Sir Matthew Hale and Lord Mansfield stand as two of the most influential Chief Justices in the history of the English common law. Each shepherded the common law through a time of disruption: Hale through the political disruption of the English civil war and restoration; Mansfield through the technological disruption of the industrial revolution. Hale is celebrated for his resilience in upholding the core values of the common law; Mansfield for his innovation. Together, they reflect the best of the common law tradition and its potential to respond to the needs of the age. Writing centuries later, Chief Justices Gageler and Winkelmann reflect upon the lives and times of Hale and Mansfield, highlighting their distinctive yet complementary contributions to the common law tradition and drawing upon their legacies to reflect on how a judiciary within that common law tradition might be expected to address contemporary global challenges.
In his second "The State of the Australian Judicature" address, delivered at the opening of the Australian Legal Convention held at the High Court in November 2025, Chief Justice Gageler explains the purpose of the Convention as being to facilitate dialogue between the many parts of the Australian legal system on the contemporary challenges facing the system and the potential for coordinated responses. Chief Justice Gageler introduces the main themes to be explored throughout Convention, including: public confidence in the judicature; the use of artificial intelligence in the legal system; First Nations justice; access to justice; responses to family and sexual violence; the well-being of the judicature, practitioners, academics and students; and the future of legal education and training.
The International Court of Justice has spelled out States'responsibilities and obligations under the climate change treaties and customary international law in terms which rejected Australias' submission that it was not responsible for greenhouse gas emissions from the production and burning overseas of exported fossil fuels. That raises an urgent issue as to the relationship between customary international law and domestic law. The common assumption is that, based on the doctrine known as dualism, is that customary international law has no domestic operation until adopted by statute. This paper contends that the assumption both lacks nuance and is contrary to authority. Rather, customary international law forms part of the common law in Australia, unless inconsistent with statute, and should be applied and enforced domestically.
Corporations today operate as much in cyberspace as they do in the physical world. Recent high-profile hacking and data loss from Australian corporates including financial services licensees demonstrate howASIC, otherregulators, government departments and stock exchanges regulate companies and financial markets in relation to issues in cyberspace and play a role in fostering cyber security and resilience. This article traces the fast-developing duties of financial services licensees and the related duties of directors and managers in relation to cyberspace risk management. It follows the RI Advice case in 2022 which confirmed that administration and enforcement of cybersecurity is now no longer a matter solely for information technology departments. Obligations of licensees, directors and management in relation to cyberspace risk management under the Corporations Act 2001 (Cth) now include cybersecurity and cyber resilience controls and documentation to manage cyber risk as the world continues to move into a digital future.
A prudent party should settle if (but only if) they receive an offer which exceeds the projected value of litigating. However, there is no conventional theory or practice for quantifying that value. This article proposes a methodology for identifying, quantifying and aggregating the myriad components of the value of litigating. The methodology typically generates a value of litigating which is drastically worse than the intuitions of a party or its lawyer. It facilitates precise determination of a prudent "bottom line" in negotiations, exposes the broad range of mutually advantageous settlement, and provides a tool to deflate an opponent's unreasonable settlement demands and advance fair settlement.
The Federal Court has ordered the Environmental Defenders Office (EDO) to pay $9 million in indemnity costs to Santos NA Barossa P/L (Santos) following failed legal proceedings. This was the final event of a years' litigation which started with an interlocutory injunction (preventing Santos work in the Timor Sea), before a full hearing and dismissal of the claims (with criticism of the applicant's lawyer and experts), then interlocutory proceedings (with Santos contemplating costs against the EDO and other parties) and concluding with the costs order. Commentary on these proceedings sees the costs implications as significant but overlooks that the final orders were made by consent. Given concerns about SLAPP lawsuits and "law fare", this article explains the precedent from these proceedings is limited to its unusual combination of features. Nevertheless there are important implications-for advocacy organisations, but also for companies and regulators-and their lawyers and expert witnesses.
Law personifies its subjects. Once a legal person, certain rights, duties and obligations follow. At least that is the standard picture; but that picture is somewhat incomplete. The orthodox view of legal personhood is that it requires no necessary connection with human personhood; the legal person is simply whomever, or whatever, law says it is. And recently, the law has had quite a lot to say on expanding these conceptual boundaries. Examples include conferring legal personhood on a range of natural phenomena (such as rivers, mountains, and mother nature), movements to extend legal personhood to animals, as well as related but adjacent conversations about the appropriate legal recognition for AI. Such instances require careful consideration of the nature and scope of legal personhood in order that we may pursue its coherent and principled development. This article makes a modest case for how we might do so.
In 2024, the South Australian Equal Opportunity Commissioner conducted a follow-up review of a 2021 Report into harassment in the South Australian Legal Profession. Where the 2021 Report considered that bullying was as prevalent as sexual and discriminatory harassment, the 2024 Report found that two in every five respondents to the review had experienced bullying in the three years since 2021. One in five respondents said their bully was a judicial officer. One of the drivers facilitating bullying was identified by the Commissioner as incivility. In this article the author analyses what civility is and the centrality of civility to the practise of law and the administration of justice, hypothesising that addressing the more easily recognisable incivility will go a considerable way to addressing bullying.
The previous part of this article considered the legal and economic background to the phrase "welfare of Australians" in s 2 of the Australian Competition and Consumer Act 2010 (Cth), a provision that is central to the new compulsory notification regime coming into full effect in 2026. Having regard to that context, this part applies that learning to the proper reading of the phrase. An Appendix sets out the specific interpretative principles which apply to legislation which has "mixed economic and legal content".
This two-part article was prompted by the High Court decision in Allianz, which we discuss in Part II. Part I distinguishes between waiver, election and estoppel, and draws attention to some of the difficulties associated with the principle of election, that have often been acknowledged. In Part I, we consider termination and rescission, the distinction between rescission at common law and in equity, and, importantly, the role of affirmation in relation to each. Part II will be published in next month's issue of this Journal.
The interpretation in Crosby v Kelly of s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as a law of the Commonwealth for the purposes of s 76(ii) of the Constitution has had significant consequences for the Australian Judicature, including, most notably, the establishment of the Federal Court's defamation jurisdiction. This article considers and tests the conceptual underpinnings of Crosby v Kelly's reasoning. While the Commonwealth Parliament undoubtedly has legislative power to confer jurisdiction on the Federal Court with respect to defamatory publications in the territories, this article argues that there is considerable doubt that, as a matter of statutory construction, that power was exercised in the enactment of s 9(3). If the Federal Court's jurisdiction cannot be sustained under s 9(3), this article argues that there would not appear to be a clear and established basis for the Federal Court to hear and determine defamation proceedings.
Practitioners often assume that once an expert report is served, the letters of instruction and material provided to and relied upon by the expert should be disclosed before the hearing. Similar assumptions arise with evidentiary statements that set out the substance of legal advice. However, conflicting intermediate appellant authority cast doubt on such assumptions and throw light on the tension between (1) case law suggesting that there is no waiver of privilege over such material when served and (2) the case management principles expressed in ss 56-60 of the Civil Procedure Act 2005 (NSW) and ss 37M-37P of the Federal Court of Australia Act 1976 (Cth). This article explores the case law concerning whether served evidence, and any underlying documents, are no longer subject to client legal privilege and attempts to identify a consistent approach that can be followed in the Federal and State courts based on modern case management principles.
The Australian Parliament has recently introduced major changes to the regulation of the legal profession. Those changes will be implemented through amendments to the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth). This article provides an overview of the AML regime as will apply to the legal profession. The legislation is complex, with a considerable number of unknowns. For the purposes of this article the review will focus largely on key amendments.
The recent introduction of a system of compulsory notification of certain acquisitions-a "suspensory administrative system" which is a form of public administration termed the 'administrative state' - brings into focus the proper meaning of the object of the Competition and Consumer Act 2010 (Cth), especially the phrase "the welfare of Australians". This phrase guides all relevant determinations under the compulsory notification regime. The meaning of that phrase is considered through an historical, comparative and purposive approach to interpretation. Because this is a form of economic legislation it requires that both the legal and economic background be examined. That meaning encompasses a broad range of societal elements that make up the totality of Australians. In this first part, the legal and economic background is discussed. A second part will discuss and apply the interpretative principles relevant to legislation which has "mixed economic and legal content"
This article examines the growing phenomenon of self-represented litigants utilising the "strawman duality" form of pseudolegal argument, and the risk of trial judges grappling with the issue. It describes the emergence of a "strawman trap" whereby, attempts by unwary trial judges to cut the Gordian knot of the convoluted pseudolaw arguments may become an appealable error. It then outlines several different approaches that may be used by trial judges to avoid this trap, and to otherwise deal with pseudolaw challenges. It argues that pseudolaw is an increasingly problematic phenomenon detrimentally affecting both the administration of justice and the interests of litigants, but that a more informed approach can aid the effective diffusing of the threat posed by it.
