Pub Date : 2020-09-10DOI: 10.4324/9781003073574-14
J. Braithwaite
{"title":"Community Values and Australian Jurisprudence*","authors":"J. Braithwaite","doi":"10.4324/9781003073574-14","DOIUrl":"https://doi.org/10.4324/9781003073574-14","url":null,"abstract":"","PeriodicalId":45086,"journal":{"name":"SYDNEY LAW REVIEW","volume":"17 1","pages":"183-204"},"PeriodicalIF":0.8,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45470024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-01-01DOI: 10.1093/OXFORDHB/9780198837138.013.12
Kylie Pappalardo, Nicolas Suzor
This article provides a comprehensive review of the current state of Australian online intermediary liability law across different doctrines. Different doctrines in Australian law employ a range of different tests for determining when an actor will be liable for the actions of a third party. So far, these primarily include cases brought under the laws of defamation, racial vilification, misleading and deceptive conduct, contempt of court, and copyright. These bodies of law are conceptually different and derive from different historical contexts, and the courts have generally applied them in isolation. We show that the basis on which third parties are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. We show how the principle limiting devices of liability across all of these schemes – intention, passivity, and knowledge – are ineffective in articulating a clear distinction for circumstances in which intermediaries will not be held liable. The result is a great deal of uncertainty. We argue that intermediary liability law should develop by focusing on the concept of responsibility, and that existing principles in tort jurisprudence and theory can help to guide and unify the different standards for liability.
{"title":"The Liability of Australian Online Intermediaries","authors":"Kylie Pappalardo, Nicolas Suzor","doi":"10.1093/OXFORDHB/9780198837138.013.12","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198837138.013.12","url":null,"abstract":"This article provides a comprehensive review of the current state of Australian online intermediary liability law across different doctrines. Different doctrines in Australian law employ a range of different tests for determining when an actor will be liable for the actions of a third party. So far, these primarily include cases brought under the laws of defamation, racial vilification, misleading and deceptive conduct, contempt of court, and copyright. These bodies of law are conceptually different and derive from different historical contexts, and the courts have generally applied them in isolation. We show that the basis on which third parties are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. We show how the principle limiting devices of liability across all of these schemes – intention, passivity, and knowledge – are ineffective in articulating a clear distinction for circumstances in which intermediaries will not be held liable. The result is a great deal of uncertainty. We argue that intermediary liability law should develop by focusing on the concept of responsibility, and that existing principles in tort jurisprudence and theory can help to guide and unify the different standards for liability.","PeriodicalId":45086,"journal":{"name":"SYDNEY LAW REVIEW","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61598002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Australian courts have not recognised a general obligation to give reasons for administrative decisions. This article considers two contexts in which the inadequacy of reasons may nonetheless give rise to legal consequences: first, where there is a breach of a statutory obligation to give reasons and, second, where deficiencies in justification are relevant to the application of the unreasonableness ground of review. The aim is to contribute to a clearer understanding of the ways in which the inadequacy of reasons may reveal or constitute reviewable errors. More broadly, the article considers how review of the adequacy of reasons fits within the conceptual framework of judicial review in Australia given the propensity for a procedural obligation to give reasons to invite analysis of the substance of reasons. A possible strategy to limit any slide from the review of 'procedural' reason-giving obligations into 'substantive' review is to distinguish 'intelligible' reasons and 'persuasive' reasons. The overall argument is that although the concept of intelligibility is being explored in the cases, even minimal intelligibility requirements will have substantive elements and, further, there is as yet little judicial guidance as to how any inquiry into the intelligibility of reasons can be quarantined from broader substantive questions about the persuasiveness of justifications.
{"title":"Reasons, reasonableness and intelligible justification in judicial review","authors":"L. Mcdonald","doi":"10.2139/ssrn.3661007","DOIUrl":"https://doi.org/10.2139/ssrn.3661007","url":null,"abstract":"Australian courts have not recognised a general obligation to give reasons for administrative decisions. This article considers two contexts in which the inadequacy of reasons may nonetheless give rise to legal consequences: first, where there is a breach of a statutory obligation to give reasons and, second, where deficiencies in justification are relevant to the application of the unreasonableness ground of review. The aim is to contribute to a clearer understanding of the ways in which the inadequacy of reasons may reveal or constitute reviewable errors. More broadly, the article considers how review of the adequacy of reasons fits within the conceptual framework of judicial review in Australia given the propensity for a procedural obligation to give reasons to invite analysis of the substance of reasons. A possible strategy to limit any slide from the review of 'procedural' reason-giving obligations into 'substantive' review is to distinguish 'intelligible' reasons and 'persuasive' reasons. The overall argument is that although the concept of intelligibility is being explored in the cases, even minimal intelligibility requirements will have substantive elements and, further, there is as yet little judicial guidance as to how any inquiry into the intelligibility of reasons can be quarantined from broader substantive questions about the persuasiveness of justifications.","PeriodicalId":45086,"journal":{"name":"SYDNEY LAW REVIEW","volume":"37 1","pages":"467"},"PeriodicalIF":0.8,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68619972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Wendy Larcombe, Letty C Tumbaga, I. Malkin, P. Nicholson, Orania Tokatlidis
Law students in Australia experience high rates of depression and anxiety. This article reports findings from an empirical study investigating the relation between law students’ levels of psychological distress and their experiences of law school. The study was undertaken at Melbourne Law School and the sample included students from both the LLB and JD programs. While Melbourne JD students expressed a significantly higher level of satisfaction with studying law, and their course experience, than Melbourne LLB students, there were no statistically significant differences in the levels of depression, anxiety and stress reported by students in each cohort. This finding suggests that overall course satisfaction does not have a direct effect on students’ levels of psychological distress. More particularly, it indicates that various program features that improve students’ experience of law school do not automatically result in improved levels of student wellbeing. In this way, the study offers new insight into the relationship between students’ experiences of law school and their levels of psychological distress.
{"title":"Does an Improved Experience of Law School Protect Students Against Depression, Anxiety and Stress? An Empirical Study of Wellbeing and the Law School Experience of LLB and JD Students","authors":"Wendy Larcombe, Letty C Tumbaga, I. Malkin, P. Nicholson, Orania Tokatlidis","doi":"10.2139/SSRN.2147547","DOIUrl":"https://doi.org/10.2139/SSRN.2147547","url":null,"abstract":"Law students in Australia experience high rates of depression and anxiety. This article reports findings from an empirical study investigating the relation between law students’ levels of psychological distress and their experiences of law school. The study was undertaken at Melbourne Law School and the sample included students from both the LLB and JD programs. While Melbourne JD students expressed a significantly higher level of satisfaction with studying law, and their course experience, than Melbourne LLB students, there were no statistically significant differences in the levels of depression, anxiety and stress reported by students in each cohort. This finding suggests that overall course satisfaction does not have a direct effect on students’ levels of psychological distress. More particularly, it indicates that various program features that improve students’ experience of law school do not automatically result in improved levels of student wellbeing. In this way, the study offers new insight into the relationship between students’ experiences of law school and their levels of psychological distress.","PeriodicalId":45086,"journal":{"name":"SYDNEY LAW REVIEW","volume":"35 1","pages":"407"},"PeriodicalIF":0.8,"publicationDate":"2012-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67949981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article critically evaluates Justice Kirby's method of constitutional interpretation: non-originalism.
本文批判性地评价了柯比大法官的宪法解释方法:非原旨主义。
{"title":"New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution","authors":"D. Meagher","doi":"10.2139/SSRN.2631306","DOIUrl":"https://doi.org/10.2139/SSRN.2631306","url":null,"abstract":"This article critically evaluates Justice Kirby's method of constitutional interpretation: non-originalism.","PeriodicalId":45086,"journal":{"name":"SYDNEY LAW REVIEW","volume":"24 1","pages":"141-188"},"PeriodicalIF":0.8,"publicationDate":"2001-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68232614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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