Disinterested truth: legitimation of the doctrine of tenure post-Mabo

This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post-Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post-Mabo tenure lacks both legal and social legitimacy and the 'disinterested' perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence.

Mineral law and the doctrine of rights : a microscope of magnification?

The doctrine of rights has become part of private law jurisprudence. In this article the application of the doctrine in two decisions dealing with surface support in mineral law is examined. It is argued that the decision of Kriegler J in Elektrisiteitsvoorsieningskommissie v Fourie, namely, that the right to surface support is an entitlement, is more correct than Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd in which it was decided that the right to surface support is a competence. It is submitted that depending on the legal location of the entitlement in the relationship between owner and miner of land one may simply refer to either an owner's entitlement to surface support or a miner's entitlement to undertake opencast-cast mining.

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.

The South African Doctrine of Notice: a comparative law perspective

The doctrine of notice was received into South African law in Cohen v Shires, Mchattie and King (1881-1884) 1 SAR TS 41 by reference to a 17th century Dutch decision and English equity.The reception of the polar star of equity has led to doctrinal problems and differing views as to requirements for the operation of the doctrine ever since. This is illustrated in the decision of the Supreme Court of Appeal in Meridian Bay Restaurant (Pty) Ltd v Mitchell 2011 (4) SA 1 (SCA). The Court mentioned fraud and equity as the doctrinal basis but also accepted the view that the doctrine is an anomaly which does not fit into the principles of either the law of delict or property law.The Court required actual notice (or dolus eventualis) and wrongfulness for the operation of the doctrine of notice. In the following discussion of the decision it is argued that for the operation of the doctrine it should be required that: (a) a prior personal right aimed at the acquisition of a real right existed; (b) a holder of a subsequent personal right was actually aware or foresaw the possibility of the existence of the prior personal right; and (c) the holder of the real right nonetheless infringed upon the prior personal right by concluding a subsequent contract and obtaining registration of the real right in the deeds office.

Moral rights and substantiality: some questions of integration

Now that Australia has its long awaited legislation protecting the moral rights of authors, a new phase in the development of the rights begins. It must be asked how the incorporation of the rights into the existing copyright legislation, and their subjection to existing doctrines, will affect their operation. And how will existing doctrines be challenged and extended by the existence of the rights? Ultimately these questions will be worked out in the courts. The present article offers a consideration of one area where the legislature has purported to integrate moral rights into the existing scheme but where the practicalities oftheir integration are still unclear. It examines the interplay of moral rights with the doctrine of substantiality, suggesting that any clarification of what substantiality means in the moral rights context will be contingent upon the emergence of more precise definitions of what moral rights are and what interests they are intended to protect.

Doubles or nothing : the problem of binding truth to being in the work of Alain Badiou

In this article, I discuss how things go with the "Nothing" in the work of Alain Badiou, a topic which is evidently central to his thought, and which has received a great deal of attention in the commentary to date. As this problem is inaccessible outside of Badiou’s deployment of mathematics, I will suggest how accounts of Badiou’s work remain flawed insofar as they evade his mathematical demonstrations, and I attempt to clarify how mathematics operates in his system. I then examine the consequences that such a use of mathematics has for Badiou’s doctrine of the nothing. I conclude with a discussion of some of the difficulties that the nothing continues to pose to Badiou, which have not (yet) been satisfactorily resolved. These difficulties devolve from the problematic of the incessantly doubling void.

Sex and the surgeon's knife: the family court's dilemma...informed constent and the specter of iatrogenic harm to children with intersex characteristics

The article focuses on the opinion of the Australian High Court on the doctrine of informed consent and the judicial reasoning including the supporting medical evidence in sex assignment cases. The author explains that the remaining credible basis for the jurisdiction assumed by the Family Court in such cases rests in the inability of parents as guardians to give their informed consent to irreversible surgical procedures.

The yoking of unconscionability and unjust enrichment in Australia

Given problems with, and judicial criticism of, unjust enrichment as a principle, it is necessary and appropriate that unjust enrichment be subsumed by the expanding doctrine of unconscionability - could create a unifying concept which can be applied to achieve justice in a variety of different contexts - triggers for equitable intervention to reverse or adjust transfers of resources on the basis of unconscionability - where there is neither real consent or real consideration - where either variable is absent and it is unclear whether the other is satisfied - approach would inject principle into unconscionability and explain and justify the need for reversing or adjusting the transfer of property or other resources in some circumstances.

Updating the principles of the liturgical movement for a new liturgical movement

The author is a Benedictine monk of L’abbaye Sainte-Madeleine du Barroux in France. The original paper (in French) was delivered in July 2001 at a Liturgy Conference held at the Abbey of Notre Dame, Fontgombault, France,
in the presence of the then Joseph Cardinal Ratzinger when Prefect of the Congregation for the Doctrine of the Faith and was later published in the English translated proceedings of the conference edited by Dr Alcuin Reid, Looking Again at the Question of the Liturgy with Cardinal Ratzinger:
Proceedings of the July 2001 Fontgombault Liturgical Conference (St Michael’s Abbey, Farnborough, 2003). The paper here published is revised and translated from the original French especially for The Priest by Professor David Birch (Deakin University, Melbourne) at the invitation of the Editor, with the cooperation of Dom Charbel. The full set of footnotes is available in Reid (Ed.) (2003). Where passages are quoted from Magisterial texts, the Vatican website English translation is given rather than a translation of the French version used in the original paper. Sub-headings are due to the Editor.

Prevention of suicide : police powers, parliamentary intent and judicial interpretation

While in most countries suicide is no longer a crime, it is also acknowledged that the state has an interest in the preservation of human life, prevention of suicide, and protection of vulnerable persons from harming themselves. In a civil, secular and democratic society, however, the public law principle of state protective powers has to be balanced against the private law principle of personal autonomy (personal self-determination). Under the doctrine of autonomy, competent adults of sound mind can make legally binding voluntary choices, including the so-called ‘death-choice’ (refusal of life-sustaining or life-prolonging treatment as well as suicide). To add to the complexity, whereas the powers of the state in relation to suicide and its prevention have been codified, the concepts of personal autonomy and personal liberty are grounded in common law. Stuart v Kirkland–Veenstra [2008] VSCA 32, which is at present being considered by the High Court of Australia, exemplifies tensions that arise in the suicide-prevention area of jurisprudence. This article explores powers and duties of police officers in relation to suicide prevention and the notion of mental illness by reference to the Kirkland–Veenstra case, the relevant statutory framework and the common law.

Changing pre-service teachers' purposes of education through existential crises

This article considers changing the purposes of education held by pre-service teachers. It argues that purposes of education are inextricably linked to life meanings and purposes. Employing an existential perspective, mainly through Kierkegaard, Nietzsche, Heidegger, Sartre and Morris, the fundamental beliefs that one has regarding the meaning and purpose of life are understood to serve as the basis for formulating purposes of education. An attempt to change these purposes is recommended by drawing upon the existential crisis and Kierkegaard's doctrine of 'how'. Importance is placed not so much on the object or what of purposes and understandings, but on how the individual relates to them.

The pillory effect : media, the courts and the punitive role of public shaming in Australia

Public shaming and humiliation have been used across cultures for centuries to punish offenders and define the boundaries of acceptable behaviour for communities. This article argues that since court-imposed shaming sanctions were phased out in Australia, the news media has assumed responsibility for performing this cultural practice. Through critical engagement with some of the research literature on shaming, the historical shift to the media as the modern pillory is explored. This article looks beyond the doctrine of open justice, which assigns the news media a dual role as a watchdog against injustice and a conduit between the courts and the public, to consider its role in shaming and suggest this role continues to evolve in a changing media landscape.