Volume 25(1)
July 1995
ARTICLES
State Rights v World Values (pp 1-20)
Gough Whitlam AC QC (Prime Minister of Australia, 5 Dec 1972-11 Nov 1975)
‘It is unfair and absurd that universally proclaimed human rights are not available in some Australian States and are differently expressed in those Australian States where they are available…. Human rights are more important than States’ rights…. The United Nations is the most positive of the three external associations which have shaped Australia’s course. Unlike the British Empire or the American Alliance, the relationship does not involve dependence. It is through membership of the United Nations that Australia best asserts its national independence and international identity.’
Parliamentary Democracy in Australia (pp 21-29)
Sir Garfield Barwick AK GCMG (Cheif Justice of the High Court of Australia, 1964-1981)
This paper dwells upon aspects of parliamentary democracy for which the written Federal Constitution of the Commonwealth provides, upon its essentials and mechanisms, for democratic government. The impact which the operation of the party political system has had upon parliamentary democracy since the turn of the century, but particularly during the past 30 years, is pointed out. A comparison is made between parliamentary democracy in Australia and the constitutional arrangements of the United States of America. In that connection, reference is made to recent decisions of the High Court of Australia. Finally, the substance of the paper will be related to the suggestion that the Constitution be amended to remove the monarchy and substitute a president.
The Impact of International Human Rights Norms: ‘A Law Undergoing Evolution (pp 30-48)
Michael Kirby AC CMG (Justice of the High Court of Australia)
In this paper, the Hon Justice Kirby outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in Australia, New Zealand, England and elsewhere. Formerly, international and domestic law were virtually entirely separate. But now there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision-making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the ‘Bangalore Principles’, it can also be done where there is a gap in the common law or where a local statute is ambiguous.
In its decision in Tavita v Minister of Immigration (1994), the New Zealand Court of Appeal declared this to be ‘a law ... undergoing evolution’. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion ‘discovering’ new fundamental rights which may otherwise be criticised as mere judicial invention.
An earlier version of this paper was delivered at the New Zealand Judges’ Conference at Rotorua on 11 March 1995.
The Enforcement of Corporations Law and Securities Regulation in Australia: A Framework for Analysis and Reform (pp 49-76)
Ralph Simmonds (Foundation Professor, School of Law, Murdoch University, Perth)
The Corporations Law provides an enormous range of possibilities for dealing with the regulation of companies and capital markets. This article presents a scheme for making sense of that range, and suggests how choices of regulatory strategy might be made and how reform might proceed.
Defectively Representing Representative Democracy (pp 77-84)
David Wiseman LLB (Hons) (Monash University)
In Volume 24(1) of The UWA Law Review, Peter Creighton contended that the implied constitutional guarantee of representative democracy requires that electoral district apportionment take into account various factors that enhance the effectiveness of representation, even if this means detracting from strict numerical equality among districts. Creighton excluded minority interests from the list of various factors. This article takes issue with that exclusion and argues that, by the terms of Creighton’s own argument, the exclusion cannot be justified.
Defectively Representing Representative Democracy — A Reply (pp 85-87)
Peter Creighton (Senior Lecturer, The University of Western Australia)
Peter Creighton replies to Wiseman’s argument above.
Bringing the High Flyers Back to Earth? Sections 120 and 121 of the Bankruptcy Act (pp 88-109)
Penelope Carruthers (Assistant Lecturer, The University of Western Australia)
Recent publicity regarding ‘high flyer’ bankruptcies has focused public concern on the adequacy of our current bankruptcy laws. Of particular concern is the fact that frequently only a meagre dividend is available to the unsecured creditors. How can the laws be changed to increase the dividend available to such creditors? One possible solution may be to improve the effectiveness of the operation of sections 120 and 12 of the Bankruptcy Act 1966. This article outlines the operation of the existing sections 120 and 121 and considers the utility of the proposed amendments to the sections contained in the Bankruptcy Legislation Amendment Bill 1995.
Relieving Against Forfeiture: Windfalls and Conscience (pp 110-126)
Nyuk Chin (Associate Professor, The University of Western Australia)
It has been strongly argued that the basis of the jurisdiction to grant relief against forfeiture is that ‘equity will not permit a vendor to abuse his legal rights unconscionably’. This article challenges that view. In the first part of the article an examination is made of various meanings that have been given to the term ‘unconscionability’. There is then an analysis of how the reasoning in the various authorities which have considered relief against forfeiture lacks a consistent and sensible approach. In the conclusion the author advances a more coherent basis for relief.
WESTERN AUSTRALIAN FORUM 
Racism and the Constitutional Protection of Native Title in Australia: The 1995 High Court Decision (pp 127-145)
Richard Bartlett (Professor of Law, The University of Western Australia)
The High Court’s decision in Wororra Peoples v Western Australia (1995) represents a massive snub to the Coalition Government of Western Australia.. This article examines the fall-out from the decision and explores the case for protecting native title by an amendment to the Commonwealth Constitution.
The University Visitor in Western Australia (pp 146-165)
Peregrine Whalley (Lecturer in Law, Northern Territory University)
and David Price (Registrar, Northern Territory University)
This paper traces the history and operation of the University Visitor concept in Western Australia. It examines and documents the exercise of the visitorial jurisdiction in the State, and it places recently expressed doubts about the continued utility of this concept in their historical context and in the context of a wider national and international debate.
The Mental Element in Forgery — A Worthwhile Reform? (pp 166-179)
George Syrota (Editor, The University of Western Australia)
The responsibility for reforming and updating the Western Australian Criminal Code lies ultimately with State Parliament. For many years, however, Parliament seemed indifferent to this responsibility, making no changes to the Code even where they seemed desirable. But recently, and largely as a result of the recommendations of the Murray Report, Parliament has adopted a different stance: whereas it previously showed no interest in criminal law reform it has now become hyperactive in the field. As a result, significant changes have been made to the Criminal Code each year since 1985. Whilst some of these reforms have undoubtedly improved the Code, this is not true of all of them. A recurring problem has been that the legislation implementing the various reforms has rarely been drafted in clear and unambiguous language. The result is that the reform process has often left the law in an unhappy and uncertain state. This article questions whether the change was a change for the better.
Marist Brothers Community Inc v The Shire of Harvey: Formalities Relating to Contracts for the Sale of Land (pp 180-186)
Robyn Honey (Lecturer, The University of Western Australia)
What formalities need to be complied with in order to make an executory contract for the sale of land enforceable? A recent decision of the Full Court of the Supreme Court of Western Australia resolves earlier doubts.
Imprisonment for Contempt of the Western Australian Parliament (pp 187-200)
Heather Goodwin, Arran Stewart and Melville Thomas (Formerly student editors, The University of Western Australia Law Review)
On two occasions the Western Australian Parliament has utilised its powers to imprison a person for contempt. This article explains the background to the two cases and explores some of the legal issues to which they give rise.
BOOK REVIEWS
The Forrest River Massacres, Neville Green (Reviewed by +Peter Perth)
The Principle of Duty, David Selbourne (Reviewed by G Syrota)
Lionel Murphy — A Radical Judge, Jocelynne A Scutt (ed) (Reviewed by Peter Johnston)
The Australian Internet Book, G Ebbs & J Harvey (Reviewed by Francis Auburn)
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