Volume 3 Issue 1 June 1999

Articles

The State Corporation
The Honourable Justice Paul Finn

Public Governance Through Private Contract: A State Audit Perspective
Ken I MacPherson

Globalization of Corporate Regulation and Corporate Citizenship
John Braithwaite and Peter Drahos

Citizenship, Corporations and Globalization in Asia: An Exploratory Analysis
Roman Tomasic and Bahrin Kamarul Teaching Good Corporate Lawyering
Christine Parker and Paul Redmond

Corporate Law Teaching & Professional Standards
The Honourable Justice John W von Doussa

Volume 3 Issue 2 December 1999

Articles

The Elliott Johnston Tribute Address
Dr Pat O'Shane <abstract >

The Recognition Of Indigenous Land Rights As 'Native Title': Continuity And Transformation
Luke McNamara and Scott Grattan <abstract >

Defining 'The Best Interests Of The Corporation': Some Australian Reform Proposals
Robert Langton and Lindsay Trotman <abstract >

Passing The Century Mark: The Urgent Need For Reform Of Insolvency Law And Policy In New Zealand
Adrian J Sawyer <abstract >

'Who Needs FOI When Market Mechanisms Will Deliver Accountability On Demand? A Critical Evaluation Of The Relationship Between Freedom Of Information And Government Business Enterprises'
Rick Snell and Emily Langston <abstract >

Control In The Leviathan: Limitations On The Power Of Parliament To Pass Genocidal Laws In Australia
Alexander Reilly <abstract >

Imagining The Sexual: Transgendered Desire And Law's Limit
Andrew Sharpe <abstract >

Comments on Recent Developments

Bulun Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193
Erica Burke

Airbus Industrie GIE v Patel [1998] 2 WLR 686
Ashley Files

The Broadcasting Services And Online Services Act 1992 (Cth)
Steven Siegloff Clark


Synopses - Volume 3

The Elliott Johnston Tribute Address
Dr Pat O'Shane

The record of reform with respect to aboriginal deaths in custody is damning. In the 1999 Elliott Johnston Lecture, Magistrate Pat O'Shane argues nothing has been achieved by way of improvement to the lot of aboriginal people.

In April 1991, Commissioner Elliott Johnston handed down the final report of the Royal Commission into Aboriginal Deaths in Custody. The Commission found that Aboriginal people were disproportionately represented in custody, and this was chiefly attributable to the social, economic and cultural disadvantages experienced by many Aboriginal people.

In May 1999, Pat O'Shane points out that despite the recommendations of the Commission, Aboriginal people are still 10 times more likely to be imprisoned than white Australians. Death rates reflect imprisonment rates. As a magistrate, Pat O'Shane believes that cultural awareness education is having a positive influence on many members of the police force and judicial officers, but she says that we must look beyond the criminal justice system and improve the social and economic circumstances of Aboriginal people. She argues that Australian governments have failed miserably in this objective, and that the future of Aboriginal people looks little different to the past.

 

The Recognition Of Indigenous Land Rights As 'Native Title' Continuity And Transformation
Luke McNamara and Scott Grattan

This article was completed prior to the handing down of the decisions in Fejo v Northern Territory (1998) 156 ALR 721 (HCA); Ward v Western Australia (1998) 159 ALR 483 (FCA); and Yorta Yorta Aboriginal Community v Victoria (unreported, Federal Court of Australia, 18 December 1998). These cases are significant in the development of native title law and are discussed in Scott Grattan and Luke McNamara, 'The Common Law Construct of Native Title: A '"Refeudalisation" of Australian Land Law' (1999) 8 Griffith Law Review 50. However, they do not affect the particular arguments which we advance in this article about the nature of native title and so are not discussed here.

 

Defining 'The Best Interests Of The Corporation': Some Australian Reform Proposals
Robert Langton and Lindsay Trotman

CLERP proposals for reform of directors' duties contain three proposals which hinge on the notion of 'the best interest of the company' but do not define this phrase. This article contends that the phrase means ruthless profit maximisation over some unspecified period. This is contrasted with US law where profit maximisation is not the sole legitimate criterion of business judgments. The article highlights the way in which Australian law has resisted such an approach. It concludes with suggestions on ways in which lawful, ethical and public spirited profit seeking could be incorporated into Australian corporate law.

 

Passing The Century Mark: The Urgent Need For Reform Of Insolvency Law And Policy In New Zealand
Adrian J Sawyer

As a contribution to the recent growth in individual insolvency research, this paper critically reviews New Zealand's Insolvency Act 1967 (the Act). Since the Act is devoid of any discernible scheme or purpose, measures for reform are offered, including a draft purpose statement and suggestions for reorganising and rewriting the existing provisions. Policy issues requiring further debate, public consultation and the attention of appropriate bodies are presented. The paper urges that an empirical research programme be commenced in New Zealand and that the Act be included on the reform agenda, the first steps to which the Government has taken.

 

'Who Needs FOI When Market Mechanisms Will Deliver Accountability On Demand? A Critical Evaluation Of The Relationship Between Freedom Of Information And Government Business Enterprises'
Rick Snell and Emily Langston

The authors examine the relationship between Government Business Enterprises (GBEs) and Freedom of Information (FOI) legislation in Australia, within the broader context of the changing role of administrative law in an increasingly corporatised and privatised state. The appropriateness of applying private sector accountability arguments to GBEs is questioned. The tension between public law emphasis on openness and accountability, and private sector accountability mechanisms, and the implications of the ALRC/ARC Report are considered in this context. The authors highlight the influence of various political and economic developments on administrative law and the role of the citizen, and consider the efficacy of FOI in the new marketplace. Finally, the operation of the GBE Act in Tasmania is discussed to highlight a legislative framework which considers both commercial imperatives and government accountability mechanisms.

 

Control In The Leviathan: Limitations On The Power Of Parliament To Pass Genocidal Laws In Australia
Alexander Reilly

This article takes a speculative look at the extent of the Commonwealth Parliament's legislative power under the Commonwealth Constitution. It does this by exploring the source of, and limitations on, the Commonwealth Parliament's power to pass laws which might be considered genocidal in effect. The paper discusses what is a genocidal law according to the Genocide Convention and considers whether the Native Title Amendment Act 1998 (Cth) fits the description. The paper concludes that there is nothing in the Commonwealth Constitution to prevent Parliament passing a law of genocidal effect, and suggests that the only limitation on Parliament might be the exercise by the High Court of an (unconstitutional?) supervisory jurisdiction.

 

Imagining The Sexual: Transgendered Desire And Law's Limit
Andrew Sharpe

The article draws attention, through the vehicle of anti-discrimination law, to the ways in which law both produces and refuses non-heterosexual identity. That is to say, it maps in one specific context the legally set limits to intelligible sexuality. Specifically, and after rendering explicit the sexed/gendered particularity of the transgendered subject of anti-discrimination law, the author argues that non-heterosexual transgendered desire lies outside law's lexicon of sexuality. Moreover, the article will highlight how the traditional gay and lesbian law reform agenda, driven as it has been by a rigid identity politics, is implicated in this exclusionary effect.