scholarly journals STANDARD OF PROOF, UNPREDICTABLE BEHAVIOUR AND THE HIGH COURT OF AUSTRALIA’S VERDICT ON PREVENTIVE DETENTION LAWS

2005 ◽  
Vol 10 (1) ◽  
pp. 177 ◽  
Author(s):  
ANTHONY GRAY
Keyword(s):  
At Risk ◽  
Separation Of Powers ◽  
Title Page ◽  
Preventive Detention ◽  
High Court ◽  
Standard Of Proof ◽  
High Court Of Australia ◽  
Rate Of Success

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>Preventive detention laws authorize courts to order the continued detention in prison of a person who has served their allocated term of imprisonment, but who are thought to be at risk of re-offending if released. They raise fun- damental issues about the separation of powers, the purpose of incarcera- tion, and the standard of proof which is/should be required to authorize detention. They assume that it is possible to predict, with a satisfactory rate of success, whether or not a past offender would if released commit further offences. Recently, a majority of the High Court of Australia validated such legislation. The author in this article explains his reasons for disagreeing with the verdict of the Court in this matter.</span><span>] </span></p></div></div></div>

scholarly journals CONFIDENTIALITY AGREEMENTS AND THE PROTECTION OF TRADE SECRETS: DOES IT HAVE TO BE ALL OR NOTHING?

2005 ◽  
Vol 10 (2) ◽  
pp. 598
Author(s):  
STEVE KAPNOULLAS ◽  
BRUCE CLARKE
Keyword(s):  
At Risk ◽  
Title Page ◽  
Court Decision ◽  
Trade Secrets ◽  
High Court ◽  
Majority Judgment ◽  
High Court Of Australia ◽  
Restraint Of Trade

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In </span><span>Maggbury v Hafele</span><span>, the High Court of Australia had to consider whether a perpetual restraint of trade clause in a confidentiality agree- ment was valid. The majority judgment, which refused to enforce the re- straint, has been subject to criticism that it potentially puts confidentiality agreements at risk and hinders innovation. In spite of the criticism the au- thors of this article argue that the High Court decision was correct and that </span><span>Maggbury </span><span>provides valuable lessons for those drafting confidentiality agreements and seeking to protect trade secrets.</span><span>] </span></p></div></div></div>

scholarly journals POST AMCOR AND GRIBBLES: A NEW ERA FOR SUCCESSION OF BUSINESS AND REDUNDANCY LAW?

2005 ◽  
Vol 10 (2) ◽  
pp. 394
Author(s):  
JOE CATANZARITI
Keyword(s):  
Title Page ◽  
Considerable Importance ◽  
Contextual Approach ◽  
Severance Pay ◽  
New Era ◽  
High Court ◽  
Workplace Relations ◽  
Energy Union ◽  
Textual Approach ◽  
High Court Of Australia

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>On 9 March 2005, the High Court of Australia handed down two deci- sions of considerable importance for employers. The first decision, </span><span>Minis- ter for Employment and Workplace Relations v Gribbles Radiology Pty Ltd </span><span>[2005] HCA 9 concerned the circumstances in which a "succession of business" or a part of a business will occur for the purposes of section 149(1)(d) of the </span><span>Workplace Relations Act 1996</span><span>. The second decision, </span><span>Am- cor Limited v Construction, Forestry, Mining and Energy Union; Minister for Employment </span><span>[2005] HCA 10, pertained to whether, upon the facts pre- sented to the Court, a group of employees had been rendered redundant with a consequent (and cumulatively significant) entitlement to severance pay. </span></p><p><span>Interestingly, the High Court adopted a 'textual' approach to statutory construction in </span><span>Gribbles </span><span>but a 'contextual' approach to the legal interpre- tation of the relevant clause in the agreement in question in </span><span>Amcor</span><span>. Not- withstanding these differing approaches, the result in each case is arguably favourable to employers.</span><span>] </span></p></div></div></div>

Re-Evaluating the Doctrine of Deference in Administrative Law

2017 ◽  
Vol 45 (4) ◽  
pp. 597-625 ◽  
Author(s):  
Janina Boughey
Keyword(s):  
Separation Of Powers ◽  
Administrative Law ◽  
Administrative Discretion ◽  
High Court ◽  
Executive Action ◽  
The Common ◽  
The Uk ◽  
High Court Of Australia ◽  
Development Assessment ◽  
The City

It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission1 as authority. In that case, the High Court of Australia indicated that Australia's strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference – deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.

Perfectly Safe, Five Times Out of Six: The Briginshaw Principle and Its Paradoxes

2019 ◽  
Vol 42 (2) ◽  
Author(s):  
Harry Stratton
Keyword(s):  
Risk Assessment ◽  
Decision Making ◽  
Mathematical Models ◽  
Economic Consequences ◽  
Current Understanding ◽  
False Negatives ◽  
High Court ◽  
Standard Of Proof ◽  
High Court Of Australia ◽  
Fixed Standard

When a method of risk assessment would endorse playing Russian roulette, something has gone badly wrong with its logic. Yet the current understanding of Briginshaw v Briginshaw means courts cannot properly account for the risks presented in just this sort of situation. In this article, I explain the Briginshaw principle by comparison to intuitive and mathematical models of decision-making under conditions of uncertainty. I show that, while Briginshaw itself left the High Court of Australia deeply divided about where the so-called principle was enlivened and its consequences, subsequent judicial consideration has partly resolved this confusion. However, these subsequent authorities depart from our models, because courts wrongly assume serious allegations are inherently unlikely, insufficiently account for the consequences of ‘false negatives’, and have contradictory attitudes towards economic consequences. More fundamentally, while no theory of decision-making can totally avoid risk, I show that the accepted interpretation of Briginshaw as a fixed standard of proof means courts cannot properly account for improbable but grave consequences. Adopting a variable standard of proof would resolve some of these issues, but current authority is inconsistent with this approach.

All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia

2019 ◽  
Vol 47 (4) ◽  
pp. 551-582
Author(s):  
Evelyn Douek
Keyword(s):  
Political Communication ◽  
Separation Of Powers ◽  
Order Effects ◽  
High Court ◽  
Constitutional Culture ◽  
Institutional Costs ◽  
Judicial Reasoning ◽  
Theoretical Question ◽  
High Court Of Australia ◽  
First Time

In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘ compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option.

scholarly journals BAKER V THE QUEEN & FARDON V ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

2005 ◽  
Vol 10 (1) ◽  
pp. 271 ◽  
Author(s):  
OSCAR ROOS
Keyword(s):  
Attorney General ◽  
The State ◽  
Title Page ◽  
Judicial Power ◽  
Criminal Sentencing ◽  
High Court ◽  
High Court Of Australia ◽  
Constitutional Protections

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In 2004, the High Court of Australia had cause to revisit its 1996 decision in </span><span>Kable</span><span>, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of </span><span>Fardon </span><span>and </span><span>Baker </span><span>demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be “tough on crime”. The so-called “</span><span>Kable </span><span>principle”, as construed by the High Court in 2004, may prove to be the “constitutional watch dog that barks but once”.</span><span>] </span></p></div></div></div>

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).

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