Bond Law Review

Book Review: Negotiating the labyrinth: Disability and the Queensland Justice System by Dan Toombs

Jodie O'Leary — Thu, 18 Oct 2012 23:43:48 PDT

Book Review: Banking Law in Australia by Alan Tyree; and Banking Law in Australia by Robin Edwards

Louise Parsons — Thu, 18 Oct 2012 23:43:46 PDT

The availability of restitutionary remedies in the context of an illegal contract: Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 286 ALR 12

Radhika Withana — Thu, 18 Oct 2012 23:43:45 PDT

Testing the equivalence of the new comprehensive Australian Personal Properties Securities Act, its segmented European equivalents and the draft common frame of reference

Tibor Tajti — Thu, 18 Oct 2012 23:28:38 PDT

With the new Personal Property Securities Act 2009 (Cth) (‘APPSA’) Australia has become the fourth jurisdiction to embrace a comprehensive system of personal property security law (‘PPSL’). At its centre lies the concept of unitary security interests, the prototype for which was art 9 of the United States’ Uniform Commercial Code. This is a new page in the global regulatory competition in this domain, and is causing other countries to rethink their unsystematised and hence less predictable and less competitive laws. This applies especially to fragmented Europe, which should pay increased attention to these Australian developments as they represent a gradually emerging international standard for access to financing (especially by small and medium size businesses), attraction of capital and economic growth. Only some have heeded this message, as illustrated by reforms in France and Central and Eastern Europe, as well as by Book IX of the recent soft law equivalent of a pan-European Civil Code, the Draft Common Frame of Reference. There is meaningful resistance, as the City of London’s successful blocking of realignment with the Unitary Model shows. It is less known, however, that quite a number of European national laws possess ‘segments’ of PPSL resembling the new Australian system. This article offers the first holistic comparison of the two continents’ PPSLs for the benefit of comparative lawyers and practitioners.

Commercial liquor liability in Australia: Give me 'two shots' of personal responsibility and a watered down duty of care

Amy Linton — Thu, 18 Oct 2012 23:28:38 PDT

Through doctrinal analysis, this article examines the restricted Australian common law and statutory approach to the duty of care of hoteliers to patrons consuming alcohol on their premises. By comparing with the comparable jurisdiction of Canada, this article demonstrates the dramatic impact that the Australian focus on ‘personal responsibility’ has on the denial of a duty of care of hoteliers in our jurisdiction. A normative discussion then follows of the negative social impact of the focus on personal responsibility within the legislature and judiciary, before concluding that the shift of some responsibility to hoteliers for their serving practices would not impact the overall goal of personal responsibility, but would work in tandem with liquor licensing legislation to address the prominent social issue of alcohol related harm.

Section 18 of the Australian Consumer Law and Environmental Issues

Marina Nehme et al. — Thu, 18 Oct 2012 23:08:23 PDT

The market for ‘green’ products has expanded drastically over recent years in response to increased consumer concerns about environmental issues. However, such expansion has been accompanied by unsavoury conduct by some producers and marketers of green products. A number of corporations, for example, have sought to exploit their environmental and corporate social responsibility credentials to confuse, mislead or even defraud customers or clients by marketing so-called ‘brown’ (or non-green) products as green products. This practice has been referred to as ‘greenwashing’. While Australia does not have specific legislation dealing with misleading environmental claims, it has developed a sophisticated approach to the regulation of misleading or deceptive conduct through the old s 52 of the Trade Practices Act 1974 (Cth), now s 18 of the Australian Consumer Law, and its many derivatives in other statutes. This article analyses the extent to which s 18 of the Australian Consumer Law and its federal statutory equivalents apply to the regulation of greenwashing.

Punishing trafficking in persons: International standards and Australian experiences

Matthew Cameron et al. — Thu, 18 Oct 2012 23:08:20 PDT

This article explores and analyses the punishment of trafficking in persons offenders in Australia. The article examines the criminalisation and punishment requirements of international law and best practice guidelines. It outlines the relevant slavery, sexual servitude and trafficking in persons offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’) and analyses the sentences imposed by Australian courts. The article concludes with a number of recommendations designed to improve the sentencing process when dealing with trafficking in persons offenders.

Attorney-General of Pakistan - A brief overview

Umair Ghori — Wed, 25 Jul 2012 23:20:18 PDT

The legal system of Pakistan represents a fusion of the Shariah law and common law systems. Traditionally, the Pakistani legal system adapted the pre-1947 colonial law for local use. Amendments to these colonial laws, in particular inspired by the Islamic traditions, have been interspersed in intervals. As a result, the Pakistan legal system retains fundamental common law doctrines (such as binding precedent and delegated legislation) while gradually integrating laws of Islamic origin within the existing common law framework. However, Pakistan’s legal system is far from being a complete mirror of the English legal system. One such major distinction is that there is no division within the legal profession into barristers and solicitors. This has meant, amongst other things, that the chief legal officer representing the Federation of Pakistan (hereinafter referred to as the ‘Federation’) is the Attorney-General of Pakistan and that there is no comparable office of Solicitor-General in Pakistan as in other common law jurisdictions.

This article provides a brief overview of the Attorney-General of Pakistan and the importance of the office to Pakistan as a developing country and a maturing legal system in its own right. This article is divided mainly into two parts. The first part presents the constitutional background and briefly outlines the function of the Attorney-General of Pakistan. The second part examines the increasingly political role of this office.

The Solicitor-General in context: A tri-jurisdictional study

Christopher Goff-Gray — Wed, 25 Jul 2012 22:57:44 PDT

The purposes of this article are fourfold and will proceed as follows. First, to succinctly trace the history and then observe the political disposition of the two law officers of the Crown; secondly, to contrast the Solicitors-General of Australia and Canada, and in doing so, focus particularly on the responsibilities of the Canadian Solicitor General both before and after its formal restructure; thirdly, to pose the question of whether a Solicitor-General can truly be independent of the executive; and finally, to assess the research currently obtainable on the Commonwealth Solicitor-General.

Crime fighters and border guards: The Scottish law officers in comparative perspective

Iain Field — Wed, 25 Jul 2012 22:11:42 PDT

This article examines two ways in which the law officer role in Scotland has been affected by this ‘new constitutional wave’, and draws comparisons with the role of law officers in Australia and, where appropriate, other UK jurisdictions. The first is by virtue of s 57 of the Scotland Act 1998 (the ‘Scotland Act’), which has exposed the ‘acts of the Lord Advocate’ to judicial scrutiny and the requirements of the HRA and the ECHR. The second arises as a more general consequence of devolution, which imposes upon the Scottish Law Officers new functions with respect to the legislative and executive boundaries created by that process. These functions are comparable, in many respects, with the functions performed by law officers (and in particular Solicitors-General) in Australia.