The problematic relationship between customary international law and the domestic courts

The relationship between international law and domestic law has long been problematic. This article considers in particular the enforcement of customary international law through an analysis of judicial practice in England and Australia. The examination of the jurisprudence suggests that domestic judges often feel uncomfortable when asked to apply international law in the domestic courts and struggle to somehow justify its use. This has led to an inconsistency in judicial practice in the application of international law in jurisdictions such as Australia. However, ultimately the monist theory that recognizes that customary international law automatically flows into the domestic law appears to be reflected in an emerging trend in judicial practice in the common law judicial systems under consideration. However, the article suggests that the English courts now see international crimes as an exception to that theory and require domestic legislative transformation. Ultimately the article concludes that the municipal courts provide an important forum for the enforceability of customary international law, including human rights norms.

Carbon rights as new property: the benefits of statutory verification

This paper examines the different ways in which carbon rights have been verified as property interests. A carbon right is a new and unique form of land interest that confers upon the holder a right to the incorporeal benefit of carbon sequestration on a piece of forested land. Carbon sequestration refers to the absorption from the atmosphere of carbon dioxide by vegetation and soils and the storage of carbon in vegetation and soils. Innovative legislation has been introduced in each state seeking to separate the incorporeal benefit of carbon sequestration from the natural rights flowing from land ownership. The fragmentation of land ownership in this way is a constituent of broader climate change strategies and is particularly important for an Australian emissions trading scheme where carbon rights will acquire value as tradable offsets. This paper will explore the different legislative responses of each state to the proprietary characterisation of the carbon right as a land interest. It will argue that verifying the carbon right as a new statutory property interest, in line with the approach set out in the Carbon Rights Act 2003 (WA), is preferable to aligning it with preconceived categories of common law servitude. By articulating the  carbon right as a new form of statutory interest, unique in status and form, its sui generis character is more accurately reflected. Further, statutory validation of the carbon right as a new land interest is more efficient as legislative rules are more visible and therefore come to the attention of other market participants more quickly and at a lower cost without the burden and complexity associated with expressing the right through the prism of pre-conceived and non-responsive common law forms.

Manufacturers' product liability in Australia

The thesis, by examining statute and common law, demonstrates that Australian law is deficient in its endeavour to impose liability on manufacturers for defective products, and also with respect to the provision of compensation to consumers/users who suffer loss or injurty therefrom.

A comparative analysis of directors' duty of care, skill and diligence in South Africa and in Australia

The South African and Australian law regarding directors' duty of care, ski ll and diligence were influenced considerably by English precedent of the late 1800s and early 19005. Originally both jurisdictions adopted a conservative approach towards directors' duty of care, skill and diligence. This resulted in very low standards of care, skill and diligence expected of directors. In Australia, the standards of care and diligence expected of directors changed drastically with the case of Daniels v Anderson, where objective standards were used to determine a breach of directors' duty of care and diligence, and when objective standards of care and diligence were introduced in Australian corporations legislation. In this article it is submitted that if the opportunity arose for a South African court to consider whether a director is in breach of his or her common law duty of care, skill and diligence, the form of fault that will be required will be negligence as judged against the standards of a reasonable person. This means that in actual fact objective standards of care and diligence are expected of directors in South Africa. Although section 76(3) of the South African Companies Act 71 of 2008 does not introduce purely objective standards of care, skill and diligence, the section is defended in this article. It is pointed out that encouraging emerging entrepreneurs to become directors of South African companies provides justification for keeping subjective elements as part of the test to determine whether a director was in breach of his or her statutory duty of care, skill and diligence.

How information technology can support family law and mediation

In Australia, before a divorcing couple can have their case heard by the Family Court, they must undertake mediation. Thus it is useful to develop information technology tools to support negotiation and mediation in family law. Most negotiation support systems focus upon integrative bargaining. In doing so, they tend to ignore issues of fairness. In Australian Family Law, the interests of the children, as opposed to those of their parents/guardians, are paramount. We investigate the use of providing BATNAs and integrative bargaining in providing family mediation decision support. The discussion is highlighted with examples taken from the domain of Australian Family Law

Creating an Innovation Exception? Copyright Law as the Infrastructure for Innovation

Innovation is clearly essential for economic growth, cultural development and personal autonomy. Yet the relationship between innovation and copyright law in Australia is uncertain and perhaps overly restrictive. After the Australia-United States Free Trade Agreement Australia now has a copyright regime that can broadly be
described as a lock up and lock out scheme. Whilst the Australian Government has paid lip service to innovation the Australian Copyright Act, which provides the essential legal infrastructure for innovation, now privileges the rights of owners over the interests of the public. In particular, the Copyright Act neglects to create a specific exception for technology innovation. If there is to be some coherence in Australia
thinking with regards to innovation and copyright policy it is crucial that such an exception be created. Arguably, it is possible that such an exception can withstand the scrutiny of the three step test. At present the only ‘exception’ that can be said to exist is in the form of the limits of the authorisation liability provisions or the ISP safe harbour scheme. Australian copyright law needs something more substantial than that
and needs for there to be a clear hierarchy between the exceptions and the liability provisions.

An overview of liability and compensation for personal injury in China under the general principles of civil law

This article reviews the personal injury tort system in the People's Republic of China (PRC). The Chinese torts law has a number of unique features. To begin with, it is quite new — the legal framework of torts law was established only in 1986. The unique features of the Chinese torts law also stem from its long and difficult evolution over nearly 40 years. Equally important has been the remarkable blend of influences that have shaped its current law — a mixture of socialist objectives, capitalist pragmatism, and feudal doctrines combined with jurisprudential models taken from a range of western civil codes and, more recently, the common law.

Part one of the article briefly analyses the most important features of the existing Chinese legal system. Part two provides a background to the enactment of the General Principles of Civil Law (GPCL), which incorporates Chinese torts law. The review looks at the development and drafting of the GPCL legislation, and the influences that guided the formulation of legal principles. Part three of the article provides an overview of the torts law provisions in the GPCL. Part four examines the law of personal injury established by the GPCL. Part five uses some case studies to illustrate the principles highlighted in the previous two parts and part six contains a brief conclusion and some pointers to the directions that Chinese torts law may take in the future.

The legal recognition of same-sex unions in Australia : a constitutional analysis

The Marriage Equality Amendment Bill 2010 (Cth) currently before federal Parliament amends the present legislative definition of marriage to include same-sex unions. This article provides a constitutional analysis of the scope of the marriage power, s 51(xxi) of the Australian Constitution , through examination of the Bill and other existing and proposed legislation. It argues that if the High Court considered "marriage" to be a constitutionalised legal term of art, it could accommodate post-federation development at common law and in statute to the institution of marriage. It also argues that the presumption in favour of constitutionality ought to be at its strongest with federal legislation determining complex and intractable moral issues. The article explores the constitutional vulnerability of current same-sex union legislation and possible future legislation providing for recognition of the functional equivalent of "marriage". In addition, the article considers the constitutional foundation of a national framework to provide official legal recognition of same-sex relationships.

Rejection of the fruit of the poisonous tree doctrine in Australia : a retreat from progressivism

This article canvasses the key Australian exclusionary rules and discretions to exclude evidence under both the common law and its statutory counterparts in the Uniform Evidence Legislation now in effect in the Commonwealth, Victoria, New South Wales, the Australian Capital Territory and Tasmania. In examining these exclusionary rules and discretions, an analysis is made as to whether evidence derived from primary evidence excluded under one or more of these rules should also be excluded under an American style 'fruit of the poisonous tree doctrine' - and why or why not. Finally, the article compares the current Australian approach to this doctrine with the present state of the American doctrine and the recognised exceptions thereto. The article concludes with recommendations for applying the doctrine in both countries, subject to suggested changes in the Jaw that take the realities of political correctness and human frailty into account.

Ignorance of the law as a defence to rape : the destruction of a maxim

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1 (b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)-(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

The legal profession and the business of law

‘Professional Responsibility and Ethics’ is one of the ‘Priestley 11’ law subjects compulsorily undertaken by Australian law students who aspire to be admitted to practice. Many of the brightest join the major corporate law firms. Nevertheless, there is little theoretical analysis of how those firms are functioning to affect the professional and ethical conduct of their practitioners in the neoliberal state. In this article it is argued that in the mature and highly competitive marketplace for legal services, rather than working as autonomous professionals, corporate lawyers are now finding themselves working more and more as functionaries subservient to the dictates of their corporate clients. Drawing on interviews with Australian major law firm corporate lawyers and Charles Derber’s theory on the proletarianisation of professional workers, it is argued that corporate lawyers are losing key elements of their professional identity in the impetus to maintain the client list and the profit motive. Furthermore, as the balance of power in the corporate legal sector is shifting from law firms to clients, the professional ethics of law firm lawyers are at risk of being compromised as they find themselves being reduced to little more than ‘flush’ factory fodder for the major corporations.

The nature and scope of rights of removal

The rationale underlying the fixtures and accession presumptions is the need to protect the value of the chattel as well as the need to protect third-party interests. The destruction of the independent legal status of an attached chattel is generally deemed appropriate where the value of the co-mingled asset will be diminished if the chattel retains a separate legal title and this would generate unfairness because third parties have dealt with the co-mingled asset on the basis of its overall value. Rights to remove have evolved under both common law and equity to moderate the scope of these presumptions. Common law will uphold the right of a tenant to remove chattels that have been attached to leased premises during the currency of the lease. Equity on the other hand will uphold the right to remove affixed chattels in circumstances where the enforcement of such an entitlement is consistent with contractual intention and transactional fairness. This article examines the different rights of removal that have evolved under Australian law to date and the emergent statutory framework supporting these rights. It discusses the historical purpose and structural utility of these entitlements within a land framework that supports fixtures presumptions. Rights of removal, whether validated at law or in equity, confer positive entitlements upon the holder to access and remove affixed goods in circumstances where, because of the fixtures and accession presumptions, those goods no longer retain any separate legal status. The capacity of the holder to enforce this right against third parties is illustrative of their distinctive proprietary perspective.

PLT practitioners : soldiers For “vocationalism”, or double agents?

This presentation extends on some previous work around my PhD research.
I question ways in which social structures are inscribed into legal education practices, and conversely, whether practices can modify those structures. I argue PLT practitioners are not simply soldiers for a “vocationalist” strategy. Instead, I re-imagine PLT practitioners as “double agents” or “resistance fighters”, lamplighters in a still emergent professional trajectory. It is a trajectory catalysed by the 1970s introduction of institutional PLT; just a baby really, in the context of English common law.

In Bourdieu’s terms it is possible, by revisiting past struggles in Australian legal education, to conceptualise institutional PLT as the product of judicial, professional, and academic struggles to produce a vocationalised, non-academic, and critique-free sub-field within the juridical field. Those struggles succeeded, to some extent, in the extra-individual dimension of structures, regulation, and institutions, to collectively inculcate preferred dispositions within individuals about legal education and professional identity.

That account, however, ignores the potential for agency and alterity – the ways in which individuals might appropriate, in Certeau’s terms, the resources of the legal field to explore new professional trajectories. For some, these trajectories involve struggles to enrich, and add texture to, legal education. Drawing on interviews with PLT practitioners, I identify multi-vocal and multi-perspectival themes, including notions of social justice, equality, professional ethics, personal improvement, and indeed, interest in scholarship of teaching and learning.

It is in this sense I re-imagine PLT practitioners as “double agents”, operating betwixt and between dominant domains in law. In my view, PLT practitioners can participate in conceptualising and developing emergent approaches in legal education, and to theorise “practice” as lawyers and educators. Scholarship of teaching and learning has its part to play in this. It provides a means, as lawyers and as educators, to discover information, to reflect, critique, communicate, and conceptualise, insights about “practice” and practices.

Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.