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Conditions and warranties, which are generally referred to as policy terms in insurance contracts, are crucial in the determination of the rights and obligations of the contracting parties. The article examines the enforcement of policy terms in insurance contracts at common law and the legislative measures that have been deployed in some common law countries, including Nigeria, the United Kingdom and Australia, to ensure fairness as well as to balance the inequality in the bargaining power of the contracting parties. In as much as the principle of freedom of contract will generally be honoured by the court, the paper argues that through legislative intervention in policy terms in these countries, the principle is being discountenanced with, in appropriate cases, in order to effectuate the just and reasonable expectation of the insured. It concludes by proffering suggestions to identified lacunae in the Nigerian Insurance law. [ABSTRACT FROM AUTHOR]

This paper considers the difficult balance to be struck between values of freedom of speech and attempts by legislators in a range of jurisdictions to ban racially offensive speech. It compares the position in Australia, where the High Court has established an implied freedom of political communication, with the position in the United States, which has enshrined freedom of speech in its Bill of Rights, and in Canada, which has enshrined such a freedom in its Charter. After reflecting how such provisions have been applied in the context of legislative attempts to curb racially-motivated speech, the paper argues that there are real questions over the constitutional validity of Australia's racial vilification laws, since they interfere with an individual's right to express an opinion, albeit an offensive one. This discussion takes place in the broader context of question marks over the utility of banning speech in an effort to improve race relations, and the marketplace of ideas type philosophy, where it is thought that in free democracies such as those under consideration, individuals need to be exposed to a full range of views and opinions, in order to develop more considered views on important topics, rather than have access to views and opinions controlled by the government. [ABSTRACT FROM AUTHOR]

This paper examines the form of liability found in the law of trespass. Though it is frequently held that liability in these torts is based on the intentional fault of the defendant, it is argued that the torts are in fact strict. The paper approaches this issue by examining the nature of intention in the law of trespass and the judgments in Letang v Cooper and Re F. The paper also explores the nature of the negligent trespass actions available in Australia. [ABSTRACT FROM AUTHOR]

Recent instability in the global financial markets has highlighted the need for companies to remain vigilant in detecting fraud and other forms of misconduct. Encouraging whistleblowing by persons who have knowledge of corporate misconduct or fraud is important. Legislative provisions protecting whistleblowers and the integration of whistleblower programmes within a company's corporate governance framework are two strategies that may encourage whistleblowing. Legislative provisions protecting whistleblowers were introduced into the Australian Corporations Act 2001 (Cth) in 2004. In 2007 the revised Australian Stock Exchange Principles recommended that listed corporations establish a code of conduct, and suggested that the code imbed within it reference to the way in which whistleblower disclosures are handled. While there have been various studies investigating whistleblowing programmes in the public sector, prior to this study there was virtually no empirical research into corporate sector whistleblowing in Australia. This paper examines the findings of an empirical study into the use of the whistleblowing protection provisions contained in the Australian Corporations Act 2001 (Cth) and the adoption of whistleblowing programmes as recommended by the Australian Stock Exchange Principles by Australia's leading 200 listed companies. [ABSTRACT FROM AUTHOR]

The purpose of this research paper is to provide a comprehensive analysis of the scope of auditors' liability to third parties in Australia. In addition to examining the current legal position in Australia, the law on auditors' liability in other jurisdictions, including the United Kingdom, United States, Canada and New Zealand, will be examined and compared to the extent of their influence on Australian laws. It is argued that auditors in Australia are subject to a greater scope of liability than in other countries. As a result, there is a need for reform of audit laws in Australia to limit the extent of auditors' liability. Further, it is submitted that the development of future auditing laws in Australia should allow for the appropriate consideration of international trends in limiting liability. It is also anticipated that the proposed reforms will adequately safeguard auditors from the threat of litigation by third parties, and ultimately ensure that the floodgates for liability in Australia are not opened to an indeterminate level. [ABSTRACT FROM AUTHOR]

Utilizing Feigenbaum, Henig and Hammett's typology, privatizations in the UK and Australia may be described as ‘systemic’ in the sense that their aim has been in part to ‘shrink the state’. Privatizations of essential services such as water, rail and energy in both countries appear to have failed in this endeavour. One example of this failure in the UK is the proliferation of special administration regimes which are initiated by the state and regulate the resolution of essential service insolvency. The recent introduction of an energy administration procedure in the Energy Act 2004 (UK) is yet another example of this process. Regulation of infrastructure insolvency appears on its face to have taken a different course in Australia, relying, for the most part on the usual insolvency regimes. However, the utilization of a contractual model for state oversight in the case of railway company insolvency and the willingness of the state to intervene in the financial distress of electricity generators suggest the Australian approach has also resulted in maintenance of the state’s role following privatization. This paper reviews the experience of the State of Victoria in the failure of a rail company and electricity generator and considers to what extent the non-statutory processes utilized by the state reflects its continuing role post privatization. In so doing, the paper evaluates the device of the UK special administration regime and in particular discusses the energy administration provisions of the Energy Act 2004 (UK). [ABSTRACT FROM AUTHOR]

Although the implied duty of mutual trust and confidence has long been established as an implied term in employment contracts under English common law, the Australian High Court has recently ruled that it is not part of the common law regulating employment contracts in Australia because the implication of such a term was better regulated under statute. While it is acknowledged that legislation is most effective in regulating substantive employment rights and obligations, a political climate which lends itself to ideologically divergent policy reforms often robs the discipline of its stability. However, if there exists a legal framework apart from legislation, which coheres with it and has the ability to initiate juridical development in the law, as is the role of the common law, the result will be an enrichment of the discipline overall. This paper traces selected English and Australian judicial approaches towards the implication of the duty of mutual trust and confidence in the context of terminations of employment within a statutory regime, culminating with an analysis of the recent Australian High Court decision in Commonwealth Bank of Australia v Barker (Barker), which has diminished common law’s interpretive role in this regard. Consequently, this paper aims to revitalize common law reasoning by utilizing Dworkin’s judicial interpretive method as the necessary theoretical framework. [ABSTRACT FROM AUTHOR]

Workplace bullying remains a substantial problem in many developed countries. It is estimated to cost the Australian economy over AUD$6 billion annually, the Irish economy at least €3 billion and the US around US$300 billion. In 2012 the Australian Government established a parliamentary inquiry into workplace bullying that resulted in the creation of a specific bullying jurisdiction within the Fair Work Commission to deal with the issue. This paper provides an overview and critical analysis of the new jurisdiction, comparing it to approaches in Europe and the United States. The paper argues for the adoption of stricter penalties, including criminal sanctions with considerable fines and uncapped compensation, as the most effective deterrent to toxic workplace cultures. [ABSTRACT FROM AUTHOR]

This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is only unreasonable if the circumstances are so plain and obvious that no prudent person will rely on the advice. In contrast, recent Australian cases, particularly ASIC v Healey, ASIC v MacDonald and ASIC v Fortescue, restrict the circumstances in which directors can rely on professional advisers, even in specialist matters. This paper argues that the difference in approach between the two jurisdictions can be explained on two grounds. First, the Australian cases can be distinguished from the English cases because the former are special situations dealing with matters involving non-delegable duties of care imposed by legislation. Second, the potential outcomes of the breach of the duty of care differ in England and Australia, and this difference has a much deeper, substantive influence on the content of the standard of care. Contrary to academic suggestion, it is suggested that the Australian developments may not always be appropriate in determining the scope of the defence of reliance on professional advice in England. [ABSTRACT FROM AUTHOR]

Australia was one of the first countries to emulate the United States by introducing class actions. But, unlike their American federal counterparts, the drafters of the three class action regimes that are in operation in Australia chose to deal expressly with and regulate the ability of class members (who are bound by, but not formal parties to, the class action litigation) to file an appeal, where the class representative is unwilling or unable to take such a step, from judicial orders that are adverse to their interests. Despite the fact that the ability to file an appeal represents one of the most significant powers available to Australian class members to ensure that their interests are protected in the litigation (without the involvement of the class representatives), these appeal mechanisms have not been the subject of critical analysis by Australian scholars. The aim of this paper is to address this lacuna in the legal literature by reviewing the aims, essential features and operation of the provision that governs the ability of class members to file appeals in Australia's longest running class action regime, which has been regulating class actions in the Federal Court of Australia since March 1992. For this purpose, the findings that have emerged from the first-ever empirical study of this regime, which the author recently conducted, are employed. References are also made to the corresponding provisions found in the two other Australian class action regimes, which operate in the Supreme Courts of Victoria and New South Wales, and to the American and Canadian experience with appeals by class members. [ABSTRACT FROM AUTHOR]

There has been considerable debate for some time about the proper role of private enforcement in cartel enforcement. It arose again recently in the wake of the decision of the European Court of Justice in Pfleiderer. The Court had to decide whether to disclose to private claimants documents obtained by a national competition regulator through its immunity programme. It decided that disclosure was not prohibited by EU law but was a matter for a national court to weigh the interests of civil claimants against the need to protect immunity programmes. Similar issues have arisen in Australia. The paper provides a brief overview of immunity policy and the place of private enforcement and then examines the regulatory, legislative and judicial responses to the disclosure/immunity issue in Europe and Australia and considers whether the correct balance has been struck between the competing interests of private claimants and regulatory authorities. [ABSTRACT FROM AUTHOR]

This paper is concerned with calculated motivations for compliance and in particular the deterrent effect of the introduction of new sanctions and/or the use of those sanctions by a regulator. It is concerned with normative and social motivations for compliance and examines the impact of the introduction and use of new sanctions on the perceptions and behaviour of corporate compliance officers. These questions are addressed in the context of the continuous disclosure requirements imposed on Australian listed corporations. [ABSTRACT FROM AUTHOR]

This paper discusses the extent to which the common law recognized public interest considerations when confronted with utility insolvencies in the UK, Australia, and the US in the period 1825 to 1970. Jurisprudence in all three jurisdictions concerning insolvent utilities arose in the nineteenth century out of the difficulties arising from the financial distress of railway companies. It is argued that public interest considerations were mobilized to justify various degrees of restriction on the usual rights of creditors in all jurisdictions. While evidence was found of the use of public interest theory in all jurisdictions, there was little development of it in the UK and Australia compared with the US. This may have been because of the early introduction of statutory schemes of arrangement in both countries and because of the nationalization of the industries for the better part of the twentieth century. In the US, on the other hand, public interest theory in the context of insolvent railways and other utilities was much more developed. In particular, it provided part of the rationale for the judicial development of the equity receivership into a comprehensive corporate reorganization mechanism. [ABSTRACT FROM AUTHOR]

This paper will consider and compare the federal spending power in three 'mature' federations, Australia, Canada and the United States. One of the issues to be considered will be whether the federal spending power, as interpreted by the relevant courts, is sufficiently broad to deal with the obligations of a central government in current circumstances. In doing so, recurring important issues in fiscal federalism, including the allocation of responsibilities within federal systems and vertical fiscal imbalance, will be noted. The constitutional context in which this issue arises, including the fact that the constitution of each of the countries studied was conceived in times very different from those we face today, and the fact that the role and size of government has similarly radically changed since those times, is important. It is argued that a broad interpretation of the federal government's spending power is needed to provide the necessary constitutional flexibility that would otherwise be forbidden by the formal rigidity of the constitutions and the difficulty in making amendments, particularly in Australia and Canada. [ABSTRACT FROM AUTHOR]

Keynesianism is not new in Australia, and indeed has represented the economic orthodoxy for much of the post-World War II period. Commonwealth governments, of both major political persuasions, have been able to work within the existing constitutional framework to pursue Keynesian economic policies, more or less successfully, albeit with the occasional legal setback depending upon interpretations of the High Court of Australia. Recently, like many governments, the Australian Federal Government responded to the 2008 global financial crisis (GFC) by proposing a 'stimulus package' whereby Australian consumers would 'spend their way out of the crisis'. The particular package proposed was also so-called a 'tax bonus' to be paid to those who earned under a certain (relatively generous) amount per annum and had submitted their tax returns in the previous year, 2008. This package was to be at the 'front end' of the government's response to the crisis. Our paper explores some recent dilemmas for Australian federalism in the light of the High Court decision which decided that those 'bonuses' were constitutional. Yet while the High Court in Pape v Commissioner of Taxation1 upheld the constitutionality of what was formally known as the 'Tax Bonus for Working Australians'-seeing the federal 'stimulus package' as a response to a global financial crisis that is a matter of international concern-it did so only by a bare majority (a four to three decision) in the highest court. We suggest that a reappraisal of Australian federalism is pertinent given this narrow majority and in the light of a claim by prominent constitutional law scholar George Williams that Australia continues to manifest a form of 'sick federalism'. This is an appraisal made only the more acute with the recent Australian federal election, which resulted in a hung parliament, for the first time since 1940: this followed a campaign with no mention of the complexities and niceties of modern federalism. [ABSTRACT FROM AUTHOR]

This paper considers the extent to which the common law does or should protect fundamental human rights. It begins with reference to suggestions in various jurisdictions that there are some rights that are deeply rooted in common law, and which could not be interfered with by Parliament. It considers the position of common law rights in jurisdictions such as Australia with a written Constitution, and the extent to which rights are found in the common law or the Constitution or both, and the relation between the common law and the Constitution. It considers the possible theoretical underpinning of such suggestions, from a social contract, sovereignty and rule of law perspective. In so doing, it is acknowledged that, contrary to Diceyan theory, Parliaments do in fact act to take away fundamental rights, and it is argued to be simplistic to assume that the remedy for such behaviour is to be found at the ballot box, and never in the courts. Finally, arguments against the notion of rights protected by the common law are considered, including Parliamentary supremacy, arguments about democracy, and suggestions of ‘judicial activism’. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

Abstract Part IVA of the Federal Court of Australia Act 1976 (Cth), which has been regulating class actions in the Federal Court of Australia since 1992, is silent with respect to the crucial issue of whether the lawyers hired by the class representatives may enter into contingency fee agreements with such representatives and/or the persons on whose behalf the class proceedings are instituted, the class members. This silence was attributable to the Australian Government's rejection of the Australian Law Reform Commission's recommendation that the legislative regime governing class actions should expressly authorise and regulate the execution of contingency fee agreements by the class lawyers with the class representatives. As a result of several post-1992 statutes enacted by State Parliaments, lawyers hired by Part IVA plaintiffs have been able to follow the practice of executing contingency fee agreements with, not only the representative plaintiffs, but also the class members. The aim of this paper is to provide a critical analysis of this practice. It undertakes a review of the American and Canadian regimes governing the employment of contingency fee agreements in class proceedings as a part of this analysis. [ABSTRACT FROM AUTHOR]

When the Australian federation came into existence in 1901 the same King ruled throughout the British Empire. The Crown was indivisible. The Australian Commonwealth Constitution reflected that political and legal reality. That reality has undergone considerable change in the last century. The Empire no longer exists, although some of the former dominions and colonies remain monarchies. The Queen is now monarch of 15 separate and independent nations, including Australia. In so far as Australia is concerned, these developments raise a number of practical and constitutional issues. These issues relate both to the relationship of the Australian monarchy with those other monarchies which share the same Queen and to the role of the Australian monarch within the Australian federation. Some of those issues are explored in this paper. [ABSTRACT FROM AUTHOR]

An increasing number of multi-national enterprises have arranged their corporate structures in a way which sharply reduces or completely eliminates their tax liabilities, both at home and abroad. This practice, referred to as base erosion and profit shifting (BEPS), has become a pertinent feature in the international tax domain. In response to this growing problem the Organisation for Economic Cooperative Development released an Action Plan in July 2013. In the coming years, BEPS is likely to remain high on political agendas around the world and it is expected that many countries will implement the OECD’s Action Plan recommendations and introduce or enhance their own general anti-avoidance legislation as a strategy to counter BEPS. This paper specifically examines the recent amendments to the Australian general anti-avoidance rule and the recently introduced British general anti-abuse rule in 2013 with regard to the definition of ‘tax benefit/advantage’. An analysis of tax benefit/advantage concept within the respective anti-avoidance rules is compared and contrasted to the wide definition of tax benefit stipulated in Action Item 12 of the OECD Action Plan. The likely consequences and some policy implications for tackling BEPS and tax avoidance generally are canvassed. [ABSTRACT FROM AUTHOR]

This article examines the use of financial services law (securities regulation) to regulate and to reduce emissions trading to reduce the causes of climate change-with reference to Australia's use of financial services law from 2012. The Australian financialization model, introduced by the previous Australian (Australian Labor Party) government, is planned to be repealed in mid-2014 (depending on votes in the upper house of the Australian parliament) by the conservative (Liberal-National Party coalition) government as its 'first order of business'. At the time of writing in April 2014, the carbon price is in full operation. The government won office in September 2013, partly in the wake of an electoral backlash against the 'carbon tax'. Australia's climate change model was based on defining emission reduction units as financial products under the Corporations Act, which resulted in the regulation of the market for trading emissions reductions becoming the responsibility of the financial services regulator, the Australian Securities and Investments Commission. This article examines the financial services model which treats emissions as financial products, regulated by financial services laws which provide inter alia for trading on regulated markets, the licensing of advisers, the expectation of high standards for secondary trading, the recognition of consumer rights under consumer laws and the continuous disclosure of information to financial markets. [ABSTRACT FROM AUTHOR]

In a recent special journal issue, the concept of judgecraft was explored and applied by several writers as a framework for analysing the work of judges. One of these contributions (K. Mack and S. Roach Anleu, '"Getting Through the List": Judgecraft and Legitimacy in the Lower Courts' (2007) 16(3) Social & Legal Studies 341) focused in particular on the judgecraft deployed by magistrates seeking to 'get through the list' in the lower criminal courts of Australia. It is argued here that their evaluation of magisterial behaviour was predominantly, and perhaps unduly, positive and that this may be attributable to their use of the judgecraft concept itself. The advantages and disadvantages of using the judgecraft concept are examined both theoretically and by reference to empirical observations of how Resident Magistrates 'manage the list' in the lower criminal courts of Northern Ireland. Much of this management can aptly be seen as demonstrating judgecraft, but some involves an element better captured through the more negative concept of craftiness. It will be argued in conclusion that the value of a craft-based framework of analysis would be enhanced by making explicit the potential for judges to act in crafty ways. [ABSTRACT FROM AUTHOR]

In 1988 the United States Supreme Court handed down the judgment of Basic Inc v Levinson which recognized the 'fraud on the market' theory of causation of investor loss in a securities class action. More recently, legislative reform and the US Supreme Court's decision in Dura Pharmaceuticals v Broudo have circumscribed somewhat the permissive approach to such claims by creating more stringent requirements at the pleading and certification stage. The development of behavioural finance also questions somewhat the theory of efficient capital markets on which the 'fraud on the market' causation theory partly rests. In Australia meanwhile, market based causation has not been tested yet in their courts. To the extent that causation of loss through the effects of non-disclosures on the market is accepted by Australian courts it is not clear that the gloss developed in Dura would necessarily have application here. [ABSTRACT FROM AUTHOR]

Australian class actions have recently undergone a revolution in relation to the financing of litigation and group definition. Australia has historically banned contingency fees and adopted an opt-out class action. However, the law now allows for third-party litigation funding where non-lawyers may finance class actions in return for a share of the recovery and for the class action to be defined as a closed class that only includes those group members who have entered into a litigation funding agreement. These developments have important ramifications for class action practice. Litigation funding filled the financing gap in Australian class actions and consequently facilitated access to justice. However, the need for a contractual relationship to allow for the quasi-contingency fee to be recovered led to the employment of a closed class. The closed class dissuaded ‘free-riding’ but also undermined the Australian class action objectives of access to justice and efficient resolution of disputes. [ABSTRACT FROM AUTHOR]

This article examines whether the use of the criminal penalty as a 'default' sanction for regulating directors' core duties in Singapore is excessive, and if so, whether civil pecuniary penalties ought to be introduced in the reform of the existing sanctions regime. These questions are addressed principally by reference to the Australian experience. [ABSTRACT FROM AUTHOR]