Homing devices in choice of Tort Law: Australian, British and Canadian Approaches

Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (the lex loci delicti). All three countries abandoned some species of the rule in Phillips v Eyre, which required some reference to the law of the forum (the lex fori) as well as the lex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply the lex fori in cross-border tort cases - and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadian lex loci delicti regimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of the lex fori was formally allowed by use of a 'flexible exception' in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries. © 2006 Oxford University Press.

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.

Critical success factors for positioning Australian business talent in the global knowledge economy : a current research agenda

"Globalisation‟ and the "global knowledge economy‟ have become some of the most common "buzzwords‟ in Australian business, economic, and social sectors in the past decade. Further, knowledge service exports are a growing sector for Australia that utilise complex technical and creative capacities, increasingly rely on virtual work innovations, require new socio-technical systems to establish and maintain effective client relationships in global contexts; and – along with other innovations in the electronic age – may require novel coping abilities on the part of both managers and their employees to achieve desired outcomes (Bandura, 2002). Accordingly, this paper overviews such trends. The paper also includes a research agenda which is a "work-in-progress‟ with a major global company, Shell (Australia); it highlights both the objectives and proposed methodology of the study; it also outlines anticipated key benefits arising from the research.

Sexuality in a criminal justice curriculum : a study of student conceptualisations of gay identity

Heteronormative discourses provide the most common lens through which sexuality is understood within university curricula. This means that sexuality is discussed in terms of categories of identity, with heterosexuality accorded primacy while all 'others' are indeed 'othered'. This article draws on research carried out by the authors in a core first year university ethics class, in which a fictional text was introduced with the intention of unpacking these discourses. An ethnographic study was undertaken where both students and teachers engaged in discussions over, and personal written reflections on, the textual content. In reporting the results of that study this article uses a post-structural framework to identify how classroom and textual discourses might be used to break down socially constructed categories of sexuality and students' conceptualisations of non-heterosexual behaviour. It was found that engaging in discussion in the context of the fictional text allowed some students to begin to recognise their own heteronormative views and engage in an informed critique of them.

Transitioning students to work through authentic employment-based training in an Australian senior secondary VET program.

A common challenge among OECD countries has been the development of education and training pathways that accommodate student needs and interests at the upper secondary level (OECD, 2000). The introduction of trade-focussed Australian Technical Colleges (ATCs) has met with mixed response. The ATCs aim to create a supported transition from school to work through dual pathway programs enabling students to follow a trade career while completing their upper secondary studies. There has been little explicit examination of the effectiveness of such senior secondary school arrangements. Using one such Australian Technical College as a case-study, this paper investigates the perceptions of the employers and students who were associated with the college. Using mixed-methods consisting of quantitative perception surveys and focus interviews, the results of this study show that students and employers are very satisfied with the College and illustrate that students have made significant gains in relating their learning to the workplace and everyday life.

Anti-metabolic effects of Galanthus nivalis agglutinin and wheat germ agglutinin on nymphal stages of the common brown leafhopper using a novel artificial diet system

The common brown leafhopper, Orosius orientalis (Matsumura) (Homoptera: Cicadellidae), previously described as Orosius argentatus (Evans), is an important vector of several viruses and phytoplasmas worldwide. In Australia, phytoplasmas vectored by O. orientalis cause a range of economically important diseases, including legume little leaf (Hutton & Grylls, 1956), tomato big bud (Osmelak, 1986), lucerne witches broom (Helson, 1951), potato purple top wilt (Harding & Teakle, 1985), and Australian lucerne yellows (Pilkington et al., 2004). Orosius orientalis also transmits Tobacco yellow dwarf virus (TYDV; genus Mastrevirus, family Geminiviridae) to beans, causing bean summer death disease (Ballantyne, 1968), and to tobacco, causing tobacco yellow dwarf disease (Hill, 1937, 1941). TYDV has only been recorded in Australia to date. Both diseases result in significant production and quality losses (Ballantyne, 1968; Thomas, 1979; Moran & Rodoni, 1999). Although direct damage caused by leafhopper feeding has been observed, it is relatively minor compared to the losses resulting from disease (P Tr E bicki, unpubl.).

Termination of a minor’s pregnancy : critical issues for consent and the criminal law

The recent Supreme Court decision of Queensland v B [2008] 2 Qd R 562 has significant implications for the law that governs consent and abortions. The judgment purports to extend the ratio of Secretary, Department of Health and Community Services (NT) v JWB and SMB (1991) 175 CLR 218 (Marion’s Case) and impose a requirement of court approval for terminations of pregnancy for minors who are not Gillick-competent. This article argues against the imposition of this requirement on the ground that such an approach is an unjustifiable extension of the reasoning in Marion’s Case. The decision, which is the first judicial consideration in Queensland of the position of medical terminations, also reveals systemic problems with the criminal law in that State. In concluding that the traditional legal excuse for abortions will not apply to those which are performed medically, Queensland v B provides further support for calls to reform this area of law.

Duggaibah, or 'place of whiteness' : Australian feminist and race

Our society operates in such a way as to put whiteness at the center of everything, including individual consciousness--so much so that we seldom question the centrality of white- ness, and most people, on hearing 'race', hear 'black'. That is, whiteness is treated as the norm, against which all differences are measured. 1 Race shapes white women's lives. In the same way that both men's and women's lives are shaped by their gender, and that both heterosexual and lesbian women's experiences in the world are marked by their sexuality, white people and people of color live racially structured lives. In other words, any system of differentiation shapes those on whom it bestows privi- lege as well as those it oppresses. White people are 'raced' just as men are 'gendered'. 2