Personal or political patronage? Judicial appointments and justice loyalty in the High Court of Australia

2021 ◽  
pp. 1-19
Author(s):  
Patrick Leslie ◽  
Zoë Robinson ◽  
Russell Smyth
Keyword(s):  
High Court ◽  
Judicial Appointments ◽  
Political Patronage ◽  
High Court Of Australia

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

scholarly journals An open and reproducible analysis of a controversial criminal law decision: Mission IMM-possible?

2020 ◽  
Author(s):  
Jason Chin
Keyword(s):  
Open Source Software ◽  
Research Process ◽  
High Court ◽  
The Public ◽  
Judicial Decisions ◽  
Research Fields ◽  
Law And Policy ◽  
Criminological Research ◽  
Reproducible Analysis ◽  
High Court Of Australia

Reproducibility and open access are central to the research process, enabling researchers to verify and build upon each other’s work, and allowing the public to rely on that work. These ideals are perhaps even more important in legal and criminological research, fields that actively seek to inform law and policy. This article has two goals. First, it seeks to advance legal and criminological research methods by serving as an example of a reproducible and open analysis of a controversial criminal evidence decision. Towards that end, this study relies on open source software, and includes an app (https://openlaw.shinyapps.io/imm-app/) allowing readers to access and read through the judicial decisions being analysed. The second goal is to examine the effect of the 2016 High Court of Australia decision, IMM v The Queen, which appeared to limit safeguards against evidence known to contribute to wrongful convictions in Australia and abroad.

scholarly journals Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence

2016 ◽  
Vol 47 (1) ◽  
pp. 19
Author(s):  
Scott William Hugh Fletcher
Keyword(s):  
New Zealand ◽  
City Council ◽  
High Court ◽  
North Shore ◽  
The Law ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Insight Into ◽  
Consistent Application

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.

Contextualism: ‘The Modern Approach to Statutory Interpretation’

2018 ◽  
Vol 41 (4) ◽  
Author(s):  
Jeffrey Barnes
Keyword(s):  
Legal System ◽  
Court Cases ◽  
Statutory Interpretation ◽  
Modern Approach ◽  
High Court ◽  
Football Club ◽  
High Court Of Australia ◽  
Scholarly Attention

The widespread realisation that ‘[l]egislation is the cornerstone of the modern legal system’ (Justice McHugh) has brought increased judicial and scholarly attention to legislation’s partner, statutory interpretation. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court of Australia referred to the ‘modern approach to statutory interpretation’. That modern approach has subsequently been called ‘contextualism’. The central questions addressed in this article are: what is contextualism? Is it principled? And is it a coherent general approach? After stating and illustrating key principles from six High Court cases, the author considers challenges to contextualism, including textualism and purposivism. Like the statutes it monitors, statutory interpretation may be ‘broad and deep and variegated’, as Lord Wilberforce once observed. But, at the same time, it is concluded that statutory interpretation does not lack a general approach that lends coherence to the interpretative enterprise – for contextualism performs this function.

Australian Bills of Rights and the ‘New Commonwealth Model of Constitutionalism’

2013 ◽  
Author(s):  
Simon Evans ◽  
Julia Watson
Keyword(s):  
Human Rights ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Key Features ◽  
The Uk ◽  
High Court Of Australia ◽  
The Impact

This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.

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