Law Commons^™

The Construction Contracts Act 2004 (Wa): Statistical Analysis 2005-2018, Auke Steensma, Philip Evans

Law Papers and Journal Articles

Recommendations arising from security of payment reviews are primarily based upon submissions from industry stakeholders and professional organisations. The experience of the authors in the Report of the Operation and Effectiveness of the Construction Contracts Act 2004 (WA) (the CCA),3 was that a number of submissions were emotive, conjectural and unsupported by evidence. The focus on the research reported in this article was to consider the statistical data relative to the operation of the CCA from the information provided in the annual reports of the Building Commissioner from the commencement of the CCA in 2005 until the latest report in …

A Great Nation? The Changing Place Of Religion In Law And Society In Colonial And Contemporary Australia: Reflections On Douglas Murray In An Australian Context, Michael Quinlan

Law Papers and Journal Articles

This paper discusses the role of Christian theology in Australian law and society in the period after the arrival of the First Fleet and in contemporary Australia. It argues that Christian theology was foundational to the Australian colonies. Whilst the theology of Australia’s Christians has always been divided doctrinally, a shared knowledge and understanding of Christianity provided the vast majority of colonists with a common understanding of the world and a common language of discourse about it. This understanding was not shared by the indigenous peoples who had their own cultures, traditions, and understandings of the world and their own …

The Perils Of Privacy And Intelligence-Sharing Arrangements: The Australia–Israel Case Study, Daniel Baldino, Kate Grayson

Arts Papers and Journal Articles

The aim of this analysis is to explore the governance frameworks and associated privacy and interrelated risks that stem from bilateral security arrangements such as the Australia–Israel intelligence relationship. In an era of expanding globalisation of intelligence, targeted oversight advances that are adaptive to global trends may serve to mitigate the potential costs and downsides of transnational intelligence exchange while respecting the privacy, rights and liberties of citizens and ensuring that sovereignty, human rights standards and rule of law remain protected.

The Attribution Problem And Cyber Armed Attacks, Lorraine Finlay, Christian Payne

Law Papers and Journal Articles

In late 2018, the U.S. Secretary of Homeland Security suggested that “cyber-attacks now exceed the risk of physical attacks.” Yet the law has not kept pace with this reality. In particular, identifying who is responsible for a cyberattack makes it difficult to regulate this conduct. A state often cannot practically respond to a threat unless it knows from where the threat emanates and potentially who is responsible. Attribution of cyber conduct is critical from a legal perspective because the unlawful act must be attributable to another state for state responsibility to be engaged.

This essay provides an overview of this …

The Rule Of Law, Arbitrariness And Institutional Virtue, Anthony Keith Thompson

Law Papers and Journal Articles

This article summarises Professor Martin Krygier's work on the rule of law and his view that arbitrariness is its core and is under-theorised. From ancient philosophy, the author suggests that our rule of law settlement feels tentative because arbitrariness is a human characteristic that cannot be completely fixed with institutional checks and balances. The author observes that a variety of rule of law virtues are already expected of judicial decision-makers and suggests that these institutional virtues should be transferred into the administrative, executive and corporate decision-making space to advance the rule of law project.

Enforcing Conformity: Criminalising Religiously Inspired Acts, Michael Quinlan

Law Papers and Journal Articles

This article considers current and foreshadowed Australian exclusion zone laws against the religious freedom, freedom of expression and peaceful assembly protections in the International Covenant on Civil and Political Rights (ICCPR). Exclusion zone laws criminalise activities which occur within designated areas around facilities which terminate pregnancies. Proscribed activities include communication and encompass public prayer, the offer of counselling and protest (no matter how quiet, respectful or caring). To date those prosecuted under these laws have been Christians whose actions were non-violent and motivated by their religious faith. The article argues that there is insufficient evidence that such actions cause harm …

Litigation, Liberty, And Legitimation: The Experience Of The Church Of Scientology In Australian Law, Bernard Doherty, James T. Richardson

Law Papers and Journal Articles

Freedom of religion, the paradigm of freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint.

Religious Liberty In Australia: Some Suggestions And Proposals For Reframing Traditional Categorisations, Iain T. Benson

Law Papers and Journal Articles

No abstract is available for this article.

Missourian Efforts To Extradite Joseph Smith And The Ethics Of Governor Thomas Reynolds Of Missouri, A Keith Thompson

Law Papers and Journal Articles

This is the second of two articles discussing Missouri’s requisitions to extradite Joseph Smith to face criminal charges and the Prophet’s recourse to English habeas corpus practice to defend himself. In the first article, the author discussed the English nature of pre-Civil War habeas corpus practice in America and the anachronistic modern idea that the Nauvoo Municipal Court did not have jurisdiction to consider interstate habeas corpus matters. In this article, he analyzes the conduct of Governor Thomas Reynolds in the matter of Missouri’s requisitions for the extradition of Joseph Smith in light of 1840s legal ethics in America. That …

Christianity And The Law: Trial Separation Or Acrimonious Divorce?, Michael Quinlan

Law Papers and Journal Articles

This article considers the relationship between Christianity and the law in Australia beginning with the arrival of the First Fleet and the declaration of the Swan River Colony. It examines in some detail the influence of the Western legal tradition and of Christianity on the jurisprudence relating to one elemental aspect of Western society: marriage. It considers the make-up of contemporary Australia, contemporary attitudes to religion and the relationship between law and religion in Australia. The article concludes that the once close relationship between law and religion may be better described today not as a trial separation but as an …

The Habeas Corpus Protection Of Joseph Smith From Missouri Arrest Requisitions, A Keith Thompson

Law Papers and Journal Articles

This is the first of two articles discussing Missouri’s requisitions to extradite Joseph Smith to face criminal charges and the Prophet’s recourse to English habeas corpus practice to defend himself. In this article, the author presents research rejecting the suggestion that the habeas corpus powers of the Nauvoo City Council were irregular and explains why the idea that the Nauvoo Municipal Court lacked jurisdiction to consider interstate habeas corpus matters is anachronistic. In the second article, the author analyzes the conduct of Missouri Governor Thomas Reynolds in relation to the requisitions for Joseph Smith’s extradition. Even by the standards of …

Constitutionality Of Communication Prohibitions Around Abortion Clinics, Greg Walsh

Law Papers and Journal Articles

Laws prohibiting a range of conduct in the vicinity of a hospital, clinic or other premise that performs abortions have been enacted in Tasmania, Victoria, the Australian Capital Territory and the Northern Territory. One of the prohibitions involves preventing certain types of communication around premises that perform abortion. It is unclear whether this prohibition is consistent with the implied freedom of political communication. A central consideration in determining whether the prohibition is compatible with the implied freedom is the extent of the burden imposed on political communication. The prohibition may be unconstitutional as it places a substantial burden on political …

Do Consumers Need A ‘Bit’ More Protection Under Australian Consumer Laws? The Regulatory Risks And Challenges Of Bitcoin, Chinelle Van Der Westhuizen

Law Papers and Journal Articles

The creation of Bitcoin, as a digital currency, has been a significant development in the world of finance, in that it provides an alternative method of payment to consumers and businesses who use Bitcoin as a means to buy or sell goods or simply as an investment arrangement. The use of Bitcoin, as a decentralised peer-to-peer network, provides numerous benefits as a payment system, but at the same time, creates challenges for consumers due to its unregulated nature and volatile status. Therefore, when Bitcoin users enter into agreements with Initial Coin Offering (ICO) hosted companies and Bitcoin exchange platforms, the …

Maintaining Religious Identity In Hiring In Faith-Based Schools: A Comparative Analysis Of Australia And The United States, Keith Thompson, Charles J. Russo

Law Papers and Journal Articles

Even as Australia and the United States (US) are becoming increasingly secularised, they retain a significant number of faith-based primary and secondary schools. Aware of the tension between changing societal norms and the freedoms associated with religious institutions, the main part of this paper is divided into two sections. The first part surveys the relevant constitutional and anti-discrimination laws in Australia and the US along with exemplary litigation on how these statutes are applied. The second section offers six suggestions for school administrators who are wrestling with the challenge of preserving the faith-based ethos in their schools in the face …

Apostate Religion In The Book Of Mormon, A Keith Thompson

Law Papers and Journal Articles

Nephite missionaries in the first century BC had significant difficulty preaching the gospel among Nephites and Lamanites who followed Zoramite and Nehorite teaching. Both of these groups built synagogues and other places of worship suggesting that some of their beliefs originated in Israelite practice, but both denied the coming or the necessity of a Messiah. This article explores the nature of Zoramite and Nehorite beliefs, identifies how their beliefs and practices differed from orthodox Nephite teaching, and suggests that some of these religious differences are attributable to cultural and political differences that resonate in the present.

Freedom Of Religion And Freedom Of Speech - The United States, Australia And Singapore Compared, Keith Thompson

Law Papers and Journal Articles

Freedom of Religion (more correctly, freedom of conscience, belief and religion under the International Covenant on Civil and Political Rights 1966 (ICCPR)), and Freedom of Speech have been logically tied together since human beings were sentient creatures. The two rights are inseparably connected by logic, since one cannot speak freely unless one has the freedom of conscience to think out something to say. For this reason, the two rights were combined in the First Amendment to the US Constitution in 1789 and that joinder has cemented the connection ever since even though the extrapolation of the two rights …

The Fall Of The Priests And The Rise Of The Lawyers, Philip R Wood, Hart Publishing, 2016, 273 Pages: Isbn 9781509905560. Hardcover $50.00, Michael Quinlan

Law Papers and Journal Articles

Book Review: -

The Fall of the Priests and the Rise of the Lawyers, Philip R Wood, Hart Publishing, 2016, 273 pages: ISBN 9781509905560. Hardcover $50.00

The Membership Decisions Of Religious Organisations: Equality, Religious Liberty And Freedom Of Association, G Walsh

Law Papers and Journal Articles

The merit of a provision that regulates the membership decisions of religious organisations is typically assessed according to the right to equality and religious liberty. Although such rights are of central importance in assessing such a provision, it is necessary to also consider other relevant considerations in order to reach an informed conclusion on the appropriateness of the provision. Freedom of association is a right that is often neglected in this context. This article argues that any assessment of the merits of a provision that impacts on the membership decisions of religious organisations should have a strong focus on freedom …

Were We Foreordained To The Priesthood, Or Was The Standard Of Worthiness Foreordained? Alma 13 Reconsidered, Anthony K. Thompson

Law Papers and Journal Articles

Alma 13:3–4 is often interpreted as Book of Mormon confirmation of the doctrine that all those who are ordained to the Priesthood on the earth were foreordained to receive that Priesthood in the pre-existence as a result of their exceeding faith and good works. That interpretation is inconsistent with the 1978 revelation on Priesthood. A contextual reading of the account of Alma2’s ministry to the people of Ammonihah also suggests that Alma2 was not telling the men of Ammonihah that they (or anyone else) had been foreordained to receive the Priesthood. Rather, Alma2 was teaching that what we now call …

The Liberties Of The Church And The City Of London In Magna Carta, Anthony K. Thompson

Law Papers and Journal Articles

This article identifies the liberties of the Church and the City of London which were intended to be protected by Magna Carta from 1215. The liberties intended were a recognition of a form of autonomy for the Church and the City and have no connection with the individual freedoms that are identified for protection by modern human rights instruments. The clauses in Magna Carta conferring that autonomy are among the very few that have not been repealed, but they have not been asserted for hundreds of years. While the idea of church autonomy has resonance with the ideas of subsidiarity …

Joseph Smith And The Doctrine Of Sealing, Anthony K. Thompson

Law Papers and Journal Articles

Brian Hales has observed that we cannot understand Joseph Smith’s marriage practices in Nauvoo without understanding the related theology. However, he implies that we are hampered in coming to a complete understanding of that theology because the only primary evidence we have of that theology is the revelation now recorded as Section 132 of the Doctrine and Covenants and a few entries in William Clayton’s journal. This paper argues that we have more primary evidence about Joseph Smith’s sealing theology than we realize. The accounts we have of the First Vision and of Moroni’s first visits in 1823 have references …

The Legal Revolution Against The Place Of Religion: The Case Of Trinity Western University Law School, B Bussey

Law Papers and Journal Articles

The special legal status of religion and religious freedom in liberal democracies has become an issue of controversy among legal academics and lawyers. There is a growing argument that religion is not special and that the law should be amended to reflect that fact. This Article argues that religion is special. It is special because of the historical, practical, and philosophical realities of liberal democracies. Religious freedom is a foundational principle that was instrumental in creating the modern liberal democratic state. To remove religion from its current legal station would be a revolution that would put liberal democracy in a …

An Opportunity Missed? A Constitutional Analysis Of Proposed Reforms To Tasmania's 'Hate Speech' Laws, Joshua Forrester, Augusto Zimmerman, Lorraine Finlay

Law Papers and Journal Articles

The Tasmanian government has proposed reforms to the ‘hate speech’ provisions in the Anti-Discrimination Act 1998 (Tas). However, these reforms are unsatisfactory. They do not address, and in fact compound, the constitutional invalidity of Tasmania’s ‘hate speech’ laws. In this article, we demonstrate that Tasmania’s present ‘hate speech’ laws, like equivalent provisions in other States and Territories, impermissibly infringe the implied freedom of political communication. We also demonstrate that certain proposed reforms further infringe the implied freedom of political communication. We will conclude by proposing elements of a constitutionally valid law against incitement to enmity.

Should Australian Courts Give More Witnesses The Right To Skype?, Marilyn Krawitz, Justine Howard

Law Papers and Journal Articles

Millions of people use Skype, a common form of social media that permits
people to talk to each other over the internet. Courts in Australia have
permitted witnesses in at least a few instances to testify by Skype to date. This
article examines whether Australian courts should permit witnesses to testify
by Skype more often. The article considers using videoconferencing, as
opposed to Skype, and security issues associated with Skype. It also
considers the impact that Skype may have upon considering witness credibility.
Ultimately, it argues that Australian judicial officers may want to consider
permitting witnesses to testify by Skype …

Wolves Among Us: Some Brief Reflections On The "Bona Fides" Of Gendered Violence In Computer Game Art, Adam Jardine

Law Papers and Journal Articles

The classification of computer games in Australia is a subject of expert discourse, but is not, itself, an expert function. It is carried out by community representatives (the classifiers), speaking for the community of reasonable people and applying their standards, while assessing the "impact" of classifiable elements on both reasonable people and the especially vulnerable. It is an inherently personal analysis, but the personal is an imagined space (the "reasonable person" or "reasonable adult"). This blog or reflection-type article brings the personal back to a real space, of flesh and blood: the author's. It starts from the author's experience of …

Who Was Sherem?, A Keith Thompson

Law Papers and Journal Articles

The Book of Mormon’s first anti-Christ, Sherem, “came among” the Nephites before their first generation was ended. Because he was an eloquent believer in the Law of Moses, there has been a variety of surmise as to his background. Was he a Lamanite, or a Jaredite or Mulekite trader? Was his presence among the separated Nephites evidence of early interaction between the Nephites and other civilisations in Nephite lands from the time of their first arrival? This short article reviews the various suggestions about Sherem’s identity and suggests he was most likely a descendant of the original Lehite party but …

Cyberbullying - When Does A School Authority's Liability In Tort End?, Robert Pelletier, Boris Handal, Jessica Khalil, Tryon Francis

Law Papers and Journal Articles

Cyberbullying in schools is increasing on an alarming rate. The development of the Internet and smartphone technology have increased the potential scope of a school authority’s duty of care for its students. A question frequently asked by educators is “Where does a school authority’s duty of care end in the interconnected, 24/7 world of the Internet?” This paper argues that a duty of care will be owed where the school is in a school/student relationship with its students. That relationship can exist outside the school gates and outside of school hours.

There are no decisions of senior appellate courts that …

Avoiding Unnecessary Divorce And Restoring Justice In Marital Separations - Review Of Family Law Act 1975 (Fla), Christopher Brohier, Nigel K. Zimmermann

Law Papers and Journal Articles

The concept of no-fault divorce which became law in Australia in 1975 was part of a revolution in divorce law reform which swept through the western world in the late 1960s and 1970s. It was predicated on a notion that the law should aim to buttress marriage, but if the marriage was finished in fact, the law should “enable the empty legal shell to be destroyed with the maximum fairness, and minimum bitterness, distress and humiliation.” Property would be divided on a “once for all” basis, the children, though not physically divided, would be apportioned between a “custodial” parent and …

"Originalism" In Magna Carta, Augusto Zimmerman

Law Papers and Journal Articles

No abstract provided.

Wei Fan V South Eastern Sydney Local Health District (No 2), M Doepel, S Canton

Law Papers and Journal Articles

Wei Fan v South Eastern Sydney Local Health District (No 2)1 is a professional negligence decision given by Harrison AsJ on 31 August 2015. In this case, the plaintiff claimed damages for medical negligence on the basis of delayed diagnoses which caused him significant injuries.

This case serves as a good example of the importance of credible lay and expert evidence, particularly where the facts include multiple hospitals and multiple admissions. This case also provides a reasonable example of the interplay between different mitigating defences including contributory negligence, failure to mitigate and volenti non fit injuria (voluntary assumption of …