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.

Corporate donations, the best interest of the company and the proper purpose doctrine

Corporate philanthropy is illegitimate spending by powerful corporate elite of someone else’s money; an attempt to bypass democratic allocation of taxes; philanthropy by individuals is laudable, but not by corporations.

Just as I wouldn’t want you to implement your personal judgments by writing checks on my bank account for charities of your choice, I feel it inappropriate to write checks on your corporate ‘bank account’ for the charities of my choice.

Industrial relations and catholic social doctrine

This paper reviews the key principles of Catholic Social thought as they pertain to relations between labour and capital. It is argued that such principles are foundational for the conduct of ethical relations and the exercise of moral values in the workplace, and are recognisable in the right of workers to employment and just compensation for their labours, in the duty of employers to provide safe and engaging work for those in their charge, and in the obligation of the state to dispense wise governance in a manner that guarantees the welfare and security of all its citizens. It is argued that these principles have had de facto airing in Australian political and economic history, and that they might be usefully drawn upon again to protect the rights of workers under the current ascendency of neo-liberal policy solutions.

Architectural expression of liturgy and doctrine in the Eastern churches of the fourth to sixth centuries: towards a theologically contextual typology

Many scholars of Byzantine architecture have theorised about the reasons for church form and structure, with most relating them to sources in pagan architecture or local traditional construction methods (Krautheimer, Crowfoot, Ward-Perkins, Mango and Hill); to aspects of provincialism, regional independence or location peripheral to empire (Megaw, Delvoye, Wharton), or to environmental constraints such as frequent earthquakes (Curcic). But just as the wording of the various creeds and ecumenical statements responded to aspects of contemporary non-orthodox beliefs or "heresies", so did the theological debate inform the liturgical practices and consequently church planning. It could be expected that these responses would also be reflected in the architectural approach to form and symbolism. Thus a contextual typological framework is proposed, based on the association of different architectural approaches to church planning and form in the 4th to the 6th centuries with the contemporary doctrinal disputes over the true nature of Christ.

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.

Descartes on the human soul : philosophy and the demands of Christian doctrine

By the 17th century Catholic orthodoxy had defined a range of propositions concerning the human soul as revealed by God and verifiable by natural reason. The writings of Rene Descartes display a consistent adherence to these orthodox propositions. The conclusion presents him as ultimately unsuccesful in convincing his contemporaries that his philosophy provided the rational demonstration of the key soul doctrines and that he was worthy of the title "Christian philosopher"

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.

Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales

This article critiques one aspect of the High Court’s reasoning in its landmark 2010 decision of Kirk v Industrial Court of New South Wales, namely its reliance on ‘accepted doctrine at the time of federation’ to determine the ‘defining characteristics’ of the state Supreme Courts. I argue that the relevant passages in Kirk are ambiguous and capable of two alternative readings, which I term the ‘pre-Federation entrenchment theory’ and the ‘on-Federation entrenchment theory’. With extensive reference to primary and secondary materials from the Federation era, I argue that both theories are flawed and, indeed, contrary to accepted doctrine at the time of Federation. Consequently, if the holding in Kirk is to be defended, other justifications for the entrenchment of judicial review in the state jurisdictions, which were only touched upon in Kirk, need to be developed and articulated with greater thoroughness and rigour.

Evidence-based psychiatric practice: doctrine or trap?

Medical practice has rapidly shifted towards an 'evidence-based' approach. While there are acknowledged clear benefits to this, a number of pitfalls are frequently not appreciated. Perhaps the most important limitation is the extent to which the current body of data is inadequate for many common clinical decisions. Algorithms risk being developed, frequently by third parties, without acknowledgement of these limitations and with substantial implications for clinical independence and the quality of patient care. This paper discusses potential problems of the evidence-based approach and suggests possible guidelines for the management of clinical decisions given the limitations of data-based guidelines.

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.