International Law in the House of Lords and the High Court of Australia 1996–2008: A Comparison

2009 ◽  
Vol 28 ◽  
Author(s):  
James Crawford
Keyword(s):  
International Law ◽  
High Court ◽  
House Of Lords ◽  
High Court Of Australia

scholarly journals The Queen v Getachew: Rethinking DPP v Morgan

2013 ◽  
Vol 77 (2) ◽  
pp. 151-162
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Mental State ◽  
Mental States ◽  
Mens Rea ◽  
High Court ◽  
Real Possibility ◽  
Fine Line ◽  
House Of Lords ◽  
High Court Of Australia ◽  
Court Of Appeal

In The Queen v Getachew, a recent decision of the High Court of Australia that was soon followed by the Victorian Court of Appeal, the High Court correctly noted that there is a fine line between the mens reas of belief and knowledge which turns upon the degree of conviction with which a belief is held. In particular, the court emphasised that a belief in the existence of a fact or circumstance that contemplates a real possibility or perhaps a higher degree of doubt as to the existence of that fact or circumstance is tantamount to knowledge or awareness that such fact or circumstance may not exist. When applied to the principle enunciated in DPP v Morgan, that type of belief would not be mutually exclusive with the alternative mens reas that require the Crown to prove that the accused was aware that the complainant was not or might not be consenting to the penetration at issue. In Getachew, the High Court merely pointed out that the mens reas of knowledge and belief, though similar in certain respects, are separate and distinct mental states that were incorrectly and inexplicably treated as though they were identical in Morgan and innumerable decisions that have followed and relied upon Morgan since it was decided by the House of Lords in 1976. In the aftermath of Getachew, therefore, the principle that an accused can act with a mental state that is mutually exclusive of the mens rea for rape remains intact. What has changed is that it is knowledge, rather than a mere belief that the complainant is not or might not be consenting, that is mutually exclusive of the requisite mens rea for rape.

Sex, Slavery and the High Court of Australia: The Contribution of R v. Tang to International Jurisprudence

2010 ◽  
Vol 10 (3) ◽  
pp. 403-423 ◽  
Author(s):  
Stephen Tully
Keyword(s):  
Human Rights ◽  
International Law ◽  
Significant Contribution ◽  
High Court ◽  
Sex Slavery ◽  
Definition Of ◽  
The Right ◽  
High Court Of Australia ◽  
Conceptual Integrity

AbstractThe judgment of the High Court of Australia in R v. Tang is a significant contribution to jurisprudence on the definition of slavery under international law. This case considered whether the intention of the perpetrator was a necessary element for the prosecution of that offence under Australian law. The High Court also preserved the conceptual integrity of slavery, evaluated the decisions in Kunarac and Siliadin, identified the powers attaching to the right of ownership as that expression appears in the 1926 and 1956 Slavery Conventions and employed a human rights orientation to contemporary manifestations of slavery. Although considerable practical challenges remain for enforcing the prohibition against slavery in Australia, R v. Tang marks a significant precedent likely to influence future international jurisprudence on the topic.

Allegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliament

2020 ◽  
Vol 48 (3) ◽  
pp. 299-323
Author(s):  
Rayner Thwaites ◽  
Helen Irving
Keyword(s):  
International Law ◽  
High Court ◽  
Foreign State ◽  
Constitutional Right ◽  
High Court Of Australia

In 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Commonwealth Parliament to be citizens of a ‘foreign power’ and thus ineligible, under s 44(i) of the Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature was similarly ineligible. In this article, we argue that the conclusion in Re Canavan was incorrect: that both the Court’s reasoning about the purpose of s 44(i)—to avoid ‘split allegiance’—and its methodology for determining foreign citizenship were inconsistent in their own right and also against its reasoning in Re Gallagher. We challenge the Court’s conflation of citizenship and allegiance with obedience to a state. We examine the rules of international law for identifying a person’s citizenship, as well as exceptions to these rules, including what came to be known as the ‘constitutional imperative’, which the Court held will exempt a foreign citizen from s 44(i) disqualification under certain circumstances. We conclude that the Court, in seeking to avoid ‘uncertainty and instability’ in its interpretation of s 44(i), did the opposite. Had it looked, instead, to the relevant foreign state for an authoritative determination of a person’s citizenship, confusion and uncertainty surrounding s 44(i) could have been avoided, and a democratic understanding of Australian citizenship could have been prioritised.

Opening Remarks: International Association of Law Libraries Annual Course on International Law and Legal Information, Sydney, Australia, October 28, 2019

2020 ◽  
Vol 48 (1) ◽  
pp. 17-19
Author(s):  
Susan Kiefel
Keyword(s):  
International Law ◽  
Board Member ◽  
International Association ◽  
Legal Information ◽  
High Court ◽  
High Court Of Australia ◽  
Sydney Australia ◽  
Do So

It is an honor to speak at the opening of this 38th Annual Course of the IALL. It was not difficult to accept the invitation to do so, not least because it was extended by Ms. Petal Kinder. Members of the IALL will know Petal because of her close involvement with the IALL as a Board member and as President; Petal was known to me as the Librarian of the High Court of Australia, a position she held when I joined the Court. She was highly valued and respected in that role, and popular amongst judges and staff. We were saddened to hear of her passing earlier this year.

The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock

1986 ◽  
Vol 45 (3) ◽  
pp. 476-500 ◽  
Author(s):  
F. A. Trindade
Keyword(s):  
Clear Picture ◽  
High Court ◽  
House Of Lords ◽  
Nervous Shock ◽  
High Court Of Australia

Two “landmark” decisions on the recovery of damages for negligently caused nervous shock have now been delivered in two years by the highest courts in Britain and Australia—McLoughlin v. O'Brian by the House of Lords in 1983 and Jaensch v. Coffey by the High Court of Australia in 1984. Despite these decisions, it is difficult to say that the principles of law to be applied in such a case can be stated with absolute clarity and one tends rather to sympathise with the view of Comyn J. in Whitmore v. Euroways Express Coaches Ltd. that “no absolutely clear picture emerges and many of the judgments speak with different voices.” Nevertheless, certain principles in this area are clear and others are becoming clearer, and a statement of these principles now might be of assistance in allowing an absolutely clear picture to emerge.

REFUGEES AND INTERNAL ARMED CONFLICTS

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Ben Olbourne
Keyword(s):  
Armed Conflicts ◽  
Decision Makers ◽  
Refugee Status ◽  
High Court ◽  
Immigration Laws ◽  
House Of Lords ◽  
Significant Difference ◽  
High Court Of Australia ◽  
Multicultural Affairs ◽  
Internal Armed Conflicts

Most people forced to flee across national borders do so to escape the consequences of internal armed conflicts. But the extension of protection to such people by the countries from which they seek asylum has proved to be uncertain. Most of these countries have undertaken protection obligations towards persons claiming refugee status in accordance with the 1951 Convention for the Protection of Refugees (“the Convention”). For the purposes of the Convention, a “refugee” is defined as any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Article 1A(2)). Although that definition is contained in an international instrument, national immigration laws incorporate or refer to it and its construction and application generally fall to national administrators and judges. It is, therefore, not altogether surprising that decision-makers in different countries reach different conclusions as to its scope and meaning. Such is the case with Minister for Immigration and Multicultural Affairs v. Haji Ibrahim (2000) 175 A.L.R. 585, in which the High Court of Australia rejected the approach of the House of Lords in Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293. At issue in both cases were claims for refugee status made by persons having fled Somalia, a country riddled by internecine clan conflict and lacking any recognisable governmental authority. Although the ultimate decision in each case turned on the appreciation of the specific findings of fact made by the initial adjudicators, a significant difference of approach in the application of the Convention definition may be identified.

The Australian High Court's Use of the Western Sahara Case in Mabo

1996 ◽  
Vol 45 (4) ◽  
pp. 923-927
Author(s):  
Shirley Scott
Keyword(s):  
International Law ◽  
Indigenous People ◽  
Legal Rights ◽  
Privy Council ◽  
Western Sahara ◽  
High Court ◽  
Terra Nullius ◽  
Law And Politics ◽  
High Court Of Australia ◽  
First Time

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1 Crucial to the reasoning in the leading judgment of the landmark 1992 Mabo case,2 by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not been terra nullius at the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council in Cooper v. Stuart.3 In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4 This had given rise to the assumption, confirmed by Milurrpum v. Nabalco Ltd (the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5 The leading judgment in Mabo went on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6 Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7

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.

Sign in / Sign up

Export Citation Format

Share Document