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VOLUME 47(3)

 

Ethical Infrastructure for a Modern Judiciary 

GABRIELLE APPLEBY AND SUZANNE LE MIRE

The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas with little formal institutional support. They must rely on their own resources or informal advice and counsel from colleagues and the head of jurisdiction. This article will explore whether this arrangement continues to be appropriate. We consider a hypothesis that a number of factors, including the growing numbers and diversity of the judiciary mean that it is less likely that there will be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers as to the adequacy of the ethical support available to them. Finally, we consider the variety of supports that are available in comparable jurisdictions and also in the legal profession, before turning to possible solutions to the question our hypotheses raise, including the introduction of ‘ethical infrastructures’ in the form of more formal arrangements that provide ethical guidance to judges. We argue that these ethical support mechanisms have the potential to enhance the quality of ethical decision-making and foster an ethical culture within the judiciary.

The Significant Role of the Australia Acts in Australian Public Law

LIAM BOYLE 

The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.

The Effect of Treaty Withdrawal on Implementing Legislation

ELIZABETH BRUMBY 

This article explores the effect of treaty withdrawal on domestic legislation implementing a treaty in the Australian constitutional context. In R (Miller) v Secretary of State for Exiting the European Union (‘Miller’), the Supreme Court of the United Kingdom held that the executive cannot exercise its prerogative power to withdraw from a treaty where that withdrawal would frustrate or invalidate domestic law. This article contends that treaty withdrawal would be unlikely to have this effect on a law implementing a treaty in the Australian context. The article ultimately draws two conclusions. First, a law implementing a treaty would likely survive treaty withdrawal in most cases due to the law’s enduring nexus with Australia’s foreign relations, enabling its continued characterisation as a law ‘with respect to’ s 51(xxix) of the Constitution. Secondly, in the event that withdrawal does lead to a loss of constitutional support, the law would likely become prospectively invalid from the date of effective withdrawal (an outcome identical to legislative repeal in its effect). The article contends that this outcome would not, however, engage the constraint on executive power so emphatically reasserted in Miller. This is because the law’s invalidity is consistent with the implied will of the legislature and thus reinforces, rather than contravenes, the fundamental principle of parliamentary sovereignty which the constraint on executive power protects.

The HCCH Judgments Convention in Australian Law 

MICHAEL DOUGLAS, MARY KEYES, SARAH MCKIBBIN AND REID MORTENSEN

In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.

Watch This Space: The Development of Commercial Space Law in Australia and New Zealand

JOEL LISK AND MELISSA DE ZWART

Space law is regulated largely by international treaties which have little to say regarding the use and regulation of commercial space. As the costs of access to outer space decrease and the benefits exponentially increase, more countries are seeking to support and encourage ‘NewSpace’ entrepreneurs in order to establish commercial space industries. Australia has been a minor player in the space domain, primarily through involvement with Europe and the US since the late 1960s, but its domestic legislation bears little relevance to the shape of space industry today. Australia’s neighbour, New Zealand, now wants to become a NewSpace incubator and has recently enacted legislation designed to make it a competitive host nation for launch providers. This article will compare the regulatory space regimes of these two countries to provide an assessment of the importance of domestic regulation in fostering competitive commercial space services, for countries seeking to become competitive in the commercial space race.

Regulating Australia's 'Gangmasters' through Labour Hire Licensing

ANTHONY FORSYTH

This article examines the recent introduction of state-based regulation to address the increasingly prominent problem of exploitation of vulnerable workers by labour hire providers around Australia. Mounting evidence of underpayments and other breaches of workplace laws has emerged from a range of state and federal inquiries into the labour hire sector in recent years. The article draws parallels between these abuses and the exploitative activities of ‘gangmasters’ in industrial-era Britain. It then closely analyses and compares the labour hire licensing schemes introduced in Victoria, Queensland and South Australia, which aim to combat noncompliance by introducing barriers to entry and eliminate ‘rogue’ operators from the labour hire market. The article assesses the effectiveness of similar licensing and registration schemes in several overseas jurisdictions, especially the gangmasters licensing scheme operating in the United Kingdom since 2004. The article concludes that the licensing schemes introduced under the three state laws are a timely and, most likely, effective new approach to tackling the problem of noncompliance with workplace and other laws. Alternative responses to exploitation at the federal level are also considered, including the 2017 Vulnerable Workers legislation introduced largely in response to systemic underpayments in the 7-Eleven franchise network. Finally, the article observes that federal reform of the labour hire sector may emerge in the near future, given the Labor Opposition’s policy commitment to introduce a national labour hire licensing scheme. In the meantime, the state labour hire licensing schemes examined in this article represent an important step forward in regulation to combat worker exploitation by contemporary Australian ‘gangmasters’.

Causation in Securities and Financial Product Disclosure Cases: An Analysis and Critique

BENJAMIN B SAUNDERS

This article critically examines the approach adopted by the courts to causation in securities and financial product disclosure cases, where a plaintiff alleges loss as a result of defective disclosure by a product issuer. The article argues that the reliance approach should be rejected as the sole approach to causation in securities and financial product disclosure cases. The article gives two principal arguments in support of this claim. Firstly, the reliance approach, by insisting that causation may only be established by proving reliance on the disclosure document, implicitly assumes a ‘rational choice’ approach to investor decision-making which, as demonstrated by a significant body of behavioural research, does not accurately reflect the reality of investor decision-making. Secondly, the reliance approach sits at odds with other developments in securities cases and misleading and deceptive conduct jurisprudence. I argue that the courts should recognise that causation may potentially be demonstrated in a variety of ways other than reliance on the disclosure document, including reliance on sources such as communications from financial advisers, newspapers, online sources, briefings, investor roadshows, social media and other marketing practices.

 

Updated:  19 May 2017/Responsible Officer:  FLR Business Managers/Page Contact:  FLR Web Publishers