Reading words into statutes : when Homer nods

The grammatical meaning of a statutory provision may not always gel with the purpose of the statute. The court may strive to give the provision an interpretation at odds with its ordinary and natural meaning to meet the purpose of the legislation. On occasion, this may involve notionally adding words to, or substituting words in, a statutory provision. This process of “reading in” words demands that close attention be paid to the boundary between statutory construction and judicial legislation, particularly where a court is invited to carve out an exception from grammatically clear words. In Jones v Wrotham Park Settled Estates [1980] AC 74, Lord Diplock identified three pre-conditions to reading words into a statute. This article analyses the utility of those conditions within the context of the modern purposive approach to statutory interpretation and evaluates whether they remain sufficient guideposts for identifying the boundary between interpretation and legislation.

Increasing relevance and interest : teaching environmental and planning law to built environment students

A new approach was taken to delivering a challenging "stewarship of land" unit to over 350 predominantly first year built environment students stewardship. The new approach involved incorporating environmental and planning law into the syllabus, exposing students to a wide range of statutes, selecting legal cases according to a et of criteria and revisiting the material using different modes of delivery and teaching resources. To evaluate the effectiveness of the new approach, the students were surveyed to elicit their learning experience and preferences. The survey found that most students perceived learning about environmental and planning law, including legal cases, worthwhile.----- Areas identified by the surcey for improvement included the perception by some students that: environmenatl and planning law is irrelevant to their discipline and future caree; studying law is dull and sometimes daunting; and the prescribed reading could be omitted.----- To address student perceptions, it is proposed to reorder the topics commencing with local, charismatic topics, while explanding international content and cases, to enlarge and enhance the repertoire of video clips to include sites of legal cawses and development projects, and to reformat the online weekly quizzes to promote reading of primary material.----- Overall, the approach to teaching environmental and planning law to built environment students, including the criteria for selecting legal cases, described in this paper, was found to be effective.

Electronic workplace surveillance and employee privacy : a comparative analysis of privacy protection in Australia and the United States

More than a century ago in their definitive work “The Right to Privacy” Samuel D. Warren and Louis D. Brandeis highlighted the challenges posed to individual privacy by advancing technology. Today’s workplace is characterised by its reliance on computer technology, particularly the use of email and the Internet to perform critical business functions. Increasingly these and other workplace activities are the focus of monitoring by employers. There is little formal regulation of electronic monitoring in Australian or United States workplaces. Without reasonable limits or controls, this has the potential to adversely affect employees’ privacy rights. Australia has a history of legislating to protect privacy rights, whereas the United States has relied on a combination of constitutional guarantees, federal and state statutes, and the common law. This thesis examines a number of existing and proposed statutory and other workplace privacy laws in Australia and the United States. The analysis demonstrates that existing measures fail to adequately regulate monitoring or provide employees with suitable remedies where unjustifiable intrusions occur. The thesis ultimately supports the view that enacting uniform legislation at the national level provides a more effective and comprehensive solution for both employers and employees. Chapter One provides a general introduction and briefly discusses issues relevant to electronic monitoring in the workplace. Chapter Two contains an overview of privacy law as it relates to electronic monitoring in Australian and United States workplaces. In Chapter Three there is an examination of the complaint process and remedies available to a hypothetical employee (Mary) who is concerned about protecting her privacy rights at work. Chapter Four provides an analysis of the major themes emerging from the research, and also discusses the draft national uniform legislation. Chapter Five details the proposed legislation in the form of the Workplace Surveillance and Monitoring Act, and Chapter Six contains the conclusion.

Post-colonial law : legal establishments from past empires are illegitimate

The extant literature covering the plights of indigenous people resident to the African continent consistently targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued to be archaic and in need of review, which it is, this article argues the new perspective that colonial law is illegitimate for ordering the population it presides over – specifically in Africa. It is seen, in five case studies, that post-colonial legal structures have not considered the legitimacy of colonial law and have rather modified a variety of statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s legitimacy.

Withholding and withdrawing life-sustaining medical treatment

• At common law, a competent adult can refuse life-sustaining medical treatment, either contemporaneously or through an advance directive which will operate at a later time when the adult’s capacity is lost. • Legislation in most Australian jurisdictions also provides for a competent adult to complete an advance directive that refuses life-sustaining medical treatment. • At common law, a court exercising its parens patriae jurisdiction can consent to, or authorise, the withdrawal or withholding of life-sustaining medical treatment from an adult or child who lacks capacity if that is in the best interests of the person. A court may also declare that the withholding or withdrawal of treatment is lawful. • Guardianship legislation in most jurisdictions allows a substitute decision-maker, in an appropriate case, to refuse life-sustaining medical treatment for an adult who lacks capacity. • In terms of children, a parent may refuse life-sustaining medical treatment for his or her child if it is in the child’s best interests. • While a refusal of life-sustaining medical treatment by a competent child may be valid, this decision can be overturned by a court. • At common law and generally under guardianship statutes, demand for futile treatment need not be complied with by doctors.

Charity law reforms : overview of progress since 2001

In the UK, Singapore, Canada, New Zealand and Australia, as in many other jurisdictions, charity law is rooted in the common law and anchored on the Statute of Charitable Uses 1601. The Pemsel classification of charitable purposes was uniformly accepted, and together with a shared and growing pool of judicial precedents, aided by the ‘spirit and intendment’ rule, has subsequently allowed the law to develop along much the same lines. In recent years, all the above jurisdictions have embarked on law reform processes designed to strengthen regulatory processes and to statutorily define and encode common law concepts. The reform outcomes are now to be found in a batch of national charity statutes which reflect interesting differences in the extent to which their respective governments have been prepared to balance the modernising of charitable purposes and other common law concepts alongside the customary concern to tighten the regulatory framework.

Adoption Law and Practice [2nd ed.]

This book addresses the modern law relating to adoption. It comes at a time of fundamental change in adoption practice as, increasingly, Irish couples look outside the jurisdiction for the child that will make their family complete.---------- * Examines and explains the new regulatory framework and the law now governing domestic and intercountry adoption.---------- * Provides a guide to the changes outlined in the Adoption Bill 2008 which also consolidates the provisions of seven previous statutes and incorporates the Hague Convention into Irish statute law.---------- * Considers the responsibilities of the new Adoption Authority, and the roles of other administrative and legal bodies.---------- * Sets out the adoption process, explaining the complexities of intercountry adoption, giving consideration to the interface between adoption and children in care and dealing with the rights of the parties involved.

Constitutional legitimacy : an international ill and gap in the literature?

The central argument of this work is that “democratic constitutional legitimacy”[2] probably does not currently exist in the politics of any country internationally. This inherent problem in constitutionalism is an endemic governance problem most citizenries should be dealing with, only that we are not in a large extent doing so and haven’t been historically. This position was ascertained using a form of Beck and Grande’s (2010) cosmopolitan methodology in my doctoral thesis (which we shall return to). It is argued that every constitution is in need of considerable rethinking so as to bring its statutes in line with the interests of the plurality of individuals it oversees. Finally, this work attempts to show that research in this area of democratic constitutional legitimacy is lacking in the literature as only a few scholars presently engage the issue (namely Simone Chambers).

Review of regulatory framework for environmental information

If Australian scientists are to fully and actively participate in international scientific collaborations utilising online technologies, policies and laws must support the data access and reuse objectives of these projects. To date Australia lacks a comprehensive policy and regulatory framework for environmental information and data generally. Instead there exists a series of unconnected Acts that adopt historically-based, sector-specific approaches to the collection, use and reuse of environmental information. This paper sets out the findings of an analysis of a representative sample of Australian statutes relating to environmental management and protection to determine the extent to which they meet best practice criteria for access to and reuse of environmental information established in international initiatives. It identifies issues that need to be addressed in the legislation governing environmental information to ensure that Australian scientists are able to fully engage in international research collaborations.

Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

Legislating for sustainability: a framework for managing statutory rights obligations and restrictions affecting private land

The ad hoc growth of administrative controls on land use has produced an information management problem. Land registries face growing demands to record on the Torrens register particulars of rights, obligations and restrictions created under public law statutes, in order to reduce information costs, promote compliance and inform planning. As sustainable management of land and natural resources will require more legislative regulation, this paper proposes a framework of principles for the more coherent and consistent management of public law controls on private land use.

Surrogacy - A Path of Obstacles

Surrogacy has become an effective and accepted form of reproductive technology. It enables couples, regardless of gender or sexuality, to achieve the dream of becoming a parent in circumstances where other forms of reproductive technology and adoption are either not possible or have failed. To its credit, the Queensland parliament has recently brought this state up to date by enacting surrogacy laws that are in line with the majority of statutes implemented throughout the country. The Surrogacy Act 2010 (Qld) allows for the court to make a parentage order in certain circumstances where parties have entered into a surrogacy arrangement. A parentage order effectively transfers parental rights from the birth mother (and her spouse or de facto if there is one) to the intended parents. The requirements which must be satisfied to obtain a parenting order are comprehensive and onerous, making the path to parenthood through a surrogacy arrangement by no means easy. At the heart of the surrogacy issue lies a question, the answer to which has shifted and continues to shift as reproductive technologies continue to increase in success, method and popularity - what is a parent? A recent decision of the Administrative Appeals Tribunal, Hudson v Minister for Immigration and Citizenship, brought to attention the meaning of the word ‘parent’ as it appears in s 16(2) Australian Citizenship Act 2007 (Cth) (‘the Act’). Section 16(2) deals with citizenship by descent and provides that a person born outside Australia may make an application to the Minister to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.

Comments on the Australian Accounting Research Foundation's Legislation Policy Discussion Paper NO.4 (A framework for financial reporting by incorporated associations)

The Australian Accounting Research Foundation (AARF) recently issued Legislative Policy Discussion Paper No.4 which proposes a framework for financial reporting by Australian incorporated associations.This paper comments on both the merits and deficiencies of the proposal. In particular it notes that the proposal simply advocates that the application of differential reporting, accounting standards, and the conceptual framework be imposed on incorporated associations by amended statutes. It is noted that in light of long experience in the corporate sector, he espoused benefits of such a move may not eventuate. Further, concern is expressed that the proposal is a blank cheque one because of the inadequacy of existing relevant accounting standards and the proposal to introduce new relevant standards. Another major defect in the proposal is that it emanates from accountants who acknowledge in their conceptual framework, the need for external reports to report on performance through both financial and non-financial reporting methods. Despite that acknowledgment, the standard set of external reports prepared by accountants do not measure performance as defined in their own conceptual framework (SAC 2) and in their auditing pronouncements (AUP 33), and they have restricted their domain to financial reporting (SAC 2). Accordingly the proposal appears to be seriously deficient and it is suggested that it be rejected and a new proposal be prepared by a multi-party group free from vested interests.

Regulation of land access for resource development: A coal seam gas case study from Queensland

A number of regulatory statutes provide for agreements with landowners which are given extended effect, that is, are binding upon the landowner’s successors (‘statutory agreements’). Several Queensland statutes require a project proponent to enter into a statutory agreement with a landowner before a resource development activity can be carried out on private land or by accessing private land. Provisions of Queensland’s Petroleum and Gas (Production and Safety) Act 2004 make certain types of statutory agreements binding upon successors and assigns of the landowner, but do not clearly prescribe the nature and contents of an agreement, nor require that the agreement be recorded on the land title or petroleum register. If statutory agreements are to be used for such purposes, their purpose and content should be more clearly defined by statute and they should be recorded on a searchable register.