Mark Lunney

Australia: A land of plenty (of legislative regimes)

Australia is a common law-based federation of states and territories that derived its legal system from England. Australia has no national Bill of Rights but its federal constitution grants specific powers to the federal government with the remaining powers exercised by each state. Two states have created human rights statutes. The federal powers to govern crime and tort are limited to crimes or torts falling within one of a number of narrow federal constitutional heads of power. Therefore, most criminal law and tort law is state based and, hence, varies across Australia. On the one hand, each state legislature has ultimate constitutional power to alter the common law through legislation. The federal constitution also enables the enforcement throughout Australia of tortious and criminal decisions by state courts. On the other hand, the High Court of Australia is the ultimate arbiter of the common law of Australia as applicable in each state. The common law system of precedent applicable in Australia thus enables the High Court to bring significant uniformity to tort and crime law in Australia albeit constricted by potentially conflicting state legislation. During the past few decades, statute-based law has proliferated in Australia in many areas including both the criminal and tort spheres. Much of this legislative reform has been driven by ‘law and order’ politics, public policy objectives and lobbying by a powerful insurance industry. Overall, the proliferation of statutes has increased the diversity of both criminal and tort law throughout Australia. Particularly in the area of tort, different states have adopted quite disparate statutory regimes for resolving high frequency disputes such as those involving motor vehicles and work place injuries. However, there remains a strong common law of both tort and crime with a unifying thread provided by the High Court of Australia. There are eight state/territories in Australia of which New South Wales (NSW), Victoria and Queensland are by far the most populous (containing over 75 per cent of the Australian population between them). This chapter most commonly uses NSW as an example because over 30 per cent of Australias population resides in NSW.

Six and Out? Bolton v Stone after 50 Years

Abstract Bolton v Stone is one of the best-known cases in the common law of tort. Fifty years after the decision of the House of Lords, this article considers the historical context in which the decision was given. One important factor in this context was the fact that, contrary to the usual practice, the defendants did not have liability insurance. Another was the importance attached to the playing of cricket. By finding that these defendants were not in breach of duty the House of Lords gave pre-eminence to the latter of these factors. However, by stressing that the facts of the case were unusual, it was made implicit that future cases (where the defendant would in all probability be insured) might well attract a different result. Thus, whilst Bolton v Stone is cited for the proposition that the cricket club was not negligent by not taking greater steps to prevent the ball hitting Miss Stone, it remains the only reported case where a cricket club has escaped liability in such circumstances.

Osman in Action-Article 6 and the Commission Reports in Z v United Kingdom and TP & KM v United Kingdom

peace process but most of the readers were not going to have to choose whether to vote for him. Where electors are being informed, however, it is suggested that the court should be more prepared to identify the necessary duty or interest in the defendant. There are two reasons for this suggestion. First, informed choice is the basis of democracy. As the courts in the United States have recognised,26 the law of defamation ought to maximise the flow of true information to electors about candidates for public office. Secondly, there is a strong analogy between reports to the electorate about politicians and reports to shareholders about the directors or other officers of a company. Shareholders entrust control over a part of their wealth to the company’s officers; the courts have recognised the importance of information being communicated to shareholders about those officers and protect such communications.27 The policy arguments seem to be even stronger when information is being communicated to citizens about the politicians to whom they have entrusted control over all aspects of their lives. PA U L MI TC H E L L*

Sugarman's legal history

Law in History. DAVID SUGARMAN (ed.). Aldershot. Singapore. Sydney 1996. Dartmouth. 2 vols.: vol.1 xxx + 631pp. (incl. index); vol.11 x + 658pp. (incl. index). £180 hb. ISBN 1 85521 403 2.