Volume 24(1)
July 1994
ARTICLES
Monarchy or Republic — It’s All in the Mind (pp 1-7)
Francis Burt (Former Chief Justice, 1979-1990, and later Governor of Western Australia)
Sir Francis Burt delivered a speech to the Western Australian Constitutional Committee on 19 February 1994. The speech begins: ‘I notice from the media statement which was supplied to me that: "The issue of Western Australia’s position in any moves to make Australia a republic will be a major part of the Committee’s work…". And that general statement appears to me to be borne out by the fact that of the nine matters specifically identified for discussion, seven relate directly or indirectly to the possibility of the Commonwealth, or the States, or one or more of them, becoming a republic. And from the assumptions which appear to underpin the questions, it is apparent that their draftsman thought that if the Commonwealth became a republic or if this State were to become a republic that change or those changes would have a very direct impact upon — and a negative impact upon — the political institutions of the State. I do not think that is necessarily the case and I should tell you why.’
Property in the Profits of Wrongdoing (pp8-16)
Peter Birks (Regius Professor of Civil Law, All Souls College, Oxford)
The Judicial Committee of the Privy Council has recently held that, at least in the case of the wrong of bribery, it is possible for the victim to assert an equitable property in the profits of wrongdoing and, after tracing, in the assets in which the ill-gotten gains are invested. The aim of this article is to put that decision in the wider context of the law of restitution for wrongs. The article thus raises the question whether the new property right can be rationally restricted to one wrong and asks whether, if it can only be an isolated anomaly, it ought not to be suppressed. The opposite possibility is not excluded, namely that, however novel, the new mode of acquiring ownership ought to be encouraged and generalised.
Jurisdiction Without Tears: A Guide to the Jurisdiction of the Family Court of Western Australia (pp 17-30)
Anthony Dickey (Queen's Counsel; Associate Professor of Law, The University of Western Australia)
This article provides an introduction both to the jurisdiction of courts in general and to the jurisdiction of the Family Court of Western Australia in particular. It commences with an outline of the three basic rules that govern the jurisdiction of all courts in Australia. It then describes the particular heads of jurisdiction and powers that are possessed by the Family Court of Western Australia, and also the jurisdiction of the court of summary jurisdiction that is associated with it, the Court of Petty Sessions.
Western Australia’s Land (Titles and Traditional Usage) Act 1993: Content, Conflicts And Challenges (pp 31-50)
Meredith Wilkie & Gary Meyers (Senior Lecturers, Murdoch University, Perth)
Western Australia’s Land (Titles and Traditional Usage) Act 1993 currently faces a High Court challenge. This article addresses one ground of potential challenge — namely, the inconsistency of the Act with the Commonwealth’s Racial Discrimination Act 1975.
Constitutional Design, Accountability and Western Australian Government: Thinking with and against the ‘WA Inc’ Royal Commission (pp 51-67)
Bruce Stone (Lecturer, Department of Political Science, The University of Western Australia)
The Royal Commission into ‘WA Inc’ recommends various institutional reforms to combat executive dominance and the related phenomena of secrecy and lack of accountability in Western Australian government. However, the Commission largely ignores the contribution of a well designed State constitution to accountable government and, as a consequence, underplays the need for constitutional reform. This article supports the Commission’s criticism of the Westminster model and also its implicit rejection of the need for reformers to abandon the Australian constitutional tradition. But this article argues that advocacy of selective constitutional changes, particularly involving electoral arrangements and patronage, would have been a better strategy for correcting imbalances in Western Australia’s political institutions than the Commission’s recommendations for changes to procedure and practice.
In Portia’s Footsteps: Women Lawyers in Literature (pp 68-77)
Marion Dixon (Formerly Senior Lecturer, The University of Western Australia)
Literary works with women lawyers as leading characters tend to depict them in very stereotypical ways: they are almost always beautiful, sexy, brilliantly clever — and neurotic. This article looks at those stereotypes and attempts to understand both what may be behind them and to what extent they may reflect reality.
Apportioning Electoral Districts in a Representative Democracy (pp 78-101)
Peter Creighton (Senior Lecturer, The University of Western Australia)
This article explores the extent to which the implied guarantee of representative democracy in the Commonwealth Constitution may require equality in the number of electors in each electoral district at Commonwealth and State elections. This article was cited by Justice Toohey in his dissenting opinion in McGinty v WA (1993).
NOTES 
Trade Practices Case Mounts an Assault on Established Doctrines of Contract (pp 102-111)
Aviva Freilich (Lecturer, The University of Western Australia)
This note discusses the decision of the Federal Court in Accounting Systems 2000 (Developments) Pty Ltd v CCH Aust Ltd (1993), where it was held that false warranties in a contract could constitute misleading and deceptive conduct and therefore provide the basis of an action under section 52 of the Trade Practices Act 1974 (Cth).
Resolving Jury Deadlock in Criminal Cases (pp 112-117)
Paul Ames Fairall (Professor of Law, James Cook University, Queensland)
The jury system is one of the foundations of the modern criminal justice system. It is seen as a basic ingredient of democracy. However, jury deliberations are secret. It is troubling that so little is known about the processes of jury decision-making which are as mysterious as any in the justice system.
The Problem of Confidentialityin Medical Research in Western Australia (pp 118-128)
G Syrota (Editor, The University of Western Australia Law Review)
This Note is concerned with two questions which should be of interest to all those who are involved with medical research in Western Australia. First, is it true that the common law regarding doctor-patient confidentiality which applies in Western Australia unnecessarily impedes the public health research and, in particular, the epidemiological research which takes place this State? Secondly, if it is true, what steps need to be taken to overcome the problem?
These questions were first raised in the late 1980s by the State Health Department and were made the subject of a special inquiry by the law Reform Commission of Western Australia. That inquiry found that the existing common law on doctor-patient confidentiality does indeed present an unnecessary obstacle to the carrying on of many types of epidemiological research. The Commission went on to make recommendations for legislative changes which would correct the problem.
However, despite the warm reception given to the Commission’s report when it was published in 1990, its recommendations have never been implemented by the State Government. As a result, epidemiological research in Western Australia continues to take place within a legal framework which is antiquated, restrictive and obscure.
BOOK REVIEWS
The Reluctant Republic, Malcolm Turnbull (Reviewed by RD Lumb)
Guilty Secrets: Free Speech and Defamation in Australia, Robert Pullan (Reviewed by G Syrota)
Eve was Framed: Women and British Justice, Helena Kennedy (Reviewed by Jocelyn Scutt)
Corporations, Crime and Accountability, B Fisse & J Braithwaite (Reviewed by David Neal)
Family Law in Context: Commenatary and Materials, S Parker, P Parkinson & J Behrens (Reviewed Anthony Dickey)
Understanding Company Law (5th edn), Phillip Lipton & Abe Herzberg (Reviewed by Robyn Carrol)
Antarctic Conventions, Kenneth R Simmonds (Reviewed by Francis M Auburn) |
