Judicial intervention in the affairs of unincorporated religious associations in New South Wales

The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies. Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied. Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’. Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature. This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales. In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.

Conflicts over protection of marine living resources : the ‘Volga Case’ revisited

Non-traditional maritime security concerns have become more importantthan ever in the post-Cold War era. Naval forces of most developedcountries are more concerned about these threats than conventional war.One of the main maritime security issues for many countries in the world isillegal, unreported and unregulated (IUU) fishing in the marine area. Withthese burgeoning issues comes the potential for a large number of disputesinvolving international law. In early 2002, a long-line fishing vessel under aRussian flag –the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia’s Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111and 87 of the United Nations Convention on the Law of the Sea (NCLOS).Considering the outcome of these cases, this article critically examines thecharacteristics of litigation as a strategy for pacific settlement of disputesover marine living resources. Using the Volga Case as an example, thisarticle explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.

Is there an international obligation to prosecute pirates

Combating piracy at sea and apprehending pirates have been a long-standing problem for the global community. Increasing acts of piracy off the coast of Somalia have prompted the UN Security Council to intervene in the matter. The Council, through several resolutions, has authorised states to take action against Somali pirates in the territorial waters and land territory of Somalia and recently adopted a resolution urging all states to fully implement relevant international conventions in their domestic legal systems. However, despite the Security Council's intervention in the matter most states are still reluctant to prosecute Somali pirates in their domestic courts. Considering the most recent Security Council resolution and existing international law, this article examines whether there is an international obligation to criminalise piracy under domestic legal frameworks and to prosecute pirates in domestic courts. It submits that existing international law arguably imposes an obligation to prosecute pirates, at least in certain circumstances, and the recently adopted Security Council resolution reinforces this obligation.

A fork in the Australian road? Ownership of patented employee inventions

Employee ownership of inventions is a complex matter in modern R&D involving multiple parties with diverse interests. Presently, Australian courts are struggling to reach equitable results in light of precedent. This article examines recent Australian, American and English decisions that attempt to balance the variables equitably for insights into potential Australian reform.

The judiciary in contemporary society : Australia

In Australia the appointment of judges is, by constitution or statute, universally the responsibility of the executive branch. The federal government handles all such matters relating to the High Court, the Federal Court, the Family Court and other federal judicial bodies. State governments exercise similar authority over the state supreme courts, district and magistrates' courts. All appointments are formally made by the Governor-General, or the Governor, in Council...

Cell migration and proliferation on homogeneous and non-homogeneous domains : modelling on the scale of individuals and populations

Cell migration is a behaviour critical to many key biological effects, including wound healing, cancerous cell invasion and morphogenesis, the development of an organism from an embryo. However, given that each of these situations is distinctly different and cells are extremely complicated biological objects, interest lies in more basic experiments which seek to remove conflating factors and present a less complex environment within which cell migration can be experimentally examined. These include in vitro studies like the scratch assay or circle migration assay, and ex vivo studies like the colonisation of the hindgut by neural crest cells. The reduced complexity of these experiments also makes them much more enticing as problems to mathematically model, like done here. The primary goal of the mathematical models used in this thesis is to shed light on which cellular behaviours work to generate the travelling waves of invasion observed in these experiments, and to explore how variations in these behaviours can potentially predict differences in this invasive pattern which are experimentally observed when cell types or chemical environment are changed. Relevant literature has already identified the difficulty of distinguishing between these behaviours when using traditional mathematical biology techniques operating on a macroscopic scale, and so here a sophisticated individual-cell-level model, an extension of the Cellular Potts Model (CPM), is been constructed and used to model a scratch assay experiment. This model includes a novel mechanism for dealing with cell proliferations that allowed for the differing properties of quiescent and proliferative cells to be implemented into their behaviour. This model is considered both for its predictive power and used to make comparisons with the travelling waves which result in more traditional macroscopic simulations. These comparisons demonstrate a surprising amount of agreement between the two modelling frameworks, and suggest further novel modifications to the CPM that would allow it to better model cell migration. Considerations of the model’s behaviour are used to argue that the dominant effect governing cell migration (random motility or signal-driven taxis) likely depends on the sort of invasion demonstrated by cells, as easily seen by microscopic photography. Additionally, a scratch assay simulated on a non-homogeneous domain consisting of a ’fast’ and ’slow’ region is also used to further differentiate between these different potential cell motility behaviours. A heterogeneous domain is a novel situation which has not been considered mathematically in this context, nor has it been constructed experimentally to the best of the candidate’s knowledge. Thus this problem serves as a thought experiment used to test the conclusions arising from the simulations on homogeneous domains, and to suggest what might be observed should this non-homogeneous assay situation be experimentally realised. Non-intuitive cell invasion patterns are predicted for diffusely-invading cells which respond to a cell-consumed signal or nutrient, contrasted with rather expected behaviour in the case of random-motility-driven invasion. The potential experimental observation of these behaviours is demonstrated by the individual-cell-level model used in this thesis, which does agree with the PDE model in predicting these unexpected invasion patterns. In the interest of examining such a case of a non-homogeneous domain experimentally, some brief suggestion is made as to how this could be achieved.

The role for police in addressing alcohol-related harm inside and outside licensed premises

Alcohol consumption is enmeshed with Australian culture (Palk, 2008) and the use and misuse of alcohol contributes to considerable health and social harms (Barbor et al., 2010; English et al., 1995; Gutjahr, Gmel, & Rehm, 2001; Palk, 2008; Steenkamp, Harrison, & Allsop, 2002). Despite shifts in the way that alcohol is consumed and how it is used, it has been reported that one-third of all alcohol consumed is done so within licensed premises (Lang, Stockwell, Rydon, & Gamble, 1992). Consequently, licensed premises are over-represented as settings in which alcohol-related harms occur. These harms, particularly those related to violence, are associated with particular licensed premises operating in the night-time economy (Briscoe & Donnelly, 2001b; Chikritzhs, Stockwell, & Masters, 1997; Homel, Tomsen, & Thommeny, 1991; Stockwell, 1997). Police have a role in not only responding to the manifestation of harms, such as crime, injuries, assaults, domestic violence, stealing and sexual offences, but they also have a role in preventing problems, and thereby reducing alcohol and other drug-related harms (Doherty & Roche, 2003). Given the extent of alcohol consumption within licensed premises and the nature and extent of the harms, as well as the lack of opportunity to influence outcomes in other settings (e.g. the home), licensed premises offer police and other stakeholders a significant opportunity to influence positively the reduction of alcoholrelated harm. This research focuses specifically on the police role in policing licensed premises. Primarily, this research aims to investigate the factors which are relevant to why and how police officers respond to alcohol-related incidents inside and outside licensed premises. It examines the attitudes and beliefs of police and assesses their knowledge, capacity and ability to effectively police licensed premises. The research methodology uses three distinct surveys. Each contributes to understanding the motivations and practice of police officers in this important area of harm reduction. Study One involved a survey of police officers within a police district (Brisbane Central District) in Queensland, Australia and used a comprehensive questionnaire involving both quantitative and qualitative techniques. A key research outcome of Study One was the finding that officers had low levels of knowledge of the strategies that are effective in addressing alcohol-related harm both inside and outside licensed premises. Paradoxically, these officers also reported extensive recent experience in dealing with alcohol issues in these locations. In addition, these officers reported that alcohol was a significant contextual factor in the majority of matters to which they responded. Officers surveyed reported that alcohol increased the difficulty of responding to situations and that licensed premises (e.g. nightclubs, licensed clubs and hotels) were the most difficult contexts to police. Those surveyed were asked to self-assess their knowledge of the Liquor Act (Qld), which is the primary legislative authority in Queensland for regulating licensed premises. Surprisingly, well over half of the officers (65%) reported ‘no’ to ‘fair’ knowledge of the Act, despite officers believing that their skill level to police such premises was in the ‘good to very good range’. In an important finding, officers reported greater skill level to police outside licensed premises than inside such premises, indicating that officers felt less capable, from a skill perspective, to operate within the confines of a licensed premise than in the environment immediately outside such premises. Another key finding was that officers reported greater levels of training in responding to situations outside and around licensed premises than to situations inside licensed premises. Officers were also asked to identify the frequency with which they employed specified regulatory enforcement and community-based strategies. Irrespective of the type of response, ‘taking no action’ or passive policing interventions were not favoured by officers. The findings identified that officers favoured taking a range of strategies (sending home, releasing into the custody of friends, etc.) in preference to arrest. In another key finding, officers generally reported their support for operational stakeholder partnership approaches to policing licensed premises. This was evidenced by the high number of officers (over 90%) reporting that there should be shared responsibility for enforcing the provisions of the Liquor Act. Importantly, those surveyed also identified the factors which constrain or prevent them from policing licensed premises. Study Two involved interviewing a small but comprehensive group (n=11) of senior managers from within the Queensland Police Service (QPS) who have responsibility for setting operational and strategic policy. The aim of this study was to examine the attitudes, perceptions and influence that senior officers (at the strategy and policy-setting level) had on the officers at the operational level. This qualitative study was carried out using a purposive sampling (Denzin & Lincoln, 2005; Guba & Lincoln, 1989), focused interview and thematic analytic approach. The interview participants were drawn from three tiers of management at district, regional as well as the whole-of-organisational level. The first key theme emerging from the study related to role, in terms of both the QPS broader organisational role, and the individual officer role with respect to the policing of licensed premises. For the QPS organisational role, participants at all three strategic levels had a high degree of congruity as to the organisations service role; that is, to enhance public safety. With respect to participants’ beliefs as to whether police officers have knowledge and understanding of their individual roles concerning licensed premises (as opposed to the QPS role), participants reported most commonly that officers had a reasonable to clear understanding of their role. Participant comments also were supportive of the view that officers operating in the research area, Brisbane Central District (BCD), had a clearer understanding of their role than police operating in other locations. The second key theme to emerge identified a disparity between the knowledge and capability of specialist police, compared with general duties police, to police licensed premises. In fact, a number of the responses to a variety of questions differentiated specialist and general police in a range of domains. One such example related to the clarity of understanding of officer role. Participants agreed that specialist police (Liquor Enforcement & Proactive Strategies [LEAPS] officers) had more clarity of understanding in terms of their role than generalist police. Participants also were strongly of the opinion that specialist police had higher skill levels to deal with issues both inside and outside licensed premises. Some participants expressed the view that general duty police undertook purely response-related activities, or alternatively, dealt with lower order matters. Conversely, it was viewed that specialist police undertook more complex tasks because of their higher levels of knowledge and skill. The third key theme to emerge concerned the identification of barriers that serve to restrict or prevent police officers from policing licensed premises. Participant responses strongly indicated that there was a diversity of resourcing barriers that restrict police from undertaking their roles in licensed premises. Examples of such barriers were the lack of police and the low ratio of police to patrons, available officer time, and lack of organisational investment in skills and knowledge acquisition. However, some participants indicated that police resourcing in the BCD was appropriate and officers were equipped with sufficient powers (policy and legislation). Again, the issue of specialist police was raised by one participant who argued that increasing the numbers of specialist police would ameliorate the difficulties for police officers policing licensed premises. The fourth and last key theme to emerge from Study Two related to the perception of senior officers regarding the opportunity and capability of officers to leverage off external partnerships to reduce harms inside and outside licensed premises. Police working in partnership in BCD was seen as an effective harm reduction strategy and strongly supported by the participants. All participants demonstrated a high degree of knowledge as to who these partners were and could identify those government, non-government and community groups precisely. Furthermore, the majority of participants also held strong views that the partnerships were reasonably effective and worked to varying degrees depending on the nature of the partnership and issues such as resourcing. These senior officers identified better communication and coordination as factors that could potentially strengthen these partnerships. This research finding is particularly important for senior officers who have the capacity to shape the policy and strategic direction of the police service, not only in Queensland but throughout Australasia. Study Three examined the perceptions of those with links to the broader liquor industry (government, non-government and community but exclusive of police) concerning their understanding of the police role and the capacity of police to reduce alcohol-related harm inside and outside licensed premises, and their attitudes towards police. Participants (n=26) surveyed represented a range of areas including the liquor industry, business represenatives and government representatives from Queensland Fire and Rescue Service, Queensland Ambulance Service, Brisbane City Council and Queensland Health. The first key theme to emerge from Study Three related to participant understanding of the QPS organisational role, and importantly, individual officer role in policing licensed premises. In terms of participant understanding of the QPS role there was a clear understanding by the majority of participants that the police role was to act in ways consistent with the law and to otherwise engage in a range of enforcement-related activities. Participants saw such activities falling into two categories. The first category related to reactive policing, which included actions around responding to trouble in licensed premises, monitoring crowd controllers and removing trouble-makers. In the second category, proactive approaches, participants identified the following activities as consistent with that approach: early intervention with offenders, support of licensed premises operators and high visibility policing. When participants were asked about their understanding of individual officer roles in the policing of licensed premises, a range of responses were received but the consistent message that emerged was that there is a different role to be played by general duty (uniformed) police compared to specialist (LEAPS Unit) police, which reflects differences in knowledge, skill and capability. The second key theme that emerged from the data related to the external participants’ views of the knowledge and capability of specialist police, compared with general duty police, to police licensed premises. As noted in the first key theme, participants were universally of the view that the knowledge, skill and capability of police in specialist units (LEAPS Unit) was at a higher level than that of general duty police. Participants observed that these specialist officers were better trained than their colleagues in generalist areas and were therefore better able to intervene knowledgeably and authoritatively to deal with problems and issues as they emerged. Participants also reported that officers working within BCD generally had a positive attitude to their duties and had important local knowledge that they could use in the resolution of alcohol-related issues. Participants also commented on the importance of sound and effective QPS leadership, as well as the quality of the leadership in BCD. On both these measures, there was general consensus from participants, who reported positively on the importance and effectiveness of such leadership in BCD. The third key theme to emerge from Study Three concerned the identification of barriers that serve to restrict or prevent police officers from policing licensed premises. Overwhelmingly, external participants reported the lack of human resources (i.e. police officers) as the key barrier. Other resourcing limitations, such as available officer time, police computer systems, and the time taken to charge offenders, were identified as barriers. Some participants identified barriers in the liquor industry such as ‘dodgy operators’ and negative media attention as limitations. Other constraints to emerge related to government and policy barriers. These were reflected in comments about the collection by government of fees from licensees and better ‘powers’ for police to deal with offenders. The fourth and final key theme that emerged from Study Three related to the opportunities for and capability of police to leverage off external partnerships to reduce harms inside and outside licensed premises. Not surprisingly, participants had a comprehensive knowledge of a broad range of stakeholders, from a diversity of contexts, influential in addressing issues in licensed premises. Many participants reported their relationships with the police and other stakeholders as effective, productive and consistent with the objectives of partnering to reduce alcohol-related harm. On the other hand, there were those who were concerned with their relationship with other stakeholders, particularly those with a compliance function (e.g. Office of Liquor & Gaming Regulation [OLGR]). The resourcing limitations of partners and stakeholders were also raised as an important constraining factor in fulfilling the optimum relationship. Again, political issues were mentioned in terms of the impact on partnerships, with participants stating that there is at times political interference and that politicians complicate the relationships of stakeholders. There are some significant strengths with respect to the methodology of this research. The research is distinguished from previous work in that it examines these critical issues from three distinct perspectives (i.e. police officer, senior manager and external stakeholder). Other strengths relate to the strong theoretical framework that guides and informs the research. There are also some identified limitations, including the subjective nature of self-report data as well as the potential for bias by the author, which was controlled for using a range of initiatives. A further limitation concerns the potential for transferability and generalisability of the findings to other locations given the distinctive nature of the BCD. These limitations and issues of transferability are dealt with at length in the thesis. Despite a growing body of literature about contextual harms associated with alcohol, and specific research concerning police intervention in such contextual harms, there is still much to learn. While research on the subject of police engaging in alcohol-related incidents has focused on police behaviours and strategies in response to such issues, there is a paucity of research that focuses on the knowledge and understanding of officers engaged in such behaviours and practices. Given the scarcity of research dealing with the knowledge, skills and attitudes of police officers responding to harms inside and outside licensed premises, this research contributes significantly to what is a recent and growing body of research and literature in the field. The research makes a practical contribution to police agencies’ understanding of officer knowledge and police practice in ways that have the potential to shape education and training agendas, policy approaches around generalist versus specialist policing, strategic and operational strategy, as well as partnership engagements. The research also makes a theoretical contribution given that the research design is informed by the Three Circle

Arguing the Autopsy : mutual suspicion, jurisdictional confusion and the socially marginal

Vulnerable and marginalised populations are not only over-represented in the criminal justice system, but also in civil jurisdictions like the coronial system. Moreover, many of the personnel who deal with criminal matters, especially in rural and regional areas, are also those who manage the coronial death investigation. This movement back and forth between civil and criminal jurisdictions is difficult for the both professional personnel and the families, but especially for those families who may also have had dealings with these personnel in the criminal justice system, or who present as suspicious due to larger historical and global issues. While coronial legislation now allows families to raise cultural and religious concerns about the process, particularly to do with the autopsy of their loved one, this also requires them to identify themselves to police at the initial stage of the death investigation. This paper, part of a larger body of work on autopsy decision making, discusses the ways in which this information is gathered by police, how it is communicated through the system, the ways in which families are supported through the process, and the difficulties that ensue.

Regulating bereavement : inquests, family pressure and the gate keeping of suicide statistics

This study of English Coronial practice raises a number of questions, not only regarding state investigations of suicide, but also of the role of the Coroner itself. Following observations at over 20 inquests into possible suicides, and in-depth interviews with six Coroners, three main issue emerged: first, there exists considerable slippage between different Coroners over which deaths are likely to be classified as suicide; second, the high standard of proof required, and immense pressure faced by Coroners from family members at inquest to reach any verdict other than suicide, can significantly depress likely suicide rates; and finally, Coroners feel no professional obligation, either individually or collectively, to contribute to the production of consistent and useful social data regarding suicide—arguably rendering comparative suicide statistics relatively worthless. These issues lead, ultimately, to a more important question about the role we expect Coroners to play within social governance, and within an effective, contemporary democracy.

Qualitative criminology : Stories from the field

Qualitative researchers in the discipline of criminology perform a wide range of challenging tasks. They interview prisoners, police officers, magistrates and judges. They speak with survivors of domestic violence, and drink tea with the mothers of murdered children. They observe courts and communities, investigate the decision-making processes of juries and immerse themselves in the data they collect. They ask ‘big’ questions – ‘how do we criminalise the producers of toxic toys?’ – as well as ‘little’ questions – ‘what should I wear to conduct this interview?’ Qualitative Criminology: Stories from the Field brings to life the stories behind the research of both emerging and established scholars in Australian criminology. The book’s contributors provided honest, reflective, and decidedly unsanitised accounts of their qualitative research journeys - the lively tales of what really happens when conducting research of this nature, the stories that often make for parenthetical asides in conference papers but tend to be excised from journal articles. This book considers the gap between research methods and the realities of qualitative research. As such, it aims to help researchers and students who conduct qualitative criminological research reflect upon their role as researchers, and the practical, ideological and ethical issues which may arise in the course of their research. It is also a call to criminologists to make public the ‘failures’ and missteps of their research endeavours so that we can learn from one another and become better informed and more reflexive qualitative criminologists.

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Transnational organised environmental crime

Transnational environmental crime must become a government priority, as organised criminal networks continue to exploit the environment with unprecedented profits. Such earnings come at a substantial social, economic and environmental expense for communities and their livelihoods. Indeed, organised environmental crime is identified by the United Nations as a key factor in the impoverishment, displacement and violent conflicts affecting millions of people — notably in developing societies.2 It is widely recognised that organised environmental crime syndicates, motivated by substantial financial rewards, continue to flourish and expand in disadvantaged societies with porous borders, where corruption is widespread and regulation is poor. The theft of biodiversity and the demise of animal species and habitats have resulted not only in financial loss, but also in an increase in “environmental refugees” — people dislocated and forced to migrate due to loss of livelihoods.

Tax and equality in 1972: The case of Lodge v FCT

This paper is part of a larger project described at http://www.law.uq.edu.au/australian-feminist-judgments-project as follows: This project draws its inspiration from two significant recent developments in law and feminist scholarship. The first has been the emergence in Canada and the UK of feminist judgment-writing projects, in which feminist academics, lawyers and activists have written alternative judgments in a series of legal cases, imagining the different decision that might have been made by a feminist judge hearing the case. The second has been the incremental shift in recent years in the number of women judges and Magistrates presiding in courts and tribunals throughout Australia. As part of this project, a group of scholars will write alternative feminist judgments. This paper is one of the alternative feminist judgements. The case used for this discussion is Lodge v Federal Commissioner of Tax [1972] HCA 49. In that case, a woman, earning income by way of commission in her occupation as a law costs clerk, which she carried out at her home, claimed to deduct from her assessable income child care fees that enabled her to devote time and attention to her work. The High Court held that no right to a deduction had arisen. It found that, although the purpose of the expenditure was for gaining assessable income, it did not take place in, or in the course of, preparing bills of cost. Further, the expenditure was of a ‘private or domestic’ nature. This seminal taxation decision, which prevents deductions for childcare, has broad financial ramifications for workers in the home and those with childcare responsibilities. It designates childcare duties as ‘private’, notwithstanding the need for these in order, particularly for women, to work in the public sphere.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.