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1
Briggs, Chris. "Lockout Law in Australia." Journal of Industrial Relations 49, no. 2 (April 2007): 167–85. http://dx.doi.org/10.1177/00221856070490020301.
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Should Australian lockout law be reformed? Lockouts in Australia are legally the formal equal of strikes and the legal treatment of lockouts is the most `de-regulated' in the OECD. The notion that strikes and lockouts should be treated equally is intuitively appealing. However, other OECD nations have rejected an equal right to strike and lockout, reserving lockouts for exceptional circumstances where employers suffer from an imbalance of bargaining power so as to reconcile lockouts with other legal principles such as freedom of association and the right to strike. Australian employers, it will be argued, have been given too much freedom by policy makers at federal level to use lockouts that should legally be reserved as a weapon of genuine `last resort'. However, instead of repositioning Australian lockout law back towards the international mainstream, WorkChoices will produce a legal framework that, uniquely, positively discriminates in favour of employer lockouts against strikes.
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Black, C. "Maturing Australia through Australian Aboriginal Narrative Law." South Atlantic Quarterly 110, no. 2 (April 1, 2011): 347–62. http://dx.doi.org/10.1215/00382876-1162489.
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Boyle, Liam. "The Significant Role of the Australia Acts in Australian Public Law." Federal Law Review 47, no. 3 (July 3, 2019): 358–89. http://dx.doi.org/10.1177/0067205x19856501.
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The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.
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Weatherburn, Don. "Law and Order Blues." Australian & New Zealand Journal of Criminology 35, no. 2 (August 2002): 127–44. http://dx.doi.org/10.1375/acri.35.2.127.
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This paper discusses law and order politics and policy in Australia. It challenges the conventional criminological wisdom that Australia does not have a serious crime problem. It argues that, while political responses to crime are all too frequently irrational, this is not because Australian state and territory governments so often rely on punitive law and order policies. Australian law and order policy is irrational because it usually lacks any clear rationale, is rarely subjected to any effectiveness or cost-effectiveness evaluation, frequently ignores the possibility of unintended side-effects and is occasionally founded on a misdiagnosis of the crime problem that prompts it. The paper concludes by discussing various explanations for this state of affairs and what can be done about it.
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Wolff, Leon. "Litigiousness in Australia: Lessons from Comparative Law." Deakin Law Review 18, no. 2 (December 1, 2014): 271. http://dx.doi.org/10.21153/dlr2013vol18no2art39.
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How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.
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Bird, Ruth. "Legal Research and the Legal System in Australia." International Journal of Legal Information 28, no. 1 (2000): 70–92. http://dx.doi.org/10.1017/s073112650000888x.
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The law in Australia is derived from legislation passed in Australian parliaments, at Federal and State level, together with the English Common law tradition and the Australian Common Law which developed from the English Common Law.
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Kelly, Danial. "Natural Resources Law in Australia: Principles and Practices." Jambe Law Journal 1, no. 2 (July 12, 2019): 155–76. http://dx.doi.org/10.22437/jlj.1.2.155-176.
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What is the jurisprudential approach taken to Natural Resources Law in Australia? The ultimate source of law in Australia is Commonwealth of Australia Constitution Act however the Constitution does not specifically include an environment or natural resources power and the Commonwealth government can only make laws under the heads of power provided by the Constitution. This paper considers how natural resources law has developed as environmental protection law, especially the Environment Protection and Biodiversity Conservation Act. Also discussed is the approach taken by the Northern Territory of Australia in relation to natural resources law. The discussion unearths the developing jurisprudence in Australian natural resources law that seems to increasingly favour environmental protection over human development.
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Davies, Simon. "Privacy law — Australia." Computer Law & Security Review 13, no. 6 (November 1997): 429–30. http://dx.doi.org/10.1016/s0267-3649(97)89793-2.
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Tréguier, Lucie, and William van Caenegem. "Copyright, Art and Originality: Comparative and Policy Issues." Global Journal of Comparative Law 8, no. 2 (September 25, 2019): 95–127. http://dx.doi.org/10.1163/2211906x-00802001.
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This article reviews the laws of France and of Australia in relation to artistic works copyright for useful articles. Australian law applies a different subsistence test to ‘applied art’ than to fine art, whereas French law makes no such distinction, applying the principle of ‘Unité de l’art’. The decision of the High Court of Australia in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 clr 458, which aligns the standard of originality more closely with that applied in European copyright law, invites reconsideration of the Australian approach in favour of a universal standard for all artistic works. A more contemporary understanding of what constitutes ‘art’ points in the same direction. In the result, there is no longer any need to apply a restrictive ‘artistic quality’ standard to works of applied art in Australia. Such an approach better aligns the tests of artistic copyright subsistence in different jurisdictions.
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Corrin, Jennifer. "Australia: Country Report on Human Rights." Victoria University of Wellington Law Review 40, no. 1 (June 1, 2009): 37. http://dx.doi.org/10.26686/vuwlr.v40i1.5378.
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This article provides a country report on the status of human rights in Australia. Human rights law in Australia is embodied in three sources: constitutional provisions, federal, state and territorial legislation, and the common law. However, the author notes that Australia has not embraced the 'rights revolution' seen elsewhere around the world as it does not have a constitutionally enshrined charter of human rights. This status of human rights under Australian law reflects the nation's conservative approach to constitutional law reform, and it is argued that the above sources of human rights law do not provide a comprehensive regime for the protection of human rights in Australia. However, several states have proved that popular support for human rights protection is a political possibility, which shows cautious optimism for the future of human rights laws in Australia.
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Croft, Clyde. "Recent Developments in Arbitration in Australia." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 599–616. http://dx.doi.org/10.54648/joia2011046.
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Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
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Downie, Colette. "Will Australia Trust Arbitrators with Antitrust?" Journal of International Arbitration 30, Issue 3 (June 1, 2013): 221–65. http://dx.doi.org/10.54648/joia2013017.
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International arbitration has gained acceptance in many jurisdictions as a convenient method for resolving competition law disputes. In Australia, it remains unclear whether competition disputes are arbitrable, even though Australian courts and legislatures have recognized the legitimacy of arbitration as a dispute resolution process. This article outlines a model which would allow competition arbitration to operate within the Australian commercial and legal environment. Options are presented to alleviate the difficulties which continue to be experienced during US and EU antitrust arbitration proceedings and at the award enforcement stage. It is envisaged that the recommendations made by this article will enable international arbitration to become a complementary method of competition law enforcement, if Australia trusts arbitrators with antitrust.
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Eldridge, John. "Contract Codification: Cautionary Lessons from Australia." Edinburgh Law Review 23, no. 2 (May 2019): 204–29. http://dx.doi.org/10.3366/elr.2019.0549.
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In March 2012, the Australian Commonwealth Attorney-General's Department published a Discussion Paper which explored the prospect of codifying or otherwise reforming the Australian law of contract. There is little reason to think that the codification of the Australian law of contract is likely to be embarked upon in the foreseeable future. At the same time, recent years have seen a resurgence of interest in codification in Britain. This paper examines the experience of contract codification efforts in Australia with a view to identifying a number of cautionary lessons. It focuses on two challenges inherent in contract codification which have been given too little attention by the proponents of reform in Australia.
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Daglish, Kristen. "The Crime of Genocide: Nulyarimma v. Thompson." International and Comparative Law Quarterly 50, no. 2 (April 2001): 404–11. http://dx.doi.org/10.1093/iclq/50.2.404.
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On 31 May 1999 two matters came before the Full Federal Court of Australia, constituted by Justices Whitlam, Wilcox and Merkel. The two cases heard together were different in nature and origin, but their common feature was a claim of genocide. The primary issue was whether the international crime of genocide forms part of the law of Australia. The majority view was that, before an international crime could be prosecuted in an Australian court, specific domestic legislation needed to be enacted. The dissenting opinion was that genocide had become an offence at common law and could be prosecuted. In this case note I will analyse the opinions both in the terms of their impact on the relationship between international law and domestic law in Australia, and in light of recent trends in Australia and other common law countries.
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Zain, M. Rizky. "THE IMPACT OF WHV (WORK HOLIDAY VISA) ON INTERNATIONAL LAW." Journal of Law and Border Protection 5, no. 1 (April 1, 2023): 13–26. http://dx.doi.org/10.52617/jlbp.v5i1.415.
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The Minister of Trade, Enggartiasto Lukita held a collaboration program with the Australian Minister of Trade, Simon Birmingham, the Indonesia-Australia Comprehensive Trade Agreement (IA-CEPA). One of the results of the signing of a free trade agreement namely Australia with Indonesia is the addition of working and holiday visa quotas in Australia for eligible Indonesian youth. The Australian Government has confirmed that there will be an increase in the number of Working Holiday Visa (WHV) quotas prepared as part of the agreement. The total quota will reach 4,100 from the previous 1,000 in the first year, with an increase of 5,000 in six years. There are no research results that explain how the WHV is against the perspective of international law because this is a new thing. This is a challenge to discuss and how it affects the world. The method used in the preparation of this journal is the normative-juridical method. The program must be utilized properly because it will have a positive impact on Indonesia and notify the public, especially young Indonesians who want to go to Australia in order to take education and work
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Healey, Deborah J. "Strange Bedfellows or Soulmates: A Comparison of Merger Regulation in China and Australia." Asian Journal of Comparative Law 7 (2012): 1–40. http://dx.doi.org/10.1017/s219460780000065x.
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AbstractChina and Australia are extremely significant trade partners and investors. Australia has a very well established competition law, now called the Competition and Consumer Law 2010, with a well-established merger regime. China has a relatively new competition law, the Anti-Monopoly Law 2007. This article compares merger control in the two jurisdictions. The Ministry of Commerce (MOFCOM) has already referred to an Australian decision in rejecting a merger, the only reference to a foreign decision to date, which confirms the utility of the comparison. This article critically evaluates the determinations of MOFCOM and compares the approach of the Australian Competition and Consumer Commission (ACCC), the Australian regulator. It assesses the transparency and predictability of procedures and decision-making in the two jurisdictions.
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Saunders, Cheryl. "Australian Federalism and the Role of the Governor-General." International Journal of Legal Information 28, no. 2 (2000): 407–23. http://dx.doi.org/10.1017/s0731126500009185.
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Australia is both a federation and a constitutional monarchy. The Commonwealth of Australia Constitution Act 1900, which made the Australian Constitution law, refers to the establishment of the federation “under the Crown of the United Kingdom of Great Britain and Ireland.” In fact, however, since 1973, the appropriate style of the monarch in relation to Australia has been “Queen of Australia.” And ever since federation, the monarch has been represented in Australia by a Governor-General, who progressively has acquired a more significant role, in parallel with the acquisition of Australian independence.
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White, Ben, and Lindy Willmott. "Future of assisted dying reform in Australia." Australian Health Review 42, no. 6 (2018): 616. http://dx.doi.org/10.1071/ah18199.
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The Voluntary Assisted Dying Act 2017 (Vic) will come into force in June 2019, becoming the first law in Australia in 20 years to permit voluntary assisted dying (VAD). This paper considers how other Australian states and territories are likely to respond to this development. It analyses three key factors that suggest that law reform is likely to occur in other parts of Australia: (1) the growing international trend to permit VAD; (2) social science evidence about how VAD regimes operate; and (3) changes to the local political environment. The paper argues that these three factors, coupled with the effect of Victoria changing its law, suggest that other VAD law reform is likely to occur in Australia. It also considers the different types of laws that may be adopted, including whether other states and territories will follow the very conservative Victorian approach or adopt more liberal models. What is known about the topic? Despite sustained law reform efforts in parliaments across the country, Victoria is the first Australian jurisdiction to pass a law permitting VAD in 20 years. What does this paper add? This paper addresses likely future trends in VAD law reform in Australia. Drawing on international developments, a growing body of social science evidence about how VAD regimes work in practice, and evidence about a changing local political environment, the paper argues that other states and territories in Australia will also enact laws about VAD. What are the implications for practitioners? The legalisation of VAD has significant implications for health professionals, health administrators and health systems. Understanding how reform may occur and what legal models may be considered supports participation in the law reform process and preparation for likely change.
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Valadkhani, Abbas. "Okun's Law in Australia." Economic Record 91, no. 295 (September 1, 2015): 509–22. http://dx.doi.org/10.1111/1475-4932.12221.
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Ralph, Iris. "Australian Tongue and Ag-gag Law." Swamphen: a Journal of Cultural Ecology (ASLEC-ANZ) 6 (March 7, 2017): 50–61. http://dx.doi.org/10.60162/swamphen.6.11520.
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In this essay, I comment on two histories of animal farming in Australia in an ecocritical reading of several works of Australian literature: Tim Winton’s novel Shallows (1984), Susan Hawthorne’s collection of poetry, Cow (2011) and Francesca Rendle-Short’s novel Bite Your Tongue (2011). The first of those histories, the background of Shallows, refers to the whaling industry that operated in Western Australian waters up through the 1970s and the growing public awareness of that industry that eventually drove it to a halt in 1978, the year the main events of the novel take place. Cow and Bite Your Tongue, the texts that I mostly discuss, carry references to the history of industrial farming of cows in Australia, which, along with the industrial farming of other domesticated animal species, exploded after 1970 (in Australia and elsewhere in urban-industrialising countries), the same decade when Australians were beginning to rally behind animal rights activists’ opposition to whale slaughter. Today, almost half a century later, animal advocacy activists continue to raise pressing questions about animal species that are industrially farmed. They are doing so at the same time as the meat industry is attempting to restrict public access to and information about its operations. I address those questions in my reading of Hawthorne’s paean to cows and Rendle-Short’s references to the Moral Right movement in Queensland in the 1970s and attempts by its supporters to remove works of literature from school book shelves.
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Kildea, Paul, and Sarah Murray. "Democratic Constitutions, Electoral Commissions and Legitimacy – The Example of Australia." Asian Journal of Comparative Law 16, S1 (December 2021): S177—S192. http://dx.doi.org/10.1017/asjcl.2021.35.
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AbstractThis article explores the structure, management and institutional design of commissions in Australia and unpacks how these institutions operate within the Australian political landscape. Part 1 looks at the structure of Australian electoral commissions and how they maintain structural independence. Part 2 seeks to better understand Australian electoral institutions, through an examination of how they have manoeuvred administrative and political challenges and emergencies when they have arisen. Finally, Part 3 employs a neo-institutionalist lens to focus on the internal and external dynamics that assist or hinder the operation of commissions in Australia and how legitimacy and institutional trust can be created, maintained and harmed by electoral agencies in the Australian context.
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Morrison, James. "Recent Developments in International Arbitration in Australia 2017/2018." Journal of International Arbitration 36, Issue 3 (June 1, 2019): 401–16. http://dx.doi.org/10.54648/joia2019019.
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This article summarizes recent developments in international arbitration in Australia over 2017 and 2018. After briefly canvassing the major international arbitration-related conferences held Australia and statistics from Australian and international arbitral institutions, the author explains the new amendments to the International Arbitration Act (IAA) 1974 (Cth) and the entry into force of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, then provides case notes on recent cases before the Australian courts dealing with (1) an application to remove an arbitrator and set aside his awards for breach of natural justice and prejudgment; (2) an ambiguous dispute resolution clause providing for mediation under institutional arbitration rules; and (3) an anti-arbitration injunction and the basis of the power the Federal Court of Australia to issue it.
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Anderssen, Diana. "Indigenous Australia and the pre-legal society in HLA Hart’s The Concept of Law." Journal of Legal Philosophy 48, no. 1 (May 31, 2023): 1–37. http://dx.doi.org/10.4337/jlp.2023.01.01.
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The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’.
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Campbell, Bill, and Stephanie Ierino. "James Crawford and the Australian Government." Australian Year Book of International Law Online 40, no. 1 (December 7, 2022): 195–217. http://dx.doi.org/10.1163/26660229-04001009.
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Abstract This article by two international lawyers advising the Australian Government focuses on the cases before international courts and tribunals in which Professor Crawford appeared as counsel on behalf of the Australian Government including the Southern Bluefin Tuna Cases, the East Timor Case, the Whaling in the Antarctic Case and the Certain Documents and Data Case. The article also covers advice Professor Crawford provided to the Australian Government both in the course of those cases and on other matters such as compulsory pilotage in the Torres Strait. To paint the full picture, mention also is made of a limited number of matters earlier in his career in which he acted against Australia. The article illuminates Professor Crawford’s role as adviser, counsel and advocate for Australia across the full breadth of international law, from law of the sea and international environmental law, to the law on diplomatic protection and the law of treaties.
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Okhovat, Sahar, Asher Hirsch, Khanh Hoang, and Rebecca Dowd. "Rethinking resettlement and family reunion in Australia." Alternative Law Journal 42, no. 4 (November 27, 2017): 273–78. http://dx.doi.org/10.1177/1037969x17732705.
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Family reunion remains a significant issue for refugee communities in Australia. Family separation causes significant psychological, social and economic harm to displaced communities. Instead of supporting the reunion of refugee families, the current law and policies make it increasingly difficult, if not impossible, for refugees to bring their family members to Australia. This article outlines the barriers to family reunion for refugees under Australian law and policy and addresses how such policies could be reformed to better facilitate reunification.
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Giliker, Paula. "ANALYSING INSTITUTIONAL LIABILITY FOR CHILD SEXUAL ABUSE IN ENGLAND AND WALES AND AUSTRALIA: VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND STATUTORY INTERVENTION." Cambridge Law Journal 77, no. 3 (September 24, 2018): 506–35. http://dx.doi.org/10.1017/s0008197318000685.
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AbstractThis paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.
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Mehdi Amirmahmoudi & Md. Zafar Mahfooz Nomani. "Access & Benefit Sharing Provisions Under Biodiversity Conservation Law in Australia & Its Implications for India." Legal Research Development 2, no. IV (June 30, 2018): 35–46. http://dx.doi.org/10.53724/lrd/v2n4.06.
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Australia played a major role in the developing ABS framework under biodiversity conservation law. Australia is a megadiverse country with complex ABS experience and possessed huge support from the biodiversity stakeholders. Australia has adopted the regulations regarding access benefit sharing under article 15 of CBD, 1992. The Australian legislation is in compliance with PIC and MAT. The agreement reaffirms faith in CBD, 1992, Bonn Guidelines, 2001 and Nagoya Protocol, 2009. The government system of Australia is a constitutional federation which is made up of six sovereign governments, two autonomous territories, and a national government. It has a ‘common law’ system adopted from Britain. Australia’s experience is extensive with ABS to draw lessons about developing an effective institutional mechanism for public and private sector with equitable benefit sharing in scientific and commercial access. The access and benefit sharing provisions under biodiversity conservation law in Australia have potential impact to design its national laws and policies for India by synergizing environmental law and intellectual property rights in a sustainable framework.
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Kiefel, Susan, and Gonzalo Villalta Puig. "The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union." Global Journal of Comparative Law 3, no. 1 (May 29, 2014): 34–49. http://dx.doi.org/10.1163/2211906x-00301002.
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Together with matters of multilateral and bilateral regulation, domestic regulation affects the law and policy of economic relations between the European Union (eu) and Australia. This article discusses the constitutional determinants of the Australian single market and the significance to its development of the free trade jurisprudence of the Court of Justice of the European Union. When Australia was federated, free trade between the States and the removal of barriers at the borders were at the forefront of constitutional objectives. They find expression in Section 92 of the Australian Constitution. It took some time for the jurisprudence to develop by reference to principles of competition. Recent decisions of the High Court of Australia highlight the need to prove that a law or measure may have anti-competitive effects within a market to hold it invalid. Application of this (unacknowledged) test of proportionality invites comparison with eu law and opens to question the usefulness of protectionism as a criterion of constitutional invalidity for trade without borders in the ‘new economy’.
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Beck, Luke. "Our Father who art in Town Hall: Do local councils have power to pray?" Alternative Law Journal 46, no. 2 (March 17, 2021): 128–33. http://dx.doi.org/10.1177/1037969x21996364.
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Many local councils in Australia commence their meetings with prayer. Case law in the United Kingdom holds that English local councils do not have power to commence their meetings with prayer. This article argues that the reasoning of the UK case law applies with equal force in Australia with the result that the practice of many Australian local councils of incorporating prayers into their formal meetings is unlawful.
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Cantatore, Francina, and Jane Johnston. "Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law." Deakin Law Review 21, no. 1 (February 23, 2018): 71. http://dx.doi.org/10.21153/dlr2016vol21no1art727.
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This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.
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Scott, Shirley. "The Australian High Court's Use of the Western Sahara Case in Mabo." International and Comparative Law Quarterly 45, no. 4 (October 1996): 923–27. http://dx.doi.org/10.1017/s0020589300059777.
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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
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McEniery, Ben. "Physicality in Australian Patent Law." Deakin Law Review 16, no. 2 (December 1, 2011): 461. http://dx.doi.org/10.21153/dlr2011vol16no2art110.
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It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods — namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.
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Noviana Putri, Salwa, Ariq Fazari, Nico Ari Widodo, Faishal Fatahillah, and Satria Dwinugraha. "Dispute over the 1974 MoU Box between Indonesia and Australia: How MoU Legally Binding in Two Countries?" Ikatan Penulis Mahasiswa Hukum Indonesia Law Journal 4, no. 1 (January 31, 2024): 15–26. http://dx.doi.org/10.15294/ipmhi.v4i1.76236.
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This study aims to delineate the legal authority of Memorandum of Understanding (MoUs) within the jurisdictions of Indonesia and Australia, particularly concerning the resolution of international civil law disputes. The research employs a normative juridical approach, utilizing legal reviews and secondary data for support. The findings reveal that in civil law states, notably Indonesia, MoUs are regarded as binding agreements in accordance with the "Agreement is Agreement" perspective as per Article 1338 (1) of the Civil Code. Conversely, common law states, such as Australia, generally perceive MoUs as non-legally binding. However, an MoU may attain validity and binding status if it fulfills the six stipulated requirements outlined in Australian contract law. To address the dispute surrounding the 1974 MoU BOX between Indonesia and Australia, resolution options include examining international civil law rules based on primary and secondary links or resorting to an international arbitral tribunal.
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Perry Jr, H. W., and Patrick Keyzer. "Human Rights Issues in Constitutional Courts: Why Amici Curiae are Important in the U.S., and What Australia Can Learn from the U.S. Experience." Law in Context. A Socio-legal Journal 37, no. 1 (November 30, 2020): 66–98. http://dx.doi.org/10.26826/law-in-context.v37i1.127.
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Unlike thirty years ago, human rights issues are now routinely raised in Australian constitutional cases. In this article, the authors examine the role of the amicus curiae in the United States Supreme Court and consider how far and to what extent the amicus curiae device has been accepted in decisions of the High Court of Australia. The authors analyse the High Court’s treatment of applications for admissions as amici curiae, noting the divergent approaches taken by Chief Justice Brennan and Justice Kirby, and drawing attention to the practical difficulties faced by applicants who seek admission to make oral submissions. Human rights cases raise questions of minority rights that should not be adjudicated without input from those minorities. The authors recommend that Australia adopt the U.S. approach, to admit written submissions as a matter of course, and to allow applicants to make oral submissions when they have a serious and arguable point to make. This approach is consistent with the Court’s significant role of establishing legal policy norms for the entire nation, including for the identity groups that increasingly occupy the Court’s attention. The focus here is on Australia, but the argument for the role of amici is more general and might well apply to high courts elsewhere.
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Douglas, Michael, Mary Keyes, Sarah McKibbin, and Reid Mortensen. "The HCCH Judgments Convention in Australian Law." Federal Law Review 47, no. 3 (July 15, 2019): 420–43. http://dx.doi.org/10.1177/0067205x19856503.
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In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.
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Howe, Joanna, Laurie Berg, and Bassina Farbenblum. "Unfair Dismissal Law and Temporary Migrant Labour in Australia." Federal Law Review 46, no. 1 (March 2018): 19–48. http://dx.doi.org/10.22145/flr.46.1.2.
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Increasing attention is being given to the exploitation of temporary migrant workers in Australia, in particular in relation to wage underpayments. But very little focus has been given to the ability of temporary migrant workers to access legal remedies under Australian employment law. This article examines whether temporary migrant workers are able to make and pursue a claim for unfair dismissal within the federal jurisdiction. As unfair dismissal law seeks to protect job security and provides an essential check on managerial prerogative, it is important that temporary migrant workers are able to access this legal avenue to protect them from arbitrary dismissal. We argue there are serious deficiencies in the application, coverage and content of federal unfair dismissal law in relation to temporary migrant workers in Australia.
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Cornish, René, and Kieran Tranter. "The Cultural, Economic and Technical Milieu of Social Media Misconduct Dismissals in Australia and South Africa." Law in Context. A Socio-legal Journal 36, no. 2 (May 16, 2020): 1–32. http://dx.doi.org/10.26826/law-in-context.v36i2.113.
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The intersection between social media activity and employment is an emerging global issue. This article examines the cultural, economic and technical milieu that has generated contested social media misconduct dismissals in Australia and South Africa. Through an analysis of 42 Australian and 97 South African decisions, it is argued that the ubiquitous, enduring and open nature of social media affects employment quite differently depending on country specific factors. In Australia, the absence of entrenched political rights has meant that employee social media use is not subject to reasonable expectations of privacy. However, there is also tolerance for a certain level of larrikin behaviour. In South Africa, the existence of enshrined rights manifests differently in the context of social media dismissal. Within a culturally diverse population with deeply fractured race relations, the decisions reveal a White minority still perpetuating dominance over a historically disadvantaged Black workforce.
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Zannettino, Lana, Marinella Marmo, Hossein Esmaeili, and Jenny Richards. "“Gatekeeping Family Violence”: The Role of Religious and Community Leaders in the Afghan Migrant Community in South Australia." Religions 14, no. 9 (September 20, 2023): 1208. http://dx.doi.org/10.3390/rel14091208.
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Community leaders in culturally and linguistically diverse (CALD) communities in Australia, particularly Afghan migrant communities, may play an important role in understanding and responding to family violence. This paper explores the role and perspectives of religious and community leaders in the Afghan community in South Australia in relation to preventing and responding to family violence. It is argued that these leaders play a pivotal role in their community as they can act as gatekeepers between their own and the Australian community. This paper concludes that it is imperative that governments and the legal system engage with CALD communities to better understand faith related factors such as the relevance of Islamic law and culture for Afghan Muslim communities in South Australia. At the same time, the education of the broader Australian and Afghan communities and their religious and community leaders in both Islamic law and the Australian legal system is a vital factor in combating and reducing family violence.
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Gray, Anthony. "Forum Non Conveniens in Australia: A Comparative Analysis." Common Law World Review 38, no. 3 (September 2009): 207–44. http://dx.doi.org/10.1350/clwr.2009.38.3.0188.
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This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications.
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Holloway, Ian. "Sir Francis Forbes and the Earliest Australian Public Law Cases." Law and History Review 22, no. 2 (2004): 209–42. http://dx.doi.org/10.2307/4141646.
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There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.
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Olbourne, Ben. "INTERNATIONAL TORTS AND CHOICE OF LAW IN AUSTRALIA." Cambridge Law Journal 61, no. 3 (December 11, 2002): 499–544. http://dx.doi.org/10.1017/s0008197302361701.
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InJohn Pfeiffer Pty. Ltd. v. Rogerson (2000) 201 C.L.R. 552, the High Court of Australia had reconsidered the choice of law rules for “intra-national torts”, i.e. torts involving elements occurring in more than one Australian state. There, the Court rejected the rule of double actionability derived from Phillips v. Eyre (1870) L.R. 6 Q.B. 1 in preference for the rule that all questions of substance should be governed by the lex loci delicti. In Régie National des Usines Renault v. Zhang (2002) 187 A.L.R. 1, the High Court was asked to extend this preference to international torts as well. It did so emphatically. Except as regards a limited number of specific torts, for which the Court expressly reserved its consideration, the Australian common law rule is now that the substantive elements of tort actions are to be determined in accordance with the law of the place of the act or omission giving rise to the action.
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Evans, S. "Australia." International Journal of Constitutional Law 1, no. 1 (January 1, 2003): 123–30. http://dx.doi.org/10.1093/icon/1.1.123.
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Zhou, Weihuan. "Australias Anti-dumping and Countervailing Law and Practice: An Analysis of Current Issues Incompatible with Free Trade with China." Journal of World Trade 49, Issue 6 (December 1, 2015): 975–1010. http://dx.doi.org/10.54648/trad2015038.
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This article identifies and analyses five major issues relating to current antidumping and countervailing laws and practice in Australia. Given the recent conclusion of a free trade agreement between Australia and China, the article proposes to focus on Australia’s antidumping and countervailing investigations against China. The article discusses whether the Australian laws and practice are consistent with the relevant WTO rules and how they may impact on the promotion of trade liberalization between Australia and China. The article concludes that all of these issues may create trade barriers to Chinese exports to Australia and hence must be dealt with to protect the enhancement of market access of Chinese exports to Australia under the Australia – China free trade initiatives.
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Jaffer, Sue, and Nicholas Morris. "Lessons from the Financial Crisis and Other Banking Scandals." Law in Context. A Socio-legal Journal 36, no. 1 (August 12, 2019): 47–63. http://dx.doi.org/10.26826/law-in-context.v36i1.86.
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The Global Financial Crisis (GFC) had dire implications for the UK, creating massive unemployment and years of austerity. This paper looks at the underlying causes of the crisis, together with the reasons why financial regulation in the UK failed to prevent the financial crash. The UK sought to learn the lessons from its failure, and many inquiries, research reports and books have explored the causes and compounding factors. The book “Capital Failure” identified that trust was fundamental to the working of the financial sector, and that the erosion of trust and trustworthy behaviour has had a disastrous effect. Australia escaped relatively unscathed from the GFC, yet recent inquiries into the banking and superannuation sectors have revealed a similar dramatic decline in trustworthiness and ethical standards of behaviour. The article examines how the Australian banking environment evolved, the implication of recent developments including Fintech and Regtech, and what lessons Australia can learn from overseas experience.
 
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Fowler, Mark, and Alex Deagon. "Recognising Religious Groups as Litigants: An International Law Perspective." Laws 13, no. 2 (March 18, 2024): 16. http://dx.doi.org/10.3390/laws13020016.
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The Australian Human Rights Commission has claimed that recognising religious corporations as litigants in religious discrimination claims departs from international human rights law, which only protects the rights of natural legal persons. In this article we respond to that claim by arguing that under international law, Australia should protect the ability of religious groups to be litigants, including corporations. The International Covenant on Civil and Political Rights requires Australia to respect and ensure individuals have the right to manifest their beliefs in community with others, and that such communities are protected against discrimination on religious grounds. This requirement entails granting religious groups the ability to pursue legal measures to preserve the enjoyment of these rights by their members.
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WANG, Mi, and Zhenhuan ZHANG. "Rule of Law History and Development in China: in Comparison of Australia." Journal of Social Science Studies 10, no. 2 (September 11, 2023): 27. http://dx.doi.org/10.5296/jsss.v10i2.21196.
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The article discusses the rule of law development and application in China compared with Australia. In August 2021, the Chinese Central Government issued the Implementation Outline for the Construction of a Government Under the Rule of Law (2021-2025), which indicated the general plan to improve rule of law for the next five years. In the past few years, the Chinese government has made great efforts to promote the rule of law theory. China enforced judicial reform, which improves the judicial independence and professional ability of legal practitioners. Chinese rule of law formation has been influenced by western countries due to previous foreign legal aid and Australian judicial practice has also been influenced by Chinese theory. In Australia, people are encouraged to solve civil disputes via mediation and other alternative dispute resolution (ADR) methods, which may be influenced by Chinese theory of “Fengqiao Experience”. It is important to continue increasing rule of law in China, but it is improper to transplant the Australian theory to China directly due to the different legal culture and history between two countries. Generally, more efforts need to be made for strengthening rule of law in China.
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Zinn, C. "Australia passes first euthanasia law." BMJ 310, no. 6992 (June 3, 1995): 1427–28. http://dx.doi.org/10.1136/bmj.310.6992.1427a.
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Cousins, Sophie. "Australia repeals medical evacuation law." Lancet 394, no. 10215 (December 2019): 2138. http://dx.doi.org/10.1016/s0140-6736(19)33067-3.
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Kee, Christopher, and Stephen Barrett-White. "Enforcement of Arbitral Awards where the Seat of the Arbitration is Australia — How the Eisenwerk Decision Might Still be a Sleeping Assassin." Journal of International Arbitration 24, Issue 5 (October 1, 2007): 515–28. http://dx.doi.org/10.54648/joia2007038.
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This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.
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Dehm, Sara. "Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession." Federal Law Review 49, no. 3 (May 19, 2021): 327–51. http://dx.doi.org/10.1177/0067205x211016574.
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Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.