Moving Beyond the Common Law Objection to Structured Proportionality

2021 ◽  
Vol 49 (1) ◽  
pp. 73-95
Author(s):  
Anne Carter
Keyword(s):  
Common Law ◽  
Constitutional Review ◽  
High Court ◽  
Insurmountable Obstacle ◽  
The Common

This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.

Reasoning with the Foundations of Rules

2018 ◽  
Vol 46 (1) ◽  
pp. 49-83
Author(s):  
Duncan Wallace
Keyword(s):  
Common Law ◽  
Legal Rule ◽  
High Court ◽  
Historical Fact ◽  
The Common ◽  
Over Time

In PGA v The Queen, the High Court found that a legal rule ceased to exist well before many people thought it did. In Mabo v Queensland [No 2], the Court found that a legal rule came into existence well before many people thought it did. These conclusions are obviously different, and so are the reasons that led to them. But in both decisions the Court relied on the foundation of a legal rule to account for the rule's validity over time. In PGA, the rule was founded on another legal rule. In Mabo, the rule was founded on an historical fact. I explain how the Court reasoned with these foundations, and what this reasoning suggests about the nature of the common law in Australia.

The Commonwealth Executive Power: Historical Constitutional Origins and the Future of the Prerogative

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Catherine Dale Greentree
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Executive Power ◽  
High Court ◽  
Historical Approach ◽  
The United Kingdom ◽  
The Future ◽  
The Common

This article argues that the Commonwealth’s non-statutory executive power should be interpreted using an ‘historical constitutional approach’, first developed by JWF Allison for the United Kingdom. Some argue that the non-statutory executive power should be informed by the Crown’s historical prerogative powers and the common law (the ‘common law view’), while the High Court has recognised an inherent ‘nationhood power’ sourced directly in section 61 of the Australian Constitution, that does not require reference to the common law or the prerogatives (the ‘inherent view’). Peter Gerangelos identified a potential jurisprudential shift after Gageler J seemingly adopted an historical approach in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42. This article argues that interpreting section 61 through an historical constitutional lens would be in keeping with the origins, influences, and common law limitations on the development of the Crown’s powers in Australia since Federation. This will better ensure fidelity to fundamental constitutional principles than the inherent approach.

Bearing the Economic Loss of Industrial Action: The Payment of Striking Employees under the Fair Work Act 2009 (Cth)

2013 ◽  
Vol 18 (2) ◽  
pp. 292
Author(s):  
Karen Wheelwright
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Court Decision ◽  
Political Climate ◽  
High Court ◽  
Legal Principles ◽  
Industrial Action ◽  
The Common ◽  
The Right

This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.

Part I Foundations, Ch.2 Settlement

2018 ◽  
Author(s):  
Waugh John
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Legal Framework ◽  
Land Ownership ◽  
High Court ◽  
Native Title ◽  
The Status ◽  
The Common ◽  
The Law ◽  
Indigenous Land

This chapter explores the law of Australian colonization and its relationship with the laws of Australia's Indigenous peoples. A line of legal continuity links the Australian Constitution to the imposition of British law made during the colonization of Australia and to the decisions of colonial courts that treated the Australian colonies as colonies of settlement. Those decisions, after some initial doubts, displaced the diverse and intricate laws of Australia’s Indigenous peoples, who have occupied the continent for tens of thousands of years. Only in relation to native title to land have later courts made a major reassessment of the status of Indigenous laws. There, the High Court has challenged the factual assumptions of earlier decisions and found accommodation for Indigenous land ownership within the common law, but left the legal framework of colonization otherwise intact.

scholarly journals Citation as a measure of ‘impact’: Female legal academics at a disadvantage?

2019 ◽  
Vol 44 (4) ◽  
pp. 267-274
Author(s):  
Katy Barnett
Keyword(s):  
United States ◽  
Preliminary Data ◽  
Common Law ◽  
Academic Work ◽  
The United States ◽  
High Court ◽  
Elite Universities ◽  
The Common ◽  
High Court Of Australia

This article discusses whether the demand that law academics show citations by a superior court is disadvantageous to women, using the citations of academic work by the High Court of Australia from 2015, 2016 and 2017. The preliminary data show that male academics were cited much more often than female academics (even for works written after 1999), and academics who were cited were associated primarily with ‘elite’ universities in Australia, England and the United States. The use of citation by superior courts may not really show ‘impact’ but may rather indicate that the common law displays historical and unconscious biases.

Contempt: In the Common Law, but not the Civil Law

1997 ◽  
Vol 46 (3) ◽  
pp. 521-560
Author(s):  
Michael Chesterman
Keyword(s):  
Common Law ◽  
Civil Law ◽  
High Court ◽  
The Road ◽  
Administration Of Justice ◽  
Canadian Broadcasting Corporation ◽  
The Common ◽  
The Law ◽  
Court Orders

To allow Court orders to be disobeyed would be to tread the road towards anarchy. If the orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn. Daily, thousands of Canadians resort to our Courts for relief against the wrongful acts of others. If the remedies that Courts grant to correct those wrongs can be ignored, then there will be nothing left but for each person to take the law into his own hands. Loss of respect for the Courts will quickly result in the destruction of our society. [O'Leary J, in Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (1975) 48 DLR 3d 641, 669 (High Court of Ontario)]

The erosion of the implied term of mutual trust and confidence in Australian employment law

2016 ◽  
Vol 45 (4) ◽  
pp. 275-297
Author(s):  
Vanitha Sundra-Karean
Keyword(s):  
Common Law ◽  
Legal Framework ◽  
Mutual Trust ◽  
Policy Reforms ◽  
Political Climate ◽  
Employment Contracts ◽  
High Court ◽  
The Common ◽  
Interpretive Method ◽  
Employment Rights

Although the implied duty of mutual trust and confidence has long been established as an implied term in employment contracts under English common law, the Australian High Court has recently ruled that it is not part of the common law regulating employment contracts in Australia because the implication of such a term was better regulated under statute. While it is acknowledged that legislation is most effective in regulating substantive employment rights and obligations, a political climate which lends itself to ideologically divergent policy reforms often robs the discipline of its stability. However, if there exists a legal framework apart from legislation, which coheres with it and has the ability to initiate juridical development in the law, as is the role of the common law, the result will be an enrichment of the discipline overall. This paper traces selected English and Australian judicial approaches towards the implication of the duty of mutual trust and confidence in the context of terminations of employment within a statutory regime, culminating with an analysis of the recent Australian High Court decision in Commonwealth Bank of Australia v Barker (Barker), which has diminished common law’s interpretive role in this regard. Consequently, this paper aims to revitalize common law reasoning by utilizing Dworkin’s judicial interpretive method as the necessary theoretical framework.

scholarly journals Aid/Watch and the Public Benefit of Advocacy for the Extra-territorial Relief of Poverty

2011 ◽  
Vol 3 (3s) ◽  
pp. 9-19
Author(s):  
David Barnden ◽  
Giri Sivaraman
Keyword(s):  
Common Law ◽  
Government Policies ◽  
High Court ◽  
The Public ◽  
Public Benefit ◽  
Revenue Collection ◽  
Charitable Organisation ◽  
Potential Benefits ◽  
The Common ◽  
Definition Of

The disqualification of Aid/Watch as a charity and the High Court of Australia's subsequent decision shines a spotlight on the common law definition of charitable activity. The Aid/Watch decision enables charitable organisations to legitimately advocate for more efficient implementation of government policies on the relief of poverty and for the advancement of education and religion, without fear of reprisal. Initially we comment on the inherent tension the Australian Taxation Office experiences as a result of its status as a government department, its responsibilities to administer revenue collection and its role interpreting charity law. We then discuss the common law definition of charity and the Constitutional basis for the High Court’s decision in Aid/Watch. To conclude we outline areas of uncertainties but also potential benefits to charitable organisations which are relevant for any proposal to define ‘charitable organisation’.

Personal Actions in the High Court of Battle Abbey 1450–1602

1992 ◽  
Vol 51 (3) ◽  
pp. 508-529 ◽  
Author(s):  
J.H. Baker
Keyword(s):  
Early Modern ◽  
Great Increase ◽  
Common Law ◽  
Late Medieval ◽  
High Court ◽  
Royal Courts ◽  
Legal Thinking ◽  
The Common ◽  
Local Courts ◽  
The Relationship

The relationship between the jurisdictions of local courts and central courts in late-medieval and early-modern England remains largely unexplored. It is nevertheless important to an understanding of the development of the common law, because of the prevailing notion that the great increase in litigation in the royal courts in the early Tudor period was connected with a decline in the use made of local courts. A massive transfer of business to the centralised royal courts might have affected the common law in ways other than the purely numerical, in that it could have brought a reception of legal ideas and remedies already well known out in the country. On that footing, the appearance of new kinds of action in the central courts at this period may represent transfers of jurisdiction rather than changes in legal thinking.

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