Volume 25(2)
December 1995
ARTICLES
Ex Tempore Judgments — Reasons on the Run (pp 213-232)
Michael Kirby AC CMG (Justice of the High Court of Australia)
‘I believe that in the next decade, the pressures on the courts (especially the appellate courts) will oblige us to modify our procedures in order to facilitate ex tempore decision-making. This will require the reduction of oral argument, the improvement of written argument and, essentially, the presentation to judicial officers by the parties of succinct written material which can be adapted readily to provide the basic framework of a judicial opinion. The time of limitless oral argument before judges trapped at their benches is coming to a close.’
The External Affairs Power of the Commonwealth and the Protection of World Heritage (pp 233-237)
Garfield Barwick AK GCMG (Chief Justice of the High Court of Australia, 1964-1981)
In The Commonwealth v Tasmania (1983) and later cases, the High Court interpreted the scope of the ‘external affairs’ power of the Commonwealth far more broadly than it had previously done. In this paper, originally delivered as a speech to the Samuel Griffith Society, Sir Garfield examines the validity of this approach.
Who’s the Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights (pp 238-254)
Kristen Walker (Lecturer in Law, University of Melbourne)
Over the last 10 years, the Australian judiciary has placed an increasing emphasis on the protection of individual rights and freedoms, drawing on a variety of sources: legislation, the common law, international law and the constitution. This article suggests that, while in relation to non-constitutional decisions the parliament clearly has the power to override judicial decisions through legislative action, such a response is often inappropriate and demonstrates the government’s lack of commitment to protecting the human rights of all Australians, particularly those most disadvantaged by the Australian democratic system.
Reform of the Law of Wills (pp 255-264)
Neville Crago (Associate Professor, The University of Western Australia)
Many parts of the wills legislation of Australia’s states and territories have for a considerable period of time seemed either outmoded or otherwise inadequate. This article examines important current proposals for the enactment of new and up-to-date uniform wills legislation throughout Australia.
Litigation Versus Science: What’s Driving Decision-Making in Medicine (pp 265-282)
Fiona Stanley (Professor of Paediatrics, The University of Western Australia)
Litigation against doctors and hospitals in so-called ‘medical malpractice’ suits is having a devastating effect both on patient welfare and scientific research. A leading paediatrician and epidemiologist, Dr Fiona Stanley, explains the consequences of subjecting doctors’ medical decisions to legal review.
WESTERN AUSTRALIAN FORUM 
Criminal Law Reform 1983-1995: an Era of Unprecedented Legislative Activism (pp 283-300)
Neil Morgan (Senior Lecturer, The University of Western Australia)
The Western Australian Parliament has been remarkably active in the area of criminal law reform in the past decade or so. This paper provides an analysis of these reforms. It argues that Parliament has been quick to ‘modernise’ when this has resulted in an expansion of the law and an increase in penalties, but very slow to reduce the scope of the law or to provide mechanisms to mitigate its severity. It also points to some fundamental difficulties raised by the law’s expansion into new areas.
‘Out of the Mouths of Babes…’ — A Review of the Operation of the Acts Amendment (Evidence of Children) Act 1992 (pp 301-316)
Marion Dixon BA, Dip Ed, LLB (Cape), LLM (S Africa)
This article examines the operation of the 1992 amendments to the Evidence Act 1906 (WA) which introduced closed-circuit television, screens and video-taped pre-trial hearings into Western Australian courts. Comment is also made on the implementation of a new competency test and on the abolition of corroboration requirements and warnings for child witnesses.
Some Observations on the Application of Equitable Compensation in WA: Dempster v Mallina Holdings Ltd (pp 317-327)
Jeff Berryman (Professor of Law, University of Windsor, Ontario)
The Western Australian Full Court’s decision in Dempster v Mallina Holdings Ltd (1994) raises the spectre of determining the appropriate criteria for an award of equitable compensation. This article compares the Full Court’s decision with similar developments currently taking place before the Supreme Court of Canada concerning the resolution of some of the key issues surrounding an award of equitable compensation in that jurisdiction.
Filing of Certificates of Common Law Registration: Amendments to the Workers’ Compensation and Rehabilitation Act 1981 (pp 328-333)
Vicki Priskich (Solicitor, Perth, Western Australia)
Important amendments to the workers’ compensation scheme came into effect in December 1993. This article considers one of the difficulties to which the transitional provisions of the new scheme give rise.
Rape: When Does Fraud Vitiate Consent? (pp 334-346)
George Syrota (Editor, The University of Western Australia Law Review)
A prostitute is tricked into having sexual intercourse with a man by a false promise of payment. Is the man guilty of raping the prostitute? A recent English case says 'no'. This article asks whether the answer would be different in Western Australia.
BOOK REVIEWS
Westminster Inc: A Survey of Three States in the 1980s, Allan Peachment (ed) (Reviewed by Peter Boyce)
Women, Crime and the Courts in Early Modern England, Jenny Kermode & Garthine Walker (eds) (Reviewed by Emma Hawkes)
Principles of European Community Law: Commentary and Materials, S Bronitt, F Burns & D Kinley (Reviewed by Donna Starr-Deelen)
Theory and Reality: Federal Ideas in Australia, England and Euorpe, S R Davis (Reviewed by James A Thomson)
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