S U N B C E RUCE LUM THE UNIVERSITY OF ADELAIDE ADELAIDE LAW REVIEW ASSOCIATION ADVISORY BOARD EEmeritusmeritus PProfessorrofessor W R CCornishornish EEmeritusmeritus HHerchelerchel SSmithmith PProfessorrofessor ooff IIntellectualntellectual PPropertyroperty LawLaw UUniversityniversity ooff CCambridgeambridge UUnitednited KKingdomingdom PrJudgeofesso Jr RJ RCrawford Crawford WhewInternationalell Professor Courtof Int eofrn Justiceational Law University of Cambridge The HonUn iProfessorted Kingd Jo mJ Doyle Former Chief Justice SupremeEmeritus Court Profe sofso Southr M J DAustraliaetmold Adelaide Law School EmeritusThe Uni vProfessorersity of AR dGraycarelaide SydneySouth LawAus tSchoolralia The University of Sydney The HNewon P Southrofess oWalesr J J Doyle Former Chief Justice SupremeProfessor Court of JS Vou Orthth Australia William Rand Kenan Jr Professor of Law The UniversityEmerit ofus NorthProfes Carolinasor R Gr aaty cChapelar Hill UnitedSydn Statesey Law of S Americachool The University of Sydney ProfessorNew Emerita South W Ra lJe Owenss Adelaide Law School The PUniversityrofessor J ofV OAdelaiderth William RandSouth Ken aAustralian Jr Professor of Law The University of North Carolina at Chapel Hill EmeritusUnited S Professortates of A Im Shearererica Sydney Law School EmTheeri Universitytus Profess oofr ISydney Shearer SNewydne ySouth Law WalesSchool The University of Sydney ProfessorNew S oJu Mth WilliamsWales Adelaide Law School TheProfessor University J M ofWilliams Adelaide AdelaideSouth AustraliaLaw School The University of Adelaide South Australia ADELAIDE LAW REVIEW Editors Matthew Stubbs Adam Webster Book Review Editor Adam Webster Senior Student Editors Isabella Dunning Irene Nikoloudakis Student Editors Elizabeth Carroll-Shaw Daniel Marateo David Ceccon Ned Marlow-Weir Alyona Haines Shauna Roeger Madeline Johns Jordan Teng Megan Lawson Natalie Williams Rozelle Macalincag Kelly Williamson Rebecca Mahony Publications Officer Panita Hirunboot Volume 37 Issue 1 2 016 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.adelaide.edu.au/press/journals/law-review> This volume may be cited as: (2016) 37 Adelaide Law Review The articles in this volume are published in 2016. ISSN 0065-1915 © Copyright is vested in the Association and, in relation to each article, in its author, 2016. TABLE OF CONTENTS The Adelaide Law Review is a refereed journal that is published twice a year by the TDISTINGUISHEDHE 2011 JOHN BRA LECTURESY 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 The Hon Michael Kirby Dr George Ian Duncan Remembered 1 other contributions for possible publication are welcomed. AC CMG ARTICLES Nicola McGarrity, Sunset Clauses in Australian Anti-Terror Laws 307 RARTICLESishi Gulati and Copies of the journal may be purchased, or a subscription obtained, from: George Williams Paul Kildea Achieving Fairness in the Allocation of Public Administrative Officer For North America: Adelaide Law Review Association William S Hein & Co Joyce Chia and DoFundinging Busi nines Referendums To Do Good :Campaigns 13 Adelaide Law School 1285 Main Street Miranda Stewart 335 The University of Adelaide Buffalo NY 14209 Mary Heath and Abortion in the Shadow of the Criminal Law? South Australia 5005 USA MEaat tMulliganhew Grov es ThThee Ha Caserdima ofn RSouthule Australia 34171 AUSTRALIA e-mail: <[email protected]> GMichaeleoffrey LDouglasindell InThe Def eMedia’snce of T hStandinge High C otour Challenget — Its Rol eDepartures As An Agent of Constitutional Change 399 <http://www.adelaide.edu.au/press/journals/law-review> from Open Justice 69 Ian Murray Travel to Invigorate the Mind and the Wallet: Lucy Line, Claire Wyld DoPre-Trial the Inter nDefenceational T aDisclosurex Rules Ap inpro Southpriatel Australiany This volume may be cited as: and David Plater EnCriminalcourage U Proceedings:nited States–A Timeustra lforian AChange?cademic Visits? 101431 (2016) 37 Adelaide Law Review The articles in this volume are published in 2016. TTamarahanuja RWalshodrigo and UnSentencingconscionabl eParents: Deman dThes U nConsiderationder On-Demand of Guarantees: ISSN 0065-1915 Heather Douglas A DependentCase of Wro Childrenngful Exp loitation 135481 JKathyames A Douglas,llan and TiConflictme and C hinan cStratae and tTitlehe P reDevelopments:vailing Orthodoxy in © Copyright is vested in the Association and, in relation to each article, in its author, 2016. Anthony Senanayake Legal Academia Happeneth to Them All — A Study Rebecca Leshinsky of Thethe T Needop La wfor J oDifferentiatedurnals of Austr aDisputelia and New Zealand 519 and Peter Condliffe Resolution Rules 163 Laurentia McKessar Three Constitutional Themes in the High Court Renae Barker of RebuttingAustralia: 1the Se Banptem btheer 2Burqa008–1 9Rhetoric: June 201 0 559 A Critical Analysis of the Arguments for a CASE NOTE Ban on the Islamic Face Veil in Australia 191 Richard Sletvold PGA v The Queen: Do Laws Just Disappear? 573 John Vaughan-Williams The Future of Charity Regulation in Australia: BOOK REVIEW Complexities of Change 219 Peter Burdon Property Rights and Sustainability: The Evolution Mohammed Al Bhadily of AustralianProperty R iEmployeeghts to Me eEntitlementst Ecological C inha lthelen gEventes 581 and Peter Hosie of Insolvency: Is an Insurance Scheme an SUBMISSION OF MANUSCEffectiveRIPTS Protective Measure? 247586 CASE NOTE John Eldridge ‘Paperless Arrests’: North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16 283 Shauna Roeger Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1 295 Dr George I O Duncan 1930–72 The Hon Michael Kirby AC CMG* DR GEORGE IAN DUNCAN REMEMBERED I HORRORS AND INDIGNITIES r George Ian Ogilvie Duncan died on 10 May 1972.1 He was drowned in the Torrens River when, at about 11pm, he was pushed from an embankment, Dreportedly by a well-dressed young man. His assailant had approached him and asked ‘how would you like a swim?’ We know that his death occurred at exactly 11:07 pm because that was the time that his watch stopped, inferentially by sudden immersion in three metres of water. Another victim was thrown into the river at the same time by another assailant in a group of three. He injured his ankle, but could swim to safety. Dr Duncan was unable to swim. One of the assailants stripped off his upper garments and plunged into the river in search of the victim, but without success. Later Dr Duncan’s body was retrieved from the river, his long arms already outstretched, fixed by rigor mortis, protesting his fate. Dr Duncan was born in 1931 in England of New Zealand parents — a late child to his father by a second marriage. The little family came to Australia from New Zealand when he was a boy. He attended Melbourne Grammar School where he immediately displayed high academic talent. He then commenced university studies in law at the University of Melbourne. However, at about this time he contracted tuberculosis, inferentially from his father who had earlier been committed to a sanatorium. The family moved back to England. Eventually, he was encouraged by a friend to apply for admission to Cambridge University. There too he displayed stellar academic ability. His special interest was legal history. He wrote a well reviewed, if somewhat esoteric, book on the High Court of Delegates: a medieval tribunal whose origins were lost in history.2 * Justice of the High Court of Australia (1996–2009); President of the International Commission of Jurists, Geneva (1995–1998); Member of the Global LGBT Forum, Berlin (2015–present). Patron of the Pinnacle Foundation (2012–present) and of the Kaleidoscope Foundation (2013–present). (Speech delivered at the Adelaide Law School on the unveiling of a photographic portrait to commemorate Dr Duncan, 11 September 2015.) 1 The history of Dr Duncan is told in many places. See, eg, Tim Reeves, ‘The 1972 debate on Male Homosexuality in South Australia’ in R Aldrich (ed), Gay Perspec- tives II: More Essays in Australian Gay Culture (Department of Economic History, University of Sydney, 1994) 149–92; Dino Hodge, Don Dunstan, Intimacy and Liberty: A Political Biography (Wakefield Press, 2014) 285–6, 307; Tim Reeves, ‘Duncan, George Ian Ogilvie (1930–1972)’ in Australian Dictionary of Biography (Melbourne University Press, 1996) vol 14, 50–1. 2 G I O Duncan, The High Court of Delegates (Cambridge University Press, 1971). 2 KIRBY — DR GEORGE IAN DUNCAN REMEMBERED After graduation, Dr Duncan was appointed to teach law part-time at the University of Bristol. However, he must not have enjoyed the provinces of England. He soon noticed an advertisement for a post at the University of Adelaide School of Law. This attracted him to the possibility of returning to the