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Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice 《限定特权:澳大利亚和英国诽谤法律与实践》
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2005-09-22 DOI: 10.4324/9781315254999-20
A. Kenyon
{"title":"Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice","authors":"A. Kenyon","doi":"10.4324/9781315254999-20","DOIUrl":"https://doi.org/10.4324/9781315254999-20","url":null,"abstract":"Australian and English case law has developed qualified privilege defences that are available to the media and appear to protect more political or public interest speech than traditional defamation law. This article draws on judicial decisions and qualitative research into defamation litigation to examine the defences' scope, strength and practicality in litigation. England's Reynolds privilege emerges as a well-supported, relatively strong, flexible and innovative defence, especially compared with Australia's narrower and weaker privileges under Lange and New South Wales legislation. The research strongly supports the further development of Australian privilege defences, as well as more careful consideration of judge and jury roles in each country. A closer understanding of Reynolds offers important benefits for protecting the publication of public interest news and commentary, and it is particularly useful in light of recent, and proposed, Australian law reforms.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"50 1","pages":"406"},"PeriodicalIF":0.9,"publicationDate":"2005-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70642410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 6
What is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication 什么是政治传播?隐含政治传播自由的理论基础与范围
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2004-03-01 DOI: 10.2139/SSRN.2631362
D. Meagher
{"title":"What is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication","authors":"D. Meagher","doi":"10.2139/SSRN.2631362","DOIUrl":"https://doi.org/10.2139/SSRN.2631362","url":null,"abstract":"The aim of this article is to identify what counts as ‘political communication’ for the purposes of the implied constitutional freedom of political communication. This is done for two reasons. The first is to delimit the scope of the implied freedom. The second is to clarify whether ‘racial vilification is ‘political communication’, which is the initial step that must be taken in order to assess the constitutionality or otherwise of current Australian racial vilification laws. It is, however, necessary and desirable to establish a sound theoretical basis for the implied freedom before these questions can be properly considered. To this end, it is argued that a minimalist model of judicially-protected popular sovereignty underpins the implied freedom and is the rationale that must guide its interpretation and application. The analysis undertaken demonstrates that a generous zone of ‘political communication’ must attract constitutional protection and that racial vilification will in certain circumstances amount to ‘political communication’.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"28 1","pages":"438-473"},"PeriodicalIF":0.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2631362","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68232691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 9
A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act 破灭的希望，失去的机会?对普通法土著地权和《土著地权法》十年的反思
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2003-11-04 DOI: 10.2139/SSRN.462220
M. Tehan
{"title":"A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act","authors":"M. Tehan","doi":"10.2139/SSRN.462220","DOIUrl":"https://doi.org/10.2139/SSRN.462220","url":null,"abstract":"It is 10 years since the Native Title Act 1993 (Cth) was passed in response to the High Court's Mabo decision. Those years have been marked by an interplay between the common law and statute. Following the High Court's decision in Ward and Yorta Yorta, this interplay has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: \"Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy\". How is it that such a determinate view of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? While there is little doubt that the nature of the rights emerging from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Yorta Yorta and Wilson v Anderson, it is indisputable that the recognition and protection of native title as a result of Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians. Indigenous rights and interests in land can no longer be ignored or cast aside. This article argues that in spite of both legislation and the courts diminishing the concept of native title and the rights associated with it, the process of change unleashed by Mabo and the Native Title Act 1993 (Cth) cannot be reversed. The question now is where this process of change will lead.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"27 1","pages":"523"},"PeriodicalIF":0.9,"publicationDate":"2003-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67739395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 46
'Since Time Immemorial': A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry “自古以来”:一个关于普通法管辖权、土著所有权和Tanistry案例的故事
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2002-09-15 DOI: 10.2139/SSRN.3037780
S. Dorsett
{"title":"'Since Time Immemorial': A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry","authors":"S. Dorsett","doi":"10.2139/SSRN.3037780","DOIUrl":"https://doi.org/10.2139/SSRN.3037780","url":null,"abstract":"In the 10 th anniversary year of the decision in Mabo, this article offers one possible account of the relationship between native title and the common law The article provides a description of this relationship, based on an account of common law jurisdiction and the ways in which the common law historically used the concept of jurisdiction in order to supplant other sites of adjudication and authority. The article traces the jurisdictional story of the common law,from its origins as one of many decentralised legal spaces, through the important first colonial context of Ireland,to the new settlement of New South Wales, and the first encounters with 'the natives'. It then examines the decisions in Mabo, Wik and others, and concludes that in 'recognising 'and constructing the interest of native title, the common law relied on the same techniques which characterised its earlier encounters with the 'other' in the English domestic and Irish colonial contexts. It is only by understanding the way in which native title has come to be at common law that we can explore its possibilities and limitations as a vehicle for justice.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"26 1","pages":"32-59"},"PeriodicalIF":0.9,"publicationDate":"2002-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3037780","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68502871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 23
The Disability Discrimination Act 1992 (Cth): A Three-Dimensional Approach to Operationalising Human Rights 1992年《残疾歧视法》(联邦):落实人权的三维方法
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2002-08-01 DOI: 10.4324/9781315257747-19
Lee Ann. Basser, Melinda Jones
{"title":"The Disability Discrimination Act 1992 (Cth): A Three-Dimensional Approach to Operationalising Human Rights","authors":"Lee Ann. Basser, Melinda Jones","doi":"10.4324/9781315257747-19","DOIUrl":"https://doi.org/10.4324/9781315257747-19","url":null,"abstract":"","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"26 1","pages":"254"},"PeriodicalIF":0.9,"publicationDate":"2002-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70643396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 19
Redefining family: should lesbians have access to assisted reproduction? 重新定义家庭:女同性恋者应该获得辅助生殖吗?
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2001-08-01
T Dower
{"title":"Redefining family: should lesbians have access to assisted reproduction?","authors":"T Dower","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The recent Federal Court decision in McBain v. Victoria, which rendered inoperative a Victorian law that restricted assisted reproductive technology to married or heterosexual de facto couples, has raised the issue of whether lesbians should have access to such technology. This article provides an overview of State laws currently regulating lesbian access to assisted reproduction in Australia. It then explores the growing body of empirical research indicating that the welfare of children raised in lesbian households does not differ in any significant respect from the welfare of children raised in comparable circumstances by heterosexual parents. This research undermines the view that children suffer social stigma or experience hardship caused by the lack of a 'father figure.' The 'welfare of child' rhetoric has in fact been used to mask marginalisation of 'alternative' family forms, and the reluctance to extend assisted reproductive technology to lesbians is underpinned by a deep-rooted fear of undermining the traditional heterosexual nuclear family.</p>","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"25 2","pages":"466-80"},"PeriodicalIF":0.9,"publicationDate":"2001-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22413149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Law Reform by Frozen Chook: Family Law Reform for the New Millennium? 《冷冻鸡》的法律改革:新千年的家庭法改革?
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2000-12-01 DOI: 10.5040/9781472562746.ch-023
R. Graycar
{"title":"Law Reform by Frozen Chook: Family Law Reform for the New Millennium?","authors":"R. Graycar","doi":"10.5040/9781472562746.ch-023","DOIUrl":"https://doi.org/10.5040/9781472562746.ch-023","url":null,"abstract":"This article considers some of the barriers to effective policy development in areas of law impacting on family relationships. First, the article draws attention to the narrow way in which the notion of 'family law' has been understood as involving only the law affecting marriage and divorce, whereas the law impacts on familial relationships in a much broader variety of ways. Next, it points out that powerful gendered discourses constrain how family law policies are debated and progressed. Despite that, the article draws a contrast between the significant progress that has been made in Australia in recognising gay and lesbian families, albeit in a functional rather than symbolic way. Unfortunately, the same cannot be said about heterosexual family law debates where important policy decisions have all too often been made on the basis of anecdotal information (such as stories about frozen 'chooks' (ie, chickens) rather than on the basis of evidence-based research.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"24 1","pages":"737"},"PeriodicalIF":0.9,"publicationDate":"2000-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70515335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 32
Three Positive Theories of International Jurisdiction 国际管辖权的三个实证理论
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 2000-08-01 DOI: 10.2139/SSRN.254137
M. Whincop
{"title":"Three Positive Theories of International Jurisdiction","authors":"M. Whincop","doi":"10.2139/SSRN.254137","DOIUrl":"https://doi.org/10.2139/SSRN.254137","url":null,"abstract":"What are the justifications for a state to allow its courts to exercise jurisdiction over cases with international characteristics? In this paper, I explore three different positive theories of private law jurisdiction. The first is a utilitarian theory. However, a utilitarian theory requires the additional specification of the \"number\", whose greatest good is sought. I contrast a very narrow theory which purports to minimise the costs of judicial administration, a pro-forum theory which seeks to maximise the value of local interests, and a broad theory which is wealth-maximising irrespective of the locus of plaintiffs and defendants. Second, I develop a justice-based theory of contractarian derivation, with a brief contrast of what a corrective justice theory might require. Third, I explore a public choice theory of jurisdiction, which asserts that jurisdictional principle might be expected to favour influential interest groups. I compare these to a range of developments in jurisdictional doctrine in the common law world. I develop an argument that the data support a case of a substantial similarity in the law on jurisdiction that would be endorsed by a broad measure of social welfare and a contractarian justice theory, and show why this should be unsurprising from a theoretical perspective. I then explore the limits on this convergence thesis.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"24 1","pages":"379-410"},"PeriodicalIF":0.9,"publicationDate":"2000-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Reading the race power: a hermeneutic analysis 解读种族权力:解释学分析
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 1999-08-01 DOI: 10.4324/9781315093765-8
A. Reilly
{"title":"Reading the race power: a hermeneutic analysis","authors":"A. Reilly","doi":"10.4324/9781315093765-8","DOIUrl":"https://doi.org/10.4324/9781315093765-8","url":null,"abstract":"","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"23 1","pages":"476"},"PeriodicalIF":0.9,"publicationDate":"1999-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70629548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 5
Posthumous reproduction and the meanings of autonomy. 死后生殖和自主的意义。
IF 0.9 3区 社会学
Melbourne University Law Review Pub Date : 1999-08-01
B Bennett
{"title":"Posthumous reproduction and the meanings of autonomy.","authors":"B Bennett","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In recent years there has been considerable debate over the legal and ethical issues associated with posthumous reproduction. This article analyses recent cases and legal regulation of reproductive technologies in Australia. The issues associated with posthumous reproduction are explored through a consideration of the nature of an individual's interest in their reproductive material. The suitability of a property-based model as a means of conceptualising interests in reproductive material is explored. The article concludes that the issues in this area need to be analysed in terms of autonomy interests that are understood relationally.</p>","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"23 2","pages":"286-307"},"PeriodicalIF":0.9,"publicationDate":"1999-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22325076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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