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Volume 34 Number 2 2013 Adelaide Law Review 2013 Adelaide Law Review 2013 Adelaide Law Review 2013 TABLETABLETABLE OF OFOF CONTENTS CONTENTSCONTENTS THETHETHE 2011 2012 20112011 JOHN JOHNJOHN BRAY BRAYBRAYBRAY ORATION ORATIONORATION ORATION JohnDavidDavidDavid Doyle Irvine IrvineIrvine ChoosingFrFrFreeeeeedomdomdom andOur andand Security: JudgesSecurity:Security: Maintaining MaintainingMaintaining The TheThe Balance BalanceBalance 223295295295 ARTICLES ARTICLESARTICLESARTICLES THETHETHE UNIVERSITY UNIVERSITYUNIVERSITY OF OFOF ADELAIDE ADELAIDEADELAIDE M Stuart Madden Efficiency Themes in Tort Law from Antiquity 231 JamesJamesJames Allan AllanAllan and andand TimeTimeTime and andand Chance ChanceChance and andand the thethe Prevailing PrevailingPrevailing Orthodoxy OrthodoxyOrthodoxy in inin ADELAIDEADELAIDEADELAIDE LAW LAWLAW REVIEW REVIEWREVIEW ChrisAnthonyAnthonyAnthony Finn Senanayake SenanayakeSenanayake ExtrajudicialLegalLegalLegal Academia AcademiaAcademia Speech Happeneth HappenethHappeneth and the to to toPrejudgment Them ThemThem All AllAll — —— A Rule: AA Study StudyStudy Aof ofReplof the thethe yTop Top Topto LawBartie LawLaw Journals JournalsJournals and Gava of ofof Australia Australia Australia and andand New NewNew Ze ZeZealandalandaland 267307307307 ASSOCIATIONASSOCIATIONASSOCIATION Jenny Buchan Franchising: A Honey Pot in a Bear Trap 283 LaurentiaLaurentiaLaurentia Mc McMcKessarKessarKessar ThreeThreeThree Constitutional ConstitutionalConstitutional Themes ThemesThemes in inin the thethe High HighHigh Court CourtCourt Mirk o Bagaric Aof ofRationalof Australia: Australia:Australia: Approach 1 1 1September SeptemberSeptember to Sentencing 2008–19 2008–192008–19 June JuneJune White-Collar 2 2012010100 0 347347347 and Theo Alexander Offenders in Australia 317 TThanujaThanujaareqThanuja Al-Tawil Rodrigo RodrigoRodrigo DamagesUnconscionableUnconscionableUnconscionable for Breach Demands DemandsDemands of Contract: Under UnderUnder On-Demand On-Demand On-DemandCompensation, Guarant GuarantGuarant eeeeees:s:s: CostAAA Case CaseCaseof Cure of ofof Wrongful WrongfulWrongful and Vindication E ExploitationExploitationxploitationxploitation 351361361361 ADELAIDEADELAIDEADELAIDE Theodore Bennett Transsexualism and the Consideration of Social NicolaNicolaNicola McGarrity, McGarrity,McGarrity, FactorsSunsetSunsetSunset withinClauses ClausesClauses Sex in inin Australian AustralianIdentificationAustralian Anti-Terror Anti-TerrorAnti-Terror Law Laws LawsLaws 379399399399 RishiRishiRishi Gulati GulatiGulati and andand MichaelGeorgeGeorgeGeorge Williams WilliamsWilliamsLegg and The Australian Business Judgment Rule After LAWLAWLAW REVIEWREVIEWREVIEW Dean Jordan ASIC v Rich: Balancing Director Authority and Accountability 403 MatthewMatthewMatthew Groves GrovesGroves TheTheThe Hardiman HardimanHardiman Rule RuleRule 427427427 Mitchell Landrigan Can the Implied Freedom of Political Discourse IanIanIan Murray MurrayMurray ApplTravelTravelTravely to to totoSpeech Invigorate InvigorateInvigorate by theor thethe aboutMind MindMind andReligious andand the thethe Wallet: Wallet:Wallet: Leaders? 427 DoDoDo the thethe In InInteteternationalrnationalrnational Tax TaxTax Rules RulesRules Appropriately AppropriatelyAppropriately CASE NOTE EncourageEncourageEncourage United UnitedUnited States–Australian States–AustralianStates–Australian Academic AcademicAcademic Visits? Visits?Visits? 455455455 Emily Bell New South Wales v Kable (2013) 298 ALR 144 459 GeoffreyGeoffreyGeoffrey Lindell LindellLindell InInIn Defence DefenceDefence of ofof The TheThe High HighHigh Court CourtCourt — —— Its ItsIts Role RoleRole as asas an anan BOOK REVIEWS AgentAgentAgent of ofof Constitutional ConstitutionalConstitutional Change ChangeChange 505505505 Andrew Lynch Judicialization of Politics: The Interplay of JoyceJoyceJoyce Chi ChiChi and andand InstitutionalDoingDoing Doing Business BBusinessusiness Structur to toto do dodoe, Good: Good:Good:Legal Doctrine and MirandaMirandaMiranda StewartS StewarttewartStewart Politics on the High Court of Australia 465537537537 SheelaghCASECASECASE NOTES NOTESNOTES McCracken Australian Personal Property Securities Law 473 SUBMISSIONRichardRichardRichard Sletvold SletvoldSletvold OF MANUSCRIPTSPGAPGAPGA V VV The TheThe Queen: Queen:Queen: Do DoDo Laws LawsLaws Just JustJust Disappear? Disappear?Disappear? 476573573573 BOOKBOOKBOOK REVIEW REVIEWREVIEW PePePeteteter rrBurdon BurdonBurdon PropertyPropertyProperty Rights RightsRights and andand Sustainability: Sustainability:Sustainability: The TheThe Evolution EvolutionEvolution ofofof Property PropertyProperty Rights RightsRights to toto Meet MeetMeet Eco EcoEcololologicalgicalgical Challenges ChallengesChallenges 581581581 Vol 34 Vol 34 Vol 34 SUBMISSIONSUBMISSIONSUBMISSION OF OFOF MA MAMANUSCRIPTSNUSCRIPTSNUSCRIPTS 586586586 VOLUMEVOLUMEVOLUME 34 3434 NUMBER NUMBERNUMBER 2 22 No 2 No 2 No 2 AdelaideAdelaideAdelaide Law LawLaw Review ReviewReview Association AssociationAssociation AdelaideAdelaideAdelaide Law LawLaw School SchoolSchool TheTheThe University UniversityUniversity of ofof Adelaide AdelaideAdelaide AdelaideAdelaideAdelaide SA SASA 5005 50055005 AUSTRALIAAUSTRALIAAUSTRALIA S U N B C E RUCE LUM THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION ADVISORY BOARD Emeritus Professor W R Cornish Emeritus Herchel Smith Professor of Intellectual Property Law University of Cambridge United Kingdom Professor J R Crawford Whewell Professor of International Law University of Cambridge United Kingdom Emeritus Professor M J Detmold Adelaide Law School The University of Adelaide South Australia The Hon Professor J J Doyle Former Chief Justice Supreme Court of South Australia Emeritus Professor R Graycar Sydney Law School The University of Sydney New South Wales Professor J V Orth William Rand Kenan Jr Professor of Law The University of North Carolina at Chapel Hill United States of America Emeritus Professor I Shearer Sydney Law School The University of Sydney New South Wales Professor J M Williams Adelaide Law School The University of Adelaide South Australia ADELAIDE LAW REVIEW Editors Paul Babie John Gava Book Review Editor Gabrielle Appleby Senior Student Editors Zoe Irwin Richard Sletvold Student Editors Michael Armstrong Rebecca McEwen Emily Bell Michael Norris Claire Benn Seb Tonkin Lauren Clark Katherine Varsos Tania Drewer Alice Wharldall Publications Officer Panita Hirunboot Volume 34 Issue 2 2013 The Adelaide Law Review is a refereed journal that is published twice a year by the Adelaide Law Review Association of the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. Articles and other contributions for possible publication are welcomed. Copies of the journal may be purchased, or a subscription obtained, from: Administrative Officer For North America: Adelaide Law Review Association William S Hein & Co Adelaide Law School 1285 Main Street The University of Adelaide Buffalo NY 14209 South Australia 5005 USA AUSTRALIA e-mail: <[email protected]> <http://www.law.adelaide.edu.au/review> This volume may be cited as: (2013) 34 Adelaide Law Review The articles in this volume are published in 2014. ISSN 0065-1915 © Copyright is vested in the Association and, in relation to each article, in its author, 2014. TABLE OF CONTENTS The Adelaide Law Review is a refereed journal that is published twice a year by the THETHE 2011 2012 JOHN JOHN BRAY BRAY ORATION ORATION Adelaide Law Review Association of the Adelaide Law School, The University of Adelaide. David Irvine Freedom and Security: Maintaining The Balance 295 A guide for the submission of manuscripts is set out at the back of this issue. Articles and John Doyle Choosing Our Judges 223 other contributions for possible publication are welcomed. ARTICLESARTICLES NicolaM Stuart McGarrity, Madden EfficiencSunset Clausesy Themes in Australian in Tort Law Anti-Terror from Antiquity Laws 231307 Rishi Gulati and Copies of the journal may be purchased, or a subscription obtained, from: GeorgeChris F Williamsinn Extrajudicial Speech and the Prejudgment Rule: Administrative Officer For North America: A Reply to Bartie and Gava 267 Adelaide Law Review Association William S Hein & Co Joyce Chia and Doing Business To Do Good: Adelaide Law School 1285 Main Street MirandaJenny Buchan Stewart Franchising: A Honey Pot in a Bear Trap 283335 The University of Adelaide Buffalo NY 14209 Mirko Bagaric A Rational Approach to Sentencing White-Collar South Australia 5005 USA Matthewand Theo Groves Alexander OfThefenders Hardiman in Australia Rule 317371 AUSTRALIA e-mail: <[email protected]> GeoffreyTareq Al-Tawil Lindell DamagesIn Defence for of BreachThe High of Court Contract: — Its Compensation, Role As An CostAgent of of Cure Constitutional and Vindication Change 351399 <http://www.law.adelaide.edu.au/review> Theodore Bennett Transsexualism and the Consideration of Social Ian Murray FTravelactors to within Invigorate Sex Identificationthe Mind and the Law Wallet: 379 Do the International Tax Rules Appropriately This volume may be cited as: Michael Legg and TheEncourage Australian United Business States–Australian Judgment AcademicRule After Visits? 431 (2013) 34 Adelaide Law Review Dean Jordan ASIC v Rich: Balancing Director Authority and The articles in this volume are published in 2014. Thanuja Rodrigo AccountabilityUnconscionable Demands Under On-Demand Guarantees: 403 ISSN 0065-1915 Mitchell Landrigan CanA Case the ofImplied Wrongful Freedom Exploitation
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