melbourne university l aw review

volume 362012–13

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melbourne university l aw review

volume 362012–13

index

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2012–13

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melbourne university l aw review

Volume 36 2012–13

1957 P R Jordan J D Phillips1958 R C Tadgell N R McPhee1959 J M Batt J A Griffin1960 N H M Forsyth A A Browne1961 R C Horsfall A H Goldberg1962 D M Byrne G F Griffith R Sackville1963 R Sackville J J Tait P J Bayne1964 P Mandie P L A Gore1965 J R Bowman M M Leibler1966 K M Hayne R Richter1967 G J Harris F H Callaway1968 P R Just C A Sweeney1969 A J Myers J McI Walter1970 F C O’Brien H Boon1971 R J Clemente M H Coppel1972 S D Wynn A J Duggan1973 Catherine M Sweeney D J Cremean1974 Josephine M D’Arcy M F Macnamara

1975 D J Gifford T P Murphy1976 Susan Kenny M C H Hoyle1977 Jennifer Eastick John Carmel

1978 Elizabeth Murphy Garrie Moloney 1979 Thomas Reid Hilary Charlesworth1980 John Angus Julie Turner1981 Nora Scheinkestel Mark Steele1982 Karin Chua Mark Darian-Smith1983 Donald Maloney Steven Pemberton1984 Stephen McLeish Lynne Saunder1985 Diana Pinti Elspeth Strong1986 Meriel Rule Anne Woodger1987 Mark Moshinsky Kim Rubenstein1988 Grant Anderson Anne Twomey1989 Chris Horan Jim Minifie1990 Debbie Barbour Peter Mellor1991 Anna Funder Kristen Walker1992 Mary-Anne Hughson Carl McCamish Jason Pizer1993 Justine FitzGerald Nick Linnane Stephen Parmenter1994 Peter Danchin Neil Pathak1995 Simon Chesterman Stephen Donaghue Eleanor McKinna1996 Rae Kaspiew Kathy Liddell Alan Scott

1997 Catherine Button Andrew Mitchell Paula O’Brien 1998 Chester Brown Lisa Teasdale Katie Young1999 Nick Anson Paul Liondas Sarah Martin2000 Sarah Leighfield Andrew North Anna Thwaites2001 Luke Livingstone Jeremy Masters David Morgan2002 Eloise Dias Joel Fetter Rowan McRae2003 Simona Gory Anthony O’Brien Simon Raffin2004 Howard Choo Liam Gilchrist Tanya Josev2005 James McComish Rebecca Pereira Tamara Vu2006 Vegjie Cari Stephanie Chu Benjamin Kiely2007 Katherine Cooke Rich Hewett Sze-Beng Tang2008 Wilfred Ho Dakshinee Kodituwakku Sunny Leow2009 David Heaton Luke Pallaras Anna Zhang2010 Rudi Kruse Kathryn Tomasic Christopher Tran2011 David Foster Timothy Lau Julia Wang

past editors

ARTICLES BY AUTHOR

Anderson, Helen and Howe, John, Making Sense of the Compensation Remedy in Cases of Accessorial Liability under the Fair Work Act 335

Arup, Christopher, What/Whose Knowledge? Restraints of Trade and Concepts of Knowledge 369

Bateman, Will and Stellios, James, Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights 1

Burton, Lisa, McGarrity, Nicola and Williams, George, The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation 415

Dorsett, Shaunnagh and McVeigh, Shaun, Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking 470

Forsyth, Anthony and Stewart, Andrew, Of ‘Kamikazes’ and ‘Mad Men’: The Fallout from the Qantas Industrial Dispute 785

Gordon, Jeffrey Steven, Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention 41 Grant, Genevieve and Studdert, David M, The Injury Brokers: An Empirical Profile of Medical Expert Witnesses in Personal Injury Litigation 831 Keesing, Grace, Contractual Rights and Remedies for Dismissed Employees after the ‘Employment Revolution’ 104

Kirby, The Hon Michael AC CMG, The Never-Ending Challenge of Drafting and Interpreting Statutes: Meditation on the Career of John Finemore QC 140 Lunney, Mark, Legal Émigrés and the Development of Australian Tort Law 494

Mason, Gail and Dyer, Andrew, ‘A Negation of Australia’s Fundamental Values’: Sentencing Prejudice-Motivated Crime 871

McCutcheon, Jani, The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law 915 Ratnapala, Suri and Crowe, Jonathan, Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power 175

van Rijswijk, Honni and Anthony, Thalia, Can the Common Law Adjudicate Historical Suffering? 618

Riley, Joellen, Siblings but Not Twins: Making Sense of ‘Mutual Trust’ and ‘Good Faith’ in Employment Contracts 521

Sarmas, Lisa, Trusts, Third Parties and the Family Home: Six Years since Cummins and Confusion Still Reigns 216

Simmons, Frances and Burn, Jennifer, Without Consent: Forced Marriage in Australia 970

Toole, Kellie, Self-Defence and the Reasonable Woman: Equality before the New Victorian Law 250 Tran, Christopher, Facts and Evidence in Litigation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) 287 Trotter, Andrew and Garozzo, Matt, Mandatory Sentencing for People Smuggling: Issues of Law and Policy 553

Warner, Kate, Setting the Boundaries of Child Sexual Assault: Consent and Mistake as to Age Defences 1009

White, Ben and Downie, Jocelyn, Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide: Autonomy, Public Confidence and High Quality Decision-Making 656

Wolski, Bobette, The Truth about Honesty and Candour in Mediation: What the Tribunal Left Unsaid in Mullins’ Case 706

CRITIQUE AND COMMENT BY AUTHOR

Allan, James, The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No)’Riginalism 743 Gordon, The Hon Justice Michelle, The Commonwealth’s Taxing Power and Its Limits — Are We There Yet? 1037

ARTICLES

Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights Will Bateman and James Stellios 1

Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention Jeffrey Steven Gordon 41 Contractual Rights and Remedies for Dismissed Employees after the ‘Employment Revolution’ Grace Keesing 104

The Never-Ending Challenge of Drafting and Interpreting Statutes: Meditation on the Career of John Finemore QC The Hon Michael Kirby AC CMG 140 Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power Suri Ratnapala and Jonathan Crowe 175

Trusts, Third Parties and the Family Home: Six Years since Cummins and Confusion Still Reigns Lisa Sarmas 216

Self-Defence and the Reasonable Woman: Equality before the New Victorian Law Kellie Toole 250 Facts and Evidence in Litigation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) Christopher Tran 287 Making Sense of the Compensation Remedy in Cases of Accessorial Liability under the Fair Work Act Helen Anderson and John Howe 335

What/Whose Knowledge? Restraints of Trade and Concepts of Knowledge Christopher Arup 369

The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation Lisa Burton, Nicola McGarrity and George Williams 415

Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking Shaunnagh Dorsett and Shaun McVeigh 470

Legal Émigrés and the Development of Australian Tort Law Mark Lunney 494

Siblings but Not Twins: Making Sense of ‘Mutual Trust’ and ‘Good Faith’ in Employment Contracts Joellen Riley 521

Mandatory Sentencing for People Smuggling: Issues of Law and Policy Andrew Trotter and Matt Garozzo 553

Can the Common Law Adjudicate Historical Suffering? Honni van Rijswijk and Thalia Anthony 618

Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide: Autonomy, Public Confidence and High Quality Decision-Making Ben White and Jocelyn Downie 656

The Truth about Honesty and Candour in Mediation: What the Tribunal Left Unsaid in Mullins’ Case Bobette Wolski 706

Of ‘Kamikazes’ and ‘Mad Men’: The Fallout from the Qantas Industrial Dispute Anthony Forsyth and Andrew Stewart 785

The Injury Brokers: An Empirical Profile of Medical Expert Witnesses in Personal Injury Litigation Genevieve Grant and David M Studdert 831 ‘A Negation of Australia’s Fundamental Values’: Sentencing Prejudice-Motivated Crime Gail Mason and Andrew Dyer 871

The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law Jani McCutcheon 915

Without Consent: Forced Marriage in Australia Frances Simmons and Jennifer Burn 970

Setting the Boundaries of Child Sexual Assault: Consent and Mistake as to Age Defences Kate Warner 1009

CRITIQUE AND COMMENT

The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No)’Riginalism James Allan 743 The Commonwealth’s Taxing Power and Its Limits — Are We There Yet? The Hon Justice Michelle Gordon 1037

INDEX

A BBREV IATION S (A) Article (CC) Critique and Comment

A B ORIG IN ES Cubillo v Commonwealth, discussion of (A) 36:618 Cubillo v Commonwealth [No 2], discussion of (A) 36:618 Stolen Generations litigation, application of common law in (A) 36:618 South Australia v Lampard-Trevorrow, discussion of (A) 36:618 Trevorrow v South Australia [No 5], discussion of (A) 36:618 Williams v Minister, Aboriginal Land Rights Act 1983, discussion of (A)

36:618

A LTERNATIV E DISPU TE RESOLU TION Mediation, ethical obligations of practitioners in (A) 36:706 Legal Services Commissioner v Garrett, analysis of (A) 36:706 Legal Services Commissioner v Mullins, analysis of (A) 36:706

CIV IL PRO C EDU RE Expert witnesses, methods of giving evidence in personal injury cases (A)

36:831

C ON STITU TIONAL L AW Acquisition of property, whether taxation laws can effect (CC) 36:1037 Al-Kateb v Godwin, analysis of (A) 36:41 Australian Constitution ch III, separation of judicial power created by

(A) 36:1; (A) 36:41; (A) 36:175 Australian Constitution ch III, effect of on principles of statutory interpre-

tation (A) 36:1 Australian Constitution ch III, executive detention and (A) 36:41 Australian Constitution ch III, mandatory sentencing and (A) 36:553 Australian Constitution ch III, procedural guarantees and (A) 36:175 Australian Constitution s 49, contempt of Parliament and (A) 36:41 Australian Constitution s 51, power to enact legislation authorising

imprisonment (A) 36:41 Australian Constitution s 51(ii), criteria for validity of laws enacted under

(CC) 36:1037 Australian Constitution s 51(ii), limits of power conferred by (CC) 36:1037 Australian Constitution s 51(xxxi), whether limits scope of s 51(ii) (CC)

36:1037

Australian Constitution s 72, constitution of a court that may exercise federal judicial power (A) 36:175

Australian Constitution s 73, jurisdiction of High Court to hear appeal from declaration of inconsistent interpretation (A) 36:1

Bailey v Drexel Furniture Co, discussion of (CC) 36:1037 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic

Affairs, analysis of (A) 36:41 Constitutional facts (A) 36:287 Constitutional interpretation, approaches to (CC) 36:743 Constitutional interpretation, approach to characterising laws (CC)

36:1037 Fairfax v Federal Commissioner of Taxation, discussion of (CC) 36:1037 Implied freedom of political communication, criticism of constitutional

basis of (CC) 36:743 Kable v Director of Public Prosecutions (NSW), discussion of (A) 36:1; (A)

36:175 Kable v Director of Public Prosecutions (NSW), compatibility with human

rights charters (A) 36:1 Kirk v Industrial Court of New South Wales, analysis of (A) 36:175 Momcilovic v The Queen, analysis of (A) 36:1 National Federation of Independent Business v Sibelius, discussion of (CC)

36:1037 Personae designatae, validity of appointment of judge as (A) 36:175 Proportionality, criticism of application in constitutional law of (CC)

36:743 Retrospective taxation laws, validity of (CC) 36:1037 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation, discus-

sion of (CC) 36:1037 Thomas v Mowbray, analysis of (A) 36:41 Roach v Electoral Commissioner, discussion of (CC) 36:743 Rowe v Electoral Commissioner, discussion of (CC) 36:743

C ON TR ACT L AW Addis v Gramophone Co Ltd, analysis of (A) 36:104 Contractual rights and remedies for dismissed employees (A) 36:104 Damages for wrongful dismissal of employees (A) 36:104 Good faith, implied term of in employment contracts (A) 36:521 Mutual trust and confidence, implied term of in employment contracts

(A) 36:104; (A) 36:521

C OPYRIG H T Acohs Pty Ltd v Ucorp Pty Ltd, analysis of (A) 36:915

Authorship of computer-generated works, analysis of case law (A) 36:915 Authorship, mental effort and (A) 36:915 Authorship, originality and (A) 36:915 Computer-generated works, authorship of (A) 36:915 Computer-generated works, criticism of lack of copyright protection of

(A) 36:915 Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd, discussion of

(A) 36:915 IceTV Pty Ltd v Nine Network Australia Pty Ltd, analysis of (A) 36:915 Telstra Corporation Ltd v Phone Directories Co Pty Ltd, analysis of (A)

36:915

C OU RT S Defining characteristics (A) 36:175 Federal jurisdiction, compatibility with human rights charters (A) 36:1 Federal jurisdiction, declarations of inconsistent interpretation in (A) 36:1 High Court of Australia, jurisdiction of to hear appeal from declaration of

inconsistent interpretation (A) 36:1 Inferior courts, jurisdiction of (A) 36:175 Institutional integrity (A) 36:175 Jurisdiction, withdrawal of (A) 36:175 Warrant, criteria for issue of for questioning or detention (A) 36:415

CRIM INAL L AW Absolute liability, criticism of child sexual offences that impose (A) 36:970 Absolute liability, discussion of justifications for in child sexual offences

(A) 36:970 CC v Ireland, discussion of (A) 36:970 Consent to marriage, difficulty in determining (A) 36:970 Crimes Act 1900 (ACT) s 55, discussion of (A) 36:970 Crimes Act 1900 (NSW) s 66A, discussion of (A) 36:970 Crimes Act 1958 (Vic) ss 9AC, 9AD, 9AH, criticism of (A) 36:250 Crimes Act 1958 (Vic) s 45, discussion of (A) 36:970 Criminal Code Act 1899 (Qld) sch 1 s 215, discussion of (A) 36:970 Criminal Code Act 1924 (Tas) s 124, discussion of (A) 36:970 Criminal Code Act 1983 (NT) s 127, discussion of (A) 36:970 Criminal Code Act 1995 (Cth) sch 1 s 270.4, discussion of (A) 36:970 Criminal Code Compilation Act 1913 (WA) sch s 320, discussion of (A)

36:970 Criminal Law Consolidation Act 1935 (SA) s 49(1), discussion of (A)

36:970 Defensive homicide, problems with (A) 36:250

Director of Public Prosecutions, functions of (A) 36:656 England and Wales, assisted suicide policy in (A) 36:656 Euthanasia, autonomous choice and (A) 36:656 Euthanasia, prosecution of parties to (A) 36:656

Family violence, defensive homicide in the context of (A) 36:250 Forced marriage, prohibitions on (A) 36:970 Forced Marriage Protection Orders, discussion of (A) 36:970 Murder, defences to (A) 36:250 ‘People smuggling’, prosecutorial discretion and (A) 36:553 Prosecutorial discretion, Attorney-General’s direction regarding exercise

of (A) 36:553 Prosecutorial discretion, proposed guidelines for exercise of in cases of

voluntary euthanasia and assisted suicide (A) 36:656 Prosecutorial discretion, public confidence in (A) 36:656 Prosecutorial discretion, transparency of (A) 36:656 R v Black, discussion of (A) 36:250 R v Creamer, discussion of (A) 36:250 R v Hess, discussion of (A) 36:970 Self-defence (A) 36:250 Sexual activity between children, criticism of over-criminalisation of (A)

36:970 Sexual offences against children, evaluation of consent defence (A) 36:970 Sexual offences against children, evaluation of mistake as to age defence

(A) 36:970 Sexual offences against children, evaluation of similar age defence (A)

36:970 Sexual intercourse, age of consent to (A) 36:970 Sexual servitude, forced marriage and (A) 36:970 Slavery Act 2013 (Cth), discussion of (A) 36:970 Suicide, prosecution of persons who assist (A) 36:656 Suicide, autonomous choice and assisted (A) 36:656 Tasmanian Law Reform Institute, Sexual Offences against Young People,

Final Report, discussion of recommended changes to mistake as to age defences (A) 36:970

EQU IT Y Breach of fiduciary duty, removal of child without parental consent and

(A) 36:618

EV IDENC E Consent, evidence of parental consent to removal of child (A) 36:618 Constitutional facts (A) 36:287

Documentary evidence, consideration of in historical context (A) 36:618 Expert evidence, nature of experts (A) 36:831 Expert witnesses, alignment of (A) 36:831 Expert witnesses, characteristics of in personal injury cases (A) 36:831 Expert witnesses, empirical profile of (A) 36:831 Historians, evidence of in litigation (A) 36:618 Judicial notice (A) 36:287 Legislative facts (A) 36:287 Medical evidence, repeat involvement of experts in personal injury cases

(A) 36:831 Medical evidence, types of experts in personal injury cases (A) 36:831 Prejudice, evidence of in sentencing (A) 36:871

FAM ILY L AW Forced Marriage (Civil Protection) Act 2007 (UK) c 20, discussion of (A)

36:970 Forced marriage, criminalisation of (A) 36:970 Forced marriage, difficulty of defining (A) 36:970 Forced marriage, kinds of (A) 36:970 Forced marriage and migration law (A) 36:970 Forced marriage, policy responses to (A) 36:970 Forced marriage, prevalence in Australia (A) 36:970 Forced Marriage Protection Orders, discussion of (A) 36:970 Forced marriage, protective measures (A) 36:970 Forced marriage and the Protocol to Prevent, Suppress and Punish Traffick-

ing in Persons, Especially Women and Children (A) 36:970 Forced marriage and the Supplementary Convention on the Abolition of

Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, forced marriage and (A) 36:970

Forced marriage and sexual servitude offences (A) 36:970 Madley v Madley, discussion of (A) 36:970 Marriage, difficulty in determining consent to (A) 36:970

H UM A N RIG H T S Anti-terror laws, Australian Security Intelligence Organisation’s use of

questioning and detention powers (A) 36:415 Arbitrary detention, mandatory sentencing and (A) 36:553 Canadian Charter of Rights and Freedoms, facts and evidence in litigation

under (A) 36:287 Charter of Human Rights and Responsibilities 2006 (Vic), facts and evi-

dence in litigation under (A) 36:287

Charter of Human Rights and Responsibilities 2006 (Vic), compatibility with Australian Constitution ch III (A) 36:1; 36:175

Children, detention of and mandatory sentencing (A) 36:553 Convention on the Rights of the Child, compatibility of criteria for the issue

of warrants to question or detain children with (A) 36:415 Cruel, inhuman or degrading treatment, mandatory sentencing and (A)

36:553 Detention of terrorism suspects, Australian Security Intelligence Organi-

sation’s use of powers relating to (A) 36:415 Forced marriage and human rights instruments (A) 36:970 Human Rights Act 1998 (UK) c 42, facts and evidence in litigation under

(A) 36:287 Human Rights Act 2004 (ACT), compatibility with Australian Constitution

ch III (A) 36:1 Human Rights Act 2004 (ACT), facts and evidence in litigation under (A)

36:287 Mandatory sentencing for ‘people smuggling’, human rights issues relating

to (A) 36:553 Momcilovic v The Queen, analysis of (A) 36:1 Questioning of terrorism suspects, Australian Security Intelligence Organ-

isation’s use of powers relating to (A) 36:415 Right to liberty, whether absolute liability for child sexual offence infringes

(A) 36:970

IN TERNATIONA L L AW Convention on Celebration and Recognition of the Validity of Marriages,

forced marriage and (A) 36:970 Mandatory sentencing for ‘people smuggling’, consistency with interna-

tional law of (A) 36:553 Prohibitions on forced marriage, Australia’s compliance with (A) 36:970 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, forced marriage and (A) 36:970 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

Institutions and Practices Similar to Slavery, forced marriage and (A) 36:970

JU DICIA RY Issuing authority, judges appointed under Australian Security Intelligence

Organisation Act 1979 (Cth) as (A) 36:415 Judicial activism, criticism of (CC) 36:743 Originalism in constitutional interpretation, arguments for (CC) 36:743 Personae designatae, judges appointed as (A) 36:175

Roach v Electoral Commissioner, discussion of judicial methods in (CC) 36:743

JU RISPRU DENCE Jurisdiction, conception of as meeting place of law (A) 36:470 Meeting place of laws, quality and conduct of (A) 36:470 Native Title Act 1993 (Cth) s 223 as meeting place of Australian common

law and indigenous laws (A) 36:470

L AB OU R L AW Addis v Gramophone Co Ltd, analysis of (A) 36:104 Civil remedies against employers (A) 36:335 Confidential information, restraints of trade and (A) 36:369 Fair Work Act 2009 (Cth), accessorial liability under (A) 36:335 Fair Work Act 2009 (Cth), compensation against accessories in civil reme-

dy breach by corporate employer under (A) 36:335 Fair Work Act 2009 (Cth), protected industrial action under (A) 36:785 Fair Work Act 2009 (Cth), restrictions on content of workplace agreements

under (A) 36:785 Fair Work Act 2009 (Cth), workplace determinations under (A) 36:785 Fair Work Act 2009 (Cth) s 424, application by Minister to terminate pro-

tected industrial action under (A) 36:785 Fair Work Commission, powers of to arbitrate bargaining disputes (A)

36:785 Industrial action, termination of (A) 36:785 Job security, whether a ‘matter pertaining’ to industrial relations (A)

36:785 Knowledge, concepts of employee’s (A) 36:369 Knowledge, employee’s explicit, tacit and personal (A) 36:369 Lockouts by employers, legality of (A) 36:785 Mutual trust and confidence, implied term of in employment contracts

(A) 36:104 Qantas industrial dispute (A) 36:785 Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations,

discussion of (A) 36:785 Workplace agreements, restrictions on contents of (A) 36:785 Workplace Relations Act 1996 (Cth), civil remedies under (A) 36:335 Workplace Relations Amendment (Work Choices) Act 2005 (Cth), civil

remedies under (A) 36:335 Wrongful dismissal, contractual remedies for (A) 36:104 Wrongful dismissal, damages for (A) 36:104

L AW A N D DISCRIM INATION Discriminatory motivation as an aggravating factor in sentencing (A)

36:871 Gender discrimination, adverse consequences for women of inference of

joint ownership in marriage (A) 36:216 Gender discrimination, insufficient protection of women who kill in cir-

cumstances of family violence (A) 36:250 Gender discrimination, sentences for offences motivated by (A) 36:871 Group hatred, aggravating factor in sentencing (A) 36:871 Hate crime, sentencing for (A) 36:871 Homophobia, sentencing for offences motivated by (A) 36:871 Paedophiles, whether crime motivated by hatred for constitutes a hate

crime (A) 36:871 Prejudice, aggravating factor in sentencing (A) 36:871 Punishment for offences motivated by hatred or prejudice, justifications

for increased (A) 36:871 Racial discrimination, sentencing for offences motivated by (A) 36:871

LEG A L EDU C ATION Australian legal academy, history of (A) 36:494 Fleming, John, influence of on development of Australian tort law (A)

36:494 Friedmann, Wolfgang, influence of on development of Australian tort law

(A) 36:494 Stone, Julius, influence of on Australian law (A) 36:494

LEG A L H ISTORY Australian legal academy, history of (A) 36:494 Brian Shaw QC, influence on taxation law of (CC) 36:1037 Émigrés, influence of on development of Australian law (A) 36:494 Fleming, John, influence of on development of Australian tort law (A)

36:494 Friedmann, Wolfgang, influence of on development of Australian tort law

(A) 36:494 Stone, Julius, influence of on Australian law (A) 36:494 Stolen Generations litigation, role of historians in (A) 36:618 Tort law, influence of post-war émigrés on development of Australian (A)

36:494

LEG A L PR AC TITION ERS Australian Solicitors’ Conduct Rules, application to solicitors acting in a

mediation (A) 36:706

Barristers’ Conduct Rules, application to counsel acting in a mediation (A) 36:706

Duty of candour (A) 36:706 Duty of honesty (A) 36:706 Guidelines for Lawyers in Mediations, discussion of (A) 36:706 Independence of practitioner from client (A) 36:706 Mediation, ethical obligations of practitioners in (A) 36:706 Legal Services Commissioner v Garrett, analysis of (A) 36:706 Legal Services Commissioner v Mullins, analysis of (A) 36:706 Spaulding v Zimmerman, discussion of (A) 36:706

LEG ISL ATIV E DR AFTING Ewens, John Q (A) 36:140 Finemore, John, life of (A) 36:140

M IG R ATION L AW Forced marriage and migration law (A) 36:970 ‘People smuggling’, mandatory sentencing for (A) 36:553

NATIV E TITLE Native Title Act 1993 (Cth) s 223 as meeting place of Australian common

law and indigenous laws (A) 36:470

PROPERT Y L AW Marital home, inference of joint ownership of (A) 36:216

RESTR A IN T OF TR A DE Confidential information, restraining employee’s use of (A) 36:369 Knowledge, restraining employee’s use of (A) 36:369

SEN TENCING Aggravating factor, determining whether present in sentencing (A) 36:871 Aggravating factor, presence of prejudice against or hatred for a group of

people as (A) 36:871 Bahar v The Queen, approach to mandatory minimum sentences in (A)

36:553 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(h), analysis of

(A) 36:871 General deterrence, effectiveness of (A) 36:553 Hate crime, sentencing for (A) 36:871 Mandatory sentencing for ‘people smuggling’, approaches to (A) 36:553

Mandatory sentencing for ‘people smuggling’, consistency with interna-tional law of (A) 36:553

Mandatory sentencing for ‘people smuggling’, constitutional validity of (A) 36:553

Mandatory sentencing for ‘people smuggling’, effectiveness of (A) 36:553 Mandatory sentencing for ‘people smuggling’, justifications for (A) 36:553 Mandatory sentencing for ‘people smuggling’, legal and policy issues (A)

36:553 Palling v Corfield, developments since (A) 36:553 Principles of sentencing, prejudice against or hatred for a group of people

as an aggravating factor (A) 36:871 Proportionality, principle of and mandatory sentencing (A) 36:553 Sentencing Act 1991 (Vic) s 5(2)(daaa), analysis of (A) 36:871 Sentencing Act 1995 (NT) s 6A(e), analysis of (A) 36:871 Theoretical justifications for increased punishment for offences motivated

by prejudice against or hatred for a group of people (A) 36:871

STATU TORY IN TERPRETATION Acts Interpretation Act 1901 (Cth) s 15AA, discussion of (A) 36:140 Charter of Human Rights and Responsibilities 2006 (Vic) s 32(1), analysis

of (A) 36:1 Extrinsic materials, recourse to (A) 36:140 Minister for Immigration and Ethnic Affairs v B, discussion of (A) 36:140 Purposive approach (A) 36:140 Text, primacy of (A) 36:140

TAX ATION Acquisition of property, whether taxation laws can effect (CC) 36:1037 Retrospective taxation laws, constitutional validity of (CC) 36:1037 Validity of taxation laws under Australian Constitution (CC) 36:1037

TERRORISM Australian Security Intelligence Organisation Legislation (Terrorism)

Amendment Act 2003 (Cth), the use of questioning and detention powers under (A) 36:415

Detention of terrorism suspects, Australian Security Intelligence Organi-sation’s use of powers relating to (A) 36:415

Questioning of terrorism suspects, Australian Security Intelligence Organ-isation’s use of powers relating to (A) 36:415

TORT L AW Australian legal academy, influence of on development of Australian tort

law (A) 36:494 Expert witnesses, characteristics of in personal injury cases (A) 36:831 False imprisonment, removal of child without parental consent and

(A) 36:618 Medical experts, types of in personal injury cases (A) 36:831 Misfeasance in public office, removal of child without parental consent

and (A) 36:618 Negligence, removal of child without parental consent and (A) 36:618

TRU ST S Constructive trusts (A) 36:216 Presumption of advancement (A) 36:216 Resulting trusts (A) 36:216 Third-party claims (A) 36:216 Trustees of the Property of Cummins v Cummins, analysis of (A) 36:216