The Australian Law Journal has joined the legal profession in paying tribute to Professor Bob Baxt AO, one of the Journal’s most longstanding section editors and contributors, following the news of his passing on 11 March 2018.

Justice François Kunc, General Editor of The Australian Law Journal:

It is with great regret that the Journal records the death of one of its most longstanding contributors, Robert “Bob” Baxt AO, on 11 March 2018. At the time of his death, Bob had the unique distinction of editing two ALJ columns: Competition and Consumer Law, and Corporations and Securities. To express gratitude for his extraordinary contribution to the Journal is necessary but also inadequate.

Few Australian lawyers have excelled in so many ways and been so prodigious in their output. His achievements included law school dean, Trade Practices Commission chair, law firm partner and recipient of the Centenary Medal and the Order of Australia. Bob is first recorded as a contributor to the Journal in Volume 40 (1966–1967) and his inaugural Commercial Law Notes section is to be found at (1969) 43 ALJ 239. His publications would take many pages to list. He continued to provide contributions to the Journal in the last few months of his life with determination and good humour.

The General Editor, Assistant Editors and the editorial staff of Thomson Reuters extend their deepest sympathy to his family.

Tribute by the Hon R I Barrett:*

Robert Baxt AO, who has died in Melbourne aged 79, was a dominant figure in Australian business law and public life for half a century.

Born in Japanese occupied Shanghai in 1938, he arrived in Sydney with his family in 1947 and attended Newington College. After graduating BA and LLB (Hons) from the University of Sydney and serving articles of clerkship (including in the office of Myer Rosenblum where future prime minister John Howard was also a clerk), he was admitted to practise as a solicitor in July 1962. He went soon afterwards to Harvard Law School on a scholarship, returning with a master’s degree and a keen interest in antitrust law.

After a short period with Freehill Hollingdale and Page, Bob Baxt embarked on what was to become an illustrious career as a legal academic, first as a lecturer in commercial and industrial law in the faculty of economics at the University of Sydney and, from 1967, at the law school of the newly established Monash University. He was appointed Sir John Latham Professor of Law at Monash in August 1972 and became dean in 1980.

At Monash, Baxt looked beyond the classroom and traditional boundaries. With Professors Maureen Brunt and Allan Fels, he taught interdisciplinary graduate seminars on restrictive trade practices. He was a consultant to Arnold Bloch Leibler from 1986 and in that way kept touch with legal practice. Upon the establishment of the Centre for Commercial Law and Applied Legal Research at Monash in 1985, Baxt became its director. The centre fitted his strategy of bringing legal education and discussion to a wider audience in the legal and business community. It became a platform for workshops at which the academy and the profession came together to discuss commercial law issues of the day. Workshops on competition and restrictive practices law, corporate law, media law and taxation established by Baxt in the 1980s while at Monash later came under the auspices of the Law Council of Australia. He remained influential in these activities until his death.

In April 1988, at the height of his innovative and productive career as an educator, Baxt accepted appointment as chairman of the Trade Practices Commission. He predicted that “an interesting time” lay ahead, commenting that people were concerned about the number of mergers and the growth of monopolies. His early days were marked by public airing of disagreement with his predecessor, W R McComas, over an apparent hardening of policy towards negotiated outcomes in more challenging merger cases. Baxt summed the matter up in the title of a public seminar in Sydney arranged by the Commission in the month after his arrival: “Same direction, different approach”.

Baxt’s first year witnessed something of a reinvigoration of the Commission. It obtained divestment orders in merger litigation against Australian Meat Holdings, won a resale price maintenance case by use of taped telephone conversations, pursued against a plasterboard manufacturer the first monopolisation case in a decade, defended a test case to define its investigative powers and took a strong stance in public debate over a new pricing and marketing system proposed by major oil companies.

In his inaugural chairman’s report, Baxt called for more finance and staff, pointing out that the Commission was often pitted against very well resourced commercial interests. This was a theme to which he frequently returned. On leaving office at the end of his three-year term, he lamented to the National Press Club that, because of lack of resources, the Commission had been forced to pick lead cases in the hope of establishing precedents and that his determination to reduce negotiated outcomes had not been fully realised. On some occasions, he said, the Commission had been “trampled on” by companies whose message to the regulator was, “You can’t touch us.”  As Baxt saw things, law reform was needed because “huge and powerful corporations” were not constrained by competition law as it stood.

Despite these frustrations, Baxt is credited with having run an efficient and effective agency. He sought enhanced public accountability at the commission through several institutional channels. He introduced new strength through the recruitment of economist Brian Johns and consumer advocate and lawyer Alan Asher as full-time commissioners, and the appointment of several part-time commissioners. He promoted staff morale by fostering stronger personal contact with everyone in the commission. With his family in Melbourne and the Commission headquartered in Canberra, the decision to leave was his own.

Baxt began his third career in 1991 when he joined Arthur Robinson & Hedderwicks (later Allens Arthur Robinson) as a partner. He moved to Freehills (now Herbert Smith Freehills) as a partner in 2005 and became Partner Emeritus in 2011. As a practitioner, he continued to offer comment and criticism on commercial law developments and maintained his close involvement in legal education and awareness. A member of the Business Law Section of the Law Council of Australia from its inception in 1980, he served on the section’s executive for more than 30 years and was its chairman in 2001–2003. He founded the Banking Law Association (now Banking and Financial Services Law Association) in 1983 and established its highly successful annual conferences; and was chairman of the Law Committee of the Australian Institute of Company Directors from its creation in 1994.

He was the founding editor of both and the Australian Business Law Review (1975) and the Company & Securities Law Journal (1982); consulting editor of the Journal of Banking and Finance Law and Practice; and editor of the “Competition & Consumer Law” and “Corporations & Securities” sections in The Australian Law Journal. Close involvement in these publications continued until the end of his life.

In his later years, he was a Professorial Fellow at Melbourne Law School, chair of the advisory board for the competition and consumer law specialisation in the Melbourne master of laws program and an honorary professor at Griffith University. In 2011, Melbourne University established an annual Baxt Lecture in recognition of his substantial contribution to the development of Australian competition law. In 2017, the Law Council’s Business Law Section offered, for the first time, the Baxt Prize for an outstanding research paper on the topic of human rights and business law

Baxt was the recipient of honorary doctorates conferred by Griffith University and, shortly before his death, by Monash University. He was awarded the Centenary Medal in 2001 and appointed an Officer in the General Division of the Order of Australia in 2003 for service to the law, particularly as a leading spokesperson in the area of trade practices.

From the very start, Baxt was a prolific writer. In 1966 alone, no fewer than 13 articles written by him appeared in law and accounting journals. He was the inaugural editor of the Monash University Law Review in 1974 and, in more recent years, wrote The Baxt Report, a monthly newsletter on corporate regulation. Books on corporate law and governance, the securities industry, financial services, trusts, managed investment schemes, auditors and, of course, competition law were authored by Baxt, some jointly. Names associated with Baxt’s in collaborative works include Brunt, Hardingham, Afterman, Ford, Samuel, Fletcher, Hanrahan, Black, Archibald, Finnane, Kewley and Harris. A collection of Baxt’s writings was published in 2015 under the title Bob’s Best. His writing was authoritative, accessible and highly topical.

Bob Baxt made a formidable contribution to Australian business law and public life as a scholar, teacher, author, regulator, adviser and practitioner. He was passionate about the law. His passion was infectious. His agile and energetic brain ranged over every aspect of whichever legal topic was to hand. This was particularly evident at the workshops and conferences he enjoyed so much. After a speaker or panel had analysed an issue, the first comment from the floor would very likely be Bob’s. His contribution would be thoughtful and closely reasoned but not always brief. And the following coffee or lunch break would be welcomed as an opportunity for elaboration.

Bob Baxt is survived by his wife, Ruth, their daughters, Miriam and Simone, and three granddaughters. Ruth was his constant companion throughout their married life of 56 years. She became involved in his professional activities and a friend to many of his colleagues.

– R I Barrett**

*The full obituary written by the Honourable Reg Barrett will be published in a forthcoming issue of the ALJ.

**The Honourable Reg Barrett (formerly a Judge of the Supreme Court of New South Wales, and acting Judge and Judge of Appeal in the New South Wales Court of Appeal).

*Please note that the links to the content in this Part will direct you to Westlaw AU.

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The latest issue of the Australian Law Journal (Volume 92 Part 2) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Increasing the Minimum Age of Criminal Responsibility
• Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse
• ALRC Inquiry into Third Party Litigation Funding in Class Actions
• New Commonwealth Attorney-General
• Excessive Costs and Inappropriate Correspondence: Again
• Hate Speech Law Reform Abandoned in NSW
• OPCAT Ratified
• Modern Slavery Law Reform

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• The Nature of and Approach to Relief for Proprietary Estoppel: McNab v Graham [2017] VSCA 352
• Leases: The Certainty of Duration Requirement

STATUTORY INTERPRETATION – Editor: The Hon John Basten

• Constructional Choice

THE LEGAL OBSERVER – Editor: Michael Pelly

• Some Original Thoughts from our Newest High Court Judge: The Hon Justice James Edelman

PERSONALIA – Editor: Emily Vale

Queensland

• Justice John Byrne AO RFD

Victoria

• Chief Justice Marilyn Warren

FAMILY LAW – Editor: Richard Ingleby

• The Reference to the Australian Law Reform Commission: A Second Plebiscite or the Rise of Michael Rimmer?

RECENT CASES – Editor: Ruth C A Higgins SC

• Industrial Relations: Fair Work Act 2009 (Cth) – Entitlement of Industrial Association to Represent Industrial Interests of Persons – Fair Work (Registered Organisations) Act 2009 (Cth)
• Migration: Protection Visas – Judicial Review of Credibility Assessment – Whether Rational, Logical or Probative Basis for Tribunal Findings
• United States: Certiorari – Application for Stay of Preliminary Injunctions – Executive Policies Concerning Entry of Foreign Nationals into Country

Articles

Security for Costs in Unfunded Federal Class Actions: Back to the Future – Vince Morabito and Naomi Hatcher

Access to justice is universally regarded as the main benefit that can be secured through the use of class action regimes. In this article it is posited that, with respect to class actions filed in the Federal Court without the support of commercial litigation funders, attainment of this desirable goal is threatened by rulings by the Full Federal Court that authorise trial judges to award security for costs against lead plaintiffs on the expectation that such security can only be provided through contributions from group members.

The Unresolved Problem of Expert Evidence – Thomas Kearney

The use of expert evidence is prevalent throughout Australia. However, there are ongoing concerns about the nature of that evidence, including the potential for the expert to usurp the decision-maker’s role, the potential for expert bias (conscious or otherwise) and the costs of expert evidence. This article considers the ways in which the legislature and the courts have attempted to regulate expert evidence and the ways in which reform might be enacted.

For the PDF version of the table of contents, click here: ALJ Vol 92 No 2 Contents.

Click here to access this Part on Westlaw AU

For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

*Please note that the links to the content in this Part will direct you to Westlaw AU.

To purchase an article, please email: LTA.Service@thomsonreuters.com or contact us on 1300 304 195 (Australian customers) or +61 2 8587 7980 (international customers) during business hours (Mon-Fri, 8am-6pm AEST).

The latest issue of the Australian Law Journal (Volume 92 Part 3) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• The Minister vs The Courts
• Judicial Conduct: The United States
• Judicial Conduct: Australia
• Reducing the Backlog in Criminal Courts
• A Conversation About Studying Law (Imagined)
• Core Business for the High Court?

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• E-Conveyancing, Contracts for the Sale of Land and Deeds
• Interest of a Purchaser Under a Contract from a Mortgagee Exercising its Power of Sale
• Strata Schemes and Short-Term Lettings (Again)

AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft

• A Lease or a Licence: How Vagueness Occasions Substantive Unfairness

PERSONALIA – Editor: Emily Vale

Commonwealth

• Chief Justice Diana Bryant

RECENT CASES – Editor: Ruth C A Higgins SC

• Administrative Law – Judicial Review – Availability of Certiorari – Error of Law on Face of Record – Non-Jurisdictional Error
• United Kingdom – Privy Council – Cayman Islands – Judicial Independence – Apparent Bias

Articles

A “Diminished Nation”? The Racial Discrimination Act 1975, The Native Title Act 1993 and Constitutional Recognition of Indigenous Australians – Professor Jonathan Fulcher

The Native Title Act 1993 (Cth) is discriminatory in its treatment of Indigenous peoples’ land interests compared with those of freeholders, particularly in relation to the provision of public infrastructure on their land. Section 7 of the Native Title Act does not permit the Racial Discrimination Act 1975 (Cth) to be used to effect a cure of that defect. Constitutional recognition for Indigenous Australians must address this incongruity. Indigenous Australians want it to be addressed in the referendum questions. Some commentators have warned against addressing it. Father Frank Brennan, for example, believes addressing such discrimination will lead to the failure of the referendum. This article asks if there can be an accommodation of the two views, both of which are compelling in their own way. It also suggests ways in which the Constitution and legislation might be amended to address such discrimination if ultimately the politics of the referendum questions does not allow discrimination to be dealt with in the Constitution in the way many Indigenous people would prefer.

The Doctrine of Forbearance – Jeremy Stoljar

The common law doctrine of forbearance emerged in the 19th century and remains part of Australian law, having been recognised by the High Court of Australia on a number of occasions, including most recently in Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570. The doctrine draws a distinction between an alteration to the mode of performance of a contract and an alteration of the contract itself. This article examines the genesis and ambit of the doctrine. It then considers the doctrine critically and asks whether it has continuing utility.

The Duty to Mitigate: A Comparative Analysis between the English Common Law and the CISG – Bruno Zeller

This article looks closely at how two systems of law namely the Convention on the International Sale of Goods (CISG) and the common law resolve an important principle of law, in this case the issues of mitigating losses and the awarding of damages once a contract has been breached. The analysis relies on Art 77 of the CISG which deals with mitigation, and the recent High Court decision in Thai Airways International Public Co Ltd v KI Holdings Co Ltd [2015] EWHC 1250 (Comm). The article also briefly traces the problematic application of the CISG in Australia. The purpose of this article is to indicate how mitigation ought to be applied in Australia under the CISG by highlighting the differences between the CISG and the common law.

BOOKS – Editor: Angelina A Gomez

• Books Received

For the PDF version of the table of contents, click here: ALJ Vol 92 No 3 Contents.

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The Hon Justice Sarah Derrington, President of the ALRC and Judge of the Federal Court of Australia.

On 17 December 2017, the then Attorney-General of Australia, Senator the Honourable George Brandis QC, asked the Australian Law Reform Commission (ALRC) to consider whether and to what extent class action proceedings and third-party litigation funders should be subject to Commonwealth regulation. This month, the ALRC released its Discussion Paper (June 2018), inviting submissions and outlining its key proposals and questions. The President of the ALRC, the Honourable Justice Sarah Derrington, identifies some of the ALRC’s early findings and emphasises the need to look to counterpart jurisdictions to ensure a global approach in developing the class actions regime in Australia.*

* This article will be published in the  forthcoming June issue of The Australian Law Journal.

The Inquiry is set against the background of the increased prevalence of class action proceedings in courts throughout Australia, and the important role that litigation funders of class actions and other legal proceedings, including arbitral proceedings, play in securing access to justice.

The ALRC’s terms of reference direct the ALRC to consider two overarching issues of the class action regime: the integrity of third-party funded class actions, and the efficacy of the class action system. They require the ALRC to consider:

• whether there is adequate regulation of conflicts of interest between litigation funder and plaintiffs and between lawyer and litigation funder, including in the relationship between a litigation funder and a legal practice;
• the desirability of imposing prudential requirements, including relating to capital adequacy, and also requirements relating to the character and suitability of litigation funders; and
• the adequacy of regulation around the costs charged by solicitors in funded litigation and, in particular, whether there is adequate regulation of the distribution of proceeds of litigation, including a consideration of the desirability of statutory caps on the proportion of settlements or damages awards that may be retained by lawyers and litigation funders.

In broad terms, the ALRC is asked to inquire into the extent to which the social utility of the class action regime has been achieved through the vindication of just claims through a process characterised by fairness and efficiency to both parties that gives primacy to the interests of litigants.

When Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) introduced the federal class action regime to Australia, the then Attorney-General, the Honourable Michael Duffy said in the Second Reading Speech (14 November 1991):

The new procedure will enhance access to justice, reduce the costs of proceedings and promote efficiency in the use of court resources … Such a procedure is needed for two purposes. The first is to provide a real remedy where, although many people are affected and the total amount at issue is significant, each person’s loss is small and not economically viable to recover in individual actions. It will thus give access to the courts to those in the community who have been effectively denied justice because of the high cost of taking action. The second purpose of the Bill is to deal with the situation where the damages sought by each claimant are large enough to justify individual actions and a large number of persons wish to sue the respondent. The new procedure will mean that groups of persons, whether they be shareholders or investors, or people pursuing consumer claims, will be able to obtain redress and so more cheaply and efficiently than would be the case with individual actions.

The legislation did not, however, enjoy bipartisan support. There were four principal concerns about the regime: first, it was said to be an attack on the traditional method of exercising legal rights; secondly, there were fears it would foster a litigious culture in Australia; thirdly, it was thought it would change the nature of legal practice by the creation of an entrepreneurial class of lawyer promoting proceedings; fourthly, it was seen to be a misdirected overreaction to the problem of the cost of litigation. Former Attorney-General Senator Durack remarked in the Parliamentary Debates, “a number of people would even go so far as to say that [this Bill] is a monstrosity … It really is one of those rather loopy proposals that come up from time to time from commissions like the Law Reform Commission”.

These fears have, in large measure, not materialised. As was intended, the regime has enabled claims to be brought by people with small claims whose number may be such as to make the total amount at issue significant, and to deal efficiently with similar individual claims that are large enough to justify individual actions. To date, the cases that have been brought under the regime reflect a broad range of both commercial and non-commercial causes of action, including shareholder and investor claims, anti-cartel claims, mass tort claims, consumer claims for contravention of consumer protection law, environmental claims, trade union actions, claims under the Migration Act 1958 (Cth), and human rights claims. One of the more recent examples of the type of matter that, under the Pt IVA regime was expected to enhance access to justice, is the formal apology and settlement award of $30 million to 447 residents of Palm Island in their action against the Queensland Government following riots in 2004.

Similarly, despite the concerns that the floodgates of litigation would open as a consequence of Pt IVA, the number of class actions has grown steadily, but not exponentially since the introduction of the legislation. As Professor Vince Morabito’s empirical research has revealed, in the first 12 months of its operation, eight class actions were filed; seven were filed in the following 12 months; and a further 14 in the subsequent 12 months. Twenty-five class actions were filed in the Federal Court in 2016–2017. This represents 0.53% of the total number of causes of action filed in the Federal Court over the same period. To date, approximately 15.4 class actions have, on average, been filed annually in the Federal Court of Australia since the regime commenced in 1992.

Nevertheless, and at the risk of being accused of coming up with yet more “loopy” proposals, the ALRC has been tasked with stepping into the fray once more. In particular, it is revisiting the extent to which the second purpose of the initiating Bill (the ability to obtain redress more cheaply and efficiently) continues to be achieved. The ALRC considers that this question is particularly important in the context of investor and shareholder claims, having regard to the expressed aim of reducing the costs of proceedings and promoting efficiency in the use of court resources.

Shareholder claims are the most commonly filed class actions in the Federal Court, representing 34% (37) of all class actions filed in the last five years. Such claims are usually based on breach of the continuous disclosure and misleading and deceptive conduct provisions of the Corporations Act 2001 (Cth), which were introduced in 2002. Since the introduction of these provisions, 66 shareholder class actions have been filed in the Federal Court. None has proceeded to judgment and there has been relatively little judicial consideration of the provisions, including the validity of the “market-based causation” theory in the context of those provisions, beyond the class action context. It is also noteworthy that, in the last five years, all shareholder class actions were funded by third-party litigation funders, as compared with only 30.7% of consumer protection claims brought by class action.

In the particular context of these types of actions, where Chapter III judicial power is being invoked regularly without the controversy, in respect of which jurisdiction is invoked, ever being resolved by final determination of contested common issues between the parties, attention has been drawn to the role of the Court to safeguard its processes. The Court is concerned to ensure that the practices and procedures of the Court are informed by considerations, including the statutory mandate in s 37M(3) of the FCA Act to facilitate the just resolution of disputes (including representative proceedings) according to law, and as quickly, inexpensively, and efficiently as possible, and the furtherance of the Court’s supervisory and protective role in relation to group members.

Although not indicative of the outcomes in all shareholder class actions, two recent settlements serve to illustrate why concerns have been expressed about the extent to which this form of class action is truly reflective of the concept of “access to justice” as was anticipated by the drafters of the original legislation. In Clarke v Sandhurst Trustees Ltd (No 2) [2018] FCA 511, the Court was asked to approve a settlement sum of $16.85 million, against the starting point for the “best case” recovery for the plaintiffs and group members of $29.8 million and with legal costs of approximately $4.9 million and the funder’s commission amounting to $5.055 million. Only 39% or $6.6 million was returned to the class. Lee J expressed his concerns about the structural difficulty occasioned by litigation of this complexity and cost when the damages sought to be recovered, on a best-case scenario, were relatively modest. In Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527, the Court approved a settlement where the solicitors received 43% of the $19.25 million settlement sum and the funder received a 30% commission, leaving the group members with 27% of the final amount.

When assessing these two outcomes in light of the original objectives of Pt IVA, there is no doubt that some will say that it is better that class members, who would otherwise have been unable to afford to bring proceedings, received something rather than nothing at all. Others might argue that a system where the transaction costs result in more than 50% of a settlement sum (or a judgment) being paid to lawyers and funders is neither efficient, either in terms of the costs of proceedings or the use of court resources, nor does it promote access to justice – it merely facilitates access to the legal system.

The ALRC has suggested that further work needs to be undertaken to understand why it is that Australia is leading the world in the growth of third-party funded shareholder class actions, none of which proceed to judgment, and a number of which seem to suffer from similar “structural” difficulties to those identified in Clarke v Sandhurst Trustees Ltd (No 2). The ALRC has also identified some broader consequences of the growth in shareholder class actions, including the impact on the value of the investments of shareholders (including the investments of the class members themselves) of the company at the time the company is the subject of the class action, and the impact on the availability of directors and officers (D&O) insurance within the Australian market. The ALRC has suggested that one reason could be the peculiar characteristics of the Australian statutory provisions concerning continuous disclosure obligations under the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commissions Act 2001 (Cth), noting that they differ from those in the United Kingdom where corporate behaviour is not self-evidently worse than in this country. The ALRC will not be making recommendations to change any aspect of the continuous disclosure obligations, or those relating to misleading and deceptive conduct, in the course of its current Inquiry.

At a more fundamental level, the ALRC has invited discussion of whether there might be a means, alternative to class action litigation, of securing collective redress. There is no doubt that the class action regime has enabled many people to pursue claims as a member of a group that they would otherwise have been unable to pursue. Nevertheless, as illustrated by the two cases discussed above, it is also true that class action litigation is expensive and the transaction costs involved in securing relatively modest returns to individual class members, even when the overall sum recovered is relatively large, remain of concern to many. The ALRC considers that the potential benefits of an enhanced regulatory redress mechanism within Australia warrant the consideration of the establishment of a federal collective redress scheme that would enable corporations to provide appropriate redress to those who may be entitled to a remedy, whether under the general law or pursuant to statute, by reason of the conduct of the corporation. Such a scheme would nevertheless permit an individual person or business to remain outside the scheme and to litigate the claim should they so choose.

The relatively new collective redress mechanisms that have been implemented in the United Kingdom by the Financial Services and Markets Act 2000 (UK) and the Consumer Rights Act 2015 (UK) are indicative of the type of redress scheme that could be considered and foreshadow a number of benefits.

The implementation of a public restorative power, or powers, affords an opportunity to deliver compensation and other forms of redress without the need to litigate. Such an approach might lead to a more efficient and effective way for consumers and businesses to obtain compensation and reduce the burden on the civil justice system. It would be a recognition that alternative methods of redress often have very high transaction costs.

This will require a shift by regulators away from an enforcement mindset to one that is focused on providing appropriate redress. A collective redress scheme, which includes a power to include agreements on damages in any settlement procedure, would be a better, more cost-effective, alternative to running the case again as follow-on litigation. Where regulators do not have such a power, and in the absence of a voluntary scheme, compensatory remedies must be pursued through follow-on litigation. This results in duplication of enforcement efforts and consequent delay and expense. Suitably empowered regulators are likely to be able to deliver compensation swiftly and cost-effectively through the ability to resolve the combination of public and private consequences.

A collective redress scheme is likely to be advantageous to consumers who typically have small individual claims. In cases where a class action is likely to yield a very small return to affected class members, even though the overall damage to the aggregate is large, the motivation of individuals to come forward to claim a share of the fund is likely to be very weak. In such circumstances, a compensatory collective redress scheme, in addition to any fine, would likely achieve greater access to justice and at a fraction of the cost of a class action.

A collective redress scheme is also likely to be advantageous to defendants who can avoid, or at least minimise, reputational loss and costs involved in litigation, and allow the company to present the scheme as indicative of a new culture of compliance within the organisation. The potential of incurring a lower penalty in recognition of the company’s willingness to enter into a voluntary redress scheme is also a powerful incentive.

Of course, challenges remain. A single federal collective redress scheme that can be adapted to a wide variety of industries will involve reconfiguring the current industry-based structure of regulators and their role (redress-focused rather than enforcement-focused). This will be a complex reform requiring the regulator, and those who are regulated, to support it. Of particular importance is how such a regulator would be funded, as industry-based regulators are usually funded by the industry not the taxpayer. There is a risk that the regulator’s limited resources might be seen to be diverted from its principal role.

There are also risks for potential defendants. An application for a redress scheme crystallises the company’s liability in circumstances where there is a chance that no claim will be brought. There is a risk that not all potential claims would be captured within the particular redress scheme, exposing the company to litigation in any event. Further, claimants must choose to opt in to the settlement scheme. Those who do not do so may choose instead to issue follow-on proceedings.

It is noteworthy that comparable jurisdictions are currently involved in similar reviews. In March 2018, the Law Commission of Ontario (LCO) initiated a class actions project to consider Ontario’s experience with class actions since the Class Proceedings Act came into force in 1993. Like Australia, Canada has had 25 years’ experience with a statutory class action regime. Unlike Australia, however, no third-party litigation funding industry has as yet developed alongside the class action regime in Canada. The LCO’s mandate is “to conduct an independent, evidence-based, and practical analysis of class actions from the perspective of their three objectives: access to justice, judicial economy, and deterrence”. On 15 March 2018, the President of the New Zealand Law Commission (NZLC) announced that the NZLC had received a reference to review class actions and litigation funding.

The ALRC considers it important to work closely with our counterparts in Canada and New Zealand, and to take heed of relevant developments elsewhere in the common law world, given the global reach of litigation funding and the increasing trend of “class action tourism”.

– The Hon Justice S C Derrington, President, Australian Law Reform Commission

November 2017 marked the 150th anniversary of the birth of Lord Atkin in Tank Street, Brisbane, Queensland. In his article, “Lord Atkin: Principle and Progress” (previously published in The Australian Law Journal Vol 90 Part 10), Justice Peter Applegarth chronicled the philosophy, influences and enduring legacy of Lord Atkin, whose landmark judgment in Donoghue v Stevenson continues to guide the common law to this day.

Lord Atkin’s remarkable life and achievements are commemorated in the currently ongoing exhibition “Lord Atkin: From Queensland to the House of Lords“.

Comment by the Hon Justice Peter D Applegarth, Supreme Court of Queensland:

This exhibition at the Supreme Court Library in Brisbane was opened by the Chief Justice of Australia (the Honourable Susan Kiefel AC), on the 150^th anniversary of Lord Atkin’s birth in Brisbane.  For readers who cannot visit the physical exhibition, an online version is accessible at: https://legalheritage.sclqld.org.au/exhibitions/lordatkin.

It includes:

• A video introduction by the Honourable Justice Patrick Keane AC;
• A biography of Lord Atkin and an account of the society into which he was born;
• A section about Atkin’s father, a campaigning journalist who resigned from Parliament to make way for a fellow progressive, the young Samuel Griffith;
• Profiles about the influential women in Lord Atkin’s life;
• An analysis of his enduring dissenting judgment in the wartime executive detention case of Liversidge v Anderson; and
• A section about Donoghue v Stevenson.

The Donoghue v Stevenson section includes three short video presentations by leading tort scholars, Professor Mark Lunney, Professor Kit Barker and Dr Kylie Burns, who discuss aspects of the “Snail in the Bottle” case.

A recent addition to the exhibition is an oral history video, featuring two of Lord Atkin’s grandchildren, who lived with him in Wales during World War II.  Their vivid recollections of their grandfather include how as children they would stage plays for their grandfather and others to watch.  Their favourite book was Alice in Wonderland.  The family affection for that work provided the raw material for Lord Atkin’s famous reference to Alice in his dissenting judgment in Liversidge v Anderson.

The exhibition is open to the general public weekdays between 8.30 am and 4.30 pm until 30 November 2018 at the Supreme Court Library, Level 12, 415 George Street, Brisbane.

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The latest issue of the Australian Law Journal (Volume 92 Part 4) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Vale Robert “Bob” Baxt AO
• The Human Factor
• Unity in the High Court
• National Plan to Address Elder Abuse
• The Tragedy and Challenge of Radicalisation
• Appeals From Nauru Come to an End
• New Specialist Sections

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• Creation of Estates for Services: New Zealand Style
• Relevance to Australia?

THE LEGAL OBSERVER – Editor: Michael Pelly

• The Regrettable Secrecy on Nauru Appeals

FAMILY LAW – Editor: Richard Ingleby

• Financial Agreement Anomalies between Western and Eastern Australia

FROM THE LAW SCHOOLS – Editor: Professor Michael Coper

• What is the Future of Australian Legal Education?

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Reforming Australia’s Admiralty Jurisdiction

RECENT CASES – Editor: Ruth C A Higgins SC

• Contracts: Construction – “True Rule” In Codelfa Construction v State Rail Authority (NSW) – No Requirement of Ambiguity Before Regard is had to Surrounding Circumstances

Articles

What’s Equity got to do with the Environment? – Justice Brian J Preston

The development of the environment benefits some, burdens others and bypasses many. The distribution of the benefits and burdens of developing the environment raises issues of equity. The notion of equity concerns evenness, fairness and justice. The members of the community of justice comprise people of the present generation, people of future generations and non-human nature, present and future. Extending equity to these members involves intragenerational equity, intergenerational equity and interspecies equity. These three principles of equity fix not only the process of decision making concerning development of the environment but also the results of decision making. The results include maintaining a healthy, diverse and productive environment, now and in the future. The three principles of equity call for distributive justice, which is to be achieved by according procedural justice: a fair result reached by a fair process. This is what equity has to do with the environment.

Regulating Humanitarian Assistance by Australian Charities: Legal Tools to Deter Funding of Terrorism Abroad – Gregory Rose

What are the obligations and risks in Australian law confronting the managers of charitable funds disbursed overseas to conflict zones where funds may be diverted into political violence? The 2016 allegations against World Vision Australia for funding HAMAS are described here as a case study of applicable Australian laws. Apparent gaps in the administrative, civil and criminal regulatory framework are identified and are contrasted with approaches in other common law jurisdictions: Canada, England and Wales, and the United States. Based upon these comparisons, recommendations are made to address perceived defects in the regulatory framework to counter financing of terrorism abroad by Australian not-for-profit organisations.

The Liability Blind Spot: Civil Liability’s Blurred Vision of Conditionally Automated Vehicles – Ella Pyman

In the next five to 10 years, experts predict that conditionally automated vehicles will be commercially introduced. At this level of automation, the system has total control of the vehicle in defined driving environments. The motorist, as a technical matter, will not be required to supervise the system’s functioning when the technology is engaged. The diminished role of the human motorist in conditionally automated vehicles poses a qualitative challenge to the existing liability framework. This article contends that these technical advancements will significantly narrow the motorist’s legal duty to drive carefully and cause a corresponding expansion of the developer’s duties. A lacuna however will emerge where similar injuries inflicted by a driver in sole control will no longer be compensated when they are inflicted by an automated vehicle. This creates a liability blind spot: a blurred vision of how a conditionally automated vehicle claim would be resolved.

BOOK REVIEWS – Editor: Angelina Gomez

• Clarity for Lawyers: Effective Legal Language (3rd ed), by Mark Adler and Daphne Perry
• Seeing Through Legalese: More Essays on Plain Language, by Joseph Kimble
• Re-interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, by Wilfrid Prest (ed)
• The Tasmanian Dam Case 30 Years On: An Enduring Legacy, by Michael Coper, Heather Roberts and James Stellios (eds)

OBITUARY

• Robert Baxt

For the PDF version of the table of contents, click here: ALJ Vol 92 No 4 Contents.

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Thomson Reuters is delighted to announce the launch of two topical and timely new sections, “Class Actions” and “Technology and the Law”, as well as the addition of new Section Editors on the Australian Law Journal.

The Hon Justice Michael B Lee heads the new section for “Class Actions”. His Honour graduated from the University of Sydney and began his career at Corrs Chambers Westgarth in 1989. He rose through the ranks and later became a senior litigation partner and national practice group leader before being called to the New South Wales Bar in 2002, taking silk in 2011. Justice Lee was appointed a Judge of the Federal Court of Australia on 27 March 2017.

Justice Lee has been involved in high profile cases involving building and construction disputes, insurance cases, employment law and workplace safety, as well as a number of pro bono and public interest cases. His areas of interest include commercial law, equity, class actions, administrative law, public interest law, commissions and public inquiries, industrial prosecutions, and banking and finance.

Assoc Prof Lyria Bennett Moses, UNSW Sydney

Associate Professor Lyria Bennett Moses is one of the co-editors of the new section entitled “Technology and the Law”.

Lyria is Director of the Allens Hub for Technology, Law and Innovation and an Associate Professor in the Faculty of Law at UNSW Sydney. Her research explores issues around the relationship between technology and law, including the types of legal issues that arise as technology changes, how these issues are addressed in Australia and other jurisdictions, the application of standard legal categories such as property in new socio-technical contexts, the use of technologically-specific and sui generis legal rules, and the problems of treating “technology” as an object of regulation. Lyria is currently a Key Researcher and Project Leader on the Data to Decisions CRC, exploring legal and policy issues surrounding the use of data and data analytics for law enforcement and national security. She is also Lead of the UNSW Grand Challenge on “Living with 21st Century Technology” and a PLuS Alliance Fellow.

Anna Collyer, Allens

Working alongside Lyria as co-Editor is Anna Collyer, who has been a partner of Allens for 17 years and is currently Allens’ Head of Innovation and a member of the firm’s executive committee.

Anna’s practice has focused on the electricity sector for over 20 years and has followed the evolution of that sector from initial reforms in the early 1990s to the transformation it is currently experiencing.  She has worked on policy and reform for Government and key market institutions, as well as advising industry and major energy users on significant projects and transactions, with particular expertise in relation to renewable energy.

In her role as Head of Innovation, Anna leads a multi-disciplinary team working collaboratively to experiment, test and refine new technologies and processes to meet clients’ changing business needs.  Anna has driven initiatives in design thinking, co-creation and client collaboration across the firm, bringing technology and change into the spotlight for lawyers and leaders alike.

John Kettle is the new Section Editor of the “Competition and Consumer Law” column, previously managed by the late Professor Robert Baxt AO.

John is a graduate of Trinity College Dublin (LL.B) and Oxford University (BCL).  He is admitted to practice in Ireland, England and Wales, and now Australia. He is a former chair of the International Bar Association’s Public Law Committee, and Vice-Chair of the Irish Law Society’s EU & International Affairs Committee. John is now the head of international and competition at McCullough Robertson working out of Brisbane and Sydney, and sits on several not-for-profit boards in Australia, including the Queensland Futures Institute’s Energy Committee.

John Kettle, McCullough Robertson Lawyers

He practised in Ireland and the EU from 1993 until his relocation to Australia in 2013 with his Brisbane lawyer wife, Susan Frisby.  In Ireland, John’s practice focused on competition and regulated markets, particularly on merger control, State aid, abuse of dominance and behavioural issues in all sectors but with a particular engagement in network and regulated industries, specifically telecoms, broadcasting, towers, transport, electricity and gas, and technology.

In Australia, his work in the competition sector includes merger control, supply chains, and dealing with inquiries/investigations into various sectors including red meat, dairy, horticulture and energy.  John’s clients have included Government, regulators, multinationals, PE firms, hedge funds and financial institutions. He has more than 20 years’ experience in major transactional and project work with a nationally significant practice in competition law, merger control, energy (gas and electricity), utilities, regulated industries, resources, technology, media & telecommunications, transport, agribusiness, intellectual property, life sciences and administrative law.

Associate Professor Jason Harris, UTS

The new “Corporations and Securities” Section Editor is Associate Professor Jason Harris, carrying on the legacy of the late Professor Baxt. Jason teaches company law and insolvency law at the UTS Faculty of Law after his role at the Australian Government Solicitor. He is the leader of the Faculty’s Corporate, Commercial and Tax research network, and is also a co-editor of the “Insolvency Law and Management” section in the Journal of Banking and Finance Law and Practice.

Jason completed his BA LLB at the University of Western Sydney (now Western Sydney University) in 2000 and his LLM from the Australian National University in 2006. He entered academia in 2002 after a short period working in legal publishing and for the Australian Government Solicitors. Jason has taught law and business students at ANU, UNSW and WSU before starting at UTS in 2007. He is the program head for the ARITA Advanced Certification course, offered by the UTS Faculty of Law.

An active researcher in company law, insolvency law, debt restructuring, secured transactions and corporate law, Jason has published 13 books and over 90 articles in scholarly and professional journals. Some of the books which he has co-authored are Keay’s Insolvency: Personal and Corporate Law and Practice (10^th ed) with Michael Murray and Insolvency Law: Commentary and Materials (1^st ed) with Michael Gronow and Helen Anderson, published by Thomson Reuters, and Annotated Personal Property Securities Act 2009 (Cth) (3^rd ed) with Nicholas Mirzai, published by Wolters Kluwer CCH.

Thomson Reuters and the ALJ extend a warm welcome to our new Section Editors and look forward to their future contributions in these rapidly evolving areas of law.

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The latest issue of the Australian Law Journal (Volume 92 Part 5) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Maritime Boundary Treaty Signed with Timor-Leste
• #MeToo Comes to the Legal Profession
• Victoria Legislates to Overcome Ellis v Pell
• Contempt and Criticism of Judges
• The “Justice State of the Nation” Address
• Defamation Law Reform in the Internet Age
• A Taste of Things to Come?
• A Changing of the Guard at Thomson Reuters

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• The Age of Entitlement: Family Provision Claims by Adult Children

AROUND THE NATION: NORTHERN TERRITORY – Editor: Hon Dean Mildren AM RFD QC

• Vale Central Australian Aboriginal Legal Aid Service – 1973 to 2017

PERSONALIA – Editor: Emily Vale

Commonwealth

• Justice Michael Baumann AM
• Justice Sarah Derrington

Queensland

• Justice Peter Davis
• Appointment of Queen’s Counsel

Tasmania

• Justice Gregory Geason
• Justice Shan Tennent

Victoria

• Justice Kim Hargrave
• Solicitor-General

RECENT CASES – Editor: Ruth CA Higgins SC

• Civil Procedure – Whether Party Can Give Evidence While Face Covered by Veil – Discretionary Decision of Trial Judge to Refuse to Allow Witness to Give Evidence with Face Covered
• Succession – Wills – Inheritance – Appeal Against a Decision Granting an Application Made by the Respondent Under s 6(1) of the Family Provision Act 1972 (WA) for Further and Better Provision From the Testator’s Estate
• United Kingdom – Breach of Contract – Assessment of Damages – Wrotham Park Money Awards

Articles

Young’s “Fact finding made easy” in Refugee Law: A Former Practitioner’s Perspective – Douglas McDonald-Norman

This article considers the application of PW Young, “Fact finding made easy” (2006) 80 ALJ 454 to the unique challenges faced by decision-makers and advocates in refugee status determination (RSD) in Australia, drawing upon the author’s experiences in refugee law and advocacy. Unlike most other forms of proceedings, RSD offers little scope for corroboration of individual claims for asylum, requiring greater consideration of the inherent plausibility of claims and the manner in which such claims are presented than of whether external sources can verify particular claimed incidents. The utility of Young’s observations in this context is assessed and the need for caution in applying principles of fact-finding drawn from other jurisdictions to the particular context of RSD is emphasised.

Hear No Evil, See No Evil, Speak No Evil … and, Read No Evil: Confiscation of Literary Proceeds under Australian Criminal Property Confiscation Legislation – Dr Natalie Skead

Criminal property confiscation legislation is widely regarded as an important weapon in Australia’s arsenal against serious and organised crime. The statutory regimes provide for a wide range of confiscations, including the confiscation of literary proceeds – the benefits received from the commercial exploitation of one’s notoriety from having committed a crime. This article commences with an examination of the operation of literary proceeds confiscation in Australia by reference to the Commonwealth legislation. It goes on to consider, and suggest an explanation for, the seemingly selective application of the legislation in a series of high profile cases.

Aggravating and Mitigating Factors in Sentencing: Comparing the Views of Judges and Jurors – Kate Warner, Julia Davis, Arie Freiberg, Caroline Spiranovic and Helen Cockburn

This article reports the findings of the first study in Australia to compare the responses of judges and jurors in 122 real cases who were asked to identify the appropriate relevance and weight that should be given to some of the most commonly listed aggravating and mitigating factors in sentencing. The research reveals that, while jurors and judges in Victoria are alike in giving more weight to aggravating factors than mitigating factors and in supporting an individualised approach to sentencing, jurors give less weight than judges to some mitigating factors, including good character, being a first offender, youth, old age and physical illness. Jurors also adopted broader interpretations of aggravating factors like breach of trust and the relevance of prior convictions. They also preferred a different rationale for discounting sentences due to family hardship.

BOOK REVIEW – Editor: Angelina Gomez

• Can You See the Mountain? A Legal Journey with a Few Diversions, by Peter Heerey

For the PDF version of the table of contents, click here: ALJ Vol 92 No 5 Contents.

Click here to access this Part on Westlaw AU

For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

Commodore Sir Laurence Street AC KCMG QC, the fourteenth Chief Justice of the NSW Supreme Court and former Lieutenant-Governor of New South Wales, died on 21 June 2018, and a state funeral was held in his honour on 5 July 2018 at the Sydney Opera House.

The following obituary was written by The Hon Arthur R Emmett AO QC, Acting Judge of the New South Wales Court of Appeal, and will be published in the forthcoming July issue of The Australian Law Journal.

Sir Laurence Street AC KCMG QC (Source: State of New South Wales Department of Premier and Cabinet)

Laurence Lillingston Whistler Street died 12 days short of his 92nd birthday on the night of the winter solstice, 21 June 2018.  Although he had a privileged life, it was one of great service.  He was the fourth and last child of Kenneth Whistler Street and Jessie Mary Grey Street, each of whom achieved much in their respective lives.  At the time of Laurence’s birth in 1926, his grandfather, Philip Whistler Street, was the Chief Justice and Lieutenant Governor of New South Wales and his father was a barrister. Laurence was named after his uncle, Laurence Whistler Street, who was killed at Gallipoli in 1915 at the age of 21.

In October 1931, Kenneth Street was appointed as a judge of the Supreme Court, joining his father on the Court, where they occasionally sat together on Full Courts.  On those occasions, the third member of the bench was referred to as “the Holy Ghost”.  In 1950, Kenneth Street, was appointed as Chief Justice and Lieutenant Governor, following his father in those offices.

When Laurence finished school in 1943, at the age of 17, he enlisted in the Royal Australian Navy. He began below decks as an ordinary seaman but, after initial training at HMAS Kuttabul, was selected for the Officer Training School, from which he graduated as a midshipman, with the unique mark of 100%, the first candidate to do so.  He saw active service in the Pacific aboard the corvette, HMAS Ipswich, and was aboard HMAS Ipswich in Tokyo Bay when General Douglas MacArthur received the Japanese surrender.

After demobilisation in 1947, Laurence, unsurprisingly, undertook a degree in Law at Sydney University Law School.  While at Law School, Laurence was associate to Mr Justice William Owen, who was the third generation of his family to hold office as a judge, something that Laurence was to emulate. William Owen was afterwards appointed to the High Court of Australia.

Laurence graduated with honours as Bachelor of Laws and was admitted to the Bar of New South Wales in 1951, where he read with Bruce Macfarlan, who became a Supreme Court judge, sitting in the Commercial List.  One of Laurence’s pupils was Kenneth Handley, who was subsequently appointed to the New South Wales Court of Appeal. One of Handley’s pupils was David Bennett, subsequently Commonwealth Solicitor-General.  One of Bennett’s pupils was Robert Macfarlan, Bruce’s son, who is now a member of the Court of Appeal.   Laurence’s second son, Alexander, read with Robert Macfarlan, completing a unique circle.

In 1952, Laurence married Susie Watt, the daughter of Ernest and Ruth Watt.  Ernest was the scion of one of the founders of Gilchrist Watt and Sanderson Ltd, a well-known shipping agent and a regular litigant in the Commercial List.  Susie’s grace and her practical sensibilities were a great support for Laurence in his professional life, particularly after he was appointed to the Supreme Court.  Laurence and Susie had four children, Sylvia, Kenneth, Alexander and Sarah.

At the Bar, Laurence established a stellar reputation for his sound understanding of legal principle, particularly in commercial and admiralty law and insolvency.  He was a superb advocate and appeared regularly with Sydney’s leading counsel. Urbane and suave, Laurence acquired the nickname of “Lorenzo the Magnificent”, after Prince Lorenzo de Medici.  His princely demeanour served him well in court.  On one occasion, when appearing for a defendant company owned by the Belgian government, he announced to a District Court judge that he had the honour to appear for the King of the Belgians, who did not condescend to submit to the jurisdiction of a foreign court.  Laurence’s submissions were so beguiling that the plaintiff’s counsel ended by apologising on behalf of his client for inconveniencing His Majesty.

Laurence was appointed as Queen’s Counsel in 1963 but, although he appeared as silk in the Privy Council, he was not destined to have a long career as senior counsel.  One of his successes as senior counsel was in the Royal Commission into the tragic collision between HMAS Melbourne and HMAS Voyager in 1964, which resulted in the loss of 82 lives.  Laurence appeared for the interest of Captain Duncan Stevens, the commander of HMAS Voyager, who had died in the collision.  The commander of HMAS Melbourne, Captain John Robertson, who was without fault, eschewed legal assistance.  Laurence’s skill led to findings adverse to Captain Robertson.  However, Laurence’s humanity caused him to perceive the great disadvantage under which Captain Robertson laboured and Laurence was instrumental in the establishment in Sydney in 1964 of the Naval Reserve Legal Panel.  Laurence was promoted to the rank of Commander and named as the first head of the Panel.  He has been succeeded by eminent jurists over the more than 50 years of the Panel’s existence.  Two of his children, Lieutenant-Commander Sylvia Emmett and Commander Alexander Street, are presently members of the Panel.

Laurence’s insolvency practice resulted in his appointment as Challis Lecturer in Bankruptcy at Sydney University Law School, emulating his grandfather.  In 1965, it was necessary for him to teach the intricacies of bankruptcy to his last class, under the shadow of proposed new bankruptcy legislation.  As a member of the class, I can vouch for the skill with which Laurence expounded clearly and intelligibly the underlying concepts of bankruptcy by reference to the existing bankruptcy legislation as well as the proposed new legislation, which became the Bankruptcy Act 1966 (Cth).

At the end of 1965, Laurence was appointed to the Supreme Court and sat in Equity from the time of his appointment.  In 1972, he was appointed Chief Judge in Equity, again following in the footsteps of his grandfather.  As a trial judge, Laurence developed an excellent relationship with the Equity bar, relying on regular Equity practitioners to give assurances that the papers and evidence were in order for the granting of the relief sought.  A practitioner who failed Laurence’s trust was thereafter at a considerable disadvantage.  On one occasion, that cooperation between Bench and Bar enabled Laurence to dispose of over 280 cases in the Company List in a single day, without assistance from Masters or Registrars, a feat with which he was justly pleased.  I saw part of that feat as instructing solicitor in several of the matters.

As a result of Laurence’s commercial experience and expertise at the Bar, the Equity Court, and after 1972, the Equity Division of the Supreme Court, became the desired forum in Australia for the resolution of commercial disputes.  Laurence’s capacity, as a trial judge, to get to the heart of a case was renowned.  By detailed preparation of material, he was able to give prompt judgments that almost invariably stood up on appeal.  In short cases, he regularly gave ex tempore decisions, when he would line up the affidavits and law reports and move up and down the bench, referring to documents and to authorities, delivering concise but comprehensive judgments in clear and unambiguous language.

Laurence was equally at home with complex cases.  For example, in July 1972, Ampol Petroleum Ltd brought proceedings to set aside a very substantial allotment of shares made by RW Miller Holdings Ltd to Howard Smith Ltd as a means of defeating a hostile takeover offer by Ampol.  The proceedings, which involved significant questions of directors’ duties and powers, were brought on urgently and, by December 1972, Laurence had conducted a hearing of some three weeks and given judgment setting aside the allotment.  Sydney’s leading commercial counsel appeared for the various parties involved in the proceedings, and despite occasional tension between them, Laurence’s exerted authority and urbanity ensured that the litigation was conducted with the highest level of respect and competence, something I saw first-hand as instructing solicitor for Ampol. An appeal straight to the Privy Council, which was possible at the time, was dismissed.  The members of the Privy Council showered considerable praise on him for the speed and competence with which the proceedings had been heard and disposed of.

In the early 1960s, Laurence and Susie acquired “Golden Valley”, a property bordering on the Wollondilly River at Canyonleigh, where they bred quarter horses and from time to time ran steers, conducting the operations entirely by themselves, even after Laurence’s appointment to the Supreme Court.  After Laurence adjourned his Court on Friday afternoons, Susie would collect him in Macquarie Street, dressed in his striped trousers, black jacket and Homburg, and the family would then drive to Golden Valley with their various pets, including a kangaroo and a wombat.  Laurence had an abiding love for the poetry of “Banjo” Paterson, who had practised in partnership with his great uncle, John William Street.  The “dingy little office” referred to in “Clancy of the Overflow” was the office of Street & Paterson in Phillip Street Sydney.  Laurence would entertain his children on the long drive to Golden Valley by reciting by heart “Clancy of the Overflow”, “The Man from Snowy River” and many others.  Riding “Doctor”, a handsome chestnut stallion, Laurence would lead his family on expeditions to picnic spots on Golden Valley, where they would boil a billy and cook on an iron plate over a fire lit by Laurence by rubbing sticks together, and camp under the stars. It was quite disarming to see the urbane and suave Laurence breaking in foals, drenching horses and handling bullocks in the cattle crush.

When Sir John Kerr resigned as Chief Justice to become Governor-General in 1974, Laurence was appointed as Chief Justice and Lieutenant-Governor.  He thus became the third generation of his family to hold those offices.  In 1976, he was made a Knight Commander of the Order of St Michael and St George, an honour traditionally conferred on a colonial chief justice, as Laurence was pleased to call himself. While Kenneth Street had seen his son become the third Street to hold office as a judge of the Supreme Court, he did not survive to see him become the third Street Chief Justice.

Most of Laurence’s sitting time as Chief Justice was spent presiding in the Court of Criminal Appeal.  His capacity to give ex tempore judgments enabled that court to achieve a high reputation for speed and justice, yet engendering with litigants a sense of having had a fair hearing. However, while Laurence brought a keen, analytical mind, together with consistency and efficiency to the administration of criminal justice, his appointment as Chief Justice so early in his judicial career resulted in the loss to the commercial community of the country’s leading commercial judge.

Nevertheless, Laurence’s understanding of commerce enabled him to see the importance of the Commercial List. He persuaded Andrew Rogers to accept an appointment to the Supreme Court and was instrumental in having a separate Commercial Division of the Supreme Court established, of which Andrew Rogers was appointed as the first Chief Judge.  Laurence supported the innovations introduced in the Commercial Division, which became a leading innovator in the conduct of commercial litigation in the common law world.

Shortly after Laurence’s appointment as Chief Justice, stirrings began for the creation of a generalist, superior federal court, which Laurence opposed, arguing that there was no reason why the State courts could not continue to exercise federal jurisdiction as they had been doing since federation.  However, in 1976 the Federal Court of Australia was created as a separate, generalist court exercising federal jurisdiction.  Nigel Bowen, who had succeeded Laurence as Chief Judge in Equity, was appointed as the first Chief Judge, later Chief Justice, of the Federal Court of Australia. At much the same time, the Family Court of Australia was created. Jurisdiction that had previously been vested in State Supreme Courts was conferred upon the two new courts and the Federal Court was given certain of the first instance jurisdiction that had been exercised by the High Court.

In 1977, judges first sat in the new Law Courts Building in Queens Square, accommodating both State and federal judges.  Laurence had a hand in the design of the State floors and presided over the first sittings of the Supreme Court in the new ceremonial Banco Court.  The judges of the new Federal Court occupied the higher floors of the building.

However, tensions developed between Laurence, as Chief Justice of NSW, and Nigel Bowen, as Chief Judge of the Federal Court. The tensions manifested themselves in two ways.  First, Laurence confirmed the authority of the judges over their courthouse. As originally designed, there were two lobbies in the new building, one for the State and one for the Commonwealth, and Laurence directed that the doorway between the two lobbies be closed temporarily, preventing access from one to the other.  Secondly, a disagreement arose as between Laurence and Nigel Bowen as to who should take precedence in connection with the traditional opening of law term service at St James Church, King Street, when it was customary for the State judges to process to Sydney’s traditional legal church in ceremonial robes.  Laurence’s view, that the service was a State affair and not a Commonwealth affair, prevailed, with the consequence that federal judges have never participated in the procession and, to the extent that they have attended the church service, they have done so in “mufti”.

One of Laurence’s important achievements as Chief Justice concerned the establishment in 1987 of the Judicial Commission of New South Wales, which he regarded as the most public and difficult battle that he fought as Chief Justice, steering a course between Scylla and Charybdis. In exchange for what was perceived to be a significant incursion into judicial independence, the judges accepted the benefits of the education and sentencing functions provided by the new body. The compromise that he brokered with the State government, which was perceived as a significant victory for the judges, was that the new body would be independent of the executive.  Laurence was appointed as the first head of the Judicial Commission when established.

At the end of 1988, Laurence resigned from the Supreme Court after 23 years as a judge, 14 of them as Chief Justice. In 1990, Laurence and Susie were divorced.  Susie married John Rankine, an eminent Australian civil engineer, and Laurence married Penny Ferguson, who had been private secretary to the Governor.  Laurence and Penny had one child, a daughter, whom they named Jessie, after Laurence’s mother.

Following his resignation, Laurence embarked on a new career in Alternative Dispute Resolution.  His personal charm and understanding of and ability to deal with people, as well as his deep knowledge of the law, enabled him to establish a unique practice throughout Australia.  He became known as “the Father of Mediation” both in Australia and internationally. Laurence also chanced his arm in commerce and sport, becoming chairman of John Fairfax and Sons Limited and chairman of the National Rugby League judiciary.  In 1989, Laurence was appointed as a Companion of the Order of Australia.

Following his death, Laurence’s life was recognised at a State Funeral in the Concert Hall of the Sydney Opera House conducted by Dr John Vallance, State Librarian. Tributes were given by Penny Street, his widow, by the Honourable Malcolm Turnbull MP, Prime Minister, by the Honourable Murray Gleeson AC QC, former Chief Justice of the High Court of Australia, who succeeded Laurence as Chief Justice of New South Wales, and by Rear Admiral Jonathan Mead, Fleet Commander of the Royal Australian Navy.  Readings were given by the Honourable Tom Bathurst AC, the Lieutenant-Governor and Chief Justice of New South Wales, by the Honourable Andrew Rogers AO QC, and by each of Laurence’s five children.  The ceremony was attended by over 1000 people and ended with the “Last Post” and “Reveille” by a Navy bugler, and Purcell’s “Funeral Sentences for Queen Mary”, played by the brass and percussion of the Sydney Symphony Orchestra, as Laurence’s coffin, draped in the White Ensign and bearing Navy sword and cap, was borne from the Opera House by serving sailors.  Laurence was cremated at Northern Suburbs Cemetery following a private service conducted by the Rev Andrew Sempell, Rector of St James’s, King Street.

Laurence is survived by his three daughters, Judge Sylvia Emmett of the Federal Circuit Court of Australia, Sarah Farley, a legal recruiter, and Jessie Street, a law graduate, and his two sons, Kenneth Street, a successful Southern Highlands businessman, and Judge Alexander Street, also of the Federal Circuit Court of Australia. He is also survived by 15 grandchildren and 5 great grandchildren.

To adapt Catullus 101: Atque in perpetuum, Socer, ave atque vale

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The latest issue of the Australian Law Journal (Volume 92 Part 6) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Legal Fictions and Personal Responsibility
• Penalties for Corporate Misconduct
• ALRC Inquiry into Indigenous Incarceration Rates
• Living on in Cyberspace
• A New Look for the Contemporaneous File Note
• Open Courts Act Review in Victoria
• Victorian Aboriginal Treaty Bill
• New Section Editors
• Inquiry into Class Action Proceedings and Third-Party Litigation Funders

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• Reform in Elder Law – Granny Flats

AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt AM

• A Tale of Two Courts

AROUND THE NATION: WESTERN AUSTRALIA – Editor: Justice Kenneth Martin

• Defamation Trial Sequel to a Murder Trial: Rayney v Western Australia (No 9) [2017] WASC 367

PERSONALIA – Editor: Emily Vale

Commonwealth

• Justice Katrina Banks-Smith
• Justice Craig Colvin
• Justice Simon Steward

New South Wales

• Justice Peter McClellan AM

RECENT CASES – Editor: Ruth CA Higgins SC

• Practice and Procedure – Stay of Proceeding – Applications For Leave to File and Serve Amended Statement of Claim – Refused with Costs Taxed Immediately – Costs Unpaid Because Appellant Impecunious
• Defamation – Contextual Truth Defence – Whether Defendants May Plead Back a Plaintiff’s Substantially True Imputations – Defamation Act 2005 (NSW) s 26
• United Kingdom – Supreme Court – Contract Law – Licence of Premises – No Oral Modification Clause – Whether Effective

Articles

Extending the Life of a Discretionary Trust – Michael Flynn QC

This article sets out the three requirements that must be satisfied to vary the vesting date and thereby extend the life of a discretionary trust. The first and most obvious of these is that the vesting date must not yet have arrived. The second requirement is that the trust’s vesting date must be capable of variation, by the trustee, the collective agreement of the beneficiaries (under the rule in Saunders v Vautier), or by the court. The final requirement is that the extension of time must comply with the trust’s perpetuity period (which will depend on the drafting of the trust and the legislation presiding over it). Having examined these requirements, the capital gains tax consequences of any change to a trust’s vesting date are considered.

Unseen Networks: The Legal Professions’ Involvement in the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) – Mark Lunney

Prior to the foundation of permanent law reform bodies in the second half of the 20th century, the process of statutory law reform of private law in Australian jurisdictions was a largely unseen exercise. Drawing on archival sources, this article explores the role that members of the legal profession played “behind the scenes” in the creation of one of the most radical law reforms in private law in New South Wales in the first half of the 20th century, the extension of liability for negligently-caused nervous shock. Members of the profession both agitated for reform and provided suggestions for change and in doing so they demonstrated a willingness to depart from developments in England thought inappropriate and a determination to create a solution which would place New South Wales at the forefront of the best modern legal developments.

Can There Ever Be Affordable Family Law? – Patrick Parkinson and Brian Knox

The current operation of the family law system continues to be a source of great dissatisfaction to almost everyone caught up in it. There are many reforms that could ensure that the system works better within the existing budgetary envelope. These include better gatekeeping strategies to ensure that people have made efforts to resolve their disputes, or to narrow the issues, before filing; listing priority to be given to parties who have taken all reasonable steps to resolve their dispute; obligations on practitioners and judges similar to those contained in the Federal Court of Australia Act 1976 (Cth) to facilitate the just, quick and cheap resolution of the real issues; the greater use of costs orders against people who pursue unreasonable or unnecessary applications or responses to applications; and legislative provisions to deter unethical lawyering. Finally, the article explains the rationale for the pilot of Parenting Management Hearings for self-represented litigants.

BOOK REVIEWS – Editor: Angelina Gomez

• The Evolving Role of Trust in Superannuation, by M Scott Donald and Lisa Butler Beatty (eds)
• Regulation in Australia, by Arie Freiberg
• The Varieties of Restitution (2nd ed), by Ian Jackman SC
• Understanding the Rule of Law, by Dr Geert Corstens

OBITUARY

• Patrick Brazil AO KLJ

For the PDF version of the table of contents, click here: ALJ Vol 92 No 6 Contents.

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The latest issue of the Australian Law Journal (Volume 92 Part 7) contains the following material:

CURRENT ISSUES – Guest Editor: Dr Nuncio D’Angelo

• Family Court and Federal Circuit Court to be Merged
• Hayne Royal Commission and “Independent” Reports
• Corporate Culture – An Oxymoron?
• More on the “Dual Citizenship Crisis” and Section 44 of the Constitution
• Review of ASIO’s Questioning and Detention Powers – Recommendations Made
• The Latest on the National Redress Scheme for Survivors of Institutional Child Sexual Abuse
• Highest Ever Penalty under the Competition and Consumer Act: ACCC v Yazaki Corp [2018] FCAFC 73
• NSW Sexual Consent Laws to be Reviewed
• NSW Review of Laws Relating to Beneficiaries of Trusts
• Victoria’s Legislation to Overcome Ellis v Pell now Passed

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

• Trustees’ Rights of Indemnity, Insolvency and Statutory Distributions to Preferred Creditors

PERSONALIA – Editor: Emily Vale

Commonwealth

• Deputy Chief Justice John Alstergren

Australian Capital Territory

• Justice Chrissa Loukas-Karlsson

Queensland

• Justice Graeme Crow
• Justice Soraya Ryan

Tasmania

• Appointment of Senior Counsel

Victoria

• Justice Michelle Quigley

RECENT CASES – Editor: Ruth CA Higgins SC

• Negligence – Personal Injury – Damages – Present Value of Future Loss – Diagnosis of Terminal Malignant Mesothelioma Post-Retirement – Superannuation Act 1988 (SA) and Age Pension under Social Security Act 1991 (Cth)
• Migration – Protection Visas – Judicial Review of Credibility Assessment – Whether Tribunal Failed to Give Proper, Genuine Consideration to Evidence – Adverse Credibility Findings without Logical or Probative Basis

Articles

Sentencing Inconsistencies: A Case Study – Dr Clare Farmer, Ian Parsons and Professor Mirko Bagaric

The approach to sentencing determinations in Australia is termed the “instinctive synthesis”. This involves a largely discretionary judgment whereby courts determine all relevant considerations and then prescribe a designated penalty. The hallmark of this approach is that courts are not permitted to set out the weight that is accorded to any particular consideration. Instead, a global judgment is made regarding the appropriate penalty. This approach has been criticised for lacking in transparency and consistency, but there has been little empirical testing of such assertions. This article adds to the literature in this area by reporting the findings of a wide-ranging study into sentencing outcomes for driving offences in four courts in Victoria. The study is significant because it relates to over 12,000 sentencing determinations over a four-year period and compares sentencing outcomes in a single jurisdiction – where identical legal principles and rules operate. It notes that there is a high degree of inconsistency regarding sentencing outcomes between the courts, with the use of imprisonment in one court three times higher than in another. The results of the study cast doubt over the legitimacy of the instinctive synthesis approach, from the perspective of securing the rule of law virtues of consistency and predictability.

Setting Aside Expert Determinations – A Comprehensive Review – Grant Lubofsky

Dispute resolution by expert determination has become an increasingly useful tool in today’s fast-paced commercial world. Nevertheless, parties dissatisfied with apparently binding determinations routinely seek to challenge the validity of those determinations in the courts, thereby undermining the purpose this procedure might otherwise serve. This article seeks to foster a wider understanding of the merits of challenges to expert determinations by considering the principles having regard to which such challenges may be made, in addition to the various circumstances in which courts commonly uphold or overturn determinations. This article concludes that there is only a limited range of circumstances in which challenges will succeed, and that the specific error made by the expert in respect of which a challenge is made ought to be closely scrutinised before it is sought to be overturned. Finally, this article examines the remedies that courts commonly grant on a successful challenge of a determination, and the juridical basis on which courts may fashion an appropriate remedy to suit the unique circumstances of a case.

The Legislative Challenge of Facilitating Climate Change Adaptation for Biodiversity – Phillipa C McCormack

Australia has an unenviable record of species extinctions, ecological fragmentation and biodiversity decline. Against that backdrop, anthropogenic climate change is emerging as a significant new threat to Australia’s biodiversity. This article argues that the explicit and implicit purposes of conservation laws are to preserve the status quo. These laws typically reflect a false presumption that nature is “stationary”, and that biodiversity can be preserved indefinitely within historical, “native” distributions and species compositions. This presumption is demonstrably false and, without legislative reform, conservation laws based on static purposes will continue to be ill-equipped to facilitate adaptation-oriented approaches to conservation. Commonwealth and state and territory legislatures must ensure that legal frameworks for conservation provide Australia’s rich biodiversity with the best possible opportunities to adapt and persist in a rapidly changing world.

BOOK REVIEW – Editor: Angelina Gomez

• Leading Cases in Contract Law, by Daniel Reynolds and Lyndon Goddard

OBITUARY

• The Hon Laurence Street AC KCMG QC

For the PDF version of the table of contents, click here: ALJ Vol 92 No 7 Contents.

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The latest issue of the Australian Law Journal (Volume 92 Part 8) contains the following material:

CURRENT ISSUES – Guest Editor: Ruth C A Higgins SC

• Let Them Eat Cake

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• E-Conveyancing: Legal Underpinning and Some Practical Aspects

TECHNOLOGY AND THE LAW – Editors: Lyria Bennett Moses and Anna Collyer

• An Introduction

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• AMSA’s Power to Detain Vessels: AMSA’s Liability

AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt AM

• Regulation of All-Terrain Vehicles

PERSONALIA – Editor: Emily Vale

Commonwealth

• Justice Thomas Thawley

Victoria

• Justice John Champion
• Justice Matthew Connock

Western Australia

• Justice Anthony Derrick
• Retirement of the Honourable Chief Justice Wayne Martin AC QC

Articles

Taxation of Settlements, Judgments and Awards – Tony Slater QC and Elizabeth Bishop

The resolution of litigation, whether by way of settlement or by judgment or award, invariably has taxation implications for the parties to the dispute, and often for their associates. Unfortunately, on many occasions, liability to tax is not considered until the completion of litigation. This article discusses generally some of the potential taxation consequences which legal practitioners should consider when assisting their clients and highlights the need for taxation advice to be sought, specific to the particular factual matrix of the litigation, in order to prevent unexpected liability to tax.

Timor-Leste v Australia: The Impact of International Law on the Current and the Future Arrangements in the Timor Sea – Maha Chaar

Less than a decade after Australia and East Timor executed the Certain Maritime Arrangements in the Timor Sea (CMATS), a dispute has arisen over the maritime boundary and the rights to petroleum resources in the Timor Sea. Following an overview of the development of the law of the sea, this article will analyse the arbitration proceedings commenced by Timor-Leste and the implications of Timor-Leste obtaining an order to set aside CMATS on the grounds that the treaty breaches Australia’s obligations of good faith. Regardless of its reasons for commencing the arbitration proceedings, Timor-Leste is in a much stronger position under CMATS than previous treaties with Australia. Timor-Leste stands to benefit from billions of dollars in revenue from its 50% share of the Greater Sunrise project, which in turn means that the advantages under the CMATS arrangements outweigh any perceived detriment from a lack of a definitive maritime boundary between the two states.

Corporate Law Practice: Legal Advice and Ethics – Barbara Mescher

Corporate law and its practice have unique features that impact upon the lawyer to client relationship and more generally, the legal profession. Further, public-listed company clients’ wealth and power enable them to exert influence upon their legal advisers. Transactional corporate lawyers may find their legal advice to these clients raises professional issues due to the nature of corporate law. In addition, clients often have conflicts of interest that could affect their instructions. These matters are examined as they may create ethical issues for corporate lawyers causing them to look to legal ethics for guidance. Yet perversely, lawyers’ professional legal ethics cannot always resolve ethical matters. These dilemmas may be a regular occurrence for transactional corporate lawyers. How are they, as professionals, meant to address them?

BOOK REVIEW – Editor: Angelina Gomez

• A Charter of Rights for Australia (4th ed), by George Williams and Daniel Reynolds

For the PDF version of the table of contents, click here: ALJ Vol 92 No 8 Contents.

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The latest issue of the Australian Law Journal (Volume 92 Part 9) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Family Court Restructure Debate Continues
• Victorian Law Reform Commission Report on Class Actions
• Indigenous Recognition – Much Consulting Going Where?
• Commonwealth Targets for Briefing Female Barristers
• Muslims and the Legal Process
• Explanatory Note on the Judicial Process and Participation of Muslims Prepared by The Australian National Imams Council (ANIC)

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Ownership of Unclaimed Wreck

FAMILY LAW – Editor: Richard Ingleby

• Threats by Adult Children in Proceedings between Their Parents: Contempt or Miscarriage of Justice?

STATUTORY INTERPRETATION – Editor: The Hon John Basten

• Evidence Act s 165B: Interpretation in the Shadow of Longman

PERSONALIA – Editor: Emily Vale

Commonwealth

• Justice Gail Sutherland

Victoria

• Justice Kevin Lyons

Western Australia

• Justice John Vaughan
• Justice Jennifer Smith

Articles

On to Strasbourg or Back to Temple? The Future of European Law in Australia Post-Brexit – The Hon TF Bathurst AC and Bronte Lambourne

The decisions of the High Court in McCloy v New South Wales and Murphy v Electoral Commissioner represent a successive waxing and waning of the influence of European law on Australian public law. With Britain’s decision to sever its ties with the European Union, the question of whether Australian law will further embrace European principles remains a live issue. This article considers the way in which the European principle of proportionality has been received into Australian constitutional and administrative law and questions whether such a principle is compatible with the foundations of our legal infrastructure, specifically, the constitutional separation of powers, the absence of a Bill of Rights and the deductive methodological approach of the common law.

Searching for the Searchers: The Australian Legal Profession and the Operation of the Australian Red Cross Missing and Wounded Enquiry Bureau in World War I – Tony Cunneen

The searcher is a worker apart. He solves the problem of the “missing”. Many aching hearts are lightened or deadened as the result of his labours. With quick perception, keen eye, and silent tread, he moves about the hospitals, convalescent camps, bases, and detail camps, containing in his hand a slip containing perhaps a query as this: “Private” – No 24,537, missing at Pozieres?

Judicial Decision-Making in Times of War and Relative Peace – The Hon Susan Kiefel AC

During the two World Wars, the High Court gave a broad interpretation to the legislative power with respect to the naval and military defence of the Commonwealth and of the States. However, in some controversial decisions during World War II and in its aftermath, the Court held invalid statutory and regulatory measures. These cases may be seen to presage Australian Communist Party v Commonwealth (Communist Party Case), in which the Court said that what was necessary in time of war may not be in a time of ostensible peace. The Court’s discussion in the Communist Party Case of the role of the Court, in particular its role in determining constitutional facts, has assumed importance more recently in Thomas v Mowbray. That case may raise further questions for courts in the future.

The Case for Contradictors in Approving Class Action Settlements – Jeremy Kirk

Class action settlements must be approved by the relevant court. The very fact of settlement means that there will in general be no legally represented persons before the court seeking to test the settlement, aspects of the settlement distribution scheme, or any common fund order. Such settlements involve the determination of legal rights of group members, who are not generally represented. The courts naturally look to representatives of the applicant for assistance, but the interests of all group members are not necessarily uniform nor the same as those of the applicant. Conflicting interests and duties are rife. In this context, this article argues that courts should readily require the appointment of a contradictor to test the settlement proposal, and proposes some guidelines in that respect.

BOOK REVIEWS – Editor: Angelina Gomez

• The Place of Practice, Lawyering in Rural and Regional Australia, by Trish Mundy, Amanda Kennedy and Jennifer Nielsen (eds)
• Critical Perspectives on the Uniform Evidence Law, by Andrew Roberts, Jeremy Gans (eds)

For the PDF version of the table of contents, click here: ALJ Vol 92 No 9 Contents.

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The latest issue of the Australian Law Journal (Volume 92 Part 10) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Climate Change and the Law

Articles

Climate Change and the Law – Introduction – Martijn Wilder AM

An Overview of International Climate Change Law, including the Paris Agreement – Susan Biniaz

At the core of international climate change law is the 1992 UN Framework Convention on Climate Change (UNFCCC) and its several follow-on instruments, including, most recently, the 2015 Paris Agreement. These agreements and the decisions taken thereunder address a wide range of issues, including mitigation, adaptation, reporting, capacity-building, and financial assistance, among many others. The Convention and its progeny (UNFCCC regime) are undoubtedly the primary focus of global climate efforts. At the same time, the UNFCCC regime is only part of an international “regime complex” that includes other institutions, such as the Green Climate Fund, and other instruments, such as the International Civil Aviation Organization’s 2016 Resolution on a global market-based measure to address international aviation emissions and the Montreal Protocol’s 2016 Kigali Amendment on the production and consumption of hydrofluorocarbons. At this point, concern about climate change is so pervasive that it is the rare international arena that is not affected; even the Universal Postal Union has taken up the issue. This article focuses on the UNFCCC regime. There are many possible ways to examine it. One could start from the present, from the Paris Agreement in particular, and trace the derivation of various elements. One could look at it thematically, focusing on adaptation, mitigation, finance, and other aspects. This article looks at the regime historically, from the 1992 Framework Convention to the 2015 Paris Agreement, highlighting four issues and how they have been addressed over the years. In the case of two of these issues – legal character and the balance between nationally determined and internationally determined elements – it concludes that the Paris Agreement reflects a “Goldilocks” approach between past extremes. In the case of the other two – differentiation among Parties’ commitments and environmental ambition – Paris represents a distinct advance over previous instruments.

Climate Change Law in Australia – A History and the Current State of Play – Ilona Millar and Sophie Whitehead

Climate change law is an emerging field that requires law-makers to address novel challenges and develop innovative regulations. The challenge of developing climate change laws in Australia has been compounded by significant divergence between the major political parties, and the multi-disciplinary, cross-sectoral nature of the problem (and the solutions). This article charts the development of climate change law in Australia from the early frameworks and aspirations of the Hawke and Keating Governments to the Emissions Reduction Fund and Safeguard Mechanism of the Abbott and Turnbull Governments. This article finds that, despite the enactment of numerous innovative and well-designed legislative and policy frameworks, their effectiveness and ability to deliver long-term solutions has been hampered by: (1) inadequate levels of ambition; and (2) the uncertainty resulting from a lack of bi-partisan support.

Creating, Buying and Safeguarding Emissions Reductions under the Emissions Reduction Fund – Elisa de Wit and Amy Quinton

Carbon offsetting has become central to Australia’s current emissions reduction policy, and will continue to play an important role as emissions reduction targets become more ambitious and international carbon markets emerge. Established in 2011, Australia’s regulatory framework for carbon offsetting is continually evolving. Complexities associated with additionality, permanence, transparency, integrity, legal right and interactions with existing legal landscapes are ongoing. With the repeal of Australia’s carbon pricing mechanism in 2014, the primary buyer of Australian carbon credits has shifted from big emitters to the government via the Emissions Reduction Fund. This is coupled with a Safeguard Mechanism designed to protect carbon abatement realised by carbon offsetting efforts supported by the Fund. However, as the Fund is depleted and deeper emission reductions are required, we may need to see a shift back towards a “polluter pays” principle through an enhanced Safeguard Mechanism or some other approach. In the meantime, Australia’s growing carbon offsets market is well positioned to capitalise on any opportunities presented by emerging emissions trading rules under the Paris Agreement.

Mapping Climate Change Litigation – The Hon Justice Brian J Preston SC

Litigation raising climate change issues has increased in the number and types of cases and the countries and jurisdictions in which the litigation has been brought. This article briefly maps this climate change litigation. In some places, the territory is well charted but in other places there is still terra incognita. In the latter places, the article indicates the types of litigation that have just been commenced or are anticipated to be commenced.

Obligations on Australian Companies to Address Climate Change – Stephanie Venuti and Martijn Wilder AM

Australia’s nationally determined contribution submitted under the Paris Agreement evidences a commitment to reducing greenhouse gas emissions by 26%–28% below 2005 levels by 2030; building on Australia’s commitment under the Kyoto Protocol to reduce greenhouse gas emissions by 5% below 2000 levels by 2020. This target cannot be reached without significant measures to mitigate emissions from Australia’s largest emissions sources: the private sector. Currently, Australia’s legal frameworks impose limited express obligations on Australian companies to reduce emissions, leading to significant debate on the legal obligations of companies to tackle climate change. However, increasing shareholder activism and investor demands on companies to act in alignment with Australia’s Paris Agreement targets (and the goals of the Paris Agreement at large) has led to a clear consensus on enhanced legal obligations, beyond specific climate laws, to companies in addressing climate risk. Specifically, the way in which companies law is now being interpreted means that there is an increasing body of law requiring companies and their directors to demonstrate good governance with respect to addressing climate change, managing change risk, and related disclosures. With the Paris Agreement setting not only the direction of global climate change policy, but also stakeholder expectations in this regard, it is our view that legal obligations of the nature discussed in this article are only set to increase, placing more stringent mandatory climate responsibilities on companies, both within Australia and internationally.

The Future of Australia’s Federal Renewable Energy Law – James Prest and Grace Soutter

This article presents a critical analysis of Australia’s federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government’s recently abandoned National Energy Guarantee and the subsequent decision not to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia’s national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.

The Victorian Climate Change Act: A Model – Alainnah Calabro, Stephanie Niall and Anna Skarbek

In November 2017, Victoria’s Climate Change Act 2017 (Vic) came into effect. This Act introduces a framework modelled on the United Nations Paris Climate Agreement, in what may be the first translation of the international climate agreement into State legislation. The Act imposes on the State government similar obligations that national governments have accepted under the international agreement, namely: to commit to the science-based goal of stabilising greenhouse gas emissions at net zero by the middle of this century; to nominate rolling five-year carbon emissions targets along the trajectory to that net zero goal and to report transparently on the actions and progress toward achieving these. The Act recognises the whole of government nature of addressing climate change and extends its obligations to each Minister and portfolio within the State government. The result is a legislative framework that embeds climate change consideration into all material decisions of government, and rather than prescribing the solutions, prescribes the reporting and endgoal, allowing freedom for government to determine the most appropriate actions for the context over time.

Climate Finance and Financial Markets in Australia: The CEFC and ARENA – Monique Miller

Australia has two key Commonwealth government funding organisations that support the development of projects that reduce emissions. The Australian Renewable Energy Agency and the Clean Energy Finance Corporation have committed billions of dollars in funding since their establishment, and will continue to support the sector as Australia migrates to a lower carbon economy. Both organisations have developed sophisticated methods to approach financial decisions, keeping in mind a dual mandate of achieving value for taxpayers while also pursuing their significant policy goals. This article explains the goals and operating realities of ARENA and the CEFC, while also analysing the particular challenges that each faces as a result of its legal structure. It then provides some case studies of projects that have been funded to date, and concludes that progress so far presents a “toolbox” of expertise to assist the Australian government in developing needed projects to mitigate climate change.

Carbon Dioxide Removal Geoengineering – Dr Kerryn Brent, Professor Jan McDonald, Dr Jeffrey McGee and Dr Brendan Gogarty

Carbon dioxide removal (CDR) geoengineering, the proposal to counteract anthropogenic climate change by large-scale removal of carbon dioxide from the atmosphere, is playing an increasingly prominent role in the modelling that informs international climate change policy. Most of the modelling for the 1.5–2°C temperature stabilisation targets of the Paris Agreement assumes that large-scale CDR will start by 2030 and be in full swing by 2050. The research, testing and development of CDR technologies needed to support these expectations pose significant challenges for international and domestic climate change law. Prominent examples of CDR proposals include bioenergy production with carbon capture and storage (BECCS) and carbon sequestration by ocean fertilisation. Australia has vast land and marine estates so has a natural advantage to contribute to the research, field-testing and development and implementation of CDR. Despite this, there has been little analysis to date of how Australian law might govern CDR research, testing and development. Using case studies of BECCS and ocean fertilisation CDR techniques, this article examines the capacity of current Australian law to govern CDR research. We find that general environmental legislation might provide a basic governance framework for research and field-testing of BECCS and ocean fertilisation, but recommend that specific laws be developed if CDR is to play a prominent role in meeting Australia’s international climate change commitments.

Biodiversity Conservation Law and Climate Change Adaptation – Dr Phillipa C McCormack

Australia is home to a rich diversity of life, including a great many species and ecological communities that occur nowhere else on Earth. However, this biodiversity is in a rapid decline, driven by threats such as habitat loss and the impacts of invasive species. Climate change will exacerbate these existing threats. In many cases, climate-driven changes to temperature, rainfall and extreme events will exceed the capacity of species and ecological communities to adapt. Australia’s environmental laws must be equipped to anticipate and respond to these climate-driven changes. This article highlights key climate change challenges for biodiversity and Australia’s conservation laws, and argues for a stronger focus on climate adaptation in law. In particular, such a focus would require a renewed commitment to implementing existing conservation laws; integrating climate change as a fundamental consideration in conservation decision-making; and legal reform to enable proactive, human interventions to facilitate adaptation.

For the PDF version of the table of contents, click here: ALJ Vol 92 No 10 Contents.

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The latest issue of the Australian Law Journal (Volume 92 Part 11) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• The Eleventh Hour of the Eleventh Day of the Eleventh Month
• Australia’s First Research Measuring Judicial Stress and Wellbeing: A Preview of the Findings

LETTER TO THE EDITOR

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• Notices of Action: The New De Facto Caveats Clogging up Victoria’s Land Titles
• Law Reform – Land Title Act 1994 (Qld)

AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft

• Finality in Litigation and Arbitration

CLASS ACTIONS – Editor: Justice Michael B J Lee

• Class Actions – A State of Flux – Certification and Contingency Fees

COMPETITION AND CONSUMER LAW – Editor: John Kettle

• Competition in Brief: Is an Agent Still an Agent and Why it Matters

CORPORATIONS AND SECURITIES – Editor: Jason Harris

• Corporate Cultures under Scrutiny

RECENT CASES – Editor: Ruth C A Higgins SC

• Evidence – Criminal Trial – Sexual Offences With Child under 16 Years – Tendency Evidence – Admissibility – Severance
• Representative Proceedings – Competing Representative Proceedings – Anti-Suit Injunctions Sought in Supreme Court in Respect of Federal Court Proceedings – Management of Competing Class Actions in Different Courts

Articles

Sir Frederick Jordan’s Non-Appointment to the High Court and his “Queer Views About Federalism” – The Hon Keith Mason AC QC

When Evatt J retired from the High Court in 1940, Sir Owen Dixon quickly secured authority from his old pupil, Robert Menzies (the Prime Minister), to offer the vacancy to Sir Frederick Jordan. But Jordan was not interested in swapping a congenial judicial lifestyle in Sydney for a peripatetic existence with a deeply unhappy High Court. Allowing for traditional hyperbole, it is mysterious why, in his famous retirement speech long after Jordan’s premature death in office, Dixon fibbed about the government’s “failure” to appoint Jordan. This article also explores what Dixon may have been alluding to when he spoke of the “queer views about federalism” that Jordan eventually took during the war years.

Genocide: The Static Expansion to Include the Crime of Forced Expulsion – Elizabeth R Plajzer

This article seeks to analyse the essential “character” of the crime of genocide; a crime recognised internationally as the height of human criminality. However, despite such standing the evolution of international crimes and conflicts has revealed that the definition of genocide, as currently provided for under the United Nations Convention on the Prevention and Punishment of Genocide (Convention), is far from comprehensive. This article will focus on such shortcomings in regard to the act of forced expulsion; the forced removal of any national, ethnic, racial or religious group from an area in which they are settled. Analysing historical positions on forced expulsion, current academic debate and the decisions of international tribunals, forced expulsion will be revealed as a “mechanism” crime for both ethnic cleansing and genocidal regimes. The current definition of genocide will be carefully considered, and similarities drawn between the existing class acts and the crime of forced expulsion; proposing that such similarity permits if not necessitates expansion. While it is recognised that there are other forms of international law to provide victims of forced expulsion regimes with some recourse, ultimately the absence of forced expulsion as a crime ipso facto under the Convention leaves victims without comprehensive protection from genocide.

Tostee, Criminal Causation and Provocation in Domestic Violence: A Novel Position – Brendan Walker-Munro

After a six-day trial and four days of deliberations, a jury found Gable Tostee not guilty of the murder or manslaughter of his Tinder date, Warriena Wright. Tostee was alleged to have locked Wright on his balcony after physically assaulting her. The Crown ran a case that Wright felt so intimidated by Tostee’s conduct that she had no reasonable recourse but to attempt to climb to an adjacent balcony to escape, during which she fell to her death – a case which was ultimately rejected by the jury. So what does Tostee say about causation principles and provocation in cases of the assault of intimates? An analysis of Tostee against various State and Territory criminal laws will be presented to highlight the uniqueness of this class of case.

BOOKS – Editor: Angelina A Gomez

Books Received

For the PDF version of the table of contents, click here: ALJ Vol 92 No 11 Contents.

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The latest issue of the Australian Law Journal (Volume 92 Part 12) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• The Universal Declaration of Human Rights at 70
• 100 Years of Women in Legal Practice in New South Wales
• National Integrity Commission Back on the Agenda
• Judicial Stress
• Judicial Bullying Revisited
• The Court of Justice of the European Union Intervenes in Poland
• Remembering Australian Lawyer Servicemen
• Charles Melville Macnaghten CMG 1879–1931
• Arthur Seaforth Blackburn VC, 1892–1960
• Percy Valentine Storkey VC 1893–1969
• New Australian President of the International Association of Judges

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• The Recent “Careless Mortgagee” Exceptions to Indefeasibility in Australia in Light of New Zealand’s Land Transfer Act 2017 (NZ) – An Opportunity Missed?
• Retreat from Immediate Indefeasibility?
• The High Court on Part Performance

CRIME AND EVIDENCE – Editor: Justice Phillip Priest

• Special Leave to Appeal to the High Court in Criminal Cases: A Change of Approach?
• Tendency Evidence Developments

PERSONALIA – Editor: Emily Vale

Commonwealth

• Chief Justice John Pascoe
• Chief Justice William Alstergren

New South Wales

• Appointment of Senior Counsel

Victoria

• Justice Melinda Richards

Western Australia

• Chief Justice Peter Quinlan

RECENT CASES – Editor: Ruth C A Higgins SC

Corporations – Service of Originating Process – Uniform Civil Procedure Rules r 6.2 Provided for Service Within Six Months – Supreme Court (Corporations) Rules r 2.7 Provided for Service as soon as Practicable After Filing and, in any Case, at Least Five Days Before Date Fixed for Hearing – Whether r 2.7 Inconsistent with r 6.2

Articles

By the Skin of Our Teeth – The Passing of the Women’s Legal Status Act 1918: Francis Forbes Lecture 30 May 2018 – The Hon Virginia Bell AC

This year marks the centenary of the enactment of the Women’s Legal Status Act 1918 (NSW). The common law had long been resistant to recognition of women as “persons” for the purposes of holding public office and admission to the legal profession. A group of remarkable women fought, inch by inch, Act by Act to overcome that resistance. While the Commonwealth Franchise Act 1902 (Cth) gave women the right to vote and made them eligible to stand for election to the new Commonwealth Parliament, suffragists quickly appreciated the vote was of little account while women were excluded from a voice in the State Parliament, which was responsible for so much legislation that affected women’s lives. And they fought to support Ada Evans in her long struggle to be admitted to the New South Wales Bar. It would be many decades before fundamental social and economic changes allowed women to begin to take advantage of the rights that the Women’s Legal Status Act conferred. A lesson from 100 years of history is that changing the legislative framework is only one part of the struggle, and that the resistance to practical equality is not so easily overcome.

Judicial Review of the Fairness and Reasonableness, as between Class Members, of Federal Class Action Settlements – Vince Morabito

Settlement is the most common way in which federal class actions are resolved in Australia. In order to safeguard the interests of absent class members the settlement or discontinuance of class actions must be judicially approved. A crucial component of this judicial scrutiny entails a determination of whether the settlement in question gives preferential treatment to some class members over others and, if so, whether there are strong reasons that justify the approval of the settlement agreement notwithstanding this differential treatment. Despite the conceptual and practical importance of this dimension of the judicial review of class action settlements, it has been largely ignored in the legal literature. The aim of this article is to address this lacuna by exploring the way in which federal trial judges have, over the last 25 years or so, evaluated the fairness and reasonableness, between the class members inter se, of federal class action settlements.

Corporate Knowledge: The Search for the Relevant Mind(s) – Daniel Reynolds

The law of corporate knowledge is a complex field, engaging principles of company law, agency, statutory interpretation, and others. This article is an attempt to summarise the law in this area, in particular arguing that the “directing mind and will” formulation should no longer be understood as a test of general application, but rather as one subsumed into the taxonomy set out in Meridian Global Funds Management Asia Ltd v Securities Commission; attempting to provide a more detailed explanation of how each category of the “rules of attribution” might work in practice; and making the case that there may yet be some work for aggregation to do.

BOOK REVIEWS – Editor: Angelina Gomez

• Heydon: Selected Speeches and Papers, by The Hon JD Heydon AC QC, Edited by John Sackar and Thomas Prince (eds).
• Law of Associations, by Gino Dal Pont.

For the PDF version of the table of contents, click here: ALJ Vol 92 No 12 Contents.

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The latest issue of the Australian Law Journal (Volume 93 Part 1) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Two ALJ Events
• Speech by Professor Lesley Hughes
• Book Launch: The Future of Australian Legal Education

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• More Problems with Instalment Contracts in Queensland
• How Not to Transact with the Elderly and Frail

TECHNOLOGY AND THE LAW – Editors: Lyria Bennett Moses and Anna Collyer

• At the Coalface

RECENT CASES – Editor: Ruth C A Higgins SC

• Breach of Fiduciary Duty – Liability of Third Party Participant – Account of Profits – Causation – Extent of Accountability
• United Kingdom – Northern Ireland – Discrimination on Grounds of Sexual Orientation and/or on Grounds of Religious Belief or Political Opinion – Jurisdiction – European Convention on Human Rights

Articles

Interest Rates in Dispute Resolution: Comparing Simple Statutory Interest Against Compound Indices – Ashton East

This article considers pre-judgment interest in litigation and proposes a method to compare statutory interest on the simple basis against compound indices closer to the circumstances of the plaintiff. Comparison of the statutory interest rate against representative indices for the period 1 July 2005 to 30 June 2015 demonstrates a quantifiable bias in favour of businesses and low risk investors and calls into question the court’s assertion that statutory interest can be considered a “rough and ready guide to the prevailing interest rate at any given time”. This article reviews and considers the availability of damages for borrowing or opportunity costs including at the compound rate in common law, equity and as a debt pursuant to express terms.

An Asset Shared can be a Problem Doubled: Assignment of Causes of Action by a Liquidator – Judge Robert Harper

Liquidators often wish to sell causes of action owned by a company in liquidation. Such causes of action based on breach of duty by a director or officer can be based in the general law or in statute. The law relating the assignment of such causes of action has been afflicted by inconsistent and circular reasoning, with the result that equitable and statutory causes of action are not equally assignable. The recent enactment of the Insolvency Law Reform Act 2016 (Cth) has attempted to provide consistency and efficiency across both corporate and personal insolvency. But its success in achieving this goal may have been jeopardised by insufficient attention to the historical position regarding a liquidator’s power to assign causes of action.

The Difference between ss 84 and 85 of the Uniform Evidence Acts – Greg Taylor

This essay provides a principled differentiation between ss 84 and 85 of the uniform evidence legislation. At present their respective functions are unclear, the drafting is merely “good in parts” and there is much overlap within and between the sections. Therefore their application is more difficult than it needs to be because it is not clear how they relate to each other. Clarification will be of use to practitioners, Judges, students, teachers and reformers of the law. The essential difference is that s 84 deontologically serves the protection of the suspect’s basic rights, while s 85 teleologically aims at the rejection of admissions which might well be unreliable and thus at an assurance that poor-quality evidence is not adduced. A side-effect of this difference is that s 84 typically requires some type of positive action by those in authority, while s 85 does not.

BOOK REVIEWS – Editor: Angelina Gomez

• Public Law and Statutory Interpretation – Principles and Practice, by Lisa Burton Crawford, Janina Boughey, Melissa Castan and Maria O’Sullivan
• Tensions and Traumas in Health Law, by Ian Freckelton and Kerry Petersen (eds)

For the PDF version of the table of contents, click here: ALJ Vol 93 No 1 Contents.

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For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

Please note that the links to the content in this Part will direct you to Westlaw AU.

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The latest issue of the Australian Law Journal (Volume 93 Part 2) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• “Appalling … Reprehensible … Atrocious” – The Lawyer X Scandal Precipitates Victorian Royal Commission
• Victorian Suppression Orders and the International Media
• Religious Freedom Review Released Amidst Public Controversy
• Joint ALJ and UQ conference on Religious Freedom – Brisbane, 6 April 2019
• Defamation Law Reform Process Announced
• Thank You Prof Ryszard Piotrowicz
• Attacks on Judicial Officers from What Should Be a Surprising Source

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

• Perfection of Gifts of Interests in Land: Isin v Ozen
• Easements – Some Timely Advice About Their Interpretation

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

• Pipikos v Trayans – The High Court Revisits Part Performance

INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz

• International Law: Not Dead Yet

RECENT CASES – Editor: Ruth C A Higgins SC

• High Court – Appellate Jurisdiction – Leave to Appeal – Circumstances When Leave Necessary – Distinction between Interlocutory and Final Judgment
• United Kingdom – Tort – Conspiracy by Unlawful Means – Contempt of Court – Jurisdiction – Lugano Convention

Articles

A Royal Prerogative to Black Swans? – Kent Blore

The Commonwealth and State governments exercise the royal prerogative all the time. They enter treaties, deal with wastelands and pardon offenders. Usually the prerogative fits with modern constitutional arrangements and is not given a second thought. However, the curious example of the prerogative to swans does give pause for thought. The medieval origins of the prerogative highlight the authoritarian foundation of all prerogatives; it arose as an arbitrary confiscation of valuable property when the King was a despot. That the Queen still asserts a prerogative to swans today, long since swans ceased to be valuable as a commodity, shows that the prerogative can persist on its own steam, even though the original reasons for the prerogative have fallen away. Yet a prerogative to black swans has never been asserted, revealing there is a limit to the prerogative’s inertia. In the end, the prerogative remains a means to exert power.

Extradition Treaties: The Vagaries of their Status under Australian Law – Shannon Cuthbertson

Australia’s extradition processes are governed by legislation, a range of treaties and a rich case law. Extradition cases typically cross over administrative law, criminal law, international law and specific principles developed in the field of extradition law itself. This article discusses the legislative regime governing the implementation of extradition treaties under Australian law, and jurisprudence expounding upon the effect of extradition treaties on extradition requests, both by Australia and to Australia. The article focuses in particular upon the context in which extradition treaties fall to be construed by reference to two recent High Court decisions. The article raises the question whether extradition jurisprudence demonstrates due regard to the overarching international crime co-operation regime within which extradition processes are conducted, the circumstances in which extradition treaties are negotiated, and the frame of reference afforded by international law.

Social Entrepreneurs: An Evaluation of the Pty Ltd Company from a Corporation’s Law and Taxation Law Perspective – Dr Marina Nehme and Professor Fiona Martin

There is no legal definition of social enterprise in Australia, nor a specific structure that is designed to distinguish between “for-profit” and “not-for-profit” social enterprises. In Australia, if for-profit social entrepreneurs do not wish to rely on co-operatives as a business model, they will have to use traditional forms of legal structures such as companies. It is estimated that 18% of social enterprises in Australia use the proprietary limited corporate structure. In view of this, the authors have focused on the use of proprietary companies by for-profit social entrepreneurs to determine whether this traditional business structure can strike a balance between profit generation and the social purpose of the enterprise. The article therefore aims to highlight the advantages and disadvantages of this form of business from two perspectives: a corporate law perspective and a taxation perspective.

BOOK REVIEW – Editor: Angelina Gomez

• The Rule of Law and the Australian Constitution, by Lisa Burton Crawford.

For the PDF version of the table of contents, click here: ALJ Vol 93 No 2 Contents.

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For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

The University of Queensland Law School, in partnership with The Australian Law Journal (ALJ), will host the conference on Religious Freedom following the report of the Religious Freedom Review, led by former Attorney-General Philip Ruddock. The event will take place at The University of Queensland, St Lucia on Saturday, 6 April 2019 from 9am to 5pm. Some papers that will be presented at the conference will be published in a special edition of the ALJ.

Interested participants may register by 29 March at bit.ly/UQfreedom.

The Australian Law Journal is pleased to extend a warm welcome Professor Stuart Kaye as the new Section Editor of the International Focus column, taking over from Professor Ryszard Piotrowicz who prepared his final column in the December issue.

Stuart Kaye is Director and Senior Professor of Law at the University of Wollongong within the Australian National Centre for Ocean Resources and Security. He was formerly a Dean and Winthrop Professor of Law at the University of Western Australia, and held a Chair in Law at the University of Melbourne from 2006 to 2010. He completed his degrees in arts and law from the University of Sydney, and completed his doctorate in law at Dalhousie University. He is admitted as a barrister of the Supreme Courts of New South Wales, Tasmania, and Queensland.

Professor Kaye has authored over 100 publications, which include Australia’s Maritime Boundaries (2001), The Torres Strait (1997), International Fisheries Management (2001), and Freedom of Navigation in the Indo-Pacific Region (2008). He was one of three Australians appointed to the International Hydrographic Organization’s Panel of Experts on Maritime Boundary Delimitation in 1995, and in 2000 he was appointed to the List of Arbitrators under the Environmental Protocol to the Antarctic Treaty. He was Chair of the Australian International Humanitarian Law Committee from 2003 to 2009, for which he was awarded the Australian Red Cross Society Distinguished Service Medal. He was elected a Fellow of the Royal Geographical Society in 2007, a Fellow of the Australian Academy of Law in 2011, and a Commander in the Royal Australian Navy Reserve.

We look forward to working with Professor Kaye, and also wish to thank Professor Piotrowicz for his contributions to the ALJ over the years.