It is indeed an honour to deliver the 2026 George Winterton Memorial Lecture, which commemorates a great Australian constitutional scholar. My theme is the unique and, in that sense, experimental nature of New Zealand’s constitutional settlement. Having read some of Professor Winterton’s writing, I understand him to have dedicated his career to the distinctive, and also experimental, nature of Australia’s federal constitutional settlement.
PS Atiyah: An Academic Autobiography is an unusual book. Autobiographical writing by academics is rare, if only because academic lives are seldom of interest to anyone except, perhaps, the author’s family and other scholars. It appears that Atiyah wrote his autobiography soon after he retired in 1988. Its story ends in 1991. He offered the manuscript to several ‘commercial’ publishers, but without success. It was eventually published by a university press at the instigation of academic colleagues and admirers. Atiyah had deposited a copy with the British Academy, ostensibly to provide material for the biographical memoir with which Fellows are honoured. That memoir was written by James Goudkamp, who also edited this volume and provides a preface.
Ramona Vijeyarasa’s book, Rewriting the Rules: Gender-Responsive Lawmaking for the Twenty-First Century, is a broad-ranging international survey of laws with particular ramifications for gender. Topics covered include familiar issues of concern to feminist scholars, such as gender-based violence, parental leave, and corporate quotas, as well as issues that are less familiar, including modern slavery, small-scale mining, gender-responsive budgeting and artificial intelligence.
Victorian courts have long held family hardship arising from sentences of imprisonment must be exceptional for it to be considered an ‘aggravating or mitigating factor’ within the scope of s 5(2)(g) of the Sentencing Act 1991 (Vic). This approach arose without reference to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) and the interaction between the Charter and sentencing legislation remains neglected. However, that interaction will be considered before the High Court of Australia in Charisiou v The King (‘Charisiou’). Charisiou could be decided in several ways. One is to modify the judicially implied requirement that family circumstances must be exceptional to attract s 5(2)(g). This path would not necessarily require recourse to the Victorian Charter. The second path is the one adopted by Walker JA in dissent in the Victorian Court of Appeal: that the family rights protected by the Victorian Charter could inform the scope of s 5(2)(g). Both paths could consider the consequence, if any, of the lack of amendment to s 5(2)(g). Does that reflect an acceptance of existing judicial principles? Is such an assumption affected by the interpretive requirements of the Victorian Charter? If these questions are resolved with significant recourse to the Charter, the consequences of Charisiou may extend far beyond the realm of sentencing.
While far from new, civil penalties are increasingly central features of the regulatory landscape. It is therefore timely that a textbook be devoted to the subject. Accordingly, Civil Penalties in Australia by Matthew Peckham, Cam Truong KC, Ian Latham and Amanda Storey is a welcome contribution to the literature.
In this article I examine the applicability of the Australian Consumer Law provisions on product liability for defective goods to artificial intelligence (‘AI’) systems. I argue that significant reforms are necessary to effectively address defects in AI systems. Key areas for reform include clarifying the term ‘component’ of goods to encompass digital elements such as AI-related services and revising the classification of manufacturers to reflect the roles of various parties in AI development and deployment. Most critically, the test for assessing defectiveness should be reconstructed to capture the distinctive characteristics of defects in AI systems. Moreover, the scope of actionable damage should be expanded to ensure comprehensive protection for individuals harmed by defective AI systems. Drawing on comparative insights from the European Union and the United States, I suggest that the successes and limitations of these jurisdictions in addressing liability for defective goods provide valuable lessons for Australia to strengthen its product liability regime in the age of AI-driven technologies.
In recent decades, in Australia, a number of laws have been named after victims of crime. This practice, which I call eponymous law, encompasses the creation of numerous new laws or legal amendments. In this article, I focus on the practice of naming laws after homicide victims. I analyse what I see as the two main dimensions of this practice. First, eponymous law represents a distinct facet of the changing relationship between criminal law and victims of crime since the 1970s in light of the rise of the victims’ rights movement in Australia, the expansion of criminal legislation, and the increased political popularity of victim-oriented law reform. The second dimension of this practice is that it is a response to loss and/or trauma by victims and/or their families. Publicly reported statements by victims’ families reveal a range of motives, including honouring the victim. Following this analysis, I turn to assess what I see as the tripartite significance of these laws for criminal law in Australia, and consider what eponymous law means for legitimation of criminal law in the contemporary context.
Can a constructive trust be imposed over copyright in footage created in the course of a covert trespass? To put the same question a different way: can a constructive trust be imposed in the absence of a pre-existing relationship between the parties and over property that the claimant never owned? These are novel questions in Australia that may fall to be considered in the High Court of Australia appeal in Farm Transparency International Ltd v The Game Meats Company of Australia Pty Ltd. These questions are not novel in the United States, where a broad view of the potential of the remedial constructive trust has been taken.
This Lecture explores the harm and injustices experienced by vulnerable Australians due to social services program failures such as robodebt, employment services income support sanctioning, and the apportionment scandals. I also deal with concerns about proposed changes to the way National Disability Insurance Scheme ('NDIS') budgets are determined. I argue that while legal protections and remedies have been well renovated to accommodate individual social security grievances (restoring fidelity to liberal values), law reform has failed adequately to address either the systemic harms and mass grievances (a failure to guarantee socio-economic values such as distributional justice), or to develop preventive counters to structural forces that give rise to such failures. I suggest that avenues of redress for social services (such as the NDIS) provide even less by way of individual or systemic justice. I conclude that the mainly extra-legal successes of other governance measures may offer a better response to systemic injustices in social services.
A longstanding common law controversy is whether, following a contract's termination for the defendant's repudiatory breach, the plaintiff's entitlement to substantial damages depends upon proving its ability to have performed any outstanding, and now discharged, obligations. This question may arise in various distinct contexts and consideration of the relevant case law reveals that courts have not imposed identical proof requirements across these different scenarios. Despite these ostensible inconsistencies, the adoption of a two-stage model reveals the existence of an intelligible order within the leading authorities. The first stage involves determining the nature of the relationship between the parties' unperformed obligations. This relationship may decisively determine what the plaintiff must prove to recover substantial damages. But if not, the onus of proving whether the plaintiff would have been able to perform any remaining obligations, if relevant to its entitlement to substantial damages, must be allocated. Proper allocation of this onus requires consideration of certain other features of the case, including most notably the presumptive availability of specific performance to the plaintiff. This article explains the operation of this model by analysing the leading English and Australian decisions, providing a framework for resolving the various scenarios that may arise.
In Chaplin v Secretary, Department of Social Services (Cth), the High Court of Australia will determine the standard of satisfaction required before the Commonwealth may recover an alleged social security debt. The appeal - the first social security related case to reach the High Court in more than a decade - concerns the construction of a statutory requirement that income be taken into account when 'first earned, derived or received', and the consequences where evidence of the earning fortnight is no longer available. In this column, we argue that the approach of the Full Federal Court of Australia majority risks authorising the recovery of debts whenever individuals are unable to substantiate their entitlement, including where original records have been lost or were never maintained. We also examine competing constructions of the provisions across fora, the implications of retrospective legislation purporting to validate the very practice under challenge in this appeal, and whether private law facilitation principles, properly understood, support or undermine the Federal Court majority's approach to the evidentiary gap.
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.
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.
This review essay of Arthur Emmett’s Roman Law Under the Southern Cross: Sidere Ius Civile Mutato exhorts Australian lawyers to gain a better understanding of Roman law for one reason: a firm grasp of the classical world allows the ancient Romans to speak to us from the past, offering sage advice for dealing with modern problems to which law must respond. The historical Roman law shows us how we might think about our own law in light of the approaches that the ancient Romans took to problems which arose so long ago, but seem always to be present.
Strata title apartments constitute a significant and growing segment of the Australian housing market and have increasingly been the subject of consumer complaint. A particular source of concern are contracts between bodies corporate and service providers when housing developers have played a role in the contract’s negotiation and formation. By analogy with company promoters, case law has held that developers owe bodies corporate a fiduciary duty. This article explores the consequence of that fiduciary duty for contracts between a body corporate and third-party service providers when the developer assisted in the formation of that contract. It situates discussion in the context of New South Wales strata title legislation, and draws on current developer practices, such as the creation of embedded networks for energy and water in apartment buildings.
The High Court of Australia ruled in 2023 that the Commonwealth lacked the power to indefinitely detain aliens as it had done since the 2004 decision in Al-Kateb v Godwin. In response, the Australian Government released from immigration detention 149 aliens lacking any real prospect of being deported in the foreseeable future. The Australian Parliament swiftly enacted two immigration amendments to apply to these released aliens. The amending Acts placed the aliens on ‘removal pending visas’ bearing conditions ranging from daily curfews to constant monitoring. These visa conditions were imposed not by reviewable administrative decision, but by force of statute. A year later, the High Court invalidated two of the conditions. In a rapidly shifting space, this comment pauses to examine the unique process by which the removal pending visas were imposed, to illuminate: (i) the unique amenability of aliens to Commonwealth legislative power; and (ii) how a constitutional limitation on that power tempers that amenability.
Co-regulation — when an industry association develops a code of practice and this has legislative backing — has become an important regulatory tool. Yet, we lack an understanding of how industry associations engage their members and non-members when developing codes of practice. This oversight is surprising given growing recognition of the importance of regulatory intermediaries like industry associations for achieving regulatory objectives. It is all the more surprising when the purposes of industry engagement during rule-making are understood. In this article, I use the development of the Australian Telecommunications Consumer Protections Code 2019 by the Communications Alliance (‘Comms Alliance’) as a case study to identify the different ways in which the Comms Alliance engaged with industry participants during rule-making and to assess if the functions of industry engagement were discharged. Drawing on interviews with telecommunications companies subject to the Code, I argue that the process of industry engagement had some value in the development of the Code. However, the engagement barriers faced by a sizeable number of industry participants prevented the full realisation of co-regulatory rule-making’s purported benefits. I conclude the article by discussing the potential implications of these findings for legislators, governments, and policymakers, highlighting the need for further empirical study of industry associations and their practices in industry sectors within Australia and farther afield.
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.
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.
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.
