Volume 26(2)
December 1996
ARTICLES
Advancing Children’s Rights and Interests: The Need for Better Inter-governmental Collaboration (pp 249-267)
Alastair Nicholson (Chief Justice, Family Court of Australia)
Are children’s rights adequately protected by Australian law? The Federal Government claims that they are. But the Chief Justice of the Family Court of Australia, in an address delivered in Perth in November 1996, has argued that there are many areas where the rights and interests of children are neglected, ignored or violated.
Directors of Public Prosecutions: Independent and Accountable (pp 268-285)
John McKechnie QC (Director of Public Prosecutions for Western Australia)
Western Australia’s first Director of Public Prosecutions looks back on his first five years in office. In this article he discusses the DPP’s constitutional role, and the accountability and independence attached to the DPP’s office.
Evidence, Documents and Preliminary Discovery in International Litigation (pp 286-308)
Martin Davies (Harrison Moore Professor of Law, The University of Melbourne)
Whenever there is litigation in Australia about a case with an international aspect, there is the possibility that some or all of the material evidence will not be in Australia. For example, a crucial witness or vital documents may be overseas, apparently beyond the reach of the Australian courts. There are, however, means by which a litigant in Australia may gain access to the relevant information, and it is those means that are the subject of this paper. The author deals only with civil proceedings and focuses on the relevant rules of the Supreme Court of Western Australia and the Federal Court of Australia.
The Retreat from Yerkey v Jones: From Status Back to Contract (pp 309-331)
James O’Donovan (Professor of Law, The University of Western Australia)
There is an old saying: ‘Behind every successful man stands an astonished woman’. This article deals with a variation on that theme: ‘Behind every unsuccessful businessman stands an even more astonished woman — his wife/guarantor’. Over 50 years ago the High Court in Yerkey v Jones established a rule under which a wife/guarantor could escape liability under a guarantee procured by her husband. This sexist rule has been trenchantly criticised and in recent decisions of appellate courts it has been rejected. The High Court itself will review the rule later this year. This article traces the historical genesis of the rule, explains its essential elements and suggests that all guarantors, not just wife/guarantors, require a different form of protection.
Third Party Liability for Corporate Activity: Recent Developments (pp 332-360)
Robyn Carroll (Senior Lecturer, The University of Western Australia)
The concept of the ‘shadow director’ is becoming increasingly important in Australian corporate law. The author argues that concerns about exposure to liability as company director should not be restricted to properly appointed directors. Others closely associated with a company can also be fixed with liability. This article examines some recent cases in which the concept has been discussed.
WESTERN AUSTRALIAN FORUM 
A Useful Source of Western Australian Legal History (pp 361-363)
RD Nicholson (Justice of the Federal Court of Australia)
Early Days, the journal of the Royal Western Australian Historical Society, provides an excellent starting point for research into the legal history of Western Australia.
Business as Usual or a ‘New Utopia’? Non-Custodial Sentences Under Western Austalia’s New Sentencing Laws (pp 364-388)
Neil Morgan (Senior Lecturer, The University of Western Australia)
Western Australia’s sentencing laws have recently been overhauled by a comprehensive package of legislation. This article provides a practical guide to the legislation to the extent that it deals with non-custodial sentences. It also explores the new measures against the background of general principles of sentencing, the previous non-custodial dispositions and Western Australia’s high rate of imprisonment. It concludes that while there is much of merit in the legislation, there are several potential problems which will require effective monitoring and evaluation.
Western Australia’s Termination Laws: Is the Nightmare Over? (pp 389-400)
Nii Lante Wallace-Bruce (Senior Lecturer, The University of Western Australia)
When can an employee who has been unfairly dismissed claim compensation from the employer? Though the question is simple enough, the answer in Western Australia is far from clear. The author states that with the recent introduction of the Workplace Relations Act 1996 (Cth), Western Australia’s termination laws and their interaction with the new Federal legislation needs to be reassessed.
Protecting Water Quality in Western Australia (pp 401-426)
Sharon Mascher (Lecturer, The University of Western Australia)
Maintaining water quality at a level capable of sustaining present and future life is not an optional exercise, but an ecological imperative. Pollution with the potential to adversely affect water quality can be divided into two categories. Point source pollutio and non-point source pollution. The former comes from specific sources which can be identified, measured and monitored. On the other hand, the latter comes from a wide variety of sources and diffuse land use activities, not from a single discharge pipe or chimney. Water quality depends on effective protection from both types of pollution. This article examines how well equipped Western Australia is to provide this type of protection.
Planning for Integrated Natural Resources Management in Western Australia (pp 427-458)
Alex Gardner (Senior Lecturer, The University of Western Australia)
It is nearly 10 years since the World Commission on Environment and Development popularised the concept of ‘sustainable development’ and called for the integration of economic and ecological considerations in decision making. This article considers how the various planning systems affecting the management of natural resources in the south-west of Western Australia can be better designed to provide ‘an integrated, system-based approach to the management of natural resources’. Creating such an integrated approach is fundamental to achieving ecologically sustainable development.
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