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Index Volume 29.Fm THE SYDNEY LAW REVIEW Vo lu m e 2 9 2007 FACULTY OF LAW UNIVERSITY OF SYDNEY ii SYDNEY LAW REVIEW [VOLUME 28 THE SYDNEY LAW REVIEW PUBLISHED ANNUALLY BY THE FACULTY OF LAW OF THE UNIVERSITY OF SYDNEY Correspondence and Contributions should be addressed to: The Editor, The Sydney University Law School, 173–175 Phillip Street, Sydney NSW Australia 2000 Tel: (02) 9351 2222 Fax: (02) 9351 0200 Inquiries regarding subscriptions should be addressedó From North America, to: Wm Gaunt & Sons, Inc, 3011 Gulf Drive, Holmes Beach, Florida, USA 33510 From other places to: Lawbook Co. (Head Office) 100 Harris Street, Pyrmont, NSW Australia 2009 (Mail Orders) Tel (02) 8587 7000 Fax: (02) 8587 7100 CURRENT SUBSCRIPTIONS RATE IN AUSTRALIA: $188.50 PER VOLUME 2006] iii THE SYDNEY LAW REVIEW Published under the Auspices of the Faculty of Law of the University of Sydney 2007 EDITORIAL BOARD (2007) Jenni Millbank (Editor semester 1) Emma Armson Irene Baghoomians Fleur Johns Isabel Karpin Patrick Parkinson (Editor semesters David Rolph (Editor semester 2) 3 & 4) Andrew Tuch Kristin Savell Brett Williams Coordinator: Joanna Howse STUDENT EDITORIAL COMMITTEE (2007) Hugh Atkin Erin Cartledge Kirsty Champion Annie Chiv Pietro Di Ciaccio Jonathon Friedrich James Greenwood Emily Liu Joanna Mascarenhas Norm Maamary Louisa Macphillamy Alexander McCauley Heather McIntyre David Nguyen Anna Rose Fiona Roughley Joanna Sutton Yi-Shun Teoh Maria Wang Rebecca Weeks Anisha Wickremeratne Evan Williams Amber Wood Marley Zelinka Lily Tsen iv SYDNEY LAW REVIEW [VOLUME 28 EDITORIAL BOARD (2008) David Rolph (Editor) Jamie Glister Patricia Loughlan Tim Stephens Anne Twomey Kevin Walton Coordinator: Joanna Howse STUDENT EDITORIAL COMMITTEE (2008) Susan Cirillo Dora Chan Tommy Chen Matthew Costa Anna Garsia William Kim Alice Lam Christopher May Jin Qian James Robertson Ben Wahlhaus Constance Zhang 2006] v TITLE INDEX TO LEADING ARTICLES A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort, James Goudkamp ...................................... 445 Chaos, Rhetoric and the Legitimation of ‘Democratic Government’: A Critical Review of Australia’s Tax Legislative Process, Mark Burton.............................................................................................. 613 Class Actions Instituted only forthe Benefit of the Clients of the Class Representative’s Solicitors, Vince Morabito....................................... 5 Cold War Justice? Judicial Responses to Communists and Communism, 1945–1955, Roger Douglas ........................................................................ 43 Contested Concepts, General Terms and Constitutional Evolution, Michael Stokes .......................................................................................... 683 Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation, Rae Kaspiew ................................................. 131 Human Rights Fundamentalisms, David Kinley............................................. 545 Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model, Elena Marchetti & Kathleen Daly................................................ 415 ‘Otherness’ on the Bench: How Merit is Gendered, Margaret Thornton ................................................................................... 391 Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice, Andrew Kenyon ....................................... 651 Prosecution for OHS Offences: Deterrent or Disincentive? Neil Gunningham...................................................................................... 359 Tackling the Issue of the Corporate Objective: An Analysis of the United Kingdom’s ‘Enlightened Shareholder Value Approach’, Andrew Keay............................................................................................. 577 Two Refusals of Royal Assent in Victoria, Greg Taylor ................................. 85 The High Court’s Conception of Discrimination: Origins, Applications, and Implications, Amelia Simpson............................................................ 263 ‘The Intelligence of a Future Day’: The Vindication of Constitutional Dissent in the High Court Australia — 1981–2003, Andrew Lynch......... 195 The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-mortem Examination, Prue Vines............................ 235 vi SYDNEY LAW REVIEW [VOLUME 28 AUTHOR INDEX TO LEADING ARTICLES Mark Burton, Chaos, Rhetoric and the Legitimation of ‘Democratic Government’: A Critical Review of Australia’s Tax Legislative Process. 613 Roger Douglas, Cold War Justice? Judicial Responses to Communists and Communism, 1945–1955 .....................................................................43 James Goudkamp, A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort....................................................... 445 Neil Gunningham, Prosecution for OHS Offences: Deterrent or Disincentive?.............................................................................................359 Rae Kaspiew, Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation..........................................................131 Andrew Keay, Tackling the Issue of the Corporate Objective: An Analysis of the United Kingdom’s ‘Enlightened Shareholder Value Approach’......... 577 Andrew Kenyon, Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice .............................................651 David Kinley, Human Rights Fundamentalisms.............................................545 Andrew Lynch, ‘The Intelligence of a Future Day’: The Vindication of Constitutional Dissent in the High Court Australia — 1981–2003......195 Elena Marchetti & Kathleen Daly, Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model...................................................415 Vince Morabito, Class Actions Instituted only forthe Benefit of the Clients of the Class Representative’s Solicitors ............................................................5 Amelia Simpson, The High Court’s Conception of Discrimination: Origins, Applications, and Implications ..................................................263 Michael Stokes, Contested Concepts, General Terms and Constitutional Evolution .................................................................................................... 683 Greg Taylor, Two Refusals of Royal Assent in Victoria ................................85 Margaret Thornton, ‘Otherness’ on the Bench: How Merit is Gendered ......391 Prue Vines, The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-mortem Examination ...............................................235 2006] vii TITLE INDEX TO CASE NOTES AND COMMENTS Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees Jonathan Burnett....................................................................................... 163 Keeping up Appearances: Apprehended Bias in Antoun vThe Queen Fyfe Strachan............................................................................................175 Vasiljkovic v Commonwealth of Australia (2006) 228 ALR 447 Sascha Morrell..........................................................................................321 Semiotics, Constructivism and Sedition Mila Cerecina ...........................................................................................341 A Heart of Darkness: The Mysterious Interior of Ferdinands v Commissioner for Public Employment David Nguyen.............................................................................................. 51 Hicks v Ruddock versus The United States v Hicks Marley Zelinka..........................................................................................527 ‘Knowing Receipt’ Following Farah Constructions Pty Ltd v Say-Dee Pty Ltd Hugh Atkin................................................................................................. 713 Gray v Minister for Planning: Rising Tide of Climate Change Litigation in Australia Anna Rose .................................................................................................725 viii SYDNEY LAW REVIEW [VOLUME 28 TITLE INDEX TO BEFORE THE HIGH COURT Vicki Roach v Commonwealth: Is the Blanket Disenfranchisement of Convicted Prisoners Unconsitututional? Daniel Guttman........................................................................................ 297 Attorney-General (Commonwealth) v Alinta Limited: Will the Takeovers Panel Survive Constitutional Challenge? Emma Armson .......................................................................................... 495 2006] ix AUTHOR INDEX TO BOOK REVIEWS Company Charges and Beyond by Joshua Getzler & Jennifer Payne (eds) (Peter Turner)........................................................................................... 187 The Defence of Passing On by Michael Rush (Mark Costello)........................................................................................ 351 The First Women Lawyers: A Comparative Study of Gender, Law and the legal Professions by Mary Jane Mossman (Margaret Thornton) ................................................................................ 735 x SYDNEY LAW REVIEW [VOLUME 28 2007] TABLE OF CASES xi TABLE OF CASES A Attorney-General (WA); Ex rel Ansett A v Secretary
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