The application of the statutory derivative action in Pt 2F.1A of the Corporations Act to companies in liquidation under Ch 5 : Well oiled machine or is Pt 2F.1A in need of a tune up?

The statutory derivative action was introduced in Australia in 2000. This right of action has been debated in the literature and introduced in a number of other jurisdictions as well. However, it is by no means clear that all issues have been resolved despite its operation in Australia for over 10 years. This article considers the application of Pt 2F.1A of the Corporations Act to companies in liquidation under Ch 5. It demonstrates that the application involves consideration of not only proper statutory interpretation but also policy matters around the role and the supervision by the court of a liquidator once a company has entered liquidation.

Israel's airstrike on Syria's Al-Kibar facility : a test case for the doctrine of pre-emptive self-defence?

This article analyses the legality of Israel’s 2007 airstrike on an alleged Syrian nuclear facility at Al-Kibar—an incident that has been largely overlooked by international lawyers to date. The absence of a threat of imminent attack from Syria means Israel’s military action was not a lawful exercise of anticipatory self-defence. Yet, despite Israel’s clear violation of the prohibition on the use of force there was remarkably little condemnation from other states, suggesting the possibility of growing international support for the doctrine of pre-emptive self-defence. This article argues that the muted international reaction to Israel’s pre-emptive action was the result of political factors, and should not be seen as endorsement of the legality of the airstrike. As such, a lack of opinio juris means the Al-Kibar episode cannot be viewed as extending the scope of the customary international law right of self-defence so as to permit the use of force against non-imminent threats. However, two features of this incident—namely, Israel’s failure to offer any legal justification for its airstrike, and the international community’s apparent lack of concern over legality—are also evident in other recent uses of force in the ‘war on terror’ context. These developments may indicate a shift in state practice involving a downgrading of the role of international law in discussions of the use of force. This may signal a declining perception of the legitimacy of the jus ad bellum, at least in cases involving minor uses of force.

Binang gurri: turning a deaf ear to indigenous hearing loss

Objective: This paper asks whether Indigenous health policies might be improved if governments listened to Indigenous voices, both Australian and those who drafted the Declaration on the Rights of Indigenous Peoples, 2007. Methods: A fundamental tenet of the Declaration, which Australia endorsed in 2009, is respect for Indigenous knowledge and voice. The author analyses legal, cultural and historical sources for evidence of this respect. The metaphorical and empirical framework of the analysis is the epidemic of otitis media among Indigenous children. Results: A survey of Indigenous advice about health clearly demonstrates that access to their land and respect for the diversity of Indigenous cultures should inform health policies. Despite, however, claiming to consult Indigenous peoples, policy-makers have not been listening. In many Indigenous languages not listening, or ‘bad ears’, has connotations of disrespect. Conclusions: By turning a deaf ear to Indigenous knowledge governments are undermining any respect Indigenous peoples may have for them and their policies. A new approach is needed. Implications: The Declaration on the Rights of Indigenous Peoples can provide federal, state and territory governments with benchmarks against which health policy can be developed and implemented. Authentic consultation could restore Indigenous confidence in government policies.

The Maori social science academy and evidence-based policy

This paper focuses on recent moves to forge stronger linkages between the Māori social science academy and the policy industry. A critical appraisal of this development is offered, with particular attention given to the desirability of enhancing the academy’s role in the policy process, given the policy industry’s continued privileging of Eurocentric theory and research methodologies within the developing evidence-based environment. The paper ends with a discussion of the possibilities and problems associated with engagement with the policy industry, particularly as these relate to the various roles members can (or are forced to) take; either as ‘insiders’ (such as policy workers and contract researchers), or independent, critical ‘outsiders’. The author concludes that the best that insiders can hope for are incremental, largely ineffective changes to Māori policy, while independent members of the academy are best placed to speak on behalf of Māori, Māori communities, hapu and iwi.