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The Oxford University Commonwealth Law Journal

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Volume 13 Issue 2 Winter 2013

Statutes, Intentions and the Courts: What Place Does the Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction? 
pp. 271-282(12) 
Author: Hayne, Kenneth


Statutory construction is of the first importance to the work of the High Court of Australia. This article rejects the utility of construing statutes by reference to a notion of “parliamentary intention”, whether subjective or objective, collective or singular. Construing a statute must begin and end in the text that has been enacted, for it is the text that is authoritative. The object of statutory interpretation is meaning, determined in the first place by the conventional significance of the text. “Intention” must be distinguished from “meaning” if the debate is not to devolve into an exchange of definitions. Absence of a “parliamentary intention” does not mean that ambiguity in statutes cannot be resolved. Indeed, reliance on “parliamentary intention” may signal a departure from our understanding of what is the law.


Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections 
pp. 283-312(30) 
Author: Twomey, Anne


One of the unusual aspects of Australia's electoral system is its requirement of compulsory voting. While the constitutional validity of a system of compulsory voting has previously been upheld, that was before the High Court started drawing extensive implications from the constitutional requirement that Members of Parliament be 'directly chosen by the people'. Different arguments arise depending upon whether one focuses on the words 'choice' or 'the people'. 'Choice' gives rise to questions about how free the choice must be and whether a compelled choice amounts to a genuine choice that represents the will of the people. A focus on 'the people' raises the question of whether there must be maximum participation by 'the people' to ensure that a House is truly chosen by the people. This article assesses these constitutional questions focusing on how they affect the constitutional validity of compulsory voting in Australia.


An Overview of the Commonwealth Secretariat Arbitral Tribunal and Its Use of Discretion in Employment-Related Judgments 
pp. 313-329(17) 
Author: Borda, Aldo Zammit


This article examines the employment-related judgments of the Commonwealth Secretariat Administrative Tribunal with respect to the use of discretion. In the available literature, the practice of the Tribunal is virtually unexplored and rarely touched upon. The article focuses on four cases concerning the selection of a grievance mechanism, the implementation of a rotation policy, the non-payment of a cost of living allowance and the non-renewal of a contract of employment, respectively. The article finds that, while, in cases where discretion is exercised lawfully, the Tribunal generally refrains from substituting its views for the decision taken by the Secretariat, in cases where such discretion is exercised unlawfully, the Tribunal does not hesitate to state so.


The Way We Do Things Back Home: Do Expatriate Judges Preferentially Cite the Jurisprudence of Their Home Countries? 
pp. 331-345(15) 
Author: Smith, Stephen Eliot


It is common for judges of Australian, New Zealand, and British nationality to serve on the courts of the small Pacific States of the Commonwealth. This Article reports on a quantitative study that analysed whether expatriate judges in such States were more likely to cite jurisprudence from the jurisdiction of the judge's nationality. After using the data to conclude that expatriate judges do preferentially cite the jurisprudence of their home countries, it is concluded that such trends may be interpreted in multiple ways, some of which could be problematic for the citizens of the States that employ expatriate judges.


The Franconia Sails On: Revisiting the Intellectual History of the Territorial Sea in the United States, Canada and Australia 
pp. 347-377(31) 
Author: Miles, Cameron A


The purpose of this article is to revisit the intellectual history of the modern conception of the territorial sea and its bed, as well as the way in which ideas developing within the international legal space were received in municipal law in the 19th century. More particularly, the article demonstrates how episodes of miscomprehension at the interface between international and municipal law may have profoundly impacted the present allocation of sovereignty through an examination of the decision of the Court of Crown Cases Reserved in R v Keyn (the Franconia) and the consequent conceptualisation of the territorial sea and its bed in the federal common law jurisdictions of the United States of America, Canada and Australia. In each of these jurisdictions, misunderstanding of the decision in R v Keyn arguably resulted in a fundamental misallocation of sovereignty over the territorial sea and its bed as between the Union, Dominion and/or Commonwealth on the one hand and the various federal units on the other.


A New Framework for the Implication of Terms in Fact 
pp. 379-386(8) 
Author: Goh, Yihan

Volume 13 Issue 1 Summer 2013

  • The Trivial Nature of Strict Legalism- Frank Carrigan

The purpose of the paper is to engage in a searching analysis of John Gava's strict legalist interpretation of how judges decide contract cases. In a series of articles Gava has expressed fidelity to the idea of law as a system of rules. For Gava the judicial method is based on viewing law as an autonomous discipline. Utilizing the work of cardinal thinkers Gava's conceptual framework is challenged. The aim is to pinpoint the asymmetrical world of contract bargaining and highlight that it is imprudent to promote the view that law exists in an intellectual vacuum immune to political and economic forces. The paper highlights that Gava's strict legalism is not a minority position in legal circles. There is a resurgence in doctrinal scholarship. The paper argues that there are no neutral readings of law and the theoretical and political presuppositions of strict legalism require interrogation.

  • Contract Law and Inequality—A Response to Frank Carrigan - John Gava


Frank Carrigan argues that the legalistic judging of Sir Owen Dixon is a trivial matter because it merely reproduces and reinforces the substantive inequality between persons in our society. I agree that inequality in our society is real and needs to be addressed. However, given the limitations of judges and the institutional limitations of the courts, contract law is a poor vehicle for overcoming such inequality when compared to the many social, economic and political policy options open to governments. Not only, however, is contract law a misconceived tool for the amelioration of poverty; to use it in this way runs the real risk of destroying one of its most significant attributes—the formal equality enshrined in the common law of contract.

  • Contractual Interpretation in Indian Evidence Act Jurisdictions: Compatibility with Modern Contextual Approach?- Goh–Yihan


This paper examines the approaches towards contractual interpretation taken by Commonwealth jurisdictions governed by the Indian Evidence Act. While some of these jurisdictions import the modern contextual approach into their domestic approaches, it will be argued that it is largely compatible with the Indian Evidence Act. In particular, it will be shown that a limited adoption of the modern contextual approach is permissible, namely one involving the limited admissibility of extrinsic evidence to interpret contracts, subject to the requirement of ambiguity. An integrated approach may represent the best way of following the modern contextual approach, while remaining faithful to the original intent behind the Indian Evidence Act.

  • Acquisition Financing of Inventory: Explaining the Diversity- Roderick J Wood


The United States, Canada, New Zealand and Australia have all modernized their secured transactions laws with the adoption of a single, comprehensive statute. These statutes all embrace the same objective—to create an efficient, predictable and commercially sensible framework that facilitates secured financing. Yet when the statutory priority rules are compared, it becomes obvious that there are vast differences in approach. This paper will focus upon the typical priority disputes that can arise between a supplier of inventory and a lender who supplies working capital to the debtor. It will identify six key questions that must be resolved when designing the priority rules and it will review the differing approaches taken in the various jurisdictions. It will then examine three different explanations for these variations—the public choice explanation, the innovation explanation, and the primary collateral explanation—and test them to determine what explanatory power they hold.

  • Exceptional Circumstances Schemes and the Social Factors Exclusion in Healthcare Rationing - Joanna Manning

In 2011 Pharmac, New Zealand's public agency charged with prioritising pharmaceutical medicines, introduced a new Exceptional Circumstances scheme which provided for the first time that a patient's social circumstances would not be considered in determining exceptional circumstances for funding purposes (a “Social Factors Exclusion”). Why might an agency which determines access to a rationed pool of money wish to explicitly rule out of consideration patients' social circumstances and the non-health related outcomes of treatment as irrelevant altogether? Pharmac's new scheme is outlined, as well as the trend for public bodies in England and Wales making equivalent decisions to include such a provision as ?best practice' in their policies. The distinction between medical and social factors is attempted. The article analyses the ethical acceptability of including (or excluding) judgments of a patient's value to others and society in decisions rationing healthcare, and analyses the lawfulness of doing so in both jurisdictions, focusing on English decisions, the only jurisdiction to consider the issues to date. Finally, the article considers how courts might respond to a key unresolved issue in both England and New Zealand, that a Social Factors Inclusion constitutes unlawful discrimination. It is suggested that the preferable policy formulation is that personal factors should not be given equal weighting to clinical factors in exceptional circumstances schemes, and that courts should defer to the public agency to determine its exceptional circumstances policy in this respect, provided it undertakes thorough consultation on the matter.

  • The Accountability of Members of Australia's Federal Parliament for Misconduct- Alysia Blackham and George Williams

Recent times have seen serious allegations of misconduct made against members of Australia's federal Parliament. This has led to calls for more effective parliamentary and independent mechanisms to address allegations of misbehaviour. Drawing on comparative perspectives from the United Kingdom and Republic of Ireland and laws in place in the Australian States and Territories, this article considers the extent to which additional measures would assist the Australian federal Parliament to manage the misconduct of its members. It proposes a model of extended accountability to provide more robust mechanisms for the management of parliamentary misconduct.

  • New Zealand's New Privacy Tort in Comparative Perspective- Chris DL Hunt

In C v Holland the High Court of New Zealand recognised a new privacy tort, which applies to intrusions into a person's privacy. It compliments New Zealand's other privacy tort, which captures the unauthorised publication of private information. These two actions are modelled on the American common law, which has also been influential in Canada as it too recently created an intrusion tort. English courts, for their part, have largely eschewed the American approach. In England, it remains uncertain whether bare intrusions are actionable, although it seems likely they will be in time. And while English courts now have a robust disclosure based action, its essential elements are different from that followed in America and New Zealand. In this comment the author examines New Zealand's new intrusion tort in light of the approaches taken in these other jurisdictions. He concludes by preferring the modern English approach for two reasons: (i) It does not have an express 'seclusion' requirement, and (ii) it does not require the claimant to prove that the privacy invasion was 'highly offensive'.

  • The Emerging Juridical Status of International Law in Kenya- Michael Wabwile

The adoption of a new constitution has signalled a fresh start for the Kenyan legal system, and created the normative foundations for establishing its second republic. A historic document with an inspiring preamble, substantive enactments spanning 264 sections arranged in 18 chapters, and six schedules, the 2010 constitution (hereinafter, the Constitution), embodies a major overhaul of the country's legal order, and is the culmination of its people's over twenty-year struggle for reform and better quality of governance. However, a hard look at the constitution reveals that some of its provisions are riddled with controversy, and portend considerable difficulties in its implementation. Departing from established practice, the constitution enacts somewhat casually two provisions ('the contentious clauses') : 'the general rules of international law shall form part of the law of Kenya' and, 'any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.'

This paper interrogates the policy of applying international law in such sweeping terms, and develops two arguments. First, the contentious clauses do not adequately address the far-reaching issues regarding the application of international law. Instead they cause confusion and uncertainty. To establish international law in the national legal system, a more elaborate scheme of legislation is required. Secondly, there is a 'division of labour' between the international and the national legal orders, whereby the former's remit is to decree norms and rules for regulating inter-State relations while the latter regulates domestic relations. The international community does not demand that States should entrench international treaties in domestic constitutions: all that is required of States is to fulfil their respective international obligations in good faith. Therefore, the direct application of international treaties in the Constitution must be rejected.

  • Wednesbury Reformulated: Proportionality and the Supreme Court of India- Abhinav Chandrachud

In the year 2000, the Supreme Court of India held that the proportionality doctrine could be used to test the validity of certain kinds of administrative decisions. However, it is the central thesis of this paper that since then, the proportionality test in India is merely the Wednesbury test in disguise. Using public sector employment cases decided by the Supreme Court of India – cases where the proportionality doctrine has been overwhelmingly used – this paper argues that the Wednesbury principle of reasonableness cannot easily be excised from the mindset of the common law judge, and that the legal culture of a court cannot easily be transformed with transplanted doctrines even in today's “flat”, inter-connected world, where the choice of legal doctrines is often influenced by choices made in other systems.

  • In Defence of Consideration - Mindy Chen–Wishart

Much of the scholarship against the consideration doctrine is explicitly or implicitly based on the monistic deontological view that morality and respect for individual autonomy require the enforcement of promises, whether supported by consideration or not. A different picture emerges when a richer conception of autonomy is recognised and other legitimate concerns of state action are acknowledged; namely: (i) the protection of valuable and autonomy-enhancing social forms, (ii) the need for respectful dealing, (iii) tracking the instinct of reciprocity that preserve social stability, and (iv) meeting the demands of administrability. On these criteria, transactions in the private domain should generally remain free from contract, while transactions in the market domain - where reciprocity, trust and social sanctions are not implicit - should only attract state enforcement where the parties' dealings are marked by mutual respect. Consideration is a key marker of the boundary between the two.

  • The Challenge of Implementation: Getting Law Reform Reports Onto the Statute Book- Hammond Knzm

The institutional reform movement is a well-settled feature of the legal systems of nearly all the Commonwealth jurisdictions. A common problem for these several dozen statutory Commissions and law reform agencies is getting their reports enacted. From an initial (unrealistic) expectation that reports would somehow, without more, simply be acted upon, the Commonwealth jurisdictions have had to find ways—often with alterations to the machinery of government—to advance their important work. This article canvasses the traditional and newer ways of achieving legislative implementation of law reform reports.

  • Criminal Court Procedure and Public Employment Law: the High Court of Australia Decisions in Patel v the Queen (2012) and Fingleton v the Queen (2005)- Louise Willans Floyd

Case Comment on Patel v The Queen (2012) and Fingleton v The Queen (2005)

  • Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore- Eric Metcalfe

Book review

Volume 12 Issue 2 Winter 2012

  • Contract Modifications—Reflections on Two Commonwealth Cases — Pey-Woan Lee
The common law rule that a promise to perform a pre-existing obligation is no consideration is said to have done the most in giving the doctrine of consideration a bad name. While the English innovation of 'practical benefits' in Williams v Roffey has effectively enervated this rule, general discontentment with the conceptual difficulties residing in this approach has often led to calls for the abolition of consideration in the context of contract modifications. This article examines two Commonwealth cases that took this step and warns against an overly optimistic view of such a development. It argues, instead, that the post-Williams v Roffey conception of consideration may be useful in focusing attention on the exchange of value that gives promises contractual force in the first place, and the attainment of such value as the primary justification for facilitating contract modifications. Abandoning consideration may also be unsatisfactory because alternative autonomy-centred concepts are insufficient justifications for enforcing agreements to modify.

  • Canada's 'Unique' Approach to Specific Performance in Contracts for the Sale of Land: Some Theoretical and Practical Insights — Malcolm Lavoie
In Semelhago v Paramadevan, the Supreme Court of Canada abandoned the traditional common law rule governing purchasers' remedies in contracts for the sale of land. Previously in Canada, as in England today, land was presumed to be unique in every case, such that specific performance was available as of course. As the law now stands in Canada, a purchaser seeking specific performance bears the burden of proving that the land is unique. This article seeks to understand this change in approach from a number of perspectives, including economic efficiency, corrective justice, and the formal trade-offs between rules and standards. In the end, I argue that the most plausible approach involves creating a rebuttable presumption of uniqueness for land.

  • Lord Cave, The British Empire and Irish Independence—A Test of Judicial Integrity — Thomas Mohr

This article examines the career of Lord Cave and his influence on the history of the Irish Free State within the British Empire. Cave was a controversial figure in Anglo–Irish politics in the early–twentieth century. Nevertheless, he held the office of Lord Chancellor for much of the 1920s and presided over a number of important appeals to the Judicial Committee of the Privy Council emanating from the Irish Free State. Cave also played an influential role during the Imperial Conference of 1926. This article argues that Cave's pre-occupation with maintaining the integrity of the British Empire influenced decisions in a number of key appeals to the Privy Council that directly or indirectly affected the Irish Free State. It also examines the conclusions of other scholars who maintain that the history of the Irish appeal shows that the Judicial Committee of the Privy Council was occasionally influenced by political policies pursued by the British Government. This article challenges these conclusions. It argues that the decisions used to support these contentions were actually influenced by the personal views of Lord Cave and not by policies embraced by the British Government. This supports the conclusion that the Judicial Committee of the Privy Council of the early twentieth century was, after all, an independent court of law.

  • Judicial Precedent—Taming the Common Law — Lord Carnwath

'Judicial Precedent—Taming the Common Law' being a lecture delivered by His Lordship Lord Carnwath, on 7 June, 2012 at the Nigerian Monthly Law Reports (NMLR) Lecture Series in Abuja, Nigeria. An event organized and sponsored by Optimum Law Publishers Ltd, publishers of the Nigeria Monthly Law Reports (NMLR) an affiliate of the Nigerian law firm of Babalakin and Co.

  • England and the Superior Orders Defence—Choosing the Middle Path — Ziv Bohrer

The superior orders defence is a criminal law defence which allows soldiers to avoid conviction for illegal acts committed under orders. Recently the debate regarding this defence in England has intensified. Most jurists are divided between two positions: one asserts that this defence should be rejected and that English law does in fact reject it; the other argues that this defence is already the law, and further that it should continue to be so. The article argues that both sides are incorrect. It shows that current law is unclear and unjust and argues that this is due to a premise, held by both camps, regarding the need to regulate the issue based on a one-rule-fits-all policy. The article thus opines that, instead, a law should be adopted that differentiates between situation-specific categories; mainly between high-ranking and low-ranking subordinates, as well as between emergency and non-emergency situations.

  • Liberalisation of Indian Legal Services: Politics and Challenges — Amanpreet Chhina

This article explores and analyses the issue of liberalization of Indian legal services. It analyses the various arguments given for and against liberalisation and see what the issues in liberalising India's legal service really are, what the main policy considerations are, to what extent it is possible, and what effects it would have on the industry in particular and on the Indian economy as a whole. The article seeks to show that in the era of globalization, it has become imperative for the Indian government to open up its legal services market; however, the government has to make an informed decision as to how much to liberalise and what interests to protect.

  • Fingerprint Comparison Evidence Has Been Under Sustained Attack in the United States of America for the Last Number of Years: Is the Critique with Regard to Reliability Sufficiently Penetrating to Warrant the Exclusion of This Valuable Evidence? — Wium De Villiers,

The decision in Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993) brought about renewed attention to and scrutiny of fingerprint comparison evidence in the United States of America. In terms of the decision, judges were to act as gatekeepers with respect to the admissibility of scientific expert evidence. The court also explicated a non-exhaustive list of factors to be utilised by judges when assessing the reliability of expert scientific evidence. This article describes these events and investigates the challenges with regard to reliability that were made to fingerprint comparison evidence in the American courts, as well as the position that was taken by the courts in the wake of these events. The article also discusses the fundamental test for the admission of expert evidence in jurisdictions with a strict system of evidence by using the USA and South Africa as examples, and considers whether the critique pointed out by the defendants in the cases are sufficiently penetrating to warrant the exclusion of fingerprint comparison evidence. In evaluating the critique, the article inter alia considers the practices and events with regard to fingerprint comparison in selected other jurisdictions, including that of prominent Commonwealth countries like England and Wales, Scotland and South Africa.

  • Adversarial Intelligence? Control Orders, Tpims and Secret Evidence in Australia and the United Kingdom — Tamara Tulich

In the decade following September 11 2001, the Australian and United Kingdom governments adopted intelligence-led approaches to the threat of transnational terrorism. In contrast to the criminal justice model, intelligence-led approaches promote reliance on 'pre-crime' measures that seek to intervene and prevent a terrorist attack from occurring. This article examines consequences of the adoption of the intelligence-led approach in domestic anti-terror law, notably the increased reliance upon secret evidence in control order and TPIM proceedings and the extension of practices of surveillance and control beyond the traditional limits of the criminal justice system. It argues that attempts to reconcile secret evidence with the expectation of adversarial justice are problematic, and undermine many of the protective features of the adversarial process. The pursuit of adversarial justice in the national security context requires revisiting, and democratic deliberation and dialogue are key to ameliorating fairness inhibiting features of the preventive, intelligence-led approach.

  • Constitutional Adjudication and Learning from Each Other a Comparative Study — Michael Kirby

Text on which was based an address to Justices of the Supreme Court of Nigeria, Abuja, Nigeria, 12 June 2012.

  • Tugendhat and Christie: The Law of Privacy and the Media — Kirsty Hughes

Book Review

  • Fault Lines in Equity — PG Turner

Book Review

Volume 12 Issue 1 Summer 2012

  • General Editor's Forward Stephen J Dimelow
  • The Enforcement of Foreign Money Judgments in Nigeria: A Case of Unnecessary Judicial Pragmatism 'Gbenga Bamodu

In Nigeria there are two statutes under which a foreign judgment can be enforced by registration following the concept of reciprocity. It is also possible to enforce a foreign judgment at common law in Nigeria without proving reciprocity. One of the two statutes has proved to be controversial because a prerequisite to its application, the issuance of a ministerial order, has not been fulfilled. Nevertheless, the Nigerian Supreme Court has found a way to apply one of the provisions of the statute. This article contends that the decisions of the Supreme Court applying this statute amount to inaccurate interpretation and application of the statute or judicial pragmatism. The article also provides a comparative analysis of the two Nigerian statutes, concluding that the attitude of the Supreme Court to the interpretation of the more controversial statute is unnecessary particularly in light of adequate alternative means of enforcing foreign judgments in Nigeria.


  • Assessing Risk, Minimising Uncertainty, Developing Precaution and Protecting Rights: An Analysis of the Prohibition on Communication Between Terrorist Suspects and Special Advocates Joseph Chedrawe

A security certificate is a measure by which non-citizens are deemed inadmissible to Canada on grounds of security and which leads to their detention and eventual deportation.  A suspect may challenge the basis of the security certificate before the Federal Court, but the government is not required to disclose all relevant material to the suspect, most notably, sensitive security intelligence.  Moreover, Canada maintains a strict policy of prohibiting communications between the suspect and the special advocate appointed to the suspect’s case after the special advocate has received any closed (or secret) evidence (i.e. evidence that the suspect will not see but on which the decision maker may rely).  This policy also exists in the United Kingdom.  The prohibition on communication was developed as a precautionary measure in response to the uncertainty surrounding the risk of the special advocate’s potential disclosure of sensitive security intelligence to the suspect, whether inadvertent or otherwise.  This article examines the notions of risk, uncertainty and precaution and contends that risk assessments must seek to minimize uncertainty and be a part of a larger rights analysis.


  • Burial Instructions and the Governance of Death Heather Conway

Most of us probably assume that, when we die, our funeral arrangements will be made by family members who will act in accordance with what they know (or believe) to be our last wishes in this respect. However, this is not always the case and intra-familial conflicts often occur where disgruntled relatives seek to substitute their own preferences for disposal of the remains. While we might assume that the wishes of the deceased should be paramount in such disputes, this is not always the case in English law. This article argues that ‘burial instructions’ should be the determining factor where the wishes of the dead conflict with those of the living. It beings by analysing the current legal position in Britain with comparative references to other common law jurisdictions in which burial instructions are not upheld, before contrasting this with the position in the United States where courts will strive to give effect to the deceased’s preferences. The article explores the various arguments for and against such an approach, before suggesting a possible legal framework for prioritising burial instructions in English law.


  • The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, 'Nationhood' and the Future of the Prerogative Peter Gerangelos

Section 61 of the Australian Constitution provides for the general executive power of the Commonwealth. It has traditionally been regarded as incorporating the prerogative as the yardstick of its ambit. There has, however, been a drift away from sole reliance on the prerogative toward a conception of s 61 as incorporating inherent power to meet the imperatives of a modern, independent national government. This has created a tension between those who would maintain that the prerogative alone can ensure against undue aggrandizement of executive power and those who see in an executive ‘nationhood’ power the only appropriate criterion by which to interpret s 61 to meet the needs of a modern government. The trend toward ‘nationhood’ has now been supported by the High Court of Australia.  It is therefore presently urgent to address the issue of limitations to this power. It will be argued that this can only be achieved by maintaining an appropriate role for the prerogative, albeit the concept itself may need to evolve as part of the Australian common law and a written federal constitution.


  • Regulating Vernacular Dispute Resolution Forums: Controversy Concerning the Process, Substance and Implications of South Africa's Traditional Courts Bill Sindiso Mnisi Weeks

This article introduces the Traditional Courts Bill (B1-2012) of South Africa. It initially focuses on the controversy that this draft legislation has caused, among rural communities and civil society especially, by virtue of the process that the Department of Justice and Constitutional Development followed in passing it, the substantive concerns it gives rise to and the implications its provisions will likely have for rural citizens. In substantive terms, it discusses four major concerns that have been raised against the Bill: (i) the definition and constitution of traditional courts under it, (ii) the courts’ jurisdiction and the members of the public’s inability to choose their forum, (iii) the courts’ powers of sanction as well as the Bill’s limitations on appeals and reviews, and (iv) the concerns about the Bill's inadequate protection of the rights and security of women.  The article concludes with a brief assessment of the Bill’s unlikely prospects of surviving constitutional scrutiny in light of the Constitutional Court’s 2010 decision in the case of Tongoane and Others v National Minister for Agriculture and Land Affairs and Others.


  • Ontario's Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for Administrative Justice? Lorne Sossin and Jamie Baxter

Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between agencies with diverse norms and mandates. The provincial government of Ontario in Canada has recently enacted a novel strategy called tribunal clustering to confront these challenges. This paper explores the structure and rationales behind Ontario’s new tribunal clusters and compares these with reform models in Australia and the United Kingdom. The authors argue that tribunal clusters offer a flexible approach to institutional change that is responsive to the needs of users and can ultimately improve access and the quality of decision making. In their view, clusters represent a promising first step – but not a final destination – to achieve a more effective and coherent system of administrative justice.

Volume 11 Issue 2 Winter 2011

  • An Elegant Convergence? The Constitutional Entrenchment of 'Jurisdictional Error' Review in Australia—Simon Young and Sarah Murray

In 2010 the Australian High Court overturned a state health and safety prosecution by means of a constitutional law advance not seen since the free speech cases and the Kable decision of the mid 1990s.  Pursuant to this decision, Kirk v Industrial Court (NSW), the core supervisory jurisdiction of the Australian state Supreme Courts (over jurisdictional error) is now constitutionally protected against legislative ouster.  In the ensuing rush of interest in this constitutional extension, the role and readiness of the other partner to the emerging public law collaboration—administrative law and its notoriously unsteady notion of ‘jurisdictional error’—has been somewhat neglected.  This article attempts to draw together the threads of the constitutional development behind Kirk, and then proceeds to reassess the increasingly pivotal notion of jurisdictional error.  It examines the High Court’s recent forays into this administrative law conundrum, attempts to re-phrase the problem as a tension between ‘internal’ and ‘external’ approaches, and seeks to construct a solution.


  • Substantive Fairness in Australian Standard Form Consumer Contracts: Lessons from the UK Experience—Philip Santucci

Australia has introduced a national unfair contract terms law (AUCTL), broadly modelled on the Unfair Terms in Consumer Contracts Regulations 1999 (UK) (UTCCR) and other Australian consumer legislation. A comparative analysis of the respective tests of unfairness in the UK and Australian legislation reveals that the AUCTL has not resolved some of the uncertainty that has arisen in the application of the UTCCR. It is argued, however, that on balance the AUCTL will provide greater protection for consumers. The AUCTL permits the court to review the substantive fairness of terms that constitute contingent consideration. And, a reversal of the evidentiary burden in relation to one element of the test will provide the consumer with a litigious advantage not present under the UTCCR. Finally, by omitting reference to good faith and requiring the court to assess whether terms are reasonably necessary for the protection of the supplier’s legitimate interest, the test of unfairness in the AUCTL will encourage greater examination of the substantive fairness of terms in consumer contracts.


  • The Legal Framework for the Governance of Health Research Involving Humans in Nigeria—Cheluchi Onyemelukwe

There is currently information in academic literature on the legal framework for research governance in many developing countries. Many texts instead focus on the need for law, without fully addressing existing and emerging law in such countries. This paper attempts to fill this vacuum by describing the current state of the law and identifying remaining gaps in the legal framework of Nigeria, a country that has had experience with unethical health research, and which has taken steps in recent years to formalise its research governance system.


  •  Contempt of Court and Fair Criticism in Singapore: Shadrake Alan v Attorney General [2011] SGCA 26—Gary K Y Chan (case comment)

This comment concerned the conviction of a British author for publishing a book containing statements scandalizing the judiciary in Singapore. The Singapore Court of Appeal decision in Shadrake Alan v Attorney General [2011] SGCA 26 held that the appropriate test for determining contempt of court is whether there was a 'real risk' that public confidence in the administration of justice would be undermined as a result of the impugned statements. This is a departure from the prior test of whether the words have an 'inherent tendency' of interfering with the administration of justice. Secondly, the court examined the scope and role of fair criticism in contempt of court cases as well as the burden of proof thereof. In addition, the comment also discusses the perspective of the "average reasonable person" in the application of both the real risk test and the concept of fair criticism.


  •  The Prosecution’s Duty of Disclosure in Singapore: Muhammad bin Kadar vPublic Prosecutor [2011] 3 SLR 1205—Chen Siyuan (case comment)

The Singapore Court of Appeal in Muhammad bin Kadar v Public Prosecutor established new requirements for the prosecution regarding its duty to disclose (to the defence) relevant material not favourable to the case it seeks to present. Specifically, there is now a duty to disclose any unused material that is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt/innocence of the accused, and any unused material that is likely to be inadmissible but would provide a real chance of pursuing a line of inquiry that is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt/innocence of the accused. This note argues that first, the premises invoked by the court to impose these new disclosure requirements are not completely consistent with what it concluded, and second, the court was at cross-purposes with some of the arguments raised by the prosecution.


  • Suing the Third Party for Improvements to Land: Costello v Macdonald [2011] EWCA Civ 930, [2011] 3 WLR 1341—Man Yip (case comment)

The recent case of Costello v MacDonald [2011] EWCA Civ 930; [2011] 3 WLR 1341 revisited the intersection between the law of contract and the law of unjust enrichment in three-party cases in the context of improvements to land.  The Court of Appeal of England and Wales affirmed the policy prohibition against allowing an unjust enrichment claim against a third party where the benefit was conferred pursuant to a contract.   The Court of Appeal also briefly considered the “at the expense of” inquiry and the relationship between unconscionability and unjust enrichment in cases of improvements to land, without coming to any conclusions on either issue.  This note examines these issues more closely.  In particular, it suggests that the unjust enrichment claim in Costello should not have been disallowed.

Volume 11 Issue 1 Summer 2011

  • Forward: A New Decade—Timothy Endicott
  • Editor's Forward—Aparna Rao
  • Resulting Trusts, Sine Causa and the Structure of Proprietary Restitution—Duncan Sheehan

The article asks whether proprietary restitution can be accommodated within a sine causa approach to unjust enrichment. It argues that it cannot be unless significant changes are made. The current English approach to proprietary restitution and the sine causa approach cut across each other, and would force courts to look behind the reasons for the failure of basis, and to award remedies that cut across the fault-line between condictio and versio-claims. It suggests that the current law is consistent with Swadling’s approach to resulting trusts, but not his approach to rescissory powers.

  • Pre-Emptive Self-Defence: When and Why?—Mark Campbell

The requirement for imminence prohibits resort to self-defence except when a threat is very close at hand. As such, it has been criticised for limiting pre-emptive force by those at a physical disadvantage, classically the ‘battered woman’. Imminence unduly limits the defence by foreclosing the question of whether the delay gave the defendant genuine alternatives to violence. Reform is therefore desirable. Four alternatives are considered, drawn from Canada, Australian and New Zealand approaches and the recommendations by law reform commissions. Each proposal has its own difficulties. Retaining but relaxing the imminence rule fails to address the basic concern with imminence and is overly vague. Reducing the entire inquiry to one of reasonableness provides too little guidance in situations in which defendants are placed in unreasonable situations. Necessity functions very similarly to reasonableness and is subject to the same concerns. Inevitability provides greater clarity but if applied objectively is too restrictive and if applied subjectively is arguably too lenient. Nevertheless, of the alternatives inevitability strikes the best balance of principle and clarity.

  • Towards a Jurisprudence of Constitutional Conventions—Léonid Sirota

The status of the conventions of the constitution is controversial. According to traditional understanding they are binding constitutional, but not legal, rules because they are not judicially enforceable. However, an analysis of the arguments advanced in support of the proposition that conventions are not, or are not even capable of being, legal rules shows them to be unpersuasive. While conventions are not now recognized as part of constitutional law, this does not prevent courts from so recognizing them in the future. Furthermore, neither conflict between conventional and legal rules, nor the conventions’ alleged uncertainty, nor the apparent difficulty to craft a suitable remedy for their enforcement, nor yet their political origin, constitute insuperable obstacles to their recognition as legal rules. Understanding the law as inextricably linked to, rather than hermetically insulated from, social practices, as advocated for example by FA Hayek, courts ought to recognize and enforce conventions, subject to constraints of justiciability. 

  • The President's Legislative Powers in India: Two and a Half Myths—Shubhankar Dam

Article 123 in India’s Constitution authorises the president to promulgate ordinances when parliament is not in session. And these ordinances, the provision says, have the "same force and effect" as legislation enacted by parliament. In other words, an ordinance, though enacted without parliamentary approval, is like an Act of Parliament. In this article, I argue that this “same force and effect” clause is a myth – Article 123 does not mean what it says. Despite language to the contrary, presidential ordinances in some cases cannot – and, in some other cases, should not – have the same force and effect as that of Acts. Two kinds of differences, I will argue, are implicated in the president’s power to promulgate ordinances, something I have previously explained as the president’s intermediate legislative power. In some respects, Acts and ordinances are absolutely different; they are entirely different things and, therefore, must produce contrary legal effects. In other respects, they are largely similar, but with degrees of variations on how that similarity may be legally employed. That is to say, they are qualifiedly different. And working through these differences will exemplify the 2½ myths that have grown around the words conferring the "same force and effect" to Acts and ordinances.

  • Transcript of a Speech—The Hon Robert McClelland MP
  • Book Review

A Right to Care? Unpaid Care Work in European Employment Law, by Nicole Busby—Aaron Rathmell and Laura Hilly

Volume 10 Issue 2 Winter 2010

  • The Curious Case of the Australian Military Court—Alison Duxbury

Over a number of decades the High Court of Australia has dealt with a series of constitutional challenges to Australia's military justice system. Until 2009 the High Court had upheld the ability of the Commonwealth Parliament to create institutions, including courts martial and Defence Force magistrates, to deal with allegations of misconduct by members of the Defence Force. However, in Lane v Morrison the High Court decided that the Australian Military Court, established in 2008 to replace courts martial and Defence Force magistrates, violated the Commonwealth Constitution. As a result of this decision, the federal government is faced with the need to redesign parts of its military justice system. This article analyses Lane v Morrison in light of the High Court’s previous jurisprudence, as well as decisions in other jurisdictions where human rights principles have been the at the forefront of concerns about the operation of military justice.

  • Geographical Information as ‘Personal Information’—Teresa Scassa

The rapid proliferation of applications using geographical information combined with the growing accessibility of vast quantities of data of all kinds has given rise to a number of data protection challenges.  Information is placed in geographic context by governments, private sector actors, and even by individuals; compilations of data may be sole-authored or crowd-sourced, and are frequently made available over the internet.  This paper explores a key question in the data protection context:  when is information placed in geographical context personal information?  Particular challenges in answering this question include the way in which geographical information may be a key to re-identifying de-identified data, and how it can be used to link aggregate demographic data to specific individuals.

  • Canada’s ‘Orphan Works’ Regime: Unlocatable Copyright Owners and the Copyright Board—Jeremy de Beer and Mario Bouchard

This article analyses Canada’s approach to the problem of unlocateable copyright owners, more commonly called the problem of orphan works. Section 77 of the Copyright Act empowers the Copyright Board of Canada to issue a non-exclusive licence to an applicant whose reasonable efforts to locate a copyright owner have been unsuccessful. The article begins with a legal analysis of this statutory scheme, based on a review of every application made to the Board pursuant to s 77. These applications were catalogued into a database to facilitate detailed, empirical review and statistical analysis. This analysis lays the groundwork for comparisons among the Canadian system and approaches that already exist or are being considered in other jurisdictions, an evaluation of the underlying public policy issues, and a discussion of possible legislative or regulatory responses to the problem.

  • The Publican, the Customer, his Motorcycle and the Key—Cynthia Hawes (case comment)

The obligations of a publican to an intoxicated customer were considered recently by the High Court of Australia in CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47. The Court has continued to emphasise the general desirability of personal responsibility in this context, and to hold that there is no liability on the part of a publican for the consequences of a customer’s drunk driving. This case comment discusses whether the facts of the particular case should have justified the displacement of the general principle stated by the High Court, and whether the publican had a duty to protect his customer.

  • Insulating the Constitution: Yong Vui Kong v Public Prosecutor [2010] SGCA 20—Aravind Ganesh (case comment)

n May 2010, the Singapore Court of Appeal upheld the constitutionality of the mandatory death penalty in Yong Vui Kong v Public Prosecutor. This comment focuses on two novel pronouncements by the Court of Appeal. First, that customary international law not only has no legal validity in the domestic Singaporean legal sphere, but is also not to be treated as automatically incorporated into Singapore common law. Instead, a rule of customary international law can become part of Singapore law only if it has been ‘translated’ by statute or judicial decision. Second, that the Singapore Constitution does not provide for a right against inhuman treatment or cruel punishment. The judgment thus effectively insulates the Singaporean legal sphere from developments occurring outside—by which is meant customary international law as well as Singapore's colonial past.

Volume 10 Issue 1 Summer 2010

  • General Editor's Foreword - Rabeea Assay
  • The Origins of the Indian Evidence Act—J D Heydon

This article begins with a summary of Stephen's career. It then describes the effects his time in India had on him, and how it contributed to various successes. It describes the stature of the Indian Evidence Act 1872 within India of other countries into which it was introduced. It then analyses the background to the Act: Stephen's attitude to India, Indian legislative machinery, the condition of Indian evidence law before his arrival, Stephen's evidentiary theories, the various available sources for the Act, and the principles guiding Stephen in drafting it. It then considers certain paradoxical aspects of the Act. It examines the extent to which Stephen was original. It then examines in detail the seven techniques employed by Stephen in drafting the Act.

  •  An Australian Copyright Revolution and its Relevance for UK Jurisprudence:  IceTV in the Light of Infopaq v Danske—Justine Pila

In this article, the High Court of Australia's decision in IceTV Pty Ltd v Nine Network Pty Ltd [2009] HCA 14 is considered, along with its relevance for UK copyright jurisprudence, taking account of the European Court of Justice's decision in C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16. The starting point for that consideration is the principle expressed by the Court of Appeal in R v Higgs [2008] EWCA Crim 1324, that UK courts may rely on the reasoning of Australian and other foreign decisions when the logic of those decisions makes them applicable. On face value, IceTV seems an important decision, and a likely source of future reasoning for UK courts. Among other things, this is because of the similarity between and shared origins of Australian and UK copyright legislation, the high degree of cross-fertilisation which exists between Australian and UK copyright jurisprudence, and the centrality of the latter to the four IceTV judgments. Further, it is possible to extract from the High Court's decision six unanimous copyright propositions, and two approaches to determining substantial part, including one which reflects early commentators' readings of Infopaq v Danske. On closer analysis, however, it is submitted that IceTV is likely to have less impact on UK jurisprudence than might at first be thought. This is because the views of the High Court on certain issues are difficult to reconcile with UK jurisprudence, and unlikely to be accepted by a UK court. Further, this is true notwithstanding Infopaq, the meaning of which early commentators may have misread.

  •  The Protection of Pre-Contractual Reliance: A Way Forward?—Ben McFarlane

The purpose of this article is to consider, with the benefit of a comparative perspective, the protection offered by English law to a party who relies to his detriment in anticipation of a future contract which fails to materialise. It is argued both that such protection should be available, and that English courts have recognised this need. There is, however, little conceptual consistency in the courts' current approach. It is proposed that the primary means of protection should be a non-contractual liability, arising where a potentially contracting party (A) has made a pre-contractual promise upon which his potential contractual partner (B) has reasonably relied. A's liability in such a case will be limited to ensuring that B does not suffer detriment as a result of that reasonable reliance. In English law, this liability has been chiefly recognised through proprietary estoppel and it is argued that the limits currently placed on that doctrine should be relaxed, so that it can be used as a general means to protect pre-contractual reliance.

  •  The Law of Remedies: A Prospectus for Teaching and Scholarship—Jeffrey Berryman

The study of the law of remedies has found a place in the curriculum of many common law schools. This has generated debate on whether the law of remedies exists as a distinct body of law governed by its own systematic structures and principles, which can comfortably take its place beside other substantive private law subjects. The author argues that it can, and then suggests a number of important areas of law in which debate on appropriate remedial response is central to the articulation of the particular interest which has been violated. The author suggests that there is much useful work to engage the energies of scholars of the law of remedies.

  •  Yesterday's Heresy, Today's Orthodoxy: Exemplary Damages for Breach of Contract in the Commonwealth Caribbean—Eddy Ventose (case comment)

The case note examines the landmark decision of the Court of Appeal of Trinidad and Tobago in Torres v Point Lisas Industrial Port Development Corporation Limited where the Court of Appeal declined to follow a 100-year old decision of the House of Lords in Addis v Gramophone Co Ltd. The Court of Appeal asserted that it was able to declare the common law in Trinidad and Tobago that exemplary damages are awardable for breach of contract. This is a welcome development for a Commonwealth Caribbean court. However, the Court of Appeal?s conclusion in Torres was inevitable, since there was existing authority from Australia and Canada, namely Hospitality Group Pty Ltd. v Australian Rugby Union Ltd and Whiten v Pilot Insurance Company, respectively, that had declined to follow Addis, and recent United Kingdom decisions, namely, Johnson v Unisys Ltd, Kuddus v Chief Constable of Leicestershire Constabulary and AG v Blake, that had shaken the precarious foundations of Addis. The case for not following Addis could not have been stronger. It is only a matter of time too that the Supreme Court of the United Kingdom will follow on the heels of the decision of the Court of Appeal of Trinidad and Tobago in Torres and overrule Addis.

Volume 9 Issue 2 Winter 2009

  • Remoteness Re-invented?—David McLauchlan

This article discusses the fundamental questions concerning the application and conceptual basis of remoteness of damage in the law of contract that are raised by the decision of the House of Lords in The Achilleas [2009] 1 AC 61. It commences with a review of the academic literature that had a significant influence on their Lordships' judgments in that case. While acknowledging the obvious theoretical difference between the two main schools of thought—one treating the remoteness rule as agreement-centred (with the task of the court being to identify an implicit allocation of risk) and the other treating it as a gap-filling device or default rule—the article questions whether the distinction has practical consequences. After a close analysis of each of the judgments in The Achilleas, which reveals, contrary to the view expressed in a recent English High Court case, a majority in favour of an agreement-centred approach, the article discusses, inter alia, the factors that ought to be weighed in determining whether a loss is too remote and the correctness of their Lordships' unanimous decision to overturn the award of damages for lost profits that had been made by the, also unanimous, lower courts.

  •  Sir Owen Dixon, Strict Legalism and McRae v Commonwealth Disposals Commission—John Gava

One of the central debates in law concerns the nature of judging and, in particular, whether judicial reasoning is in any way bounded or whether it is essentially open-ended. In Australia a particularly influential view for many years was that expressed by Sir Owen Dixon that judging should be in accord with a “strict and complete legalism”. This paper considers in detail the High Court decision of McRae v Commonwealth Disposals Commission, where Dixon and Fullagar JJ reconfigured the common law's treatment of mutual mistake, to see if his reasoning is in line with his self-described judicial method. This analysis provides a case study of Dixon J's fidelity to his self-proclaimed strict legalism and illustrates the creative yet bounded nature of his understanding of the judicial role.

  •  An Interested Party's Behaviour can Serve as Evidence: Analysing Incentives in English Legislation—Doron Menashe and Limor Riza

The paper endeavours to develop a normative model for the use of evidentiary incentives for cooperation and information disclosure in criminal proceedings. The proposed model is structured to preserve the autonomy of evidence law and to accord with its normative constraints. For this purpose the model poses two conditions for the use of evidentiary incentives. The first condition defines the legitimate goal of evidentiary incentives as the attainment of greater factual precision in the long term. The second condition is the legitimacy of the means employed. This condition is accommodated by the ordinal gradation of incentives into three categories of radical, weak, and intermediate incentive, reflecting the level of discretion allowed in their implementation. The proposed model purports to facilitate also the formulation and development of new legal arrangements, conducing to increased cooperation between parties to criminal proceedings.

  • Judicial Mercy and its Limits: Public Prosecutor v Tang Wee Sung [2008] SGDC 262—Paul Tan (case comment)

Should an offender be entitled to mercy on account of ill-health when the offence of which they are guilty itself cognises the fact that such offenders are highly likely to suffer from the ill-health in question? This case note attempts to answer this novel question by reference to a rather unusual case that arose recently in the Singapore District Court, which accepted a plea for judicial mercy in the context a kidney patient who had violated the State's law against the commercial trading of organs.

Volume 9 Issue 1 Summer 2009

  • How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?—J D Heydon

This article surveys the assumptions which courts of a particular jurisdiction bring to analysis of their prior decisions and those of courts in other jurisdictions. It then considers eight ways in which intermediate appellate and trial courts may assist in developing the law. The first is conduct which assists the relevant ultimate appellate court or legislature to develop the law. The second arises where an intermediate appellate court is de facto in the position of an ultimate appellate court. The third concerns the overruling by an intermediate appellate court of its own earlier decisions, or the refusal by a trial court to follow the decisions of other trial courts. The fourth is where cases of first impression arise, particularly where there are `gaps' in the law. The fifth relates to the approach to be taken by courts of one jurisdiction in a federation to the decisions of another. The sixth concerns the approach to be taken by lower courts to dicta in the ultimate appellate court. The seventh raises the question whether it is open to lower courts to engage in `anticipatory overruling' of decisions of the ultimate appellate court which appear likely to be overruled by that court in future. And the final issue is whether it is open to lower courts to escape from the trammels of unsatisfactory precedents by consciously ignoring them.

  •  Fundamental Common Law Principles as Limitations Upon Legislative Power—Anne Twomey

The House of Lords' decision in the Bancoult case raised important issues concerning the effectiveness of fundamental common law principles as a limitation upon legislative power. This article considers the origins, cogency and current status of the notion that fundamental common law principles can act as a limitation on (a) the legislative powers of Parliament; (b) foreign laws that may otherwise continue to operate in conquered or ceded colonies; (c) the prerogative power of the Crown to legislate for colonies; and (d) the legislative powers of colonial legislatures. It then analyses the application of the Colonial Laws Validity Act 1865 upon Orders in Council made with respect to former colonies and current British Overseas Territories where such orders could otherwise be regarded as repugnant to fundamental common law principles. It also considers whether the Colonial Laws Validity Act, by terminating the application of the common law doctrine of repugnancy to Orders in Council made with respect to a colony, has the effect of immunising such orders from judicial review.

  •  The Implications of Implied Terms in Law in the Common Law Contract of Employment—Frank Carrigan

This paper considers the role of implied terms in the common law contract of employment. In the past two decades Anglo-Australian law has witnessed the emergence of a court imposed duty of mutual trust and confidence. For some influential jurists a revamped implied terms doctrine signals the capacity of the common law to achieve fair dealing in the workplace. Such attitudes reflect a belief that contractual jurisprudence is experiencing a quiet revolution in the field of implied employment terms. This paper challenges such views. In particular it dispels the notion that the implied terms doctrine will be a springboard for further legal change, facilitating the reconfiguration of asymmetrical power relationships; the implied terms doctrine is not a countervailing force against the power of capital. A sanguine view of the role implied terms might play is undermined by the operation of the new duty of mutual trust and confidence. It has not expanded the parameters of industrial democracy. Instead, its reach has been whittled down by legal conservatism, and at best constitutes a mechanism for enhancing the voice of workers on procedural matters while having little impact on the unequal distribution of power in the labour process.

  •  Robertson Quay Investment PTE Ltd v Steen Consultants PTE Ltd—Goh Yihan (case note)

Volume 8 Issue 2 Winter 2008

  • Murder and the Ruthless Risk-Taker—John E Stannard

The main focus of this article is the ways in which the problem of reckless murder is dealt with in the common law world. In a case of reckless murder it may not be possible to prove that the accused set out to kill or do serious injury; but the killing is nevertheless thought to merit classification as murder rather than manslaughter. This may be because the case is thought to be analytically indistinguishable from murder, or because the level of culpability demonstrated by the conduct in question is thought to deserve that stigma on other grounds. This article seeks, by reference to various common law systems, to analyse the different techniques used to classify the reckless killer as a murderer, and to compare their advantages and disadvantages in the light of the different rationales used to justify such a classification. The article concludes by arguing that the question whether reckless killers should be classified as murderers—and if so how—can only be decided by reference to broader conceptions of the nature of criminal culpability.

  • Control Orders in Australia: A Further Case Study in the Migration of British Counter-Terrorism Law—Andrew Lynch

This article examines the origins of Australia's system of control orders for suspected terrorists under the Commonwealth Criminal Code Act 1995 (Cth). The orders were directly inspired by the United Kingdom's introduction of a similar scheme just months earlier in response to the House of Lords decision against indefinite detention of aliens on national security grounds in A v Secretary of State for the Home Department (2004). The Australian Government justified control orders as extensions of its anti-terrorism laws so as to keep up with best practice from abroad. Almost no attention was given to the very different context—legal, security, and cultural—had given rise to control orders in the United Kingdom, and which had only limited resonance with local circumstances. While the modern threat of terrorism in the United Kingdom was made very real by the 7 July 2005 London bombings, it is worth noting that no terrorist attack has taken place on Australian soil. Australia's adoption and subsequent use of control orders must be seen as a very clear instance of the move in many liberal democracies towards what others have identified as a 'pre-crime' society with government management of risks through a 'culture of control'.

  • Two Degrees of Murder: Homicide Law Reform in England and Western Australia—Thomas Crofts

In 2005, the English Law Commission was asked to review the law of Homicide in an attempt to bring coherency to this area of law. After conducting its review, the Commission found the dual structure of murder and manslaughter unfit for purpose, and recommended, among other things, applying a three-tier structure to the general homicide offences. Interestingly, the approach recommended by the English Law Commission finds precedent in the law of Western Australia, which divided the general homicide offences in almost exactly the same way. In an almost parallel review process, the Law Reform Commission of Western Australia was asked to examine the law of homicide and make recommendations to bring consistency to this area of law. This review process led to the abolition of the three-tier structure. Given that Western Australia has abandoned wilful murder as a separate offence and that Westminster appears reluctant to adopt the three-tier structure recommended by the English Commission, this article examines whether this structure is desirable. It explores the various principles adopted by the English Commission in making its recommendation and shows that the principle of fair labelling provides the most compelling reason for a tripartite division. The reasons for the abandonment of wilful murder as a distinct offence in Western Australia are also explored to assess whether they reveal that such a division was theoretically or practically problematic. Undoubtedly, having more homicide offences can make trials more complex and increase the financial and emotional costs involved. Such costs may not be justified where the crimes concerned and stigmatisation they deserve are relatively minor. However, the extra complexity and cost are more easily justified in relation to homicide. A three-tier structure more appropriately allows the offence labels to convey meaningfully the precise way in which the offender has broken the law and the degree of culpability of the offender.

  • Has Rule by Law Killed the Rule of Law in Malaysia?—Ratna Rueban Balasubramaniam

This paper argues that rule by law allows the use of the legal processes as a cloak for arbitrary power. In doing so it creates a serious problem of domination that undermines the law-like character of the legal order as a framework of norms that facilitates the interests of legal subjects. This argument builds on the analysis of the Malaysian Federal Court in Public Prosecutor v Kok Wah Kuan. In that case the majority rejected the separation of powers as an 'integral' feature of the constitutional order, while the sole dissenting judge defended the principle as fundamental to democracy and the rule of law. This paper uses the minority judgment to develop an understanding of the rule of law as a 'culture of justification' where the legal subject's right to participate in making political decisions that affect his or her interests is primary to the determination of whether an exercise of state power is legitimate.

  • 'When You Got Nothing, You Got Nothing to Lose': Assignments of Choses of Action and Standing in the United States Supreme Court— M J Leeming SC and G J Tolhurst (case report)

Volume 8 Issue 1 Summer 2008


  • The Media and Access to Government-Held Information in a Democracy—Moira Paterson

This article explores the impact of information access laws on the capacity of the media to promote open democracy, focussing on developments in a range of Commonwealth countries, including Australia, New Zealand and the United Kingdom. It begins with a discussion of freedom of information laws, their democratic rationales, and the factors which have affected media usage of freedom of information laws. There then follows a review of the interrelationships between freedom of information and privacy laws and the extent to which privacy exemptions in freedom of information laws may impact on the activities of the media. The article concludes with a discussion of data protection law and other privacy-based restrictions on media access to information and their potential impact on the media’s role in a democracy.  

  • Is a Defaulting Fiduciary Exculpated by the Principal’s Hypothetical Consent?—Sirko Harder

A fiduciary’s principal may authorize what would otherwise be a breach of fiduciary duty. Is a fiduciary who failed to obtain the principal’s consent exculpated on the ground that the principal would have consented if the fiduciary had sought such consent? The remedies of rescission, account of profits and (if recognized in principle) constructive trust are available even where the principal, if fully informed, would have authorized the fiduciary’s conduct. In Australia, the same is true for equitable compensation. By contrast, in Canada, England and Wales, New Zealand, and probably also Singapore, equitable compensation is denied where the principal, if fully informed, would have authorized the fiduciary’s conduct. The differentiation between the various remedies is defensible on merits. Where hypothetical consent excludes liability, i.e. in the case of equitable compensation, it is the fiduciary who should bear the onus of proving what the principal, if fully informed, would have done.

  • Leaving Nothing to Chance?: Joint Tenancies, the ‘Right’ of Survivorship, and Unilateral Severance—Helen Conway

The joint tenancy with its inherent right of survivorship is the most prevalent form of co-ownership in the common law world today. Most couples will be joint tenants of a family home, while relations (such as siblings) who purchase property together may opt for this arrangement. Inter vivos acquisitions aside, the huge intergenerational transfer of wealth within families on death can result in a joint tenancy, and it may also be a convenient estate planning device. The fact that property automatically vests in the surviving joint tenants on death is the reason why many people choose this form of co-ownership. However, there is one serious disadvantage. A joint tenancy is an inflexible form of landholding where relationships sour or family circumstances change over time, and co-owners want their respective 'shares' of the property to pass to someone else on death. Where consensual severance is not possible, one joint tenant can sever unilaterally. The latter mechanism is vital in terms of giving effect to the wishes of the severing joint tenant, especially in situations of discord or a breakdown in relations with their fellow co-owners. However, unilateral severance also has serious implications for the non-severing joint tenant(s) who expected to inherit property through survivorship, and can impact significantly on ownership of the home and other family property. This article looks at unilateral severance as a means of subverting the right of survivorship. The focus is on personal and inter-family relationships, and the various legal issues and policy considerations associated with unilateral severance across the common law jurisdictions of Britain, Ireland, Australia, Canada, and New Zealand. It assesses the various methods of effecting unilateral severance and proposes specific measures, as well as considering novel arguments for preventing unilateral severance based on contractual agreements to the contrary and proprietary estoppel. 

  • Wrongful Trading and Fraudulent Trading in Corporate Insolvency Law: the Case of Zambia—Kenneth K Mwenda

The paper examines the law in Zambia regarding the legal liability of company directors for fraudulent trading and wrongful trading, including salient and pertinent aspects of fraud by officers of companies that have gone into liquidation. Closely related to this, the glaring absence of a legal framework to license and regulate Zambia’s insolvency practitioners is highlighted, pointing to strong reasons why such practitioners should be regulated. Currently, insolvency practitioners in Zambia are not professionally regulated or licensed, albeit the growing evidence suggesting that some of these individuals and firms purposely, and with wanton disregard of the law, enrich themselves from the estate of insolvent companies under their control. The paper argues further that Zambia continues to experience a weak compliance culture in the area of corporate governance, and that there are not many mechanisms to deal with the enforcement of directors’ liability other than to rely on the judicial process. As an incentive to promote more efficient compliance with best practices in corporate governance, and to deter misfeasance and misconduct by company directors, legal rules to disqualify persons convicted of such offences as wrongful trading and fraudulent trading should be introduced. Such a development, it is argued, could help to bolster and strengthen Zambia’s legal and institutional framework for corporate insolvency.   

Case Comment

Brooker v Police—Andrew Geddis

Book Reviews

Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories, by Charles O H Parkinson—David Erdos

The Law of Rescission, by Dominic O’Sullivan, Stephen Elliot, Rafal Zakrzewski—Stephen Waddams

Volume 7 Issue 2 Winter 2008

  • The Future of Breach of Confidence and the Protection of Privacy—Tanya Aplin

Using the impetus of the Human Rights Act 1998, English courts have significantly reshaped the law of confidence in an attempt to better protect privacy. This article argues that there is a persuasive case for no longer utilising the equitable action for breach of confidence and instead recognizing a limited tort of privacy, in the form of misuse of private information. This would minimise any possible risk of distortions to the law of confidence as it relates to non-personal information, accord with current judicial practice, and provide a sound basis for awarding compensation for non-pecuniary harm and exemplary damages. Such a tort would also be suitably confined so as to minimise confusion and would be a constitutionally defensible step for the courts to take. Once a tort of misuse of private information is recognised courts can begin the crucial process of articulating and clarifying the internal principles of such a tort, along with its relationship to the `old' law of confidence.

  • Parliamentary Privilege and the Courts: Questions of Justiciability—Matthew Groves and Enid Campbell

Much of the history of the doctrine of parliamentary privilege is one of dispute between parliaments and the courts. One source of dispute has been the disagreement between parliaments and the courts about which body may make the final pronouncement on questions of parliamentary privilege. The 1839 case of Stockdale v Hansard represented a modern landmark in this dispute because it suggested that parliaments and the courts could occupy different complimentary roles. In Stockdale the court claimed the jurisdiction to determine questions about the existence and ambit of parliamentary privileges, but disclaimed the jurisdiction to rule upon the exercise once it has been held to exist. But the dividing line between a case concerning the existence or ambit of a privilege of parliament and one concerning the exercise of a privilege is difficult to draw. This article examines the basis upon the courts claim the jurisdiction to determine the existence and ambit of parliamentary privileges. It also analyses three modern Australian cases in which courts have been required to rule upon questions of parliamentary privilege. These cases suggest that uncertainty remains about the jurisdiction of courts to rule upon questions of parliamentary privilege.

  • The Need for a 'Standing' Rule in Misfeasance in a Public Office—Erika Chamberlain

This paper examines recent trends in the tort of misfeasance in a public office. Historically considered an `exceptional' tort, misfeasance has been considerably watered down in recent decades. The author argues that the weakening of misfeasance is largely due to the elimination of a `standing' rule, ie, a rule that limits the tort to claimants whose legal rights have been infringed by the defendants' actions. After briefly describing the theory of standing in tort law, the paper surveys those elements of the misfeasance tort that historically limited standing, and how they have been eroded in recent jurisprudence. It then uses the Supreme Court of Canada's decision in Odhavji Estate v Woodhouse to discuss the implications of that erosion, and advocates a restoration of standing rules to maintain the coherence of misfeasance within the doctrinal structure of tort law.

  • Statutory Wills and Testamentary Freedom—Imagining the Testator's Intention in Anglo-Australian Law—Rosalind F Croucher

Testamentary capacity is the defining precept for testamentary freedom; testamentary freedom is at the heart of how we balance concepts of property and the duty towards, and expectations of, family in law. The common law has allowed increasing scope for the exercise of testamentary freedom and the threshold for it is the definition of capacity. Until the creation of `statutory wills'—the ability to make a will for a person under some statutorily authorised scheme — the testator was either: the actual testator, vested with a great moral responsibility in relation to will-making; the default testator in the form of intestate schemes of distribution; or, since the early twentieth century, the court, as morally reconstituted testator, in the exercise of its jurisdiction under family provision legislation. Now there is a new character on the scene: the imagined testator, through the guise of statutory wills. This article examines statutory wills in their broader context and explores some of the challenges they pose in the theoretical landscape of will-making in the common law.

  • 'Flying under the Radar'—The use of Lethal Force against Hijacked Aircraft: Recent Australian Developments—Simon Bronitt and Dale Stephens

The use of lethal force to prevent terrorist attacks raises a range of legal, moral and policy challenges. This note examines recent legislative changes in Australia which empower the military to use lethal force against hijacked aircraft. These special powers are contained in Part IIIAAA of the Defence Act 1903 (Cth), which deals with the `call out' of the military in aid of civil power. These powers to use reasonable and necessary force depart from the conventional criminal law doctrines of necessity and self defence, embracing a broader national security paradigm. This paradigm shift is reflected in the inclusion of powers to use lethal force to protect designated critical infrastructure and a special defence of superior orders. As the note concludes, these reforms reveal the growing influence of international law, particularly the law of armed conflict, on the development of domestic criminal law in Australia.

Volume 7 Issue 1 Summer 2007


  • Privacy, Confidence, Celebrity and Spectacle—The Hon Justice I D F Callinan

Celebrity implies commercial potential readily exploitable by both the celebrity itself and by the media. In this article, the author explores whether this commercial potential can be enhanced by the legal protections privacy could afford. He argues that the law should provide remedies for celebrities to protect their identity and name, which he likens to a brand. He further argues that the traditional tort of breach of confidence is insufficient for these purposes. Instead, he concludes a new tort of intrusion of privacy should be recognised enabling the person entitled to privacy to have significant control over their brand. The author analyses recent legal developments in the United Kingdom, where privacy has entered the realm of tort law through the European Convention of Human Rights, and in Australia, where this tort has not been recognised at the federal level, but where new trends at State level may allow for the recognition of this tort.

  • Continuity and Discontinuity of Aboriginal Entitlement—H Patrick Glenn

Recognition of aboriginal rights and title in Commonwealth courts has flowed from a common law concept of the continuity of the law of acquired territories. Recent decisions of the high courts of Australia and Canada, however, have dealt with the effect of discontinuity in the exercise and enjoyment, by aboriginal peoples, of aboriginal rights and title. The High Court of Australia, relying on positivist legal theory, has concluded that such discontinuity is destructive of aboriginal entitlement, which may be washed away by ‘the tide of history.’ This view, however, is unsupported by prior authority and incompatible with the notion of ‘traditional law’ upon which aboriginal entitlement is based.

  • The Business of Hurting People: A Historical, Social and Legal Analysis of Professional Boxing—Jack Anderson

This paper will assess the response to prize fighting in English law and undertake a current analysis of the status of professional boxing in both criminal legal theory and practice. In assessing the contemporary legal attitude to the sport, the historical and socio- economic factors that informed the development of professional boxing will be outlined, as will the physical, philosophical and ethical concerns provoked by the sport. The underlying question addressed is whether there should be a complete ban on professional boxing or can the sport’s apparently insidious problems – notably corruptive administrative practices and the physical and financial exploitation of its participants – be properly and adequately addressed by regulatory reforms, supported where necessary by legal sanctions.

  • Some Things Borrowed, Some Things New: An Overview of Judicial Review of Legislation under the Charter of Human Rights and Responsibilities—Priyanga Hettiarachi

Victoria’s Charter of Human Rights and Responsibilities Act 2006 is cast in the dialogic mould of human rights legislation. This paper provides an overview of the framework for and implications of judicial review of legislation provided for by the Charter. It does so by reference to instruments on which the Charter is modelled, operating in Canada, New Zealand, South Africa and the United Kingdom. Within Australia, human rights legislation is in force in the ACT; Tasmania and Western Australia are exploring implementing similar legislation. This paper also considers the requirements for a judicial role under international human rights law and, in particular, the International Covenant on Civil and Political Rights, from which the Charter rights are drawn. This paper argues that judicial review of legislation provided for by the Charter can meet the applicable international human rights law requirements.

  • Corporate Social Responsibility— The Case for Unsecured Persons—Helen Anderson

In Australia recently, there has been an examination of the breadth of the directors’ duty to act in the best interests of the company. In the corporate social responsibility debate about the external stakeholders for whom directors should have consideration, unsecured creditors, particularly small trade creditors, are overlooked, perhaps on the assumption that they will have taken precautions against their risk of loss and therefore are undeserving of further compensation. This article will argue that these unsecured creditors are as deserving of protection as other members of the corporate team who combine to ensure the enterprise is a success. It recommends that there be a mandatory provision requiring directors to prioritise the interests of unsecured creditors where the company is on the brink of insolvency. To have any real meaning, the duty must have content that allows its enforcement, and that enforcement should be by the parties affected by its breach.

Book Reviews

  • On Common Laws, by H P Glenn—Eric Descheemaeker

In this highly stimulating short book, Professor Glenn of McGill University revisits the old notion of a common law, including in his study not only the English common law, cradle of the namesake tradition, and the pan-European ius commune, but also the various national or transnational common laws which, until the age of codification, existed (first in Europe and then in the world) in a dialogical relationship with the various local laws that they encountered. Professor Glenn’s book attempts to re-interpret their historical relationship in accordance with the principle of subsidiarity, whereby at every level the general law would defer to the particular. By so doing, the author puts forward an explanatory model of ten centuries of legal developments in terms of layered, ‘relational’ common laws which cohabited harmoniously. This, it is argued by the reviewer, should be regarded as an ideal-type with which much, but clearly not all, of the historical data fits; and whose eirenic nature is probably inseparable from the Québécois context in which the book was written.


Volume 6 Issue 2 Winter 2006


  • Natural Obligations and the Common Law of Unjust Enrichment—Tang Hang Wu

This paper investigates the suggestion by some scholars of the necessity of transplanting the concept of natural obligations into the common law of unjust enrichment. The argument advanced in this paper is that such a legal transplant is undesirable because the concept of natural obligations in the civil law tradition might distort the common law and it is too vague to be used as a general defence. Instead of introducing the concept of natural obligations as a defence, it is suggested the law of unjust enrichment ought to be balanced with the recognition of two defences against restitutionary recovery: money paid pursuant to a time-barred debt and money paid in relation to a gambling loss. In neither case may the money be recovered simply by proving a mistake of law.

  • Financial Assistance around the Pacific Rim—Keith Fletcher

The United Kingdom was the first to introduce the prohibition for companies to give financial assistance for the purchase of their shares. I was also one of the first to produce legislation ameliorating the problems created by such a prohibition. This study of Commonwealth jurisdictions around the Pacific Rim illustrates the extent to which the prohibition of financial assistance was mirrored.  Commonwealth legislatures on the Pacific Rim provide a useful range of legislative responses in this regard. Some appear not to recognise any problem exists with financial assistance; some others have produced workable legislation protecting the interests of the company and shareholders but may not provide adequate protection for creditors, and so on. This article considers the difficulties experienced by jurisdictions in extricating themselves from the original prohibition, as well as some attempts to develop practical solutions to the financial assistance problem. It also queries whether adequate regard is given to the interests of creditors.

  • Goodwill and Stamp Duties: the Legacy of Murry—Ian Tregoning

This article examines the case law regarding the treatment of real property for stamp duty as a result of the landmark High Court of Australia case of FCT v Murry. Before this case, courts were inclined to view site goodwill as part of the land for stamp duty purposes. The concept of goodwill and a study of its key sources is provided, followed by an examination of Murry and what it brings to the understanding of this legal concept. A selection of important cases preceding and following Murry is then examined to show the effect which that case has had on stamp duty cases. While there is evidence of some reluctance by the courts to discard entirely the old jurisprudence on the treatment of goodwill for stamp duty, it is clear that Murry has had a distinct impact on this area of the law in that the courts now view goodwill as separate from land on the sale of a business. This change has particularly affected the application of the ‘land rich’ provisions of the various Australian stamp duties legislation.   

  • Land Law Reform: A Comparative Analysis of South Africa’s Labour Tenancy Contract and Malawi’s Tenant Worker’s Contract—Sibo Banda

This article undertakes a comparative analysis of the South African labour tenancy contract and the Malawian tenant worker’s contract in the context of the land law reform programme instituted in both countries. Historically, both contracts represent mechanisms for access to otherwise inaccessible land. They have been devoid of proprietary rights and secure tenure. However, South Africa, through its land reform programme, has adopted a robust approach towards the infusion of proprietary rights and secure tenure into the labour tenancy contract. The South African approach adjusts ‘the relative positions’ of the farmland owner and the labour tenant, as it moves away from a permits- or personal-rights-based approach to a proprietary, in rem (real) rights approach to land access. Malawi’s land reform programme does not include similar provisions for the tenant worker’s contract. Malawi’s land law reform must undertake similar corrective and appropriate action.

In the Courts

  •  Deutsche Morgan Grenfell Group Plc v IRC [2006] UKHL 49, [2007] 1 All ER 449—Robert Chambers

The House of Lord's recent decision in DMG was keenly anticipated by restitution lawyers as potentially answering the fundamental question whether the English law of unjust enrichment had embraced the continental notion of 'absence of basis' as the key to liability. Instead of answering that question, the decision in DMG may have complicated it. While several of their Lordships expressed cautious support for the ‘absence of basis’ approach, it is noted that the majority's approach to liability for mistake of law may have further entrenched the traditional approach to liability for unjust enrichment based on the identification of 'unjust factors'.

Book Reviews

  • Inside the Mason Court Revolution: The High Court of Australia Transformed, by J L Pierce­—David Robertson

 In this book, J L Pierce examines the nature and scope of the transformation experienced by the Australian High Court under the tenure of Chief Justice Mason. Pierce’s book is a fascinating read and relies on an impressive amount of data, including more than eighty in-depth interviews with the senior judiciary in Australia in the late 1990s. However, Pierce’s anecdotal use of this data is problematic. The book, for example, does not tell us much about the legal culture discussed, the context within which the Mason Court, its predecessors and its successors worked or why the Mason Court was ‘politicised’ as Pierce claims. Instead, Pierce too readily accepts the orthodox’s self-characterisation as non-political, neutral and deriving logical deductions from the mere words of the Constitution. In any event,  questions remain whether there really was a ‘Mason Court’ as such or whether there only was ‘Chief Justice Mason’: a massive judicial intellect who persuaded other judges.

Volume 6 Issue 1 Summer 2006


  • Fairness and Equality in the Criminal Process—Eric Colvin

This paper analyses the concept of fairness and its role in relation to the investigation of offences and the exclusion of evidence. A theory of fairness as equality before the law is proposed. Conditions are elaborated under which unequal treatment in how evidence was obtained may present stronger or weaker claims for its exclusion at trial.  Principles of exclusion are applied to some particular types of evidence:  DNA evidence; evidence obtained by entrapment; confessions covertly obtained by undercover operatives; confessions that are made by intoxicated persons but are nevertheless reliable. Cases from Australia, Canada and England are used as examples.

  • A Green Stick or a Fresh Stick?: Locating Customary Penalties in the Post-Colonial Era—Jennifer Corrin Care

Former colonies and dependencies in the South Pacific do not have the luxury of entirely ‘homegrown’ laws. Their legal systems are burdened with a ‘legacy’ of transplanted laws, developed for use in a foreign country, imposed on pre-existing systems of custom and culture. As a result, many small island countries are struggling to balance the demands of law from different sources, designed to operate in fundamentally different circumstances. In addition to the conflict that occurs in areas of substantive law, where customary and introduced law may prescribe a different rule for the same situation, the two systems differ in their approach to procedure, penalties and relief. This paper considers the divide between the theory and practice of introduced law and customary law and examines the way in which conflicts have been dealt with by the courts. In particular, it uses the example of banishment to illustrate the type of problems that arise in a plural system. The paper looks at the balancing exercise which has been necessary when custom, in the form of banishment, comes into conflict with introduced law, in the form of constitutional rights.

  • Directors’ Duties to Creditors on or Near Insolvency and Duty of Care in the Commonwealth Caribbean: Should the Peoples Decision be Adapted?—Suzanne Ffolkes Goldson

The Peoples decision not only departs from the common law but goes further to state that the statutory oppression remedy under the CBCA is the appropriate vehicle for creditors to sue directors, not for a breach of duty, but for oppressive or unfairly prejudicial conduct towards them or conduct which unfairly disregards their interests. The decision, however, may be hailed in the Commonwealth Caribbean as settling the debate as to whether the statutory fiduciary duty is a codification of the common law fiduciary duty and whether the standard of the duty of care, diligence and skill is objective/subjective or purely objective. This article seeks to explore the issue as to whether the “reformed territories” ought to follow the Supreme Court of Canada decision or to follow the English common law position. Special reference will be made to the Jamaica Companies Act, which differs slightly in its’ approach to the oppression remedy and the St. Christopher and Nevis (St. Kitts) Companies Act which has no similar oppression remedy.

  • Two Models of Constitutionalism and the Legitimacy of Law: Dicey or Marshall?—Luc Tremblay

In this paper, I oppose two models of constitutionalism.  The first model derives from the main tradition of American constitutionalism, at least since Chief Justice Marshall’s reasoning in Marbury v. Madison. I shall characterize it as the “American” or the “Marshallian” model.  The second model derives from the main tradition of British constitutionalism, at least since Albert V. Dicey’s theory expounded in his Introduction to the Study of the Law of the Constitution. I shall characterize it as the “British” or “Diceyan” model.The distinction I wish to emphasize is the folowing: while the first model entails that the basic rules and principles of constitutional law should be conceived as the source of (what should be accepted as) legitimate governmental action and decision, the second model entails that they should be conceived as the consequence of (what should be accepted as) legitimate governmental action and decision.  My purpose is to give some reasons to accept not only that the British or Diceyan model makes sense from a descriptive and from a normative point of view, but that it makes better sense than the American or Marshallian model from both points of view.

In the Courts

  • Panday v Gordon (Trinidad and Tobago) [2005] UKPC 36; [2006] 2 WLR 39—Charles Parkinson

Panday v Gordon is important because it is the first case to interpret section 4(e) of the Trinidad and Tobago Constitution, a unique provision that guarantees ‘the right to join political parties and to express political opinions’. The Judicial Committee held that section 4(e) did not create an absolute defence to defamatory statements made within a political context; nor did it create a defence for defamatory statements made in good faith. The Judicial Committee found it unnecessary to decide the effect, if any, of section 4(e) upon the common law of defamation. It implied, however, that section 4(e) would have limited impact. The wider interest of Panday v Gordon is that it is one of the few cases that consider the relationship between the fundamental rights in section 4 and the common law.

  • Massey v Wales; Massey v Cooney (2004) 47 ACSR 1—Charles Zhen Qu

In the recent case Massey v Cooney the New South Wales Court of Appeal encountered the exact question as to whether a deadlock in the board enables the general meeting to exercise its reserve powers to ratify an unauthorized proceeding initiated in the name of the company where the management of the company was given to the board through an article that was identical to reg. 66(1).  It is therefore worthwhile to take a look at the decision in this case and consider in what ways it will impact on the development of the jurisprudence on the division of corporate powers in Australia.  The note is organized into three parts. Part B introduces the facts of the case. Part C examines how this case was decided. Part D evaluates the judgment of Hodgson J.

Volume 5 Issue 2 Winter 2005


  • Justifying the Impossibility of Recoverable Relational Economic Loss—Russell Brown

‘Relational economic loss’ is a term which the Supreme Court of Canada has adopted to describe pure economic loss resulting from physical damage to a third party’s property or person. Although it has generally been excluded from recovery, the court and its Commonwealth counterparts have struggled with the exclusionary rule. At present, Canadian tort law recognises three ‘exceptional’ categories of ‘recoverable’ relational economic loss as being sufficiently proximate to the defendant’s negligence to merit recovery. By viewing each of these three categories through a lens privileging property rights, notably that recently described by Allan Beever in this law journal, I consider how the loss alleged in each case is not ‘relational’ at all, but rather direct actionable harm to the plaintiff’s right. In doing so, I suggest that the distinction between personal and property rights furnishes a reference by which the range of protected economic interests can be extended in a coherent and rational manner.

  • The Revenge of the Arcane Exclusion Clause: The Civil Registration of Marriage and the Royal Family—Noel Cox

In the weeks after the announcement of the wedding of the Prince of Wales and Mrs Camilla Parker Bowles speculation arose as to the legality of the proposed marriage. The central issue in determining whether the widowed Prince of Wales could lawfully marry divorcee Mrs Camilla Parker Bowles in a civil ceremony was whether the Marriage Act 1949 applied to the marriage of members of the Royal Family. Both the Marriage Act 1836 and the Marriage Act 1949 appeared to expressly exclude from the application of each Act members of the Royal Family. This raised significant questions about the ways in which laws have been changed over time to address particular constitutional and political concerns, and the extent to which changing values and political grundnorms invalidate the original premises upon which these changes were based, leaving laws which are neglected, misunderstood and often inconvenient for all concerned.

  • Contributory Fault and Breach of Trust—Gary Watt

New Zealand and Canadian courts are willing to reduce the liability of a fiduciary for breach of fiduciary duty to take account of the claimant’s contributory fault, whereas English and Australian courts are not.  The picture is less clear as regards breaches of trust not involving a breach of fiduciary duty, such as merely careless breaches of trust. English courts have assumed that there is no scope in any case of breach of trust for reducing trustee liability to take account of the beneficiary’s contributory fault, but this paper demonstrates that there is no binding authority to that effect. In the absence of authority the matter falls to be determined as a matter of principle. There are a number of obstacles of principle in the way of apportionment of liability between trustee and beneficiary on the ground of contributory fault. One significant obstacle is the basic difference between the compensatory aim of tortious liability and the traditional aim of trustee liability to reinstate the trust fund by means of the action for account. Another is the exemplary nature of trustee liability, which favours the enforcement of trust obligations even where this might over compensate individual beneficiaries. Significant though these obstacles are, it is demonstrated that they can be overcome in the case of a careless breach by the trustee of a bare trust. In such a case there is no significant difference between the conceptual basis for, and remedies for, negligently caused harm in tort actions and actions for breach of trust. The trustee’s fault-based liability in such a case should therefore be capable of reduction to take account of the beneficiary’s own fault.

  • Public Law Values and the Politics of Criminal (In)Justice: Creating a Democratic Framework for Policing in Kenya—JM Migai Akech

This article assesses the effectiveness and legitimacy of Kenya’s policing framework by reference to the extent to which it promotes public law values, especially public participation and accountability.  In doing so, the article questions the adequacy of the existing legislative and institutional mechanisms for the accountability of the policing apparatus, whether public or private.  The article advances two principal arguments.  First, it argues that Kenya’s policing framework is ineffective largely because it is executive-dependent, undemocratic and inequitable. And because it is undemocratic, it lacks legitimacy, which is a fundamental prerequisite for effective policing.  Secondly, it argues that Kenya’s public law framework is not suitable for the creation of an effective and democratic policing apparatus in the “contracting state.”  As a result, public-private partnerships for crime prevention and control, which are necessary given the limited resources of the Kenya Police Force, will not be effective in the absence of democracy-enhancing legislative and institutional reforms.  Indeed, in the absence of such reforms, the growing private policing regime will only serve to perpetuate citizen perceptions of injustice to the detriment of governmental legitimacy.

  • Towards Effective Control and Management of Land in Nigeria: A Re-Evaluation of the Land Use Act (1978)—Muiz Banire

This paper examines the land tenure regime in Nigeria before and after the promulgation of the Land Use Act 1978. It also examines the efficacy of the provisions of the Act relating to the control and management of land in Nigeria. This is with a view to determining whether or not those provision are adequate to achieve the aims of the Act, which was expressed to be promulgated with a view to curing the defects of the previous tenurial regimes.

Legislative Notes

  • Case-Management in Singapore: A Study of its Development and Contrast to the Systems in Malaysia and England—Jeffrey Pinsler

This article concerns recent reforms in Singapore and Malaysia affecting case management in civil litigation. Although these countries are neighbours and used to share a common system of procedure (based on the former English Rules of the Supreme Court, 1965), developments over the last 10 years concerning curial intervention in these jurisdictions have been quite different. Furthermore, in an unprecedented break with the long tradition of emulating English reforms, both Singapore and Malaysia have not followed the English Civil Procedure Rules (introduced in 1999), preferring instead to tackle the modern challenges of civil litigation within the framework of existing rules. The extent to which the respective methods have succeeded will be examined in the course of the article.

  • >Finality and the Enforcement of Foreign Judgments Under the Common Law in Hong Kong—Philip St John Smart

The enforcement of foreign judgments is an essential pillar of any system of the conflict of laws.  The common law cases have long required that a foreign judgment must be ‘final’ to be enforceable.  In the leading nineteenth century decision of the House of Lords in Nouvion v Freeman, Lord Watson stated that a foreign judgment must be ‘final and unalterable in the court which pronounced it’.  Lord Watson’s dictum has often been relied upon in later cases, including a number of recent decisions in Hong Kong in which judgments of the courts of Mainland PRC were denied recognition on the basis of a lack of finality.  Nevertheless, this paper argues that Lord Watson’s dictum is not an appropriate test for finality.  Drawing on case law from, in particular, Canada, Australia, and England, the paper seeks to explain the ratio in Nouvion v Freeman and proposes a test for finality which is consistent with both theory and practice. 

Book Reviews

The Australian Constitution: A Documentary History, by J M Williams—George Williams

Volume 5 Issue 1 Summer 2005


Law and Economic Development: The Supply of Precedents in Ghana—Frederick Owusu Boadu                                                                                            

A Commonwealth of Legal Ideas: The Influence of Richard Wilberforce on New Zealand Law—Peter Spiller

Embodied Dignity—Robert Leckey

Putting Asunder: Divorce and Financial Relief in Solomon IslandsKenneth Brown and Jennifer Corrin Care

Statutory Limitation Periods and the Traditional Representative Action Procedure—Vince Morabito

In the Courts

Justified Enrichment—Robert Stevens

Book Reviews

The South African Law of Evidence, by DT Zeffertt AP Paizes and A St Q Skeen—Colin Tapper

Volume 4 Issue 2 Winter 2004


Tribute to Professor Birks—James Edelman, Steven Elliott, Susan Gibbons and Elizabeth Stone


  • The ‘Westminster Model’ Constitution Overseas: Transplantation, Adaptation and Development in Commonwealth States—Andrew Harding

This article discusses the adoption, usage and modification of the ‘Westminster Model’ constitution throughout the Commonwealth. In doing so, what is meant by the term ‘Westminster Model’ constitution is initially discussed. From that position, various Commonwealth Countries’ constitutional arrangements are compared in relation to whether they are reliant on a written or unwritten constitution; whether they have relied upon parliamentary sovereignty or constitutional supremacy; how the model has been adopted if the country is a unitary or federal state; whether the country has relied upon a head of state or head of government; the differing political systems’ interaction with the model and the role of political parties; and, the role of the judiciary and whether it is normal for them to rule on the constitutionality of legislation and executive actions. This comparison shows the wide variety of diversity of constitutional arrangements and puts forward some reasons why this exits.

  • Vicarious Liability and Charitable Immunity in Canadian Sexual Torts Law—MH Ogilvie

In this article, the author examines recent developments in the Canadian law of vicarious liability for child sexual and physical abuse committed by employees, and analyses the implications of the same. Traditionally, the imposition of vicarious liability for certain acts has been premised on an application of the "Salmond close-connection test" requiring a connection between the employee’s tortious act and the employer’s authorisation. Recent judicial dicta in Canada, which have since been adopted by the House of Lords, seem to suggest that the common law has abandoned the traditional test in favour of modern variants that depend more on policy—deterrence, fairness and compensation. The author analyses the implications of this shift and concludes that an unprincipled reliance on compassion as a guiding criterion in sexual abuse cases has the effect of undermining certain fundamental principles on which the common law was constructed and on which social life has since come to depend.

  • Bills of Rights in Australia—Thomas Poole

This article examines Australia’s first Bill of Rights: the Human Rights Act for the Australian Capital Territory (ACT). The sponsors of the Act hope that it will act as a model for future developments elsewhere in Australia. The article considers the background to the Act and assesses the credibility of the provisions it contains for pre- and post-legislative scrutiny. Comparisons are drawn throughout with the UK Human Rights Act 1998, which provided the primary model for the ACT provision.

In the Courts

  • The Death Penalty as Cruel and Inhuman Punishment Before the Singapore High Court? Customary Human Rights Norms, Constitutional Formalism and the Supremacy of Domestic Law in Public Prosecutor v Nguyen Tuong Van (2004)—Li-Ann Thio

The Singapore High Court in Public Prosecutor v Nguyen Tuong Van (2004) considered the controversial issue, relating to the mandatory death sentence under the Misuse of Drugs Act, of whether capital punishment violates the constitutional right to life and equal protection laws, and human rights norms against cruel and inhuman punishment embodied in article 5, Universal Declaration of Human Rights. While affirming the direct applicability of customary international law within the domestic legal order, the Court, considering decisions from India, UK, the Privy Council and International Court of Justice, concluded there was no international consensus that death by hanging breaches the prohibition against cruel, inhumane treatment. In an age where domestic courts are increasingly having ‘transnational judicial conversations on constitutional rights,’ this article analyses Nguyen to elucidate the dominant constitutional adjudication approach and evaluate the persuasive quality of foreign decisions and human rights norms in interpreting Singapore constitutional liberties.

Book Reviews

Understanding Unjust Enrichment, by JW Neyers M McInnes and SGA Pitel (eds)—Rebecca Williams

The Unity of Public Law, by D Dyzenhaus (ed)—Patrick Birkinshaw

Volume 4 Issue 1 Summer 2004


  • The Treaty of Waitangi: A Text for the Performance of Nation

This article evolved out of a paper presented at the Performance Studies International Conference, held at the University of Canterbury in 2003.  It portrays the Treaty of Waitangi – New Zealand’s instrument of cession and founding document – as a “text for the performance of nation”.   The article records the differing Maori/ Pakeha reception of the Treaty and traces official and judicial attitudes towards the instrument at different stages of New Zealand’s development.  It identifies the developing Treaty jurisprudence and observes how the Treaty has acquired different symbolic significance in response to changing expectations.  The article challenges the received wisdom that the Treaty is haphazard and contradictory in content, drafted by “amateurs” who lacked qualification or training.  The Treaty derives legal and historical coherence from its affinity to background common law concepts, which the Courts to the present day have repeatedly affirmed.

  • A Rights-based Approach to the Recovery of Economic Loss in Negligence

The following two claims are widely accepted: first, the ordinary principles of the law of negligence imply recovery for economic loss limited only by foreseeability and, second, such recovery is unacceptable. Hence, the task of legal scholarship has been to discover appropriate policy justifications for restricting the ordinary principles of the law. This, perhaps, has been the most pressing problem facing analysis of the law of negligence in recent times. This article accepts the second claim but rejects the first. That is, it argues that recovery for many kinds of economic loss is inconsistent with the ordinary principles of the law of negligence. This has been obscured, because it has largely been forgotten that the law of negligence is not an area of the law sui generis. Negligence is part of tort which is in turn part of the private law. The principles of negligence, then, are meant to operate in conjunction with principles from other areas of law. When the place of tort law within the private law as a whole is remembered, the problem of economic loss evaporates.

  • Privative Clauses and the Australian Constitution

This article focuses on the recent Australian High Court decision of Plaintiff S157/2002 v Commonwealth [2003] HCA 2 and the implications this decision has for the use and interpretation of privative clauses in Australian law.  In this decision the High Court considered a privative clause inserted into the Migration Act 1958 in 2001.  While the Court did not go so far as to strike the clause down for non-conformity with the Commonwealth of Australia Constitution, it did construe the clause narrowly in light of what it regarded as constitutional imperatives, leaving limited scope for the enactment of legislation to limit the scope for judicial review of administrative actions.  The Court’s approach may prove to be of relevance in interpreting similar clauses in other Commonwealth jurisdictions which lack a paramount written constitution.

  • Evolving Constitutional Protection in the Caribbean Commonwealth and the Judicial Committee of the Privy Council


 This article examines the use of the death penalty in the Caribbean.  The Judicial Committee of the Privy Council retains jurisdiction in eleven of the independent English-speaking Caribbean countries and has handed down a number of judgments which frustrate the reintroduction of the death penalty in many countries.  An example of such a decision is that of Pratt v Attorney-General of Jamaica [1994] 2 AC 1 (PC) in which the Privy Council held that the holding of prisoners for an inordinate amount of time on death row, in addition to execution, could amount to inhuman and degrading punishment.  The article examines the way in which the Privy Council has given life to existing constitutional protections thereby ensuring that the application of the death penalty in the Caribbean walks in tandem with the evolving standards of decency.

Recent Developments

  • A Fracture in the Family: Zimbabwe and the Commonwealth


In this piece, Duxbury explores the implications of Zimbabwe’s decision to leave the Commonwealth in December 2003 within the context of international institutional law.  The article analyses the informal constitutional structure of the Commonwealth and the criteria that have been used to determine membership and exclusion.  It also discusses withdrawal in the context of international institutional law more generally and questions whether the adoption of a policy of inclusion versus exclusion is the most appropriate method of dealing with errant members.

  • The Emergence of Neutral Citation


This article explores the introduction of neutral citation, which has emerged as a dominant mode of identification for court judgments since the 1990s.  It focuses on developments in the United Kingdom, Australia, New Zealand, Canada and the United States of America.

Book Review

Civil Procedure, by A.A.S. Zuckerman


Volume 3 Issue 2 Winter 2004


  • The Common Law at Work: The Saga of Panatown Ltd v Alfred McAlpine Construction Ltd


This essay is an expanded and revised version of the author's inaugural lecture at the University of Oxford. It examines the litigation which culminated in the House of Lords' decision in Alfred McAlpine Construction Ltd v Panatown Ltd from three different perspectives. First, it locates the case in its transactional context. Secondly, it examines some of the procedural issues that arose out of the litigation. It is argued that an understanding of the underlying transaction and of the procedural choices made by the parties sheds significant light on the issues of substantive law raised in the case. Thirdly, the essay examines the most important issue of legal principle that arose on the facts of the case, namely the nature of the rights conferred on a promisee by an enforceable promise. It is argued that the promisee has a right to the promised performance itself, and not merely to the economic value of performance. The law should recognize this right in clear and unequivocal terms. This can best be done by recognizing that the aim of an award of damages is to provide the claimant with an appropriate substitute for the performance for which she contracted.

  • Extra-Judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa


The separation of judicial power is constitutionally entrenched in both Australia and South Africa. In deciding whether extra-judicial service on the part of judges is in breach of the separation between the judiciary and the other arms of government the Constitutional Court of South Africa has followed the approach of the High Court of Australia. The test used is whether the function performed by the judge is incompatible with his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. In this paper the author criticizes the incompatibility approach, arguing that a blanket ban on the performance of non-judicial functions by judges would better serve the interests which underlie the separation of judicial power.

  • Equity and Unregistered Land Rights in Commonwealth Registration Systems


This paper examines one specific problem in the relationship between property rules of common law and statutory systems for registration of property interests. It examines how registration schemes affects the status of unregistered rights which, at common law, would constitute property rights. Many countries’ registration schemes cover this issue by an express ‘sterility section’. The paper traces the interpretation of the sterility section from early English shipping statutes to its incorporation into land registration statutes of Australasia, former African colonies, and eventually Caribbean territories. The history of the sterility section provides the opportunity to look at divergent judicial approaches taken in different jurisdictions during different times, each within a different statutory matrix. The cases considered here are of interest in reflecting different attitudes to the facility with which a statute should be interpreted as rendering equitable rights unenforceable, and the resilience of equity against statutory interference with settled doctrine.


  • Putting Away Childish Things: An Argument for Cohesion After the Privy Council


With its recent enactment of the Supreme Court Act 2003, the New Zealand Parliament has abolished New Zealand appeals to the Judicial Committee of the Privy Council. This change will present very real options for New Zealand’s new final Court as to where it will steer the development of New Zealand’s domestic jurisprudence. The Privy Council has provided coherence and, to a high degree, consistency of developing principle across state boundaries. Its value for the international rule of law has had a symbolic importance internationally that transcends the objective significance of particular decisions. The final courts of the Commonwealth, the Supreme Court of New Zealand among them, should strive deliberately, not only to identify and do full justice to the identity and values of their own people, but to maintain and develop an ever-improving international jurisprudence within the domestic law of the sovereign states. The shared, largely common law tradition of Commonwealth members should facilitate a trend that the world community badly needs.

This paper, divided into two thematically integrated parts, offers a reconstruction of the conceptions of law that matured in 17th century English jurisprudence. Part 1 begins with a brief sketch of the development of the common law from the 12th to the 17th centuries. Mature common law theory took as central the idea of law as 'reasonable usage' which combined, not without tension, the ideas of law as common custom of the realm and law as common reason. Part 1 explores competing understandings of these ideas, and the distinction introduced by Sir Edward Coke between 'natural reason' and the special 'artificial reason' of the law. In Part 2, the author analyses this notion of law's 'artificial reason', and discusses the role of natural law and positivist ideas in common lawyers' view of the normative foundations of law. Sir Matthew Hale's sophisticated attempt to reconcile the tensions evident in his inherited conception of law is a special focus of this section.

In the Courts

A Half-Way Challenge to Malaysia’s Internal Security Act (Mohamad Ezam Bin Mohd Nor v Ketua Polis Negara)--John D Ciorciari

Review Article

English Private Law, Outside In--Nicholas Kasirer

Volume 3 Issue 1 Summer 2004


  • Classical Common Law Jurisprudence (Part II)

    This paper, divided into two thematically integrated parts, offers a reconstruction of the conceptions of law that matured in 17th century English jurisprudence. Part 1 begins with a brief sketch of the development of the common law from the 12th to the 17th centuries. Mature common law theory took as central the idea of law as 'reasonable usage' which combined, not without tension, the ideas of law as common custom of the realm and law as common reason. Part 1 explores competing understandings of these ideas, and the distinction introduced by Sir Edward Coke between 'natural reason' and the special 'artificial reason' of the law. In Part 2, the author analyses this notion of law's 'artificial reason', and discusses the role of natural law and positivist ideas in common lawyers' view of the normative foundations of law. Sir Matthew Hale's sophisticated attempt to reconcile the tensions evident in his inherited conception of law is a special focus of this section.

  • A Commonwealth Judge at Work: Lord Cooke in the House of Lords and Privy Council

    This article examines the work of a New Zealand judge, Lord Cooke, during his career as Lord of Appeal. In the Privy Council he heard a range of Commonwealth cases, and in the House of Lords he was the first Commonwealth judge to sit on United Kingdom appeals. Lord Cooke had extensive legal experience in New Zealand, England and other parts of the Commonwealth, and so provided the Lords of Appeal with first-hand insights into different ways of solving common legal problems. His humanity and intellect produced a brand of judging that was at once straightforward and learned. He showed a readiness to develop the law where this was appropriate, and his decisions were characterized by legal principle, pragmatism and justice. These attributes were revealed, for example, in Higgs v Minister of National Security, a Privy Council appeal from Jamaica. Lord Cooke left a valuable legacy for British and Commonwealth courts.

  • The Place of English Law in Kenya

    The reception of English common law is undoubtedly one of the most profound developments in Kenyan legal history. Examining that process in retrospect, this paper attempts to delineate the sector of English law and its interplay with other sources of law, particularly in the context of internal conflicts of law in the Kenyan legal system. Moreover, it reviews case law and academic opinion and considers several controversial issues on the subject. Indeed, it is evident that the applied English law is a principal source of law in Kenya and continues to play such a crucial role in the administration of justice that its proper scope and operation need to be clearly appreciated.

  • The Shifting Sands of Negligence: Reasonable Reliance to Legitimate Expectation?

    This article analyses recent developments in negligence in the High Court of Australia, with an emphasis on medical negligence. It is suggested that the conceptual foundation of negligence is, in some cases, shifting from reliance to expectations. The basic elements of negligence-duty, breach and causation-are being redefined in order to play a slightly different role. While reliance and expectations may be two sides of the same coin, this paradigm shift needs to be recognized in order to facilitate a coherent, principled development of the tort of negligence.

In the Courts

A Mouse is a Mouse is a Mouse: A Comment on the Supreme Court of Canada's Decision on the Harvard Mouse Patent (Harvard College v Canada (Comr of Patents))--Teresa Scassa

The Place of Publication of an Internet Libel (Dow Jones & Co Inc v Gutnick)--Michael Hall

Asylum, Exceptional Leave to Remain and the Right of Appeal (Saad v Secretary of State for the Home Dept)--Helene Lambert

Book Reviews

Australian Citizenship Law in Context, by Kim Rubenstein--Justice Susan Kenny

Volume 2 Issue 2 Winter 2004


  • Classical Common Law Jurisprudence (Part 1)

    This paper, divided into two thematically integrated parts, offers a reconstruction of the conceptions of law that matured in 17th century English jurisprudence. Part 1 begins with a brief sketch of the development of the common law from the 12th to the 17th centuries. Mature common law theory took as central the idea of law as 'reasonable usage' which combined, not without tension, the ideas of law as common custom of the realm and law as common reason. Part 1 explores competing understandings of these ideas, and the distinction introduced by Sir Edward Coke between 'natural reason' and the special 'artificial reason' of the law. In Part 2, the author analyses this notion of law's 'artificial reason', and discusses the role of natural law and positivist ideas in common lawyers' view of the normative foundations of law. Sir Matthew Hale's sophisticated attempt to reconcile the tensions evident in his inherited conception of law is a special focus of this section.

  • Unjust Enrichment: A Middle Course?

    The author argues that three distinct camps are emerging within the academic debate on unjust enrichment. Two are well-known. There is a broad view of unjust enrichment, which defends an expansive theory uniting disparate areas of liability. The sceptical view denies the utility of this theory, seeking other explanations for these liabilities. The author suggests that a distinct middle ground, here called the 'narrow view' of unjust enrichment, is emerging. This view draws a distinction between direct restitution (where the claimant directly conferred a benefit on the defendant), and indirect restitution (where the defendant was enriched in some other way). The narrow view accepts the principle against unjust enrichment as the explanation of direct restitution. However, it also accepts the sceptical criticisms of indirect restitution, holding that those cases cannot be explained by the same concepts as the direct cases. The narrow view, the author argues, is gaining in strength, both as a position explicitly argued for, and as the de facto resort of text writers unable to explain the direct and the indirect within the same framework of ideas.

  • The Right to Free Legal Representation and the Constitutions of the Commonwealth Caribbean

    In the region of the Commonwealth Caribbean the provision of legal aid to those charged with serious criminal offences is by no means automatic. However, the Privy Council has recently held in Hinds v AG that the right to a fair hearing, which is guaranteed by section 18(1) of the Constitution of Barbados, requires that in certain circumstances a defendant who is charged with a criminal offence must be afforded free legal representation. In a number of other jurisdictions, judicial recognition of a fundamental right to free legal representation has had a profound impact on the provision of legal aid. Hinds v AG is thus potentially a very important decision. This article describes the current provision of legal aid in criminal matters in the region and, using a comparative approach, seeks to evaluate the significance of Hinds v AG and its potential impact on the provision of legal aid in the region.

  • After the Charter: Religious Free Expression and Other Legal Fictions in Canada

    Since the coming into force of the Canadian Charter of Rights and Freedoms in 1982, the Charter religion provisions have been interpreted by the appellate courts as erasing religion from public spaces and institutions in Canada, including schools, workplaces, work weeks, criminal laws and public state events. In Trinity Western University v British Columbia College of Teachers, the Supreme Court of Canada most recently confirmed that religious free expression may only be enjoyed in private places such as religious institutions, religious schools and colleges and the family, but may not be exercised in public spaces and institutions when such expression conflicts with State or 'Charter values' as pronounced by the courts in the Charter jurisprudence. The decision confirmed that the section 15 'equality' rights of gays and lesbians to be treated exclusively in a positive fashion overrides the section 2(a) freedom of religion and section 15 equality rights of Christian university teaching degree graduates seeking employment in public schools to express religious views. The court adopted a belief-conduct distinction to privatize and stigmatize religious expression at variance with state values.

  • The Theory of Sovereignty and the Importance of the Crown in the Realms of the Queen

    As a general rule, in those countries which acknowledge Elizabeth II as Queen, the legal and political entity known as the Crown is legally important because it holds the conceptual place held by the State in those legal systems derived from or influenced by the Roman civil law. Not only does the Crown provide a legal basis for governmental action, but it provides much of the legal and some of the political legitimacy for such action. At the most abstract level, the absence of an accepted concept of the State in England required the Crown to assume the function of source of governmental authority. This might be called the conceptual or symbolic role of the Crown. This tradition has been followed in New Zealand, as it has everywhere the Crown has been established. The physical absence of the person of the monarch prevented an undue emphasis upon personality, and encouraged the development a more conceptual-if not principled-view of the Crown.

In the Courts

The Common Law of the Realm (Commonwealth of Australia v Yarmirr)--Damien J Cremean

Lord Cooke of Thorndon's Final Appeal (Delaware Mansions Ltd v Westminster City Council)--Jason Neyers

Mistake of Fact and Change of Position: Sound Advice from the Privy Council? (Dextra Bank & Trust Company Limited v Bank of Jamaica)--
Elise Bant and Peter Creighton

Legislative Note

Muddy Waters-Legislative Competence and the International Criminal Court in Scotland--Pahul Arnell

Book Reviews

Gain-Based Damages, by James Edelman--LORD MILLETT


Volume 2 Issue 1 Summer 2004


  • Failure of Consideration and its Place on the Map

    The decision of the High Court of Australia in Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68, (2001) 185 ALR 335 is both interesting and controversial. The result was that, even though they had already passed it on to consumers, cigarette retailers were able to reclaim from wholesalers a tax which had been declared unconstitutional after the wholesalers had collected it from the retailers but before they had paid it over to the government. Here the author first asks whether the majority was right to hold that the retailers could recover their money as paid upon a consideration which subsequently failed. He then turns to the opinion expressed by Gummow J that Australian law has no law of unjust enrichment and regards failure of consideration as falling within the larger category of unconscionable conduct. He argues that the rejection of unjust enrichment is ill-founded and that any legal system which adopts such a view is likely to find itself in a cul de sac.

  • The Common Law of Native Title in Australia

    The historical colonization of inhabited territories raises a question which is pressing and difficult for many contemporary societies. Can the law of the colonizers accommodate the traditional relationship of indigenous people to land and waters within the territory? This article discusses this question in the Australian context. In particular, the authors examine the evolution of the common law in Australia, post-Mabo, through a series of important decisions of the High Court, and also within the statutory framework created by the Native Title Act 1993 (Cth). The article, co-authored by Justice French, offers the informed and thoughtful insights of one of the most eminent justices dealing with native title issues in Australia, and provides a fascinating account of the nature of recognition of native title and, particularly, those circumstances giving rise to the extinguishment and suppression of native title rights and interests.

  • Setting Aside Guarantees: Another Approach

    This article examines the recent decision of the House of Lords in Royal Bank of Scotland plc v Etridge (No 2)-a case concerning the law and procedures applicable to situations where a wife charges her interest in property to guarantee her husband's borrowing. It considers the extent to which their Lordships are successful in their attempt to balance the interests of both lenders and guarantors in such situations, having particular regard to the paramount need for the law in this area to be clear, simple and practically operable. The author contends that, as measured against their own objectives, the House of Lords have fallen short in a number of significant respects. When analysing the problematic areas in the Etridge decision, the author articulates his own preferred approach as to those circumstances in which guarantees should be permitted to be set aside, and in so doing, draws in part upon the jurisprudence of other Commonwealth jurisdictions and their treatment of the law of guarantees.

  • Legal Constructions of Life and Death in the Common Law

    This article examines the legal concepts of life and death. The common law has a central role in creating a language for the description of life and death, which transcends medical and biological discourses. After reviewing the legal history of concepts of life and death, the article focuses on the modern problem of the 'living dead', people who are trapped in a limbo world between biological death and life. This current controversy serves to emphasize law's role in mediating disputes about when death occurs and how it should be allowed to occur. The article argues that such disputes needs to be understood as part of this wider history, so it is possible to appreciate the wider social and political forces at work in these decisions.

  • Deeds and the Principles of Authority in Agency Law

    The general rule of agency law is that a principal is bound to a contract purportedly made by an agent without, or in excess of, authority only if the principal has held out the agent as having authority and the promisee knew of, and relied on, that holding out. The common law recognizes a number of exceptions. This article is primarily concerned to revivify an exception directed to deeds. Under the exception, the principal is liable on a deed where it is correct in form and has been executed by persons of the requisite standing, notwithstanding that those persons have acted without proper authorization. The need to defend the exception arises from its rejection by a majority of the High Court of Australia in Northside Developments Pty Ltd v Registrar-General. The exception remains important notwithstanding that in leading Commonwealth jurisdictions it has become overlaid by a range of statutory developments.

In the Courts

Entrapment and Criminal Justice: R v Looseley and Attorney General's Reference (No 3 of 2000)--Andrew Ashworth

The Legal Significance of the Place of a Tort: Regie National des Usines Renault SA v Zhang--Adrian Briggs

Throwing the Baby Out with the Bathwater: An Antipodean Perspective on Claims for Failed Sterilisation (Melchior v Cattanach)--
John Devereux

Book Reviews

Indigenous Difference and the Constitution of Canada, by P Macklem--Richard Bartlett

Volume 1 Issue 2 Winter 2004


  • Res Judicata and Theories of Law

    In the case of unconstitutional provisions, courts have historically been reluctant because of pragmatic considerations to have their decisions apply retroactively, despite the logical arguments in favour of retrospective application of the law. However, the current legal position in England on res judicata is now slightly more favourable to retrospective application of the law than it was before the mid-point of the twentieth century. This is an example of how exclusive legal positivism may have become less descriptively accurate than it once was, and it illustrates how common law courts resist rigidity and closure in an attempt to avoid gross injustice or manifest absurdity. Consideration of the res judicata doctrine, particularly in the area of public law adjudication involving jurisdictional questions, may reveal how the operative concept of law has changed over time, so that defeasibilism, which requires laws to satisfy not only tests of pedigree but also some criteria of justice or sense, may now be a more accurate description of the law than is exclusive legal positivism.

  • 'Aussie Rules' on the Boundaries of Copyright Protection in Factual Compilations

    This article compares and contrasts the approaches taken in recent Canadian, American and Australian judicial decisions in respect of the test of 'originality' in factual compilations. Whereas leading decisions in Canada and the United States have adopted a 'creativity' test for copyright protection in factual compilations, a recent Australian Federal Court decision has taken a diametrically opposed perspective. The Australian court remained faithful to a more traditional copyright paradigm that would posit that mere 'industrious collection' would be sufficient to grant copyright protection in a factual compilation. The author argues that, in so doing, the Australian court brought to the fore the dangers of setting too low a threshold for originality in factual compilations.

  • Human Rights Litigation in the Hong Kong Special Administrative Region

    In recent years, jurisdictions across the common law world have witnessed dramatic developments in the area of human rights law. Hong Kong stands as no exception to this general trend. In certain fundamental respects, however, the particular legal and political framework within which human rights and allied constitutional issues have arisen and are being addressed by the courts in Hong Kong does stand as both unique and deserving of special attention. This article provides an account of this framework, its history and nature, and the emergent corpus of human rights jurisprudence that has arisen within it. In light of the author's first-hand experiences with the adjudication of such human rights litigation, the article also contains valuable and detailed discussion of the court system which exists and which continues to be developed in Hong Kong in respect of human rights law; the types of issues that the courts have been faced with; and the ways in which they have been addressed, including recourse by courts in Hong Kong to decisions of other jurisdictions.

  • International Legal Trends and the 'Mandatory' Death Penalty in the Commonwealth Caribbean

    Until the landmark decision of the Eastern Caribbean Court of Appeal in Hughes and Spence v The Queen, the conventional wisdom was that the mandatory imposition of the death penalty could not be challenged as unconstitutional in Commonwealth Caribbean countries. In particular, the savings clauses contained in Caribbean constitutions appeared to prevent any such challenge. This article examines the death penalty as practised in the Caribbean, and how the decision in Hughes has liberated the courts to adopt a more dynamic and revolutionary approach to constitutional interpretation. The article also describes how the courts are now entitled, if not obliged, to consider developing international standards, and how the courts should not be bound by former decisions that are inconsistent with current norms of international human rights law.

  • Protecting Parties' Reasonable Expectations: A General Principle of Good Faith

    The article argues for the adoption of a general principle of good faith in contract law, with references to Australian, Canadian, New Zealand, and Singaporean developments. First, policy reasons for a good faith principle are proffered. Second, an analysis of some traditional doctrines is used to show how good faith permeates common law extensively, though it is not explicitly recognised. Third, recent developments in England and the Commonwealth are consolidated, reflecting the international movement towards good faith. Fourth, resistance-the 'repugnancy' thesis (ie, such principle has negative impact) and the 'pragmatic' thesis (ie, common law can cope without such principle)-is discussed and examined in light of the case law in the various jurisdictions. Furthermore, as the content of good faith seems elusive, this article suggests that parties' reasonable expectations should be the controlling factor, and suggests an interpretation. Moreover, it highlights how a good faith principle was a let-down in insurance contracts, and the cautionary lessons to learn from that experience.

  • Governmental Vicarious Liability for the Acts of Off-Duty Officials in Botswana

    The Botswana legal system, like most legal systems in the world, recognises some form of governmental liability for the wrongs committed by public officials. The general tendency has been to limit such liability to wrongs committed by officials in the course of and within the scope of their employment. However, in recent years, the courts have been confronted with cases of wrongs committed by public officials, especially police officers, who were off-duty. This article analyses the different court decisions in this area and concludes that there is no clear rational basis on which liability was either imposed or excluded. It therefore argues that there is need for existing legislation to be revised to, inter alia, expressly extend governmental liability to cover the off-duty wrongs of specified government officials in certain situations where experience has shown that there is a risk to the public.


The Act of Settlement and the Questionable History of Judicial Independence--Robert Stevens

In the Courts

The One Per Cent Case: Yougarla v Western Australia--Joshua Thomson

Children and Contributory Negligence in the Law of Tort: Vanterpool v Wigley--Zanifa McDowell

Book Reviews

The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth, by D Clark and G McCoy--Justice Robert J Sharpe

The Right to Property in Commonwealth Constitutions, by T Allen--JW Harris

World Jury Systems, by N Vidmar (ed)--Gwynn Davis

Volume 1 Issue 1 Summer 2004


The Rt Hon The Lord Goff of Chieveley


  • The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation
    DAVID DYZENHAUS (Professor of Law and Philosophy, University of Toronto), MURRAY HUNT (Barrister, Matrix Chambers London) & MICHAEL TAGGART (Professor of Law, University of Auckland)

    Courts throughout the common law world have for some time given effect to international legal obligations (especially human rights norms) by way of administrative law doctrines and techniques. This development has set off alarm bells among traditionalists, as they perceive this gives the executive new powers and/or the judiciary too much power.

    We argue that the answer to such legitimacy concerns is provided by what we term the principle of legality, the principle that broadly expressed discretions are subject to the fundamental values of the common law, including values expressive of human rights. This principle is properly located within a particular conception of democratic legal culture, the culture of justification, in which decision-makers are obliged to justify their decisions by showing either how the decisions conform to the fundamental values or that they are justifiable departures from those values. Hence, the principle of legality entails a duty on administrative decision-makers to give reasons for their decisions and requires judges to defer to the extent that they find that the proffered justification meets the applicable standard. This combination makes decision-makers accountable to fundamental values without squeezing out the space for exercise of their discretion.

  • Confidentiality in HIV/AIDS: Some Reflections on India and South Africa
    MR JUSTICE EDWIN CAMERON (Supreme Court of Appeal of South Africa)

    Confidentiality, which entails a duty inhibiting repetition of information entrusted to one about another, is a contested concept in HIV/AIDS. The principle is widely endorsed in the epidemic, but its limits and practical application are subject to controversy. The highest courts of India and South Africa have given decisions on confidentiality in HIV that differ sharply in tone, approach and practical outcome. The South African court, while emphasising that confidentiality is not absolute, underscored the concept's importance in the management of the epidemic. The Indian decision, by contrast, seems to have been informed by the court's view that AIDS 'is the product of undisciplined sexual impulse'. Confidentiality is also under attack in Africa as an alien 'Western' concept. Yet African notions of personhood and community, which do not permit the violation of personal autonomy for instrumental reasons, themselves render respect for confidentiality of vital significance in the AIDS epidemic.

  • Judicial Discretion
    STEVEN M WADDAMS (Professor of Law, University of Toronto)

    The word 'discretion' is used with different senses in various contexts. Sometimes it indicates that a legal rule has elements of uncertainty; sometimes it refers to a need for restrictions upon rights of appeal in the interests of expedition and finality; sometimes the word refers to a situation where the nature of the decision is such that the initial decision-maker is as likely as a reviewing court to reach a satisfactory conclusion; and sometimes it refers to situations where the initial decision-maker is thought to have a positive advantage in this respect. These concepts differ from each other and have differing implications for the proper role of appellate tribunals. The fact that a legal rule contains elements of uncertainty is not in itself a sound basis for restricting appeals. On the contrary, there is good reason for the appellate courts to entertain appeals in such cases and to resolve uncertainties.

  • The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji
    GEORGE WILLIAMS (Anthony Mason Professor and Director, Gilbert & Tobin Centre of Public Law, Faculty of Law, University of New South Wales; Barrister, New South Wales Bar)

    The decision of the Court of Appeal of Fiji in Republic of Fiji v Prasad is a landmark in the development of the common law. It sets an important precedent that demonstrates that courts can play a meaningful role in the most lawless of situations, the military coup, in promoting a restoration of democracy and the displaced constitutional order. The decision illustrates the two legal approaches available to judges in analysing the actions of a usurper, those of necessity and effectiveness. This article examines the use of these doctrines in Fiji and finds, taking into account constitutional and normative principles, that necessity ought to be the preferred approach, and that effectiveness ought only be to applied in cases of judicial last resort.

Case Comments

Torts Turnaround Downunder--Harold Luntz

No Damages for a Third Party's Loss--Andrew Burrows

Book review

Legal Professional Privilege: Law and Theory, by J Auburn--Suzanne McNicol



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