What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Antonia Glover
Keyword(s):  
20Th Century ◽  
Empirical Analysis ◽  
Internal Consistency ◽  
The State ◽  
Judicial System ◽  
Appellate Courts ◽  
High Court ◽  
Gold Mines ◽  
Modern Context ◽  
The Law

In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, and again in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the High Court pronounced that Australian courts must follow the decisions of appellate courts across Australia unless convinced that those decisions are ‘plainly wrong’. This article seeks to track the development and application of this rule in both a historical and modern context. It first examines the state of the law prior to Marlborough and then engages in an empirical analysis of the use of the rule since Marlborough in 1993, tracking how often the rule has been used and where divergence between jurisdictions has emerged. The results confirm the existence of a judicial system with an increased focus on, and practice of, internal consistency. This replaces the 20th century paradigm in which loyalty to Britain was prioritised over intra-Australian uniformity.

scholarly journals Criminal Sanctions for Legal Entities in the Law of the Republic of Serbia

2020 ◽  
Vol 10 (10) ◽  
Author(s):  
Dragan Jovašević
Keyword(s):  
20Th Century ◽  
Criminal Liability ◽  
The State ◽  
International Standards ◽  
Security Measures ◽  
Criminal Sanctions ◽  
Criminal Offenses ◽  
Legal Nature ◽  
The Law ◽  
The Republic

In 2008, the Republic of Serbia adopted a special Law on Liability of Legal Persons for Criminal Offenses. In doing so, on the basis of the international standards contained in the relevant international documents, it joined a large number of countries that introduced criminal liability of legal persons for crimes committed in addition to their responsible persons at the end of the 20th century. For legal persons, the law prescribed a disparate system of criminal sanctions in response to the state-society’s response to such unlawful and punishable conduct. The system of criminal sanctions in the law of the Republic of Serbia includes: penalties, probation and security measures. The law defined the concept, character, legal nature, manner, procedure, pronouncement and execution of criminal sanctions, whose characteristics this particular work speaks of.

scholarly journals ON IMPORTANCE OF JUDICIAL AND INSPECTION BODIES IN FORMATION OF THE STATE SECURITY FUNCTION

2021 ◽  
pp. 9-21
Author(s):  
RADOSLAV GAĆINOVIĆ
Keyword(s):  
The State ◽  
Security System ◽  
Judicial System ◽  
Modern State ◽  
State Security ◽  
The Law ◽  
Preventive Role ◽  
Paper Author

In this paper author underlined the importance of judicial and inspection bodies in formation of the capacity of security of modern state. It is known that the judiciary bodies have a very important role in protection of the constitutionality and legality of the state, because successful functioning of judicial system significantly contributes to formation of the capacity of security. It is very important that within the process of their own functioning the judicial authorities cooperate with the state security system. In certain situations functioning of the judicial system must be coordinated with the functioning of the security system, because neither the court nor the prosecutor’s office can solve the problems without the facts that they may find only in cooperation with the modern state security bodies. Such cooperation is necessary also in case of prevention function, because the judiciary bodies of the modern states also have a preventive role. In addition, the inspection services also significantly contribute to raising of the security system to a higher level by supervision of proper implementation and compliance to the law by citizens, working organizations and other kind of organizations. This supervision is exercised through inspections which function on all levels and have general and special authority powers.

scholarly journals THE CONSTITUTION AND A NATIONAL INDUSTRIAL RELATIONS REGIME

2005 ◽  
Vol 10 (2) ◽  
pp. 498 ◽  
Author(s):  
GEORGE WILLIAMS
Keyword(s):  
Federal Government ◽  
Industrial Relations ◽  
The State ◽  
Title Page ◽  
State Laws ◽  
High Court ◽  
The Law ◽  
Interstate Trade

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The federal Government is proposing to bring about a single national scheme for the regulation of industrial relations in Australia. This will raise a number of important constitutional questions that may need to be resolved by the High Court. These questions as examined in this article are: could a single national law for the regulation of industrial relations be passed under a head of Commonwealth power (in particular, under the Commonwealth's powers over corporations, interstate trade and commerce or external affairs); even such a law could so be enacted, would it nevertheless be struck down due to an express or implied constitutional limitation; and to what extent could the law override the State laws that already govern much of the field?</span><span>] </span></p></div></div></div>

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

State Court Papers in the United States: A 50-State Guide

2017 ◽  
Vol 45 (3) ◽  
pp. 244-256
Author(s):  
William Gaskill
Keyword(s):  
United States ◽  
South Carolina ◽  
The United States ◽  
The State ◽  
Law School ◽  
Research Tool ◽  
State Court ◽  
Appellate Courts ◽  
School Communities ◽  
The Law

This study grew out of my on-the-job blogging. At both the Charleston School of Law and the J. Rueben Clark Law School, I read every opinion from the state and federal appellate courts with jurisdiction over South Carolina and Utah respectively, summarizing the binding authority and posting those summaries online at the Barrister blog and the Binding the Law blog. This has served as excellent current awareness and bar preparation service to the law school communities and a research tool to the legal community generally.

scholarly journals Ganti Kerugian dan Rehabilitasi Bentuk Perlindungan Terhadap Korban Tindak Pidana dan Korban Proses Penegakan Hukum di Indonesia

2020 ◽  
Vol 2 (1) ◽  
pp. 68
Author(s):  
Haeranah Haeranah ◽  
Amriyanto Amriyanto
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
The State ◽  
Judicial System ◽  
Procedural Law ◽  
The Future ◽  
Victims Of Crime ◽  
The Law

This research and analysis is interesting because the author divides victims into 2 (two) forms, namely, general victims of law enforcement processes and crimes. Compensation and rehabilitation are the rights of victims that the state must enforce through legal means. This research is a normative research through a conceptual and statutory approach and the legal materials obtained are analyzed in an explanatory-deductive. The results indicate that the normative aspects of the balance of regulations related to compensation and rehabilitation for victims of the law enforcement process and victims of crimes in the Indonesian judicial system are still partial, so that its realization still requires criminal procedural law, law civil procedural or a combination of the two, as well as through state administrative law facilities, especially rehabilitation. We note several shortcomings and weaknesses in the use of legal means in this document. the form of compensation for the victim is in cash, while rehabilitation is in the form of restoring the good name, dignity and respect. The mechanisms and procedures for enforcing compensation and rehabilitation for victims still need to be simplified in order to realize the rights of victims of crime and victims of a balanced law enforcement process in the future.

scholarly journals Judicial Notice

1969 ◽  
pp. 471
Author(s):  
Allan R. Flanz
Keyword(s):  
Common Law ◽  
The State ◽  
Law Reform ◽  
Appellate Courts ◽  
Statutory Law ◽  
The Law

The author briefly surveys the state of the doctrine of judicial notice in Canada. Its rationale and the numerous facets of its scope are discussed, including: Common Law, statutory law, foreign laws, adjudicative facts, authoritative sources, legislative facts and its application by the appellate courts. He reviews the Law Reform Commission proposals and concludes with recommendations which follow these proposals.

Judicial Department

2020 ◽  
pp. 123-134
Author(s):  
Danny M. Adkison ◽  
Lisa McNair Palmer
Keyword(s):  
Supreme Court ◽  
The State ◽  
Judicial System ◽  
Judicial Power ◽  
District Courts ◽  
Appellate Courts ◽  
State Supreme Court ◽  
Chief Justice

This chapter explores Article VII of the Oklahoma constitution, which concerns the judiciary. Section 1 states that “the judicial power of this State shall be vested in the Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings.” The Oklahoma Supreme Court is the head of the state’s judicial system; all other courts are inferior to it. Section 2 provides for the number, terms, vacancies, and qualifications of supreme court justices. The justices shall choose from among their members a chief justice and a vice chief justice. Section 4 provides for the jurisdiction of the state supreme court. The chapter then looks at the provisions for district courts.

Part II The Doctrine of Res Judicata in International Commercial Arbitration, 6 Transnational Res Judicata Principles for International Commercial Arbitral Tribunals

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
The State ◽  
Judicial System ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Transnational Law ◽  
Res Judicata ◽  
The Law

This chapter explains principles of the res judicata doctrine for international commercial arbitral tribunals based on transnational law. There are two main values that transnational litigation upholds in determining the scope of the preclusive effects of a prior judgment in one country and the subsequent proceedings in another country. First, a judgment must be accepted in the recognising state with the original effects it would have in the state in which it was first rendered. Thus, the law of the country, where the first judgment was rendered, will determine the judgment’s preclusive effects in the subsequent proceedings. Second, the application of the law of the rendering state should preserve the integrity of the rendering state’s judicial system and that state’s resources.

The Nature of Inconsistency under Section 109 of the Constitution

1980 ◽  
Vol 11 (1) ◽  
pp. 40-83 ◽  
Author(s):  
Gary A. Rumble
Keyword(s):  
Recent Article ◽  
The State ◽  
High Court ◽  
Basic Proposition ◽  
The Law

In a recent article in this Review Mr Murray-Jones considered the state of the law of inconsistency. Mr Rumble takes issue with some of Mr Murray-Jones' propositions and, in particular, with his interpretation of some of the leading High Court judgments. Some of the most troubling statements about inconsistency that have emanated from the High Court have been related to the problem of persons who commit both Commonwealth and State offences. This article considers how the provisions of the Crimes Act, the Acts Interpretation Act, the Judiciary Act and the Commonwealth Prisoners Act interact in such circumstances. The article also offers an analysis of the nature of inconsistency. The basic proposition of the analysis is that, no matter how many different guidelines are developed to indicate the presence of inconsistency, ultimately there is only one category of inconsistency.

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