The intoxication defence: toward a better understanding of current doctrine and reform

This article deals with the contentious issue of the extent to which an intoxicated person, particularly one who has become inebriated of his or her own volition, should be permitted to escape liability on the basis that the degree of inebriation was sufficient to preclude the fact-finder from finding a volitional act or omission on the part of the accused and/or that he or she acted with the required mens rea, if any, as defined by the common law or statutory definition of the offence. In addressing this issue, the article embarks upon a thorough analysis of the House of Lords seminal decision in Director of Public Prosecutions v Majewski (1977) AC 443 which, despite some very harsh criticism of late, continues to be the leading authority on the question in the United Kingdom, United States and Australia. As part of this analysis, the article examines and ultimately attempts to resolve the longstanding controversy over what has proved to be the elusive distinction between crimes of basic or general intent and those of specific intent. The article concludes by rejecting the Majewski principles in favour of those enunciated by the High Court of Australia in R v O'Connor (1980) 146 CLR 64; 54 ALJR. In reaching this conclusion, the article notes various legislative and academic proposals for reform as well as statutory reforms in the United Kingdom, United States, Canada and Australia.

A way through the dark and thorny thickets? The adjudication of ‘serious injury’ under the narrative tests in the Transport Accident Act 1986 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

The so-called narrative test provides the means by which injured persons who satisfy the statutory and common law definition of serious injury may bring proceedings for common law damages under s 93 of the Transport Accident Act 1986 (Vic) and s 134AB of the Accident Compensation Act 1985 (Vic) (or, for injuries after 1 July 2014, under ss 324-347 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)). These are among the most litigated provisions in Australia. This article outlines the legislative and political background to these provisions, the provisions themselves, and an account of the statutory and common law requirements needed to satisfy the provisions.

Revisiting the Tasty raid: lesbian and gay respectability and police legitimacy

This article extends beyond analysis of homophobic police practices at the Tasty raid that took place in Melbourne in 1994 to explore the ways in which queer politics interact with constructions of ‘respectability’ in the contexts of criminalisation, policing and state protection. I argue that the successful construction of legitimate victimhood by lesbian and gay Tasty patrons (achieved largely through signifiers of middle-class respectability and the paradigm of sameness) impeded police efforts to control media narratives and secure legitimacy in the aftermath of the Tasty raid. The formal apology issued by Victoria Police in 2014 indicates that the Tasty raid was considered a significant enough stain on police reputation to warrant addressing two decades after the event itself. I consider the apology as an attempt to cleanse and redeem the institution of the negative image of police resulting from the Tasty raid. This case offers unique insights into some of the ways in which lesbians and gay men may achieve legitimacy as victims in a heteronormative context and how this might come at the cost of a structural analysis of sexuality, power and violence. It also highlights how state institutions navigate and avoid accountability to a specific and historically targeted group.

Addressing the curious black spot that is the separation between the principle of legality and sentencing

The principle of legality has evolved into a clear and entrenchedjurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and fre edoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legalsystem operates in its most coercive manner against individuals. In thisarticle, we argue that logically the principle of legality has an importantrole in the sentencing system given the incursions by criminal sanctionsinto a number of basic rights, including the right to liberty, the freedom ofassociation and the deprivation of property. By way of illustration, we setout how the principle of legality should apply to the interpretation of keystatutory provisions. To this end, we argue that the objectives of generaldeterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send offenders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of offenders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd

The decision of the High Court of Australia in Gambotto v WCP Ltd wasboth controversial and widely debated. Some saw the decision as radically altering the balance of power in corporate law by granting minority shareholders extensive new powers to prevent the compulsory acquisition of their shares and thereby impeding commercial transactions that would benefit companies. There was also concern that the principles developed by the High Court for compulsory acquisition of shares undertaken by way of amendment of the corporate constitution would apply to other forms of compulsory acquisition, and corporate law more generally, again impeding many types of corporate transactions.We analyse the responses to the High Court decision. The decision had the potential to have a significant influence on Australian corporate law and the way corporate transactions involving compulsory share acquisitions are conducted. In particular, Gambotto was considered in more than 50 subsequent judgments giving many judges the opportunity to extend the Gambotto principles into new areas.We show that the responses to Gambotto were largely negative. Initial commentary in themedia and subsequent academic commentary was mostly critical. Almost uniformly, courts decided that the principles should not be extended.Parliament responded by enacting new provisions in the corporationslegislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliamentresponded to a decision they did not like — a decision that had the potential to have major implications for corporate law and commercial transactions.We also analyse Gambotto by placing it in the broader political context ofthe role of the High Court at the time of the decision. Gambotto was decided when the High Court was in a period of unprecedented judicial activism.Subsequently, the High Court retreated from this judicial activism and weobserve similarities in how other courts restricted the application ofGambotto.

Putting the spoils of litigation into the shareholders’ pockets: when can shareholders bring a personal action against the directors of their company?

company is legally incorporated it must be treated like any other independent person with its rightsand liabilities appropriate to itself”.2 A consequence of this is the “proper plaintiff” principleestablished in Foss v Harbottle (1843) 2 Hare 461; 67 ER 189: the proper plaintiff in an action inrespect of a wrong done to a corporation is the corporation itself.3 It is also a “hallowed rule” thatdirectors owe their duties to the company, not the shareholders,4 and so any loss accruing to thecompany as a result of the directors’ breach of their duties is recoverable only by the company.5An obvious problem with this state of affairs is that a company will be unlikely to initiateproceedings against its directors when the company is controlled by those directors.6 While there aregood economic reasons for this division of management and ownership,7 shareholders are left with acritical question: under what circumstances can they initiate proceedings to recover loss suffered as aresult of company directors’ breach of their duties? Although one writer has referred to the“expansive statutory and common law arsenals” available to aggrieved shareholders,8 it seems ratherthe case that there are few effective remedies. For shareholders have no contractual relationship withdirectors,9 and the personal rights conferred on shareholders by statute or general law are largelyprocedural10 and seem a rather ineffective basis for “scrutinising directorial performance”.

Per incuriam: the decision on the overtime claim in Leung Ka Lau v Hospital Authority

In Leung Ka Lau v Hospital Authority the plaintiffs were doctors who claimed compensation for, inter alia, enforced overtime extracted without pay from them by their employer, the defendants. The Court of First Instance, the Court of Appeal and the Court of Final Appeal dismissed their overtime claims on purely the terms of their contracts of employment. This paper argues that the decisions of all three courts on the overtime claims were made per incuriam because their attention was not drawn to the applicable statutory provisions which would have invalidated the contractual provisions on which the courts rested their decisions. The paper sketches the socio-economic and ethical basis of overtime work and pay before proceeding to analyse the common law (contractual) basis of the judgments, traces the history as well as undertakes construction of the statutory provisions which, if taken into account, would have seen the plaintiffs succeeding.

The principle of legality and contemporanea exposition est optima et fortissima in lege

If the principle of legality operates to obscure from Parliament the common law (rights) backdrop against which it legislates, the clarity or rights-sensitivity of that legislation cannot be improved. This undercuts, rather than promotes, the democratic and rule of law values that underpin the modern conception of the principle and its contemporary normative justification. So the courts must strive to give Parliament the clearest possible picture as to the content of the fundamental common law rights it seeks to protect and, depending on the right, freedom, or principle in legislative play, the strength with which the principle will be applied in order to do so. Parliament (and parliamentary counsel) can only ‘squarely confront’ those fundamental rights the existence and content of which was known at the time of legislating. The proposition which, necessarily, follows is that the rule of contemporanea exposition est optima et fortissimo in lege must be revived when judges apply the principle of legality to the construction of statutes. If the courts are to maintain and take seriously the normative justification for the principle then its application to the construction of statutes can only operate to protect from legislative encroachment those fundamental rights existing at the time the statute was enacted.

Information signalling of common stock repurchase announcements: Australian evidence

Stock repurchases (or share buy-backs) have become increasingly popular among Australian companies. One of the main aims of announcing a stock repurchase by a listed company is signalling the market that its shares are currently underpriced. When market reacts to the signal, price of the shares is expected to increase immediately after the announcement. While there are several ways of repurchasing shares, 'on-market buy-backs' is the most popular method of stock repurchases in Australia. Australian listed companies have announced more than two hundred on-market share buy-backs over the past three years. The aim of this paper is to examine the information signalling effects of these on-market buy-back announcements. If the signal is considered positively (negatively) by the market, the price of the repurchasing company's shares should increase (decrease) immediately after the announcement. If there is no information content in the announcement, the price will remain the same. In this study, signalling effect of share buy-back announcements was examined using most recent Australian data. The total population of on-market buy-back announcements during the period from January 1, 2000 to March 10, 2003 was included. The abnormal market return over the short-run (announcement day and 9 trading days centred on the announcement date) was computed using the All Ordinaries Accumulation Index as the reference portfolio. The daily Abnormal Returns (AR) and Cumulative Abnormal Returns (CAR) during the event period were computed. The results strongly support the information-signalling hypothesis of share buy..backs. Australian market generally considers announcement of on~market share repurchases as signalling of insider information that shares are currently underpriced.

Towards manadatory shareholder committees in Australian companies

A common objective in recent Australian and international corporate governance reform programs is the enhancement of shareholder participation. Active shareholder involvement brings account- ability to the board and management, and is appropriate considering that shareholders are the ultimate owners of the company. Curiously, however, while shareholder participation and representation has become a priority in the contemporary corporate governance arena, the bulk of recent governance reform initiatives operate on the assumption that there is a clear separation of the board and management from the general body of shareholders, and that this is necessary to achieve optimal performance. The requirement that directors be 'independent' of the company and its shareholders is a prime example. In this article, the authors propose the establishment of a mandatory shareholder committee in Australian companies as a way of enhancing shareholder participation and representation.]

Introduction: Lambert and lampposts: the end of equality in Anglo-Australian matrimonial property law

This contribution introduces the volume by classifying the collection into 3 categories: (i) examinations of the area of property law which focus on the relationship between the decisions in White, Figgins and Lambert; (ii) reactions to the implications of McFarlane, Parlour for the evolution of spousal maintenance; (iii) more general theoretical considerations of ‘fairness’. It is argued that the judicial response to the breadth of the discretion provided by the respective legislatures has been to create ‘rules of thumb’; and that the absence of any serious examination of underlying principles has been to permit opportunistic cross-referencing between the jurisdictions. In this context it is argued that (analogously with the introduction of no-fault divorce) the recent attraction of ‘equality’ as a governing principle owes more to the incapacity and/or unwillingness of the forensic process to evaluate contribution in a coherent manner than to any genuine commitment to substantive equality.

Regulating history: Australian racial vilification law and history denial

Whether the law can make a reasonable assessment and determination on matters of the historical record - whether current Australian law equips judges and other relevant decision-makers with the analytic and prescriptive tools capable of identifying instances of racial vilification masquerading as bona fide historical scholarship.

Australian law students' values: how they impact on ethical behaviour

This paper focuses on the values that underpin legal practitioners' behaviour. In a globalising legal profession information about the values bases' of lawyers is critical to understanding the ways in which a "justice agenda" (arguably, a primary responsibility of the profession) may be sustained into the 21st century. However, there has been a dearth of research into the value systems of lawyers or law students. This paper attempts to investigate what values are characteristic of the mass of Australian lawyers in their last year of law school. It is part of a larger longitudinal study, now nearing completion, which aims to provide longitudinal information about the value sets of these same law students, as they become early-career lawyers and to understand how their values develop or degrade over time.