Australian security of payment legislation: impact of inconsistent case law

In Australia, a supreme court has a supervisory role over the statutory adjudication process that has been established within the security of payment legislation. In this role, the courts have quashed many adjudication determinations on the grounds of jurisdictional error in recent years. This is a problem as the courts’ involvement in statutory adjudication is contrary to the object of the legislation. When reviewing adjudication determinations, the courts have adopted different approaches with respect to determining the role of adjudicators and the essential jurisdictional facts that must exist in order for an adjudicator to have jurisdiction to hear a referred disputed matter. This diversification of judicial interpretation with respect to jurisdictional error is confusing, not only to construction professionals, but also to many lawyers. Via a desktop study– where the evidence is mainly garnered from case law, governmental reports and commentaries – this paper reviews the legal complexities involved in diagnosing jurisdictional errors. In doing so, the paper aims to answer the question as to why the adjudication process has become bogged down in the quagmire of judicial review. The paper concludes that the evolving inconsistency of case law in relation to statutory adjudication is a crucial factor contributing to the erosion of the object of the security of payment legislation in Australia. Moving forward, the paper argues that establishing a legislative review mechanism of jurisdictional challenges may be sufficient to address this problem.

An Australian study comparing the use of multiple-choice questionnaires with assignments as interim, summative law school assessment

o the author’s knowledge, this is the first Australian study to empirically compare the use of a multiple-choice questionnaire (MCQ) with the use of a written assignment for interim, summative law school assessment. This study also surveyed the same student sample as to what types of assessments are preferred and why. In total, 182 undergraduate property law students participated in this study. Results showed that scores for the MCQ (assessing five topics) and assignment (assessing one topic) followed a similar distribution. This indicates that an MCQ does not necessarily skew students towards higher grades than an assignment. Results also showed significant but low correlations of test scores across instruments. When asked which instrument best assessed their knowledge of property law, students expressed a strong preference for an assignment over an MCQ or examination. Comments revealed a strong belief that, because lawyers write, law schools must assess legal writing – a skill not captured by MCQs. This study is important as many Australian law schools face increasing marking loads due to higher student numbers and compulsory mid-term assessments. This article endorses the use of MCQs but only as part of a diverse suite of law school assessment.

The weak natural law thesis and the common good

The weak natural law thesis asserts that any instance of law is either a rational standard for conduct or defective. At first glance, the thesis seems compatible with the proposition that the validity of a law within a legal system depends upon its sources rather than its merits. Mark C. Murphy has nonetheless argued that the weak natural law thesis can challenge this core commitment of legal positivism via an appeal to law’s function and defectiveness conditions. My contention in the current paper is that in order to make good on the challenge, the defender of the weak natural law thesis should appeal explicitly to the common good, understood as the principal normative reason in the political domain. In section I I outline the main implications of the weak natural law thesis and clarify a common misunderstanding regarding its explanatory role. Section II then argues for the indispensability of the common good to the natural law jurisprudential thesis on the grounds that it has an essential role to play in a natural law account of law’s defectiveness conditions and the presumptive moral obligatoriness of legal norms. Finally, in section III I examine the compatibility of a strengthened version of the weak natural law thesis with legal positivism in light of the centrality of the common good to the natural law jurisprudential position.