Sydney Law Review
type: channel
description: Established in 1953, the Sydney Law Review is a leading Australian generalist law journal with open access peer-reviewed content. Emphasising Australian law, the Review publishes high-quality, timely articles that make an original contribution to legal scholarship. As of 2025 (Volume 47) the journal is published online only and under a continuous publication model. Content is published into a single annual (January-December) volume that fills throughout the year as each new item is published (with final citation details being immediate). Read more about the journal and our submissions process.
publisher: The University of Sydney Law School
language: en
publication name: Sydney Law Review
issn: 0082-0512
items: The High Court of Australia’s Constructional Choice in Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd
items: Reputation, Confusion and Discretion in Australian Trade Mark Law: Taylor v Killer Queen LLC
items: Cessnock City Council v 123 259 932 Pty Ltd: Clarifying Wasted Expenditure, A Facilitation of Proof
items: Contempt by David Rolph
items: Data Sharing in the Australian Public Sector after the Optus and Medibank Incidents: Taking Reasonable Steps to Prevent Data Breaches
items: Beyond Restorative Justice: Prioritising Deliberative Self-Determination in Indigenous Sentencing Court Systems
items: The Interpretation of UNCITRAL Law in Australian Courts: A Roadmap for Elevating the UN Sales Convention’s Status to That of Arbitration Law
items: The Legal Recognition of Animal Sentience: Principles, Approaches and Applications by Jane Kotzmann and MB Rodriguez Ferrere (eds)
items: The Evolution of the Australian Electoral System as a Constitutional Process
items: "We Are One, But We Are Many": Conceptions of Australia’s Sovereign People and the Proposed Voice to Parliament
items: A New Australian Constitutionalism? Constitutional Purposes, Proportionality and Process Theory
items: Rethinking Corporate Groups: Insights from Systems Intentionality
items: Efficiency and Certainty in Decision-Making: An Evaluation of the Insolvency Practitioner Disciplinary Committees
items: Whistleblower Protections in Sport: The Missing Element in Australia’s Sports Integrity Framework?
items: Constitutional Shoehorning
items: Dispossession Cycles and Resistance: Historical Continuums in the Deportation of First Nations Peoples
items: Unearthing Language Rights Protections in the Racial Discrimination Act 1975 (Cth)
items: Scrutinising the Scrutiny Process in the Courts
items: Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims
items: An Indigenous Right to Be Heard on the International Stage?
items: Protecting Sacred Sites
items: Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas
items: An Empirical Study of the Distribution of Superannuation Death Benefits
items: Timing of Constitutional Facts
items: Unmet Need for Building, Home Contents and Comprehensive Car Insurance among Uninsured Australians: Survey Findings and Options for Reform
items: Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd
items: Sims v Commonwealth: The Ultimate Foundation of Australian Law and the Recovery of Ultra Vires Payments by the Commonwealth Executive
items: Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia by Alice Taylor
items: Stare Decisis and Constitutional Guarantees: Commonwealth v Yunupingu
items: Rethinking “On Just Terms”: Commonwealth v Yunupingu

The High Court of Australia’s Constructional Choice in Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd
type: item
description: In Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd, the High Court of Australia made a five to two split decision that the Foreign States Immunities Act 1985 (Cth) (‘FSI Act’) s 14(3) — an exception to foreign State jurisdictional immunity in proceedings relating to the bankruptcy, insolvency or winding up of a body corporate — operated in a confined way and did not apply to ‘separate entities’ of a foreign State. The majority further considered s 22 of the Act to substantively confer jurisdictional immunity upon State separate entities. This decision demonstrates the role of extrinsic material in informing the constructional choice presented by generally worded statutory provisions and affirms the importance of the Australian Law Reform Commission’s 1984 Foreign State Immunity report in interpreting the FSI Act. In this case note, I examine the majority and dissenting approaches to the statutory construction of s 14(3) and comment on the potential uncertainty left for creditors of State ‘separate entities’ in light of the decision.
subject: Case Notes and Comments
  topic: section
creator: Eden McSheffrey
rights: Copyright (c) 2025
date: 2025-09-30
publication date: 2025-09-30
starting page: 1
ending page: 16
doi: 10.30722/slr.21439

Reputation, Confusion and Discretion in Australian Trade Mark Law: Taylor v Killer Queen LLC
type: item
description: In Taylor v Killer Queen LLC, the High Court of Australia will have the opportunity to address three complex and unresolved issues under the Trade Marks Act 1995 (Cth). The first issue relates to one of the key grounds for cancellation of a trade mark registration, namely that another mark had acquired a reputation at the registered mark’s priority date and that the use of the later mark at that time would have caused confusion. The appeal will require consideration of how to determine when a trade mark has acquired a reputation and when the use of a similar mark, but in a different commercial field, will cause confusion. The second issue relates to a separate cancellation ground that applies where the use of the registered mark has come to cause confusion post-registration, and will require the High Court to clarify the nature of the use that needs to be considered. The third issue goes to the interpretation of a provision that gives the court discretion not to order the cancellation of a registration, even if one of the aforementioned grounds of cancellation has been made out. We explore each of these issues, highlighting the main areas of uncertainty on which it would be useful to receive guidance from the High Court. We pay particular attention to the third issue, arguing that the provision in question should be interpreted so that it does not in fact give a court any discretion to refuse cancellation where the application for cancellation is based on the first cancellation ground at issue in this case.
subject: Before the High Court
  topic: section
subject: Before the High Court
  topic: category
creator: Robert Burrell
creator: Michael Handler
rights: Copyright (c) 2025
date: 2025-08-19
publication date: 2025-08-19
starting page: 1
ending page: 15
doi: 10.30722/slr.21428

Cessnock City Council v 123 259 932 Pty Ltd: Clarifying Wasted Expenditure, A Facilitation of Proof
type: item
description: In Cessnock City Council v 123 259 932 Pty Ltd (‘Cessnock’), the High Court of Australia provided long-awaited clarity regarding the method of proving damages for wasted expenditure in an action for breach of contract. The plurality did so by presenting a new framework for assessing such damages where a wrongdoer’s breach causes or increases uncertainty regarding the position the plaintiff would have been in ‘but for’ the breach — a principle of facilitation of proof. This case note examines the High Court’s treatment of wasted expenditure, analysing the method of proving wasted expenditure and considering the application of Hadley v Baxendale. Further, Cessnock prompts consideration of how damages should be assessed, and why they are awarded. I argue that while the decision appears to provide an elegant solution to difficulties faced by plaintiffs in proving damages where a defendant causes or increases uncertainty as regards the plaintiff’s loss, the solution is impractical and inconsistent with earlier authority.
subject: Case Notes and Comments
  topic: section
creator: Sofia Mendes
rights: Copyright (c) 2025
date: 2025-08-11
publication date: 2025-08-11
doi: 10.30722/slr.21399

Contempt by David Rolph
type: item
description: Proceedings for contempt of court are not a common event in Australia. Perhaps that is why the stories of mistakes made during contempt proceedings are legion. There has been uncertainty about whether to proceed, when to proceed and how to proceed. Those uncertainties have been laid to rest by this monumental work by Professor David Rolph.
subject: Review Essays and Book Reviews
  topic: section
subject: Review Essays and Book Reviews
  topic: category
creator: Glenn Martin AM
rights: Copyright (c) 2025
date: 2025-08-01
publication date: 2025-08-01
starting page: 1
ending page: 2
doi: 10.30722/slr.21385

Data Sharing in the Australian Public Sector after the Optus and Medibank Incidents: Taking Reasonable Steps to Prevent Data Breaches
type: item
description: In this article I identify weaknesses in the framework for public sector data sharing in Australia. Many Australian public sector agencies must share personal information they hold, potentially increasing the risk of a data breach. I consider the legal standard expected of data holders under the Privacy Act 1988 (Cth) to take ‘reasonable steps’ to protect the data, including in light of the 2022 Optus and Medibank breaches. For public sector data, legislated data sharing frameworks also apply, overriding some statutory protections and introducing potential areas of weakness and confusion. One concern is public sector reliance on the unsuitable ‘Five Safes’ data sharing principles, adopted into statutes with an apparent absence of critical examination. Data sharing agreements (‘DSAs’) may assist, but often fail to do so due to vague standards and contractual omissions. To meet the reasonable steps standard, I argue that public sector data holders should ensure that their DSAs require data recipients to have appropriate security governance and risk management in place (ideally including compliance with an independent security standard) and impose obligations regarding data retention, staff training, and auditing. To assist in meeting the reasonable steps standard, security risk assessments should also be undertaken as standard data sharing practice.
subject: Articles
  topic: section
subject: data breach
  topic: keywords
subject: reasonable steps
  topic: keywords
subject: government data sharing
  topic: keywords
subject: Optus
  topic: keywords
subject: Medibank
  topic: keywords
subject: privacy
  topic: keywords
subject: Five Safes
  topic: keywords
subject: public sector
  topic: keywords
creator: Serena Hildenbrand
rights: Copyright (c) 2025
date: 2025-08-01
publication date: 2025-08-01
starting page: 1
ending page: 34
doi: 10.30722/slr.21383

Beyond Restorative Justice: Prioritising Deliberative Self-Determination in Indigenous Sentencing Court Systems
type: item
description: Indigenous Sentencing Courts (‘ISCs’) are inadequately understood solely as restorative justice institutions. Instead, an alternative theory — ‘deliberative democracy’ — may help us analyse and understand the value of these courts. By examining a cross-section of ISC systems throughout Australian jurisdictions, I argue that the cultural and political aims associated with the introduction of ISCs calls for an alternative theory that takes greater account of the participatory role of Elders and Respected Persons and the broader social impact these courts seek to make. A broadened understanding of ISCs’ value to both state justice systems and Indigenous goals of self-determination emerges by considering the extent to which ISCs offer inclusive, authentic, and consequential deliberation to Elders and Respected Persons who assist the court in reaching a sentencing decision.
subject: Articles
  topic: section
subject: deliberative democracy
  topic: keywords
subject: criminal law
  topic: keywords
subject: sentencing
  topic: keywords
subject: Indigenous courts
  topic: keywords
subject: Australia
  topic: keywords
creator: Coel Healy
rights: Copyright (c) 2025
date: 2025-07-28
publication date: 2025-07-28
starting page: 1
ending page: 34
doi: 10.30722/slr.21332

The Interpretation of UNCITRAL Law in Australian Courts: A Roadmap for Elevating the UN Sales Convention’s Status to That of Arbitration Law
type: item
description: Despite being part of Australian law for more than 30 years, the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) has not secured the internationally minded interpretation that CISG art 7(1) requires. Australia’s international commercial arbitration (‘ICA’) laws, however, are routinely approached by Australian courts with an internationalist perspective, as their own interpretative rules require. It is tempting to conclude that Australia’s approach to interpreting its ICA laws is transferable to the CISG context. In this article I address a previously unexplored nuance affecting that conclusion. Australian courts routinely accept Singaporean, Hong Kong and New Zealand interpretative influence concerning ICA laws. In the CISG context, however, significantly less influence from those jurisdictions exists. That being so, I explore how Australia’s courts might better apply the CISG in an internationalist manner. First, I recommend that Australia’s courts emphasise to practitioners the need to consider the CISG’s application and its internationalist interpretation requirements. Second, I recommend that Australian courts use the amicus curiae procedure to solicit third party submissions addressing the CISG’s interpretation. Both techniques are applied by foreign courts in the ICA context and would assist Australian courts in discharging their CISG art 7(1) obligations.
subject: Articles
  topic: section
subject: harmonisation
  topic: keywords
subject: statutory interpretation
  topic: keywords
subject: CISG
  topic: keywords
subject: sales law
  topic: keywords
subject: New York Convention
  topic: keywords
subject: Model Law
  topic: keywords
subject: international commercial arbitration
  topic: keywords
subject: Asia-Pacific
  topic: keywords
subject: Australia
  topic: keywords
creator: Benjamin Hayward
rights: Copyright (c) 2025
date: 2025-07-28
publication date: 2025-07-28
starting page: 1
ending page: 28
doi: 10.30722/slr.21292

The Legal Recognition of Animal Sentience: Principles, Approaches and Applications by Jane Kotzmann and MB Rodriguez Ferrere (eds)
type: item
description: The Legal Recognition of Animal Sentience is an edited book offering an extensive discussion about the state of legal recognition of animal sentience in various international jurisdictions. The book’s subtitle — Principles, Approaches and Applications — cleverly delineates the contexts in which those meanings of animal sentience manifest, the implications and consequences of which are worked through.
subject: Review Essays and Book Reviews
  topic: section
subject: Review Essays and Book Reviews
  topic: category
creator: Debbie Rodan
rights: Copyright (c) 2025
date: 2025-07-28
publication date: 2025-07-28
starting page: 1
ending page: 5
doi: 10.30722/slr.21198

The Evolution of the Australian Electoral System as a Constitutional Process
type: item
description: The form of popular sovereignty empowered by the Australian Constitution was framed to be government by ‘the people’ in constitutive and routine manifestations, both sustaining and sustained by the system of government it called into existence. It was framed to be dynamic — the design of the electoral system according to which the people would act in those distinct manifestations having been entrusted to development by ordinary legislation made by the Commonwealth Parliament. And this form of popular sovereignty can be seen to have evolved: through the development of a broad franchise and through the establishment of a system of compulsory and preferential voting by which that broad franchise has come to be exercised. The form of popular sovereignty empowered by the Australian Constitution can accordingly be seen today to be government by ‘the people’ writ large. In this lecture, I trace this evolution as a process by which ordinary legislation has built out the constitutional structure empowering popular sovereignty.
subject: Lectures and Addresses
  topic: section
creator: Stephen Gageler
rights: Copyright (c) 2025
date: 2025-07-28
publication date: 2025-07-28
starting page: 1
ending page: 17
doi: 10.30722/slr.21122

"We Are One, But We Are Many": Conceptions of Australia’s Sovereign People and the Proposed Voice to Parliament
type: item
description: This article examines the defeat of the 2023 referendum on the Aboriginal and Torres Strait Islander Voice to Parliament (‘Voice’) in terms of competing conceptions of ‘the people’ in Australian constitutional law. Applying James Tully’s theory of popular sovereignty to Australian law and history, this article advances the tension between two views of the sovereign people — as homogenous and formally equal, or plural and differentiated — as a lens to analyse developments in Australian constitutional law. It begins by briefly surveying the history of Indigenous Australian sovereign difference under the Australian Constitution, situating the recognition sought through the Voice. It then identifies, drawing on Tully’s critique of ‘modern constitutional’ popular sovereignty, an orthodox conception of the sovereign people persisting in Australian law as a homogenous, formally equal entity authorising the supremacy of representative Parliament. Finally, it suggests a competing strain of Australian constitutional thought which, constructing the sovereign people as plural, enables alternative forms of constitutional governance. Such plural modes of constitutionalism, it argues, were embodied by the Voice and informed the No campaign’s arguments in the terms of a ‘unified’ constitutional ‘people’. Through examination of the Voice, this article articulates competing constructions of ‘the people’ as a lens for interrogating developments in Australian constitutional law.
subject: Articles
  topic: section
subject: Aboriginal and Torres Strait Islander Voice to Parliament
  topic: keywords
subject: constitutional law
  topic: keywords
subject: popular sovereignty
  topic: keywords
subject: deliberative democracy
  topic: keywords
creator: David Moignard Ferrell
rights: Copyright (c) 2025
date: 2025-04-22
publication date: 2025-04-22
starting page: 423
ending page: 454
doi: 10.30722/slr.20927

A New Australian Constitutionalism? Constitutional Purposes, Proportionality and Process Theory
type: item
description: Australian constitutional law rests on a foundation of settled principle, including the idea that Australian constitutionalism comprises a mix of legal and political, negative and positive, and fixed and dynamic, constitutional commitments. It also depends on a series of settled substantive principles. Beyond this, there is greater contest between three rival visions of constitutional reasoning: legalism versus purposive or ‘functionalist’ approaches to interpretation; autochthonous versus proportionality-based tests of constitutional validity; and context-invariant versus process-sensitive or ‘representation-reinforcing’ approaches to construction. This essay explores these three dimensions of contest, and argues for the benefits of the newer approach within each of these dyads. Each of these approaches is conceptually and empirically distinct. But each offers important benefits from a democratic and rule of law perspective, and has affinities from a conceptual and comparative viewpoint. The essay therefore argues for a new purposive, proportionality-based and process-sensitive approach to constitutional construction, as a unified approach to constitutional construction in Australia. It also notes the incipient support for each element of this approach within the judgment of members of the High Court of Australia in recent Ch III cases.
subject: Lectures and Addresses
  topic: section
creator: Rosalind Dixon
rights: Copyright (c) 2025
date: 2025-04-22
publication date: 2025-04-22
starting page: 455
ending page: 481
doi: 10.30722/slr.20811

Rethinking Corporate Groups: Insights from Systems Intentionality
type: item
description: Corporate groups continue to present significant challenges for corporate law and regulation. In this article, I consider the insights for group responsibility offered by a novel, holistic model of corporate responsibility entitled ‘Systems Intentionality’. Recently endorsed and applied in the High Court of Australia, this model posits that corporations manifest their states of mind through their systems of conduct, policies, and practices. Viewed at a certain level of generality, corporate groups can, and often do, operate as coordinated systems of conduct. Systems Intentionality suggests that such group systems will manifest certain states of mind, typically (but not necessarily only) that of the parent. These mindsets may be relevant to establishing the parent’s direct liability for harms resulting from its systems of conduct through orthodox, doctrinal routes. The model may, therefore, provide invaluable assistance towards placing group and network responsibility on more transparent and principled footing, consistent with recent, broader trends supporting direct parent liability.
subject: Articles
  topic: section
subject: corporate groups
  topic: keywords
subject: corporate responsibility
  topic: keywords
subject: corporate veil
  topic: keywords
subject: corporate attribution
  topic: keywords
subject: systems liability
  topic: keywords
subject: agency
  topic: keywords
creator: Elise Bant
rights: Copyright (c) 2025
date: 2025-09-15
publication date: 2025-09-15
starting page: 1
ending page: 29
doi: 10.30722/slr.20353

Efficiency and Certainty in Decision-Making: An Evaluation of the Insolvency Practitioner Disciplinary Committees
type: item
description: The increase in rates of company failures and personal bankruptcy within the current economic climate warrants an assessment of the framework governing the conduct of the insolvency practitioners who administer them. Historically, trust and confidence in registered liquidators and trustees in bankruptcy has been impacted by concerns of widespread misconduct in the profession as discussed by the media and in the Australian Parliament. Providing evidence about this issue, which has been exceedingly scarce in academic literature, is in the public interest where financially distressed consumers are vulnerable to seeking the alternate services of untrustworthy insolvency advisers (otherwise known as ‘debt vultures’). The Insolvency Law Reform Act 2016 (Cth) introduced a new regulatory regime for insolvency practitioners; specifically, the introduction of pt 2 disciplinary committees in corporate insolvency and bankruptcy (‘disciplinary committees’). Matters referred to the disciplinary committees are deemed to be the most serious by the insolvency regulators. In this article, I examine the totality of cases that have been published by the committees from the commencement of the regime on 1 March 2017 to 1 March 2025, including critically evaluating how they identify and weigh factors to determine appropriate orders. I seek to provide answers to the questions of whether the committees are achieving their intended legislative objectives to be efficient and resolve misconduct matters in a timely manner, and whether there is certainty in their decision-making. Overall, my research found that there continues to be a small number of matters appearing before disciplinary committees.
subject: Articles
  topic: section
subject: insolvency
  topic: keywords
subject: practitioners
  topic: keywords
subject: disciplinary committees
  topic: keywords
subject: decision-making
  topic: keywords
creator: Catherine Robinson
rights: Copyright (c) 2025
date: 2025-11-12
publication date: 2025-11-12
starting page: 1
ending page: 38
doi: 10.30722/slr.19975

Whistleblower Protections in Sport: The Missing Element in Australia’s Sports Integrity Framework?
type: item
description: Whistleblowers play a central role in exposing organisational wrongdoing. However, many potential whistleblowers stay silent for fear of the risks involved in speaking up. To encourage whistleblowing, governments and authorities have enacted whistleblower protection laws and created whistleblower support and incentive schemes. The potential utility of these mechanisms in sporting contexts has been insufficiently considered by researchers and policymakers. Given increased national and international attention on integrity in sport, including in Australia following the establishment of Sport Integrity Australia in 2020, consideration of the application and limitations of whistleblower protections in sport is timely. In this article, I identify critical gaps in Australia’s whistleblowing framework as it applies to sport and offer recommendations for reform to ensure sport-related whistleblowers can speak up safely and lawfully. The sporting context also offers a valuable case study to consider wider limitations of Australian whistleblowing law amid an active federal law reform agenda. Whistleblowers make a meaningful contribution to integrity in sport and elsewhere, and it is vital they are empowered to expose wrongdoing and protected when they do.
subject: Articles
  topic: section
subject: whistleblower protections
  topic: keywords
subject: sports integrity
  topic: keywords
subject: anti-doping
  topic: keywords
subject: whistleblowing
  topic: keywords
creator: Kieran Pender
rights: Copyright (c) 2025
date: 2025-11-06
publication date: 2025-11-06
starting page: 1
ending page: 36
doi: 10.30722/slr.20339

Constitutional Shoehorning
type: item
description: Constitutional shoehorning refers to a litigant using a constitutional provision that addresses one type of concern to advance a different type of concern. A litigant that seeks to protect their rights by bringing a challenge under a federal division of powers provision is an example. This article makes three arguments in relation to the concept. First, it is an understudied and distinctive move in constitutional argumentation and adjudication, different from implications and strained interpretations. Although challenges can arise when trying to identify instances of constitutional shoehorning, they are surmountable in most cases. Second, it has both positive and negative attributes. Third, it is an important feature of Australian constitutional law due to the absence of a bill of rights.
subject: Articles
  topic: section
subject: constitutional law
  topic: keywords
subject: judicial review
  topic: keywords
subject: rights protection
  topic: keywords
subject: separation of powers
  topic: keywords
subject: federalism
  topic: keywords
creator: Scott Stephenson
rights: Copyright (c) 2025
date: 2025-04-22
publication date: 2025-04-22
starting page: 395
ending page: 421
doi: 10.30722/slr.20732

Dispossession Cycles and Resistance: Historical Continuums in the Deportation of First Nations Peoples
type: item
description: This article surveys the historical and contemporary context of Indigenous peoples’ entanglement in systems of criminal justice and migration control. Government attempts to remove First Nations peoples from Australia under visa cancellation provisions present a striking contemporary development in border control. Despite the High Court of Australia’s ruling that ‘Aboriginal Australians’ cannot be ‘aliens’ and therefore subject to visa cancellation provisions, Indigenous peoples continue to be targeted for exclusion and subject to the gaze of border control authorities. We use documentary research and draw on two case studies to explore the historical use of deportation to target First Nations peoples. We identify previous attempts to achieve law reform to rectify past injustices and prevent Indigenous peoples from being caught up in migration laws aimed at excluding non-citizens. We review the extensive literature on Love v Commonwealth and analyse the expanded visa cancellation provisions that have resulted in increased numbers of people being targeted for removal, and removed, from Australia. When analysed against the long shadow of colonisation, we argue that these applications of criminal and migration law represent a continuation of attempted exclusion and dispossession that has been, and continues to be, actively resisted by Indigenous peoples. In analysing the cyclical nature of dispossession and its resistance, the complex interaction of criminal and migration law can be seen to have created novel impacts for First Nations peoples in Australia.
subject: Articles
  topic: section
subject: deportation
  topic: keywords
subject: First Nations
  topic: keywords
subject: sovereignty
  topic: keywords
subject: visa cancellation
  topic: keywords
subject: crimmigration
  topic: keywords
creator: Alison Gerard
creator: Annette Gainsford
rights: Copyright (c) 2025
date: 2025-02-12
publication date: 2025-02-12
starting page: 315
ending page: 345
doi: 10.30722/slr.20596

Unearthing Language Rights Protections in the Racial Discrimination Act 1975 (Cth)
type: item
description: The Racial Discrimination Act 1975 (Cth) (‘RDA’) has been ineffective at preventing discrimination based on language. Australian courts have adopted narrow approaches to deny language-based claims by misconstruing the relationship between language and racial discrimination. These approaches portray language as an individual characteristic, subject language rights to proportionality analysis, require the positive existence of a language right, or narrow the scope of rights protected by the RDA to exclude language claims. This article argues that these denials have no basis. Historically, the use of language as a proxy for race has been a means of effecting exclusionary policies which fail to defend against racial and linguistic discrimination. Recognition of these dimensions of language supports the deconstruction of the doctrinal arguments which have been deployed to deny protection from racial discrimination in the context of language.
subject: Articles
  topic: section
subject: racial discrimination
  topic: keywords
subject: language rights
  topic: keywords
subject: minorities
  topic: keywords
subject: proportionality
  topic: keywords
subject: linguistic
  topic: keywords
subject: doctrinal
  topic: keywords
creator: Catherine Zhou
creator: William Ruan
rights: Copyright (c) 2024
date: 2025-02-12
publication date: 2025-02-12
starting page: 293
ending page: 314
doi: 10.30722/slr.20424

Scrutinising the Scrutiny Process in the Courts
type: item
description: In every Australian jurisdiction, a dedicated parliamentary committee scrutinises delegated legislation. When interpreting delegated legislation, courts may make assumptions about the nature and quality of the scrutiny performed by these committees. We argue courts should be cautious about reaching these conclusions. The article uses the High Court of Australia’s decision in Disorganized Developments Pty Ltd v South Australia as a case study. We show that, while a scrutiny committee might hold the promise of providing effective parliamentary oversight of delegated lawmaking, the reality may fall short of the ideal. With limited time and resources to scrutinise a large volume of instruments as well as to perform other functions, and with no guarantee of engagement from the Parliament or executive, scrutiny committees may not be able to scrutinise delegated legislation in a thorough or timely manner. Building on these insights, we consider the circumstances, and manner, in which a court might be justified in making findings about the process of scrutiny of delegated legislation.
subject: Articles
  topic: section
subject: delegated legislation
  topic: keywords
subject: parliamentary scrutiny
  topic: keywords
subject: courts
  topic: keywords
creator: Laura Grenfell
creator: Anne Carter
creator: Anna Olijnyk
rights: Copyright (c) 2024
date: 2025-02-12
publication date: 2025-02-12
starting page: 267
ending page: 292
doi: 10.30722/slr.20373

Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims
type: item
description: Three decades on from its decisive advent in England and Australia, the change of position defence has become part of the fabric of the law of restitution. Yet its rationale — long neglected but increasingly scrutinised — remains a matter of debate. This article seeks to advance the debate by analysing possible rationales for the defence as it applies to the paradigm case of restitution, mistaken payments. After exposing difficulties with many of the candidates that have hitherto attracted support, this article advances two rationales better suited to facilitate principled development of the defence: outcome responsibility, and reciprocal recognition of decisional autonomy. Both rationales put the defence on firm normative foundations, align with its present contours and suggest areas for further development.
subject: Articles
  topic: section
subject: mistaken payments
  topic: keywords
subject: restitution
  topic: keywords
subject: defences
  topic: keywords
subject: change of position
  topic: keywords
subject: autonomy
  topic: keywords
subject: enrichment
  topic: keywords
subject: loss allocation
  topic: keywords
subject: security of receipts
  topic: keywords
subject: causation
  topic: keywords
creator: Charlie Ward
rights: Copyright (c) 2025
date: 2025-09-30
publication date: 2025-09-30
starting page: 1
ending page: 31
doi: 10.30722/slr.20123

An Indigenous Right to Be Heard on the International Stage?
type: item
description: In the early 20th century, Indigenous peoples were effectively locked out of international organisations. In Self-Determination As Voice, a hugely valuable work of scholarship, Natalie Jones surveys the extent to which that has changed. Mechanisms for Indigenous participation in the United Nations and other organisations have proliferated since the creation of the Working Group on Indigenous Populations in 1982 and especially since the United Nations Declaration on the Rights of Indigenous Peoples of 2007. Jones concludes that it is arguable that there is now sufficient practice and opinio iuris to evidence a rule of customary international law about Indigenous participation in international governance. In this review essay, it is suggested that some might not fully agree with her analysis, either because they are more doubtful about the opinio iuris or because they place more weight on the practice of economic organisations and treaties that continue to exclude Indigenous peoples. But in any case the book identifies an accelerating trend. It also raises challenging questions about the role of soft law and how much it differs from international law in the strict sense.
subject: Review Essays and Book Reviews
  topic: section
subject: Review Essays and Book Reviews
  topic: category
creator: Rowan Nicholson
rights: Copyright (c) 2024
date: 2025-02-12
publication date: 2025-02-12
starting page: 387
ending page: 394
doi: 10.30722/slr.20333

Protecting Sacred Sites
type: item
description: When Indigenous nations’ sacred and cultural sites are threatened, legal disputes often frame land in one of two ways: either land is sacred, or it is property. In Land Is Kin, Dana Lloyd argues that this positioning is inadequate. Not only does it facilitate the damage and destruction of sacred sites, but it fails to appreciate the familial responsibilities we all have to Country. In this review essay, I outline Lloyd’s argument and suggest that emerging treaty processes in Australia offer one way to ground a deeper appreciation of land within Australian law and society.
subject: Review Essays and Book Reviews
  topic: section
subject: Review Essays and Book Reviews
  topic: category
creator: Harry Hobbs
rights: Copyright (c) 2024
date: 2025-04-22
publication date: 2025-04-22
starting page: 495
ending page: 505
doi: 10.30722/slr.20331

Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas
type: item
description: The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.
subject: Before the High Court
  topic: section
subject: Before the High Court
  topic: category
creator: Emerson Hynard
creator: Ilana Slobedman
rights: Copyright (c) 2024
date: 2025-04-22
publication date: 2025-04-22
starting page: 483
ending page: 493
doi: 10.30722/slr.20274

An Empirical Study of the Distribution of Superannuation Death Benefits
type: item
description: In Australia, if a superannuation member dies before retirement, they will leave superannuation death benefits that must be distributed. Death benefits are usually distributed at the discretion of the trustee or, on appeal, by the Australian Financial Complaints Authority (‘AFCA’). Analysis of the distribution of death benefits is exceedingly scarce in the literature. There is some practitioner commentary and case law, but it is not consistent on how this discretion is, or should be, exercised. General trust law holds that trustees exercise broad discretions and have duties to consider all relevant matters, including any non-binding nomination of beneficiaries by the deceased. Other evidence suggests that AFCA does not follow this approach. This article undertakes the first empirical examination of the distribution of death benefits by AFCA. Key findings are (1) there is no evidence that the deceased’s wishes expressed in non-binding nominations have any association with distribution outcomes; and (2) there is a very strong association between receiving a distribution and AFCA’s view that someone was financially dependent on the deceased.
subject: Articles
  topic: section
subject: superannuation
  topic: keywords
subject: death benefits
  topic: keywords
subject: trustee discretion
  topic: keywords
subject: Australian Financial Complaints Authority
  topic: keywords
subject: AFCA
  topic: keywords
creator: Tobias Barkley
creator: Xia Li
rights: Copyright (c) 2024
date: 2024-10-21
publication date: 2024-10-21
starting page: 199
ending page: 226
doi: 10.30722/slr.20199

Timing of Constitutional Facts
type: item
description: The High Court of Australia is yet to resolve the time when constitutional facts should be assessed. Instead, the Court examines constitutional facts at various points in time, including (1) the legislation’s enactment; (2) the relevant application of the legislation to the plaintiff; and (3) the High Court’s hearing. The time at which constitutional facts are assessed is important, as legislation can shift from valid to invalid over time where the constitutional facts underpinning the legislation’s validity change. This article contends that, generally, constitutional facts should be assessed up until the High Court’s hearing. It is argued that doing so is appropriate because such a timeframe is common to all persons, and enables the Court to reflect changing circumstances by assessing the validity of legislation in its most current context.
subject: Articles
  topic: section
subject: constitutional facts
  topic: keywords
subject: validity of legislation
  topic: keywords
creator: John Lidbetter
rights: Copyright (c) 2024
date: 2024-10-21
publication date: 2024-10-21
starting page: 135
ending page: 164
doi: 10.30722/slr.20198

Unmet Need for Building, Home Contents and Comprehensive Car Insurance among Uninsured Australians: Survey Findings and Options for Reform
type: item
description: Home contents and comprehensive car insurance are not legally mandated in Australia. With the exception of strata title properties, there is also no legal requirement for homeowners to purchase building insurance. While these insurance products are widely regarded as ‘essential’ for managing the risk of disasters and other unexpected events causing property damage, significant proportions of Australians lack these types of coverage. In this article, we examine the extent of unmet need for insurance among this group, who remain vulnerable to devastating financial losses despite the availability of social security and other safety nets in the disaster context and beyond. In doing so, we draw upon the findings of a survey of uninsured Australians whose limited financial resources indicate a high level of exposure to financial loss in case of emergencies causing severe property damage. By contrast to industry assumptions of limited interest in insurance among those without coverage, our findings suggest most uninsured Australians would prefer to have some cover if it was affordable. We examine law and policy reforms that could address such unmet need, arguing that direct subsidies for Australians on low incomes, perhaps supported by statutory recognition of insurance as an ‘essential’ service, would be the most effective means of improving premium affordability for this group.
subject: Articles
  topic: section
subject: general insurance
  topic: keywords
subject: financial exclusion
  topic: keywords
subject: unmet need
  topic: keywords
subject: survey
  topic: keywords
subject: law and policy reform
  topic: keywords
creator: Evgenia Bourova
creator: Ian Ramsay
creator: Paul Ali
rights: Copyright (c) 2024
date: 2024-10-21
publication date: 2024-10-21
starting page: 165
ending page: 198
doi: 10.30722/slr.20195

Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd
type: item
description: The High Court of Australia appeal in Naaman v Jaken Properties raises the question whether a successor trustee owes a ‘fiduciary duty’ to the former trustee to not destroy, jeopardise or diminish the former trustee’s right of indemnity over trust assets. That question arises to determine whether third parties are liable to account in equity as knowing recipients of property dissipated to frustrate the former trustee’s indemnity. It is argued in the appeal that the successor trustee holds the trust assets on express trust for the former trustee to the extent of the former trustee’s indemnity. That conclusion does not account for the variety of equitable interests. Three main points emerge. First, a current trustee has a ‘beneficial interest’ in trust assets only in a superficial sense. Second, upon transfer, that ‘beneficial interest’ is not ‘retained’ by the former trustee; the entitlement of a former trustee over the trust fund changes, and becomes analogous to a charge over a fund. The language of ‘beneficial interest’ in each case is misleading and should be eschewed. Third, it is unnecessary to ask, for the purposes of Barnes v Addy liability, whether any ‘duty’ owed by a successor to a former trustee is a ‘fiduciary duty’.
subject: Before the High Court
  topic: section
subject: Before the High Court
  topic: category
creator: Aryan Mohseni
rights: Copyright (c) 2024
date: 2025-02-12
publication date: 2025-02-12
starting page: 373
ending page: 385
doi: 10.30722/slr.20194

Sims v Commonwealth: The Ultimate Foundation of Australian Law and the Recovery of Ultra Vires Payments by the Commonwealth Executive
type: item
description: The application of a statutory limitation period to the recovery of mistaken payments by the Commonwealth to a former naval serviceman is not a place one would expect to locate the practical influence of jurisprudence. Yet it emerges in Sims v Commonwealth. The issue concerns the accurate identification of the ultimate foundation of Australian law. It is contended that the foundation is materialised by the interaction between the Australian Constitution and the common law: the Constitution is incomplete without common law doctrines. Therefore, there must be limits to the extent to which legislatures can abolish or amend the operation of common law rules in order to safeguard the constitutional allocation of powers. This necessarily includes limitation of action provisions. The contention is derived from recent High Court authority which was apparently not cited on appeal in Sims. A limitation period must be sourced elsewhere in the interaction between the Constitution and the unified common law of Australia.
subject: Case Notes and Comments
  topic: section
creator: Matthew Wilcox
rights: Copyright (c) 2024
date: 2024-10-21
publication date: 2024-10-21
starting page: 239
ending page: 259
doi: 10.30722/slr.19857

Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia by Alice Taylor
type: item
subject: Review Essays and Book Reviews
  topic: section
subject: Review Essays and Book Reviews
  topic: category
creator: Alysia Blackham
rights: Copyright (c) 2024
date: 2024-10-21
publication date: 2024-10-21
starting page: 261
ending page: 265
doi: 10.30722/slr.19771

Stare Decisis and Constitutional Guarantees: Commonwealth v Yunupingu
type: item
description: In Commonwealth v Yunupingu, the High Court of Australia will consider, inter alia, whether the requirement in s 51(xxxi) of the Australian Constitution that acquisitions of property must be on just terms applies to a Commonwealth law that is supported by the territories power in s 122 and no other head of power in s 51. Whether the just terms requirement applies to laws made under the territories power is a question of enormous significance. This question is in part answered by whether either Wurridjal v Commonwealth or Teori Tau v Commonwealth is good law, and whether either or both of those cases should be reopened and overruled. This column analyses this question in light of novel insights into the Court’s current approach to stare decisis in the constitutional setting drawn from the Court’s recent application of the doctrine in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, Vanderstock v Victoria and Vunilagi v The Queen.
subject: Before the High Court
  topic: section
subject: Before the High Court
  topic: category
creator: Ashleigh Barnes
rights: Copyright (c) 2024
date: 2025-02-12
publication date: 2025-02-12
starting page: 347
ending page: 361
doi: 10.30722/slr.19761

Rethinking “On Just Terms”: Commonwealth v Yunupingu
type: item
description: Commonwealth v Yunupingu raises a number of constitutionally significant issues concerning the scope of the Commonwealth Parliament’s power under s 51(xxxi) of the Australian Constitution and its relationship to the territories power in s 122. One issue that is not directly raised by the questions before the High Court of Australia, but that will nevertheless inform the Court’s answers, concerns the meaning of ‘on just terms’. Is ‘on just terms’ a narrow and inflexible requirement to provide full market-based compensation? Or does it permit a broader and more flexible approach to determining the obligations of the Commonwealth and territory governments, which would allow for structural reparations and non-pecuniary remedies? We suggest that a broader and more flexible approach is generally to be preferred as a matter of both principle and prudence and that such an approach is especially relevant for the Court as it considers the consequences of its answers to the questions before it.
subject: Before the High Court
  topic: section
subject: Before the High Court
  topic: category
creator: Lael Weis
creator: Rosalind Dixon
rights: Copyright (c) 2024
date: 2025-02-12
publication date: 2025-02-12
starting page: 363
ending page: 372
doi: 10.30722/slr.19744