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VOLUME 46(2)

The Use of Foreign Law by the High Court of Australia


Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court’s use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court’s willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court’s use of foreign decisions and to address the normative question of how the High Court should use foreign law.

Supervision of the Responsible Lending Regimes: Theory, Evidence, Analysis and Reforms


National responsible lending regimes have operated in Australia since 2009, with the stated aims to encourage prudent lending, curtail undesirable market practices, and impose sanctions for irresponsible lending and leasing. This article outlines a study of the supervision of the responsible lending rules by the Australian Securities and Investments Commission (ASIC) from 2014 to mid-2017. The study finds that the Commission proactively engaged with lenders, encouraged tighter lending standards, and sought or imposed severe penalties for egregious conduct. Further, the Commission strategically targeted credit products commonly acknowledged as the riskiest or most material from a borrower’s perspective, such as small amount credit contracts, interest only home loans, and car loans. Despite these positive findings, however, many households are heavily indebted and large segments of the community and the nation are highly susceptible to future harm. In this environment, we question the timeliness and sufficiency of the Commission’s interventions and responses, and predict further litigation that tests the boundaries of the responsible lending rules. Moving forward, we call for more systematic supervision of responsible lending risks, practices and exposures and propose modest reforms that require lenders to better inform and engage with consumers about the risks of elevated levels of debt.

Constitutional Influences on State and Territory Lawmaking: An Empirical Analysis


This article focuses on an under-studied aspect of the constraints emerging from ch III of the Australian Constitution: the effect of those constraints on law- and policy-making within the executive. Drawing on interviews with key actors in state and territory lawmaking, this article uses three case studies to examine the way in which ch III constraints have influenced the development of law and policy. The actions of governments in each case study are evaluated against a normative model of constitutional deliberation by the executive. The article concludes by identifying the legal, political and personal factors that influence the way in which state and territory executives engage with constitutional issues.

Gone but Not Forgotten: In Defence of Hickman


Judicial review of executive action is the stage upon which all three arms of government engage in stark interplay. The High Court, by virtue of s 75(v) of the Constitution, is vested with supervisory jurisdiction to undertake judicial review of executive action and to grant the constitutional writs of mandamus, prohibition and injunction. However, for centuries, legislatures have enacted privative clauses designed to limit the ability of courts to perform this function, thereby unshackling the executive from judicial restraint. In 1945, the authoritative approach in Australia to construing such clauses was established in the case of Hickman. This approach was substantially overturned by the High Court in 2003 in the case of Plaintiff S157. In this much lauded case, the High Court recognised that s 75(v) amounts to an ‘entrenched minimum provision of judicial review’ and constitutes ‘textual reinforcement’ of the rule of law. Notwithstanding this strong stance, by 2008 the High Court had given effect to a so-called no-invalidity clause which, although conceptually different from the privative clause, enabled Parliament to evade the reach of the High Court’s constitutional jurisdiction. This paper seeks to defend Hickman on its own terms, arguing that it is consistent with the modern jurisprudence on statutory interpretation. It then proceeds to criticise the soundness of Plaintiff S157. Finally, it claims that a return to Hickman represents the best way in which to construe no-invalidity clauses.

Insolvency—It's All About the Money


The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.

Should Australia be Embracing the Modern Slavery Model of Regulation?


Australia is following in the footsteps of the UK and US and embracing the discourse and regulatory technologies associated with modern slavery regulation. This paper offers a critical perspective on this development. It begins with a brief account of the concept’s rise to prominence, and discusses the political economy in which it is embedded. It then explores some of the advantages, as well as the pitfalls, associated with the frame, and its associated regulatory approaches, techniques and discourse. The authors raise three broad sets of concerns. The first goes to the danger of exclusively focusing on criminal justice responses to penalise and deter those who practice modern slavery while neglecting other approaches that may help address the causes of the phenomenon. The second set of concerns goes to the tendency to exaggerate the transformative potential of one of the dominant regulatory responses in this area: the mandatory corporate supply chain reporting provision. The third set of concerns relate to the implications of addressing issues of worker exploitation and mistreatment through a modern slavery and human trafficking approach rather than through other well established and newer regulatory means. To support the third argument, the authors compare the modern slavery approach with two alternate approaches: labour regulation and human rights due diligence. The authors emphasise the need for vigilance to ensure that the embracement of a modern slavery frame does not shift attention (and resources) away from more thorough and effective means of securing greater corporate accountability for labour standards in supply chains.

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