This article examines Australia’s recent review of its federal national security and intelligence agencies. The article argues that Australia’s current legislative structure for its intelligence agencies unacceptably blurs the lines between intelligence and law enforcement in a number of areas. In seeking to make several recommendations for law reform, this article engages with the ‘purpose’ of that legislation, and builds on the Richardson Review to provide for better distinction between the officers of intelligence agencies (‘spies’) and law enforcement (‘cops’).
{"title":"The Richardson Review: Reviving the ‘Purpose’ of Law Enforcement and Intelligence Legislation","authors":"Brendan Walker-Munro","doi":"10.53637/deas8732","DOIUrl":"https://doi.org/10.53637/deas8732","url":null,"abstract":"This article examines Australia’s recent review of its federal national security and intelligence agencies. The article argues that Australia’s current legislative structure for its intelligence agencies unacceptably blurs the lines between intelligence and law enforcement in a number of areas. In seeking to make several recommendations for law reform, this article engages with the ‘purpose’ of that legislation, and builds on the Richardson Review to provide for better distinction between the officers of intelligence agencies (‘spies’) and law enforcement (‘cops’).","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45009530","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}
The introduction of Crowd-Sourced Equity Funding (‘CSEF’) into the Australian corporate fundraising landscape sought to give effect to the democratisation and direct participation goals of the Financial Technology (‘FinTech’) movement. CSEF offers a useful avenue for micro- and small-to-medium enterprises (‘MSMEs’) to access funds from the ‘crowd’. However, this article argues that the current regulatory framework fails to give effect to the core principles underpinning CSEF as part of the FinTech movement. This creates a particularly vulnerable cohort of shareholders who are not given a ‘voice’ in the corporation, nor do they have the typical ‘exit’ options associated with public share ownership. The article proposes that corporate governance reforms should aim to enhance the distinctive attraction of CSEF as a corporate fundraising mechanism: the collaborative pursuit of non- financial motivations for investment, and the adoption of engagement mechanisms that advance efforts towards the democratisation of finance and collaboration as a means of social interaction.
{"title":"Shareholder (Dis)Empowerment through Crowd-Sourced Equity Funding","authors":"Steve Kourabas","doi":"10.53637/eluc5833","DOIUrl":"https://doi.org/10.53637/eluc5833","url":null,"abstract":"The introduction of Crowd-Sourced Equity Funding (‘CSEF’) into the Australian corporate fundraising landscape sought to give effect to the democratisation and direct participation goals of the Financial Technology (‘FinTech’) movement. CSEF offers a useful avenue for micro- and small-to-medium enterprises (‘MSMEs’) to access funds from the ‘crowd’. However, this article argues that the current regulatory framework fails to give effect to the core principles underpinning CSEF as part of the FinTech movement. This creates a particularly vulnerable cohort of shareholders who are not given a ‘voice’ in the corporation, nor do they have the typical ‘exit’ options associated with public share ownership. The article proposes that corporate governance reforms should aim to enhance the distinctive attraction of CSEF as a corporate fundraising mechanism: the collaborative pursuit of non- financial motivations for investment, and the adoption of engagement mechanisms that advance efforts towards the democratisation of finance and collaboration as a means of social interaction.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44972313","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}
J. McDonald, K. Brent, Phillipa C. McCormack, J. McGee
Australia’s path to net zero emissions must include both emissions reduction and removal of greenhouse gases from the atmosphere. Australia’s large landmass and expansive marine estates provide significant opportunities for implementing these negative emissions technologies (‘NETs’). Significant further legal innovation will be needed to facilitate NETs crediting and adapt existing environmental, health and safety legislation to this large-scale challenge. As a starting point, this article surveys the current state of Australian law and identifies priority areas for developing a legal framework to facilitate responsible research and development of NETs in Australia. It shows that the enormous scale of greenhouse gas removal requires: a market for NETs credits administered to ensure the legitimacy of crediting practices; special arrangements to facilitate research and development; technology-specific law reform targeting the most promising technologies; and regulatory coordination to ensure that environmental and social risks are adequately managed.
{"title":"Greenhouse Gas Removal in Australian Climate Law: A Positive Role for Negative Emissions","authors":"J. McDonald, K. Brent, Phillipa C. McCormack, J. McGee","doi":"10.53637/islg1276","DOIUrl":"https://doi.org/10.53637/islg1276","url":null,"abstract":"Australia’s path to net zero emissions must include both emissions reduction and removal of greenhouse gases from the atmosphere. Australia’s large landmass and expansive marine estates provide significant opportunities for implementing these negative emissions technologies (‘NETs’). Significant further legal innovation will be needed to facilitate NETs crediting and adapt existing environmental, health and safety legislation to this large-scale challenge. As a starting point, this article surveys the current state of Australian law and identifies priority areas for developing a legal framework to facilitate responsible research and development of NETs in Australia. It shows that the enormous scale of greenhouse gas removal requires: a market for NETs credits administered to ensure the legitimacy of crediting practices; special arrangements to facilitate research and development; technology-specific law reform targeting the most promising technologies; and regulatory coordination to ensure that environmental and social risks are adequately managed.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47728998","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}
It is sometimes said that philanthropy and justice are in tension with each other. In this article, I explore several settings in which this tension might be observed: (a) philanthropy, because it lacks coordination, might generate distributive outcomes that seem undesirable from a justice standpoint; (b) philanthropy might entail discrimination that offends norms of equality grounded in justice; (c) philanthropy might enable the rich to enjoy a disproportionate share of political power; and (d) philanthropy might express relational inequality between citizens that offends justice irrespective of distributive outcomes. I aim to show that, in each of these settings, philanthropy might frustrate the attainment of justice notwithstanding its propensity to generate public benefit. However, I also emphasise that justice problems are problems for philanthropy for as long as we inhabit a non-ideal world in which the state fails to discharge its responsibilities in justice.
{"title":"Philanthropy, Justice and Law","authors":"M. Harding","doi":"10.53637/ycmp7487","DOIUrl":"https://doi.org/10.53637/ycmp7487","url":null,"abstract":"It is sometimes said that philanthropy and justice are in tension with each other. In this article, I explore several settings in which this tension might be observed: (a) philanthropy, because it lacks coordination, might generate distributive outcomes that seem undesirable from a justice standpoint; (b) philanthropy might entail discrimination that offends norms of equality grounded in justice; (c) philanthropy might enable the rich to enjoy a disproportionate share of political power; and (d) philanthropy might express relational inequality between citizens that offends justice irrespective of distributive outcomes. I aim to show that, in each of these settings, philanthropy might frustrate the attainment of justice notwithstanding its propensity to generate public benefit. However, I also emphasise that justice problems are problems for philanthropy for as long as we inhabit a non-ideal world in which the state fails to discharge its responsibilities in justice.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47553557","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}
Despite the vast number of First Nations deaths in custody and community experiences of racial injustice, the Racial Discrimination Act 1975 (Cth) has rarely been engaged. Section 9(1) has lain in deep freeze since 1975, generating equal parts mystique and contestation. In Wotton v Queensland, the Federal Court found section 9(1) contraventions in relation to conduct following the death in custody of Waanyi man Cameron ‘Mulrunji’ Doomadgee. An eleventh-hour procedural infelicity prevented the Court from examining conduct preceding his death. This article argues that section 9(1) supplies a remedy for state-inflicted racial violence preceding some deaths in custody because section 9(1) contains an unstructured comparison, an analytical tool for discerning a racial basis that avoids the difficulties of a complex comparator structure found in other anti-discrimination statutes. Section 9(1) also accommodates a denial of rights inquiry which incorporates concepts of arbitrariness and proportionality well-suited to reviewing police discretion.
{"title":"Redressing State-Inflicted Racial Violence: A Federal Discrimination Law Remedy for Deaths in Custody after Wotton","authors":"Alan Zheng","doi":"10.53637/kwla1899","DOIUrl":"https://doi.org/10.53637/kwla1899","url":null,"abstract":"Despite the vast number of First Nations deaths in custody and community experiences of racial injustice, the Racial Discrimination Act 1975 (Cth) has rarely been engaged. Section 9(1) has lain in deep freeze since 1975, generating equal parts mystique and contestation. In Wotton v Queensland, the Federal Court found section 9(1) contraventions in relation to conduct following the death in custody of Waanyi man Cameron ‘Mulrunji’ Doomadgee. An eleventh-hour procedural infelicity prevented the Court from examining conduct preceding his death. This article argues that section 9(1) supplies a remedy for state-inflicted racial violence preceding some deaths in custody because section 9(1) contains an unstructured comparison, an analytical tool for discerning a racial basis that avoids the difficulties of a complex comparator structure found in other anti-discrimination statutes. Section 9(1) also accommodates a denial of rights inquiry which incorporates concepts of arbitrariness and proportionality well-suited to reviewing police discretion.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47036012","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 examines how testamentary arbitration according to faith-based principles might be employed in Australia to preserve an Islamic testator’s wishes where a dispute about the will arises. First, this article explores the key differences between Muslim and Australian inheritance law to demonstrate the potential for successful challenges to Islamic wills. Then, this article highlights how arbitration provides a framework in which to allow citizens to arbitrate disputes according to faith-based norms. Finally, this article examines the feasibility of testamentary arbitration in Australia. This article is concerned with two questions: first, whether inheritance disputes are presently capable of being settled by arbitration in Australia; and second, whether parties to a will dispute can (or should) be forced to submit to arbitration as opposed to litigation in the courts where the will in question contains an arbitration clause.
{"title":"Family Provision and Islamic Wills: Preserving the Testator’s Wishes through Testamentary Arbitration?","authors":"Brooke Thompson","doi":"10.53637/vwcb1641","DOIUrl":"https://doi.org/10.53637/vwcb1641","url":null,"abstract":"This article examines how testamentary arbitration according to faith-based principles might be employed in Australia to preserve an Islamic testator’s wishes where a dispute about the will arises. First, this article explores the key differences between Muslim and Australian inheritance law to demonstrate the potential for successful challenges to Islamic wills. Then, this article highlights how arbitration provides a framework in which to allow citizens to arbitrate disputes according to faith-based norms. Finally, this article examines the feasibility of testamentary arbitration in Australia. This article is concerned with two questions: first, whether inheritance disputes are presently capable of being settled by arbitration in Australia; and second, whether parties to a will dispute can (or should) be forced to submit to arbitration as opposed to litigation in the courts where the will in question contains an arbitration clause.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45509899","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}
Growth of ‘social licence to operate’ (‘SLO’) may reflect an evolution of the stakeholder-shareholder debate, and an expansion of the power of employees, investors and society generally, described by the smart regulatory model as third-party or ‘surrogate’ regulators of corporate activity. Despite the broad implications of SLO for regulation, little is known about the perceptions of company directors in relation to SLO. This article reports on an empirical investigation of Australian directors’ perspectives, undertaken after the Australian Securities Exchange’s proposal to formalise regulatory use of SLO. Directors’ responses provide support for theoretical models of third-party regulators. They identify SLO and concepts of trust, relationships and reputation as important and, crucially, part of the future. However, responses also reveal potential limitations in SLO’s contours that impact its use as a regulatory concept. Regulatory systems must account appropriately for the complex phenomenon of SLO, so its potential benefits are harnessed effectively.
{"title":"Social Licence as a Regulatory Concept: An Empirical Study of Australian Company Directors","authors":"V. Brand, J. Lacey, J. Tutton","doi":"10.53637/wcdh8663","DOIUrl":"https://doi.org/10.53637/wcdh8663","url":null,"abstract":"Growth of ‘social licence to operate’ (‘SLO’) may reflect an evolution of the stakeholder-shareholder debate, and an expansion of the power of employees, investors and society generally, described by the smart regulatory model as third-party or ‘surrogate’ regulators of corporate activity. Despite the broad implications of SLO for regulation, little is known about the perceptions of company directors in relation to SLO. This article reports on an empirical investigation of Australian directors’ perspectives, undertaken after the Australian Securities Exchange’s proposal to formalise regulatory use of SLO. Directors’ responses provide support for theoretical models of third-party regulators. They identify SLO and concepts of trust, relationships and reputation as important and, crucially, part of the future. However, responses also reveal potential limitations in SLO’s contours that impact its use as a regulatory concept. Regulatory systems must account appropriately for the complex phenomenon of SLO, so its potential benefits are harnessed effectively.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42043415","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}
Views over land and waters may significantly enhance a property’s value. The common law has declined, however, to recognise the proprietary nature of a view, regarding it as a matter only of delight. This article evaluates the Australian position on the right to a view and considers mechanisms for its protection. It first examines the difficulties in using easements to protect a view. Then it considers the restrictive covenant as a basis for protecting a view, notwithstanding complications under Australian Torrens title systems and contemporary public planning schemes in most Australian jurisdictions that can override restrictive covenants. It then considers public land use planning law and concludes that it may be the most effective legal avenue for protecting a view in Australia, though it notes that the settings of the relevant planning instrument will be crucial in determining whether a particular right to a view will be protected.
{"title":"Protecting a View in Australia: Common Law Principles, Restrictive Covenants and Planning Law","authors":"B. Grigg, H. Esmaeili","doi":"10.53637/xdmw8873","DOIUrl":"https://doi.org/10.53637/xdmw8873","url":null,"abstract":"Views over land and waters may significantly enhance a property’s value. The common law has declined, however, to recognise the proprietary nature of a view, regarding it as a matter only of delight. This article evaluates the Australian position on the right to a view and considers mechanisms for its protection. It first examines the difficulties in using easements to protect a view. Then it considers the restrictive covenant as a basis for protecting a view, notwithstanding complications under Australian Torrens title systems and contemporary public planning schemes in most Australian jurisdictions that can override restrictive covenants. It then considers public land use planning law and concludes that it may be the most effective legal avenue for protecting a view in Australia, though it notes that the settings of the relevant planning instrument will be crucial in determining whether a particular right to a view will be protected.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41288455","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}
Family violence victims face a problem under Victoria’s Residential Tenancies Act 1997 (‘RTA’). Victims must apply to access its protections in the Victorian Civil and Administrative Tribunal (‘VCAT’) which is a separate jurisdiction to where they apply for intervention orders under the Family Violence Protection Act 2008 (Vic), ie, the Magistrates’ Court of Victoria. This may result in victims having to navigate a completely different jurisdiction, ie, VCAT, if they access the RTA’s protections there. This makes the process unnecessarily complex, and it may even deter some victims from accessing the RTA’s protections for a safe home. Victoria’s 2016 Royal Commission into Family Violence identified this problem, and this article advances and unpacks a recommendation it made to consider legislative reform to simplify processes for victims. The research presented herein, while focused on Victorian law, may also inform potential approaches to law reform in other Australian jurisdictions.
{"title":"\"A Proposal to Give the Magistrates’ Court of Victoria Jurisdiction to Resolve Residential Tenancy Matters Involving Family Violence \"","authors":"Samuel Tyrer","doi":"10.53637/pxet4880","DOIUrl":"https://doi.org/10.53637/pxet4880","url":null,"abstract":"Family violence victims face a problem under Victoria’s Residential Tenancies Act 1997 (‘RTA’). Victims must apply to access its protections in the Victorian Civil and Administrative Tribunal (‘VCAT’) which is a separate jurisdiction to where they apply for intervention orders under the Family Violence Protection Act 2008 (Vic), ie, the Magistrates’ Court of Victoria. This may result in victims having to navigate a completely different jurisdiction, ie, VCAT, if they access the RTA’s protections there. This makes the process unnecessarily complex, and it may even deter some victims from accessing the RTA’s protections for a safe home. Victoria’s 2016 Royal Commission into Family Violence identified this problem, and this article advances and unpacks a recommendation it made to consider legislative reform to simplify processes for victims. The research presented herein, while focused on Victorian law, may also inform potential approaches to law reform in other Australian jurisdictions.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48879738","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}
Climate change exacerbates disadvantage and deepens inequality. Mitigation and adaptation measures to address climate change thus require equality-informed responses. This aligns with the goals of climate justice, which emphasise the rights of the most vulnerable, equality and fairness. Climate law and strategic litigation in pursuit of climate justice are rapidly evolving areas with a growing resort to human rights. This article argues that discrimination law should be considered, alongside other legal approaches, in shaping creative responses to the challenge of climate-related inequality. This strategic recourse to law is supported by the development of relevant discrimination law that is focused on humans within our ecological context, underpinned by an approach to equality that is transformative. The article draws on the example of access to a public swimming facility in the regional New South Wales town of Moree to consider how discrimination law might support equitable adaptation in pursuit of climate justice.
{"title":"Climate Change, Inequality and Discrimination Law: The Example of Swimming Pool Access in Moree","authors":"Beth Goldblatt","doi":"10.53637/heyp3471","DOIUrl":"https://doi.org/10.53637/heyp3471","url":null,"abstract":"Climate change exacerbates disadvantage and deepens inequality. Mitigation and adaptation measures to address climate change thus require equality-informed responses. This aligns with the goals of climate justice, which emphasise the rights of the most vulnerable, equality and fairness. Climate law and strategic litigation in pursuit of climate justice are rapidly evolving areas with a growing resort to human rights. This article argues that discrimination law should be considered, alongside other legal approaches, in shaping creative responses to the challenge of climate-related inequality. This strategic recourse to law is supported by the development of relevant discrimination law that is focused on humans within our ecological context, underpinned by an approach to equality that is transformative. The article draws on the example of access to a public swimming facility in the regional New South Wales town of Moree to consider how discrimination law might support equitable adaptation in pursuit of climate justice.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135722666","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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