Dialogue Vol. 22, 2/2003
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Sir Ninian Stephen Lecture 2003
THE HIGH COURT’S ABANDONMENT OF ‘THE TIME-HONOURED METHODOLOGY OF THE COMMON LAW’ IN ITS INTERPRETATION OF NATIVE TITLE IN MIRRIUWUNG GAJERRONG AND YORTA YORTA Sir Ninian Stephen Annual Lecture 2003 Noel Pearson Law School University of Newcastle 17 March 2003 There are fundamental problems with the way in which the High Court has interpreted native title in Australian law in its two most recent decisions: Mirriuwung Gajerrong1 and Yorta Yorta2. In the space of this lecture I will only be able to deal with three key problems: the court‟s misinterpretation of the definition of native title in section 223(1) of the Native Title Act 1993-1998 (Cth) (“Native Title Act”) the court‟s misinterpretation of how the common law treats traditional indigenous occupants of land when the Crown acquires sovereignty over their land as an injusticiable act of State the court‟s disavowal of native title as a doctrine or body of law within the common law – 1 State of Western Australia v Ward [2002] HCA 28 (8 August 2002). Referred to variously as Ward and Mirriuwung Gajerrong 2 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002) 1 and its failure to judge the Yorta Yorta people‟s claim in accordance with this body of law I will close with some views about what I think needs to be done in all justice to indigenous Australians. But before I undertake this critique, let me first set out my understanding of what Mabo3 and native title should have meant to Australians. -
Curriculum Vitae Neil Young Qc
CURRICULUM VITAE NEIL YOUNG QC Address Melbourne Ninian Stephen Chambers (Chambers) Level 38, 140 William Street, Melbourne Vic 3000 Email [email protected] Clerk Michael Green – Ph 03 9225 7864 Sydney New Chambers 126 Phillip Street, Sydney NSW 2000 Email [email protected] Clerk Ian Belshaw – Ph 02 9151 2080 Present position Queen’s Counsel, all Australian States Academic LL.B (1st class honours), University of Melbourne Qualifications LL.M Harvard, 1977 Current Member of the Court of Arbitration for Sport, Geneva, since 1999 professional Director, Victorian Bar Foundation positions Director of the Melbourne Law School Foundation Board Previous Vice-Chairman, Victorian Bar Council, September 1995 to March 1997 professional Director, Barristers’ Chambers Limited, 1994 to 1998 positions Chairman of the Victorian Bar Council, March 1997 to September 1998 President, Australian Bar Association, January 1999 to February 2000 Member, Faculty of Law, University of Melbourne, 1997 2005 Member of the Monash University Faculty of Law Selection Committee, 1998 Member of the JD Advisory Board, Melbourne University, since 1999 Member of the Steering Committee, Forum of Barristers and Advocates of the International Bar Association, January 1999 to February 2000 Member of the Trade Practices and Taxation Law Committees of the Law Council of Australia Chairman of the Continuing Legal Education Committee of the Victorian Bar, 2003 – November 2005 Justice of the Federal Court of Australia, 2005-2007 Page 1 of 2 Admission Details Barrister and Solicitor of the Supreme Court of Victoria since 3 March 1975 Practitioner of the High Court of Australia and the Federal Court since 3 April 1975 Signed the Victorian Bar Roll on 15 March 1979 Admitted as a barrister, or barrister and solicitor in each of the other States of Australia Appointment Appointed one of Her Majesty’s Counsel for the State of Victoria on 27 November to the Inner Bar 1990. -
Chapter 15 the Return of the Repressed
Chapter 15 The Return of the Repressed XTINCTION in philosophy is not forever. Any opinion or argument, no matter how finally it seems to have been hunted Edown and refuted into oblivion, has the chance of being redis- covered by a new generation eager for novelties. In this chapter, we examine the revival of two old philosophies once thought well off the agenda: idealism and Catholic natural law philosophy. They have not been seen much in philosophy departments, but have flourished in, respectively, literature departments and the High Court of Australia. As we saw in chapter 6, David Stove wrote that idealism, the doc- trine that everything is mind-dependent, was sustained by what he identified as the ‘Worst argument in the world’: We can know things only as they are related to us/under our forms of perception and un- derstanding/in so far as they fall under our conceptual schemes, etc, so, we cannot know things as they are in themselves. In Berkeley’s version, ‘we cannot have trees-outside-the-mind in mind without them being in mind, so there cannot be trees outside the mind (or if there could be, they could not be thought of). That argument did not vanish with the 1890s. We saw in chapter 11 that John Burnheim adopted an ‘inevitably partisan’ reading of the Sydney disturbances on the grounds that philosophy ‘rests not on ultimate truths, but on a reading of our specific historical situation’ (that is, we cannot know things except through our specific historical situation, therefore we cannot know things as they are in themselves). -
Who's That with Abrahams
barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008/09 Who’s that with Abrahams KC? Rediscovering Rhetoric Justice Richard O’Connor rediscovered Bullfry in Shanghai | CONTENTS | 2 President’s column 6 Editor’s note 7 Letters to the editor 8 Opinion Access to court information The costs circus 12 Recent developments 24 Features 75 Legal history The Hon Justice Foster The criminal jurisdiction of the Federal The Kyeema air disaster The Hon Justice Macfarlan Court NSW Law Almanacs online The Court of Bosnia and Herzegovina The Hon Justice Ward Saving St James Church 40 Addresses His Honour Judge Michael King SC Justice Richard Edward O’Connor Rediscovering Rhetoric 104 Personalia The current state of the profession His Honour Judge Storkey VC 106 Obituaries Refl ections on the Federal Court 90 Crossword by Rapunzel Matthew Bracks 55 Practice 91 Retirements 107 Book reviews The Keble Advocacy Course 95 Appointments 113 Muse Before the duty judge in Equity Chief Justice French Calderbank offers The Hon Justice Nye Perram Bullfry in Shanghai Appearing in the Commercial List The Hon Justice Jagot 115 Bar sports barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008-09 Bar News Editorial Committee Cover the New South Wales Bar Andrew Bell SC (editor) Leonard Abrahams KC and Clark Gable. Association. Keith Chapple SC Photo: Courtesy of Anthony Abrahams. Contributions are welcome and Gregory Nell SC should be addressed to the editor, Design and production Arthur Moses SC Andrew Bell SC Jeremy Stoljar SC Weavers Design Group Eleventh Floor Chris O’Donnell www.weavers.com.au Wentworth Chambers Duncan Graham Carol Webster Advertising 180 Phillip Street, Richard Beasley To advertise in Bar News visit Sydney 2000. -
The Role of the Governor-General
Chapter Eight The Role of the Governor-General Sir David Smith, KCVO, AO My brief is to speak about the role of the Governor-General, as we know that office today. I shall speak about the history of the office, about the duties of the office, and about current proposals to alter the Australian Constitution by changing its provisions relating to the office. Foremost among the reasons given for constitutional change is the claim that the republic will give us an Australian Head of State. This claim is as mischievous as it is dishonest. Its success is dependent on the notorious ignorance of the vast majority of Australians about their Constitution. 1 The truth is that Australia has two Heads of State. The Queen is our symbolic Head of State, the Governor-General is our constitutional Head of State, and we have had Australians in the office of Governor-General since Lord Casey's appointment in 1965. The claim that the Governor-General is our constitutional Head of State is not some bizarre theory dreamed up for the purposes of the current debate, for it has been so since the beginning of federation, and there is much supporting evidence, both anecdotal and legal. A Canadian Governor-General, Lord Dufferin, described a Governor-General as a constitutional Head of State in a speech given in 1873. 2 Even Paul Keating referred to the Governor-General as our Head of State in the very speech in which he announced in Parliament on 7 June, 1995 his Government's proposals for the republic. -
Referendum - the Australian Way
THE SEVENTH SIR JOHN QUICK BENDIGO LECTURE REFERENDUM - THE AUSTRALIAN WAY THE RT HON SIR NINIAN STEPHEN SIR JOHN QUICK LECTURE 11 OCTOBER 2000 LA TROBE UNIVERSITY, BENDIGO ISSN 1325 - 0787 The publication of the Year 2000 Lecture is generously supported by Robertson HYETTS Solicitors, Molesworth Chambers, 51 Bull Street, Bendigo. Sir John Quick was a partner in the Bendigo law firm, Quick Hyett and Rymer, later Quick and Hyett, from 1890 to 1912. From 1891 the firm practised from premises at 51 Bull Street. Robertson Hyetts are proud to be associated with the Sir John Quick Lecture. REFERENDUM - THE AUSTRALIAN WAY THE RT HON SIR NINIAN STEPHEN When asked to give this Sir John Quick Lecture I immediately thought of s.128 of our Constitution and its referendum procedure, so closely associated with John Quick, whose memory this series of lectures honours. The most intriguing thing about the Australian form of Constitutional referendum is surely how we ever came to have it formally written into our constitution. In 1900 the referendum was not only a very rare feature of constitutions world wide; it was directly opposed to the principle of representative democracy which Australia had inherited from Britain and which before federation was accepted by all six of the Australian colonies as the normal and very traditional form of government. It was that principle which Edmund Burke described when, in his speech to the electors of Bristol in 1774, he said "you choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a Member of Parliament". -
Justice Ronald Sackville*
AUSTRALIAN LAWYERS AND SOCIAL CHANGE (AUSTRALIAN NATIONAL UNIVERSITY) WELCOMING ADDRESS by: Justice Ronald Sackville* National Museum of Australia, Canberra 22 – 24 September 2004 *Judge, Federal Court of Australia It is my great honour, as one of the few surviving participants in the 1974 Australian Lawyers and Social Change Conference, to welcome you to this gathering on the same theme. The two conferences, although thirty years apart, share characteristics in common, other than their name. One is a stellar line-up of presenters and commentators. (I can plausibly deny any implicit element of self-congratulation in that comment, since a re-reading of Australian Lawyers and Social Change 1, which published the papers and commentaries from the 1974 Conference, confirms that I was neither a presenter nor a commentator, but merely a participant in the discussion, playing the role of a youthful serial pest.) Consider some of those making presentations at the 1974 Conference. The opening paper, ‘ The Most Dangerous Branch? The High Court and the Constitution in a Changing Society’ 2 was delivered by Gareth Evans, then a not so humble senior lecturer in law. It is true that in 1974 he was well on the path that led to the glittering prize of high political office, but he still had only one Gareth to his name. The first commentator on Gareth Evans’ plea for a more policy oriented constitutional jurisprudence in the High Court was one William Deane QC, who appeared to accept cheerfully Gareth Evans’ description of practising lawyers as an ‘essentially narrow profession’. 3 Mr Deane, however, was quite unable to accept Gareth Evans’ regret that one could not find in the pages of the Commonwealth Law Reports ‘the racy dogmatism that is so characteristic of the United States Supreme Court’. -
Religious Freedom and the Australian Constitution – Origins and Future
The Denning Law Journal 2018 Vol 30 pp 207-217 RELIGIOUS FREEDOM AND THE AUSTRALIAN CONSTITUTION – ORIGINS AND FUTURE Luke Beck (Routledge 2018) pp 178 Jocelynne A. Scutt* The most recent Australian Census, conducted by the Australian Bureau of Statistics (ABS) in 2016 (with a 95.1 per cent response rate), confirms that Australia is ‘increasingly a story of religious diversity, with Hinduism, Sikhism, Islam, and Buddhism all increasingly common religious beliefs’.1 Of these, between 2006 and 2016 Hinduism shows the ‘most significant growth’, attribut- ed to immigration from South East Asia, whilst Islam (2.6 per cent of the popu- lation) and Buddhism (2.4 per cent) were the most common religions reported next to Christianity, the latter ‘remaining the most common religion’ (52 per cent stating this as their belief). Nevertheless, Christianity is declining, drop- ping from 88 per cent in 1966 to 74 per cent in 1991, and thence to the 2016 figure. At the same time, nearly one-third of Australians (30 per cent) state they have no religion,2 this group reflecting ‘a trend for decades’ which, says the ABS, is ‘accelerating’: Those reporting no religion increased noticeably from 19% in 2006 to 30% in 2016 [with] the largest change … between 2011 (22%) and 2016, when an additional 2.2 million people reported having no religion.3 In this, there were not insignificant differences between the states: Tasmania reported the lowest religious affiliation rate (53 per cent), whilst New South Wales had the highest rate (66 per cent). Age was a significant factor, both in terms of particular religious affiliation and in the ‘no religion’ category. -
Judges and Retirement Ages
JUDGES AND RETIREMENT AGES ALYSIA B LACKHAM* All Commonwealth, state and territory judges in Australia are subject to mandatory retirement ages. While the 1977 referendum, which introduced judicial retirement ages for the Australian federal judiciary, commanded broad public support, this article argues that the aims of judicial retirement ages are no longer valid in a modern society. Judicial retirement ages may be causing undue expense to the public purse and depriving the judiciary of skilled adjudicators. They are also contrary to contemporary notions of age equality. Therefore, demographic change warrants a reconsideration of s 72 of the Constitution and other statutes setting judicial retirement ages. This article sets out three alternatives to the current system of judicial retirement ages. It concludes that the best option is to remove age-based limitations on judicial tenure. CONTENTS I Introduction .............................................................................................................. 739 II Judicial Retirement Ages in Australia ................................................................... 740 A Federal Judiciary .......................................................................................... 740 B Australian States and Territories ............................................................... 745 III Criticism of Judicial Retirement Ages ................................................................... 752 A Critiques of Arguments in Favour of Retirement Ages ........................ -
Annual Report 2014-2015 HAEMOPHILIA FOUNDATION AUSTRALIA
annual report 2014-2015 HAEMOPHILIA FOUNDATION AUSTRALIA Haemophilia Foundation Australia (HFA) is the national peak body which represents people with haemophilia, von Willebrand disorder and other rare inherited bleeding disorders and their families throughout Australia. HFA supports a network of state and territory Foundations in Australia and as a National Member Organisation of the World Federation of Hemophilia, HFA participates in international efforts to improve access to care and treatment for people with bleeding disorders around the world. Our Mission: to inspire excellence in treatment, care and support through representation, education and promotion of research. Our Vision: for people with bleeding disorders to lead active, independent and fulfilling lives. Our Goals: good governance effective advocacy strategic education and communication financial sustainability to advance research, care and treatment to be the trusted national organisation and recognised community expert on inherited bleeding disorders Our Governance HFA is incorporated in Victoria. Its members are each of the state/territory Haemophilia Foundations around Australia. Each Foundation is represented on the HFA Council and Council elects office-bearers from its own number. At the Annual General Meeting on 25 October 2014, a special resolution to change the HFA Constitution was considered. This had been preceded by a full consultation with members and legal advice. The HFA Council subsequently adopted a number of Constitution changes aimed at creating a smaller, more efficient and agile Council. The effect of the changes was that there would no longer be an Executive Board and each member Haemophilia Foundation would have just one representative on Council. Executive Board meetings would be replaced with up to 3 Council meetings during the year. -
Australia and Contentious Cases
Table of Australia and ICJ Contentious Cases, including relevant links Compiled by the Project on Australia and the International Court of Justice, Melbourne Law School February 2019 Contact: [email protected] Official Nuclear Tests (New Zealand v. France) Certain Phosphate Lands in Nauru East Timor (Portugal v Australia) Whaling in the Antarctic (Australia v. Questions relating to the Seizure and Citation [1974] ICJ Rep 457 (Nauru v. Australia) [1992] ICJ Rep 240 [1995] ICJ Rep 90 Japan: New Zealand Intervening) Detention of Certain Documents and [2014] ICJ Rep 226 Data (Timor-Leste v. Australia) [2015] ICJ Rep 147 Australia’s Applicant Respondent Respondent Applicant Respondent Appearance Overview Overview of the Case Overview of the Case Overview of the Case Overview of the Case Overview of the Case Australia’s - Application Instituting Proceedings - Counter-Memorial of Australia - Counter-Memorial of Australia - Application instituting proceedings - Written observations of Australia on Written - Request for the indication of Interim - Preliminary Objections of - Rejoinder of Australia - Memorial of Australia Timor-Leste's Request for Submissions Measures of Protection of Australia Australia - Written observations of Australia on provisional measures - Memorial on Jurisdiction and the Declaration of Intervention by - Written Undertaking by the Admissibility submitted of Australia New Zealand Attorney-General of Australia dated - Written answer of Australia to the - Statement of Mr Marc Mangel 21 January 2014 question posed by Judge Gros at the (expert called by Australia) - Counter-Memorial of Australia hearing of 25 May 1973 - Statement of Mr Nick Gales (expert called by Australia) - Statement of Mr. Nick Gales (expert called by Australia) in response to the statement submitted by Mr. -
The Distinctive Foundations of Australian Democracy
Papers on Parliament No. 42 December 2004 The Distinctive Foundations of Australian Democracy Lectures in the Senate Occasional Lecture Series 2003–2004 Published and printed by the Department of the Senate, Parliament House, Canberra ISSN 1031-976X Published by the Department of the Senate, 2004 Papers on Parliament is edited and managed by the Research Section, Department of the Senate. Edited by Kay Walsh All inquiries should be made to: Assistant Director of Research Procedure Office Department of the Senate Parliament House CANBERRA ACT 2600 Telephone: (02) 6277 3164 ISSN 1031–976X ii Contents Alfred Deakin. A Centenary Tribute Stuart Macintyre 1 The High Court and the Parliament: Partners in Law-making, or Hostile Combatants? Michael Coper 13 Constitutional Schizophrenia Then and Now A.J. Brown 33 Eureka and the Prerogative of the People John Molony 59 John Quick: a True Founding Father of Federation Sir Ninian Stephen 71 Rules, Regulations and Red Tape: Parliamentary Scrutiny and Delegated Legislation Dennis Pearce 81 ‘The Australias are One’: John West Guiding Colonial Australia to Nationhood Patricia Fitzgerald Ratcliff 97 The Distinctiveness of Australian Democracy John Hirst 113 The Usual Suspects? ‘Civil Society’ and Senate Committees Anthony Marinac 129 Contents of previous issues of Papers on Parliament 141 List of Senate Briefs 149 To order copies of Papers on Parliament 150 iii Contributors Stuart Macintyre is Ernest Scott Professor of History and Dean of the Faculty of Arts at the University of Melbourne Michael Coper is Dean of Law and Robert Garran Professor of Law at the Australian National University. Dr A.J.