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  Canberra Law Review   (Australia)
  2010, Number 1
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  • Immunity of the Crown from Statute and Suit
        Anthony Gray
        In this article I suggest that the law regarding Crown immunity from statute and suit requires further reform. I consider the long history of such questions, where the evidence of Crown immunity from legislation is at best dubious, and the application of such historical evidence in later cases to create a general rule of Crown immunity from statute, even as reinterpreted by the High Court in Bropho. I argue that the continuing special treatment of the Crown in terms of statute should in essence be abandoned, just as special rules regarding treatment of the Crown in common law matters has been abandoned. This would accord with the rule of law and would create much greater simplicity in the law in this area, in particular given Australia’s federal system. There should be a general presumption that the Crown is in fact bound by statute, except where the statute seeks to alter Crown prerogatives.
  • Crown Use of Copyright Material
        John Gilchrist
        This article examines the legal position of government in its use of copyright material it receives or deals with in the course of its work. The nature, scope and operation of the Crown use provisions in the Australian Copyright Act 1968, the extent to which licences may be implied to government to reproduce or publish copyright material it receives, and the breadth of other statutory rights held by government and their relationship to the Crown use provisions of the Copyright Act, are discussed in detail in the article. In particular, the author examines arguments for construing the Crown use provisions to complement, rather than override, the special defences to infringement such as s 40 (fair dealing for research or study) which users of copyright material may rely on generally under the Copyright Act. The author concludes that there are good reasons in law and policy for construing the Crown use provisions to complement these special defences. The author also discusses modern demands on government for the management of information brought about by increased engagement with the community online and the internal transfer of agency information. He concludes that the High Court decision in Copyright Agency Limited v New South Wales and the changing technology in the way we communicate suggest a need for an express special defence permitting certain public uses of copyright material deposited or registered in accordance with statutory obligations under State or federal law, outside the operation of the Crown use provisions.
  • Tax Havens: Do they have a future providing banking and financial services?
        John McLaren and John Passant
        This paper argues that despite the crackdown on tax havens and Offshore Financial Centres by the Organisation for Economic Cooperation and Development and the developed world, tax havens will continue to exist and provide banking and financial services for the global economy into the future. The paper will also contend that the push by the OECD to have all tax havens enter into ‘Tax Information Exchange Agreements’ will not be entirely successful in ending the bank secrecy laws that are the basis for these nations being able to ensure the confidentiality of their customers.
  • Inconsistent at best?: An Analysis of Australia’s Federal Racial Vilification Laws
        Dilan Thampapillai
        At a federal level Australia regulates racial vilification under Part IIA of the Racial Discrimination Act 1975 (Cth). The threshold for offensiveness under Part IIA is lower than that which appears in the corresponding legislation of Australia’s states and territories. However, despite the lower threshold under Part IIA the case law before Australia’s Federal Court and the Human Rights Commission demonstrates a degree of inconsistency. This article examines whether this criticism of Part IIA is in fact justified and to consider what may be done about the problem. It is argued that the unresolved nature of the debate about freedom of speech and vilification law haunts the jurisprudence under Part IIA. Moreover, the Australian Government needs to review the legislation.
  • Different Perspectives on Estoppels
        Michael Liu
        Estoppel is a legal doctrine which prevents a promisor from breaking a promise and exercising her legal rights where the promise has been relied upon to the detriment of the promisee, and it would be unconscionable for the promisor to revoke or rescind the promise.What is the rationale for the doctrine of estoppel? What approaches are taken in different jurisdictions? This paper examines these questions and analyses the different answers given by common law and civilian lawyers.China’s approach to the doctrine of estoppel is vague and inconsistent. It has shifted from discouragement of unconscionable revocation of promises to permitting cancellation of promises which have already been relied upon. This paper analyses the wrongly applied dominion-based approach to disputes of estoppel in China and recommends a restoration of the old approach to accommodate the need to prevent the unconscionable exercise of a legal right which is made subject to an accord or detrimental reliance.Some literature has been written on the topic either within the common law legal family or within the civil law legal family. There is no cross legal family analysis of doctrinal differences. This paper will reveal and analyse the doctrinal differences and the approaches taken by different jurisdictions.