despite these failed attempts, the military disputed the results of the election held in November 2020, and conflict ostensibly over that issue led to a military coup on 1 February 2021. This coup purported to have...
The Reformulated Contextual Truth Defence: More Radical That First Appears
Defamatory publications may carry any number of related or distinct imputations. Complexities arise where a plaintiff selects one or more imputations for complaint, but ignores other imputations carried by the same publication. In England and Wales, the so-called Polly Peck principle permits defendants to plead and justify an imputation other than one complained of by the plaintiff but bearing a...
Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia
The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two...
Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic
This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These...
Short Stay Visa Holders and Occupational Trainees in Australia’s Labour Migration Program: Regulatory Challenges at The Apex of Temporariness
This article addresses a gap in the scholarly literature on the legal regulation of temporary labour migration by tracing the legislative history and regulation of work visas for short stay specialists and occupational trainees. By reason of their acute temporariness, both short stay workers and occupational trainees could be regarded as having a migration status that makes them vulnerable in...
Silent Partners? Trade Unions, Corporations and Penalty Privilege in the Federal Court of Australia
‘Penalty privilege’ is sometimes referred to as ‘the right to silence’ or more correctly the privilege against self-exposure to civil penalty. It is a procedural rule that applies equally to trade unions and corporations in Australian federal courts. This article critically investigates this equality of this treatment, revealing its historical evolution and arguing that it results in unequal...
The Communist Party Case Revisited: Constitutional Review in the 2020 Term
This article examines the 2020 decisions of the High Court on constitutional law through the lens of the Communist Party Case, taking the 70th anniversary of that decision as an opportunity to reflect on the ongoing utility and efficacy of the constitutional principles it espoused. It focuses on the way in which constitutional meaning may be informed by ordinary legislation, the common law and...
Is Legislation Governing Tertiary Work Experience Effective? Exploring the Regulatory Role Played by Australian Universities
This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the
Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law
Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM) curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on...
Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin
Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the...
- Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes
Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality
This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that laws establishing safe access zones around abortion clinics were compatible with
The Constitution’s Guarantee of Legal Accountability for Jurisdictions
This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292;  NSWCA 275 on the...
Twin Peaks 2.0: Avoiding Influence Over an Australian Financial Regulator Assessment Authority
Globally, financial system regulators are susceptible to deliberate and inadvertent influence by the industry that they oversee and, hence, are also susceptible to acting to benefit the industry rather than the public interest – a phenomenon known as ‘regulatory capture’. Australia, arguably, has an optimal model of financial system regulation (a ‘Twin Peaks’ model) comprising separate regulators
Why Does the Common Law Conform to the Constitution?
The High Court has often said that the common law must conform to the Constitution. The High Court has not completely explained why this is so. This requirement is not explicitly mentioned anywhere in the Constitution itself. A number of scholars have suggested possible answers. One is that the Constitution is the supreme law and binding on everyone. Another suggestion has been that the common...
From Stepping-Stones to Throwing Stones: Officers’ Liability for Corporate Compliance Failures after Cassimatis
Australian corporate law allows for significant civil penalties to be imposed by a court on negligent corporate officers, including directors. For more than a decade, Australian Securities and Investments Commission used civil prosecutions for negligence exclusively in situations where an officer is alleged to have exposed their corporation to foreseeable risk of harm that would flow from a...
Multi-Stakeholder Frameworks for Rectification of Non-Compliance in Cleaning Supply Chains: The Case of the Cleaning Accountability Framework
There is now an expanding body of literature on the significant problem of business non-compliance with minimum labour standards including ‘wage theft’. Extended liability regulation beyond the direct employer is seen as one solution to this non-compliance in fragmented but hierarchically organised industries—such as the cleaning industry. This article uses empirical evidence to assess the...
Love in the High Court: Implications for Indigenous Constitutional Recognition
This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the...
The Reception of Structured Proportionality in Australian Constitutional Law
A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for...
Can I Leave the House? A Coded Analysis of the Interpretation of the Reasonable Excuse Provision by NSW Police During the COVID-19 Lockdown
This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their houses without a ‘reasonable excuse’. This article considers the confusion around the order in the community and upper levels of the government. Publicly...
Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession
Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this...
Marital Cakes and Conscientious Promises
The U.S. Supreme Court has recently been tasked with determining -both metaphorically and literally- whether in matters of marriage equality and religious freedom, those within society can have their cake and eat it too. This came to the fore in Masterpiece Cakeshop (2018). In most of scholarship which has followed, the respective parties’ rights in this case are parsed in terms of rights to...
Erasing the Vision Splendid? Unpacking the Formative Responses of the Federal Courts to the Fast Track Processing Regime and the ‘Limited Review’ of the Immigration Assessment Authority
The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Processing Regime for certain asylum seekers has posed new and important questions for Australian administrative law, especially in respect of the place, scope and effect of merits review. This article considers the early and formative jurisprudence of the federal courts in relation to ‘Fast Track decisions’ made
A Shield for the Tip of the Spear
The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist,
The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality
The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics....