Volume 24(2)
December 1994
ARTICLES
The Reserve Powers of State Governors (pp145-150)
Peter Boyce (Formerly Vice Chancellor, Murdoch University, Perth)
In the previous issue (volume 24(1)), Sir Francis Burt argued that the reserve powers of State Governors may have been terminated by the Australia Acts 1986. This article challenges that view and examines the implications of proposed constitutional reforms for Commonwealth and State Governments.
Judicial and Administrative Review in Western Australia: Blueprints for Development (pp 151-171)
R D Nicholson (Justice of the Federal Court of Australia)
Western Australia has not yet introduced statutory reforms to facilitate judicial review and to provide administrative review. It is out of step with developments in the Commonwealth and other States. This paper describes the relevant issues, recommendations made for change and matters now requiring investigation.
The Conduct of Coronial Inquiries in Western Australia: A Practitioner’s Guide (pp172-185)
Len Roberts-Smith (Queen's Counsel)
This article provides a practical overview of the operation of the Coroners Act 1920 (WA) and the conduct of coronial inquiries under the Act. The procedural and evidentiary issues involved in these inquiries are outlined.
A Gendered Constitution? Women, Federation and Heads of Power (pp 185-198)
Helen Irving (Senior Lecturer, University of Technology, Sydney)
If we look at the Australian Constitution against what we know about the political interests and activities of women in the 1890s, a ‘gendered’ division of powers may be loosely identified. The common concerns of women — adult suffrage and the welfare of families — were mostly defined as ‘domestic’ and allocated to the States. ‘National’ areas were identified within the public, external, ‘male’ realm and were granted to the Commonwealth. Would women have written a different Constitution from the one we inherited in 1901? This paper suggests that they may well have done.
Take Me Back to the Danger Zone: The Accountant as Author of an Independent Expert’s Report (pp 199-224)
Leigh Warnick (Barrister and Solicitor, Mallesons Stephen Jaques, Perth)
Independent experts’ reports play a key role in the efficient operation of securities markets. By providing shareholders with sophisticated and objective assessments of proposals put to them for approval, these reports are supposed to ensure that meritorious securities transactions gain shareholder support and unmeritorious ones do not. But in practice these reports have not always lived up to ideal standards of expertise and independence. This article reviews developments in the law and practice and concludes that this subject remains a fertile field for lawyers but a danger zone for all but the specialist accounting practitioner.
Capital Gains Tax Implications of Compensation Payments (pp 225-236)
Glen Barton (Associate Professor of Law, The University of Western Australia)
The purpose of a compensation payment is to place the payee as nearly as possible in the position he or she would have been in but for the event for which the compensation is being paid. This article addresses the twin questions of whether and, if so, how the capital gains tax treatment of a compensation payment in the tax return of the payee is to be taken into consideration in achieving that purpose.
NOTES 
The Changing Fortunes of Rylands v Fletcher (pp 237-246)
Peter Cane (Corpus Christi College, Oxford)
This article examines two cases, Rylands v Fletcher (1886) and Cambridge Water Co v Eastern Counties Leather plc (1994), which represent a significant divergence between Australian and English torts law.
In Defence of Parliamentary Privilege (pp247-252)
Clive Griffiths (Fromerly President of the Legislative Council of the Parliament of Western Australia)
The High Court of Parliament has never existed in Australia, but the substance of the powers, privileges, rights and immunities of the UK House of Commons have been applied by the several Australian Parliaments to their constituent Houses, including that of Western Australia, as a necessary incident to the performance of their functions. This note explores the nature and status of parliamentary privilege in Australia..
Beware! Accident in the High Court! The Queen v Van den Bemd (pp 253-160)
Neil Morgan (Senior Lecturer, The University of Western Australia)
In R v Van den Bemd (1994) a majority of the High Court refused to grant the Crown special leave to appeal against a decision of the Court of Criminal Appeal of Queensland concerning the accident excuse in section 23 of the Criminal Code, the terms of which are identical in Western Australia. This case raises some issues of fundamental significance and, although its precise ramifications are unclear, it appears in some respects to be at odds with the views expressed some seven months earlier in R v Hubert (1993) by a unanimous Court of Appeal in Western Australia.
Criminal Fraud in Western Australia: A Vague, Sweeping and Arbitrary Offence (pp 261-277)
G Syrota (Editor, The University of Western Australia)
In 1990 a new Chapter 40 was added to the Western Australian Criminal Code, under the heading ‘Fraud’. This note examines some of the difficulties arising from this amendment.
Limiting Section 52 of the Trade Practices Act: The Side-Wind Argument (pp 278-284)
Michael Gillooly (Senior Lecturer, The University of Western Australia)
The generality of the wording used in Section 52 of the Trade Practices Act 1974 (Cth), when coupled with the continuing refusal of a majority of the High Court to read down the words of the section in the light of the heading to Part V, raises the spectre of the action for misleading or deceptive conduct rampaging through areas in which Parliament could not possibly have intended it to operate. This article examines that possibility.
Defending Against Ballistic Missile Attack: ABM Treaty Developments in the 1990s (pp 205-290)
David Hodgkinson (Formerly Senior Legal Research Officer, The High Court of Australia)
In 1972, the United States and the then Soviet Union signed a treaty, commonly referred to as the 'ABM Treaty', in which each State agreed not to deploy anti-ballistic missile systems in defence of the territory of its country and not to provide a base for such a defence. This article examines aspects of the treaty.
BOOK & VIDEO REVIEWS
The Hawke Memoirs, Robert J Hawke (Reviewed by Gough Whitlam AC QC,)
Barbarism to Verdict: A History of the Common Law, Justin Fleming (Reviewed by G Syrota)
Origins of the Common Law, Arthur R Hogue (Reviewed by G Syrota)
Trade Practices and Consumer Protection: Cases and Materials, John Duns & Mark Davison (Reviewed by Aviva Freilich)
International Environmental Politics: Protecting the Environment, Lorraine M Elliott (Reviewed by Francis Auburn)
Wills and Inheritance, Imagelink (video) (Reviewed by Neville Crago)
Claims to Statehood in International Law, Nii Lante Wallace-Bruce (Reviewed by David Flint)
Fire with Fire, Naomi Wolf (Reviewed by Bernadette McSherry)
The Morning After: Sex, Fear and Feminism, Katie Roiphe (Reviewed by Bernadette McSherry) | 
