Adelaide Law Review

In 21st century business format franchising, the search for solutions has taken the legislature and the courts into the areas of unconscionable conduct and good faith. To date these concepts have lacked the ability to curtail franchisor opportunism in exercising contract-granted discretions. Similar difficulties afflict administrative law approaches to good faith, lawfulness and rationality, errors of law and fact finding, and fairness - criteria against which contract-based discretions have been appropriately exercised by franchisors. We examine franchising cases against the administrative law approaches, acknowledging doctrinal differences (as well as similarities) and conclude that a common body of principle underlies both areas. This allows a fresh approach to interpreting the exercise of franchisor's discretions.

Jenny Buchan

Gehan Gunasekara

Adelaide law review

Administrative Law Parallels with Private Law Concepts: Unconscionable Conduct, Good Faith and Fairness in Franchise Relationships

行政法与私法概念的平行关系：特许经营关系中的不公平行为、诚信与公平

In this article I argue that in 'Singh v Commonwealth' ('Singh') the High Court, without good reason, removed the accepted notion that birth in Australia takes a person outside the legislative power granted to the Commonwealth in the aliens and immigration powers. In the article I examine in detail the judgments in 'Singh', especially the claim made in the majority judgments that there were no relevant authorities concerning children of aliens born in Australia. I then examine all the major cases dealing with the aliens power decided before 'Singh' and show that, contrary to the majority's claim, there was a longstanding series of authorities that directly and indirectly held that a person born in Australia could not be an alien. I conclude by showing that the High Court has consistently said that previous decisions should only be overturned after serious consideration and for good reasons. This fidelity to authority has been forcefully defended by many High Court judges, including several who decided 'Singh'. It was not, however, given effect to in 'Singh' and this led to a significant change in one of our most important human rights - the right to call somewhere home.

John Gava

Losing our birthright: 'Singh v Commonwealth'

失去我们的出生权：“辛格诉联邦案”

In 1969, the South Australian Parliament passed amendments to the criminal law designed to liberalise abortion and clearly state the circumstances in which abortion services might lawfully be provided by medical practitioners. Nevertheless, abortion offences, and the circumstances under which abortion may lawfully be provided, are stated in the Criminal Law Consolidation Act 1935 (SA), and this fact has given rise to continued concern about the legality of abortion in South Australia. This article considers whether there is any basis for these concerns, with particular focus on the provision of medication abortion, which was not contemplated by Parliament in 1969. In doing so, it draws on the language of the provisions and the extensive parliamentary debates that preceded their passage into law, arguing that Parliament's primary goal was to preserve women's health through clarifying the contexts in which lawful abortion would be available. We contend that any suggestion that medical abortion is criminal in South Australia, or that medical practitioners who comply with the statutory scheme in good faith run the risk of being prosecuted, is not grounded in an accurate account of the positive law. Nor is it supported by the application of the law in practice since 1969.

Mary Heath

Ea Mulligan

ABORTION IN THE SHADOW OF THE CRIMINAL LAW? THE CASE OF SOUTH AUSTRALIA

刑法阴影下的堕胎？南澳大利亚的案例

The issue of defence disclosure in criminal proceedings has come under
renewed focus as a result of the recent Criminal Procedure Amendment
(Mandatory Pre-Trial Defence Disclosure) Act 2013 (NSW) which
imposes comprehensive duties similar to those that exist in Victoria and
England. This article argues that South Australia also needs legislative
reform to implement broader requirements for pre-trial defence disclosure.
This article suggests that cultural change amongst lawyers and judges
is also required. South Australia would benefit from such reforms as it
would improve the efficiency of the criminal trial process. The increased
complexity and length of modern criminal trials, combined with the current
financial climate, means that criminal procedural reform must be shaped by
considerations for efficacy. The legislature must be willing to take a more
managerialist approach to criminal procedure, while still preserving an
accused’s rights within the adversarial system. It is suggested that the traditional
arguments against defence disclosure are more rhetorical than real
and that current resistance to South Australia’s existing pre-trial defence
disclosure regime is explicable by a wider cultural resistance within the
legal community to mandated defence disclosure. In order for a stricter
regime of defence disclosure to be successfully implemented, Parliament
needs to be mindful of this culture and provide incentives for an accused
to participate in pre-trial disclosure, rather than relying solely on sanctions
for noncompliance. Despite the challenges in this controversial area, a
scheme for fair, effective and enforceable pre-trial defence disclosure can
be identified and should be adopted in South Australia.

Lucy Line

Claire Wyld

David Plater

Pre-trial defence disclosure in South Australian criminal proceedings: time for change?

南澳大利亚刑事诉讼中的审前辩护披露：变革时机已到？

Sentencing a parent will necessarily impact upon their dependent children; if a parent is imprisoned, hardship to their children is inevitable. In all Australian jurisdictions, judges and magistrates are able to consider the hardship that would be caused to an offender’s family and dependants when determining a sentence. However, Australian courts have held that the circumstances will have to be ‘exceptional’ for hardship to children to influence sentencing. In this research, we considered 85 sentencing appeal cases from all Australian jurisdictions where hardship to the defendant’s dependent children as a result of the sentence was considered. This article discusses the cases in order to consider the kinds of circumstances that have been found to be ‘exceptional’. The authors also consider the mercy discretion, and its relationship with the exceptional circumstances test. The article identifies concerns with the requirement for exceptionality and argues that the best interests of offenders’ children should always be a significant factor to be weighed in the sentencing process.

Tamara Walsh

Heather Douglas

'Sentencing Parents: The Consideration of Dependent Children

“判决父母：对受抚养子女的考量”

Coleman Phillipson, international lawyer and Professor of Law at the University of Adelaide from 1920 to 1925, became the first Australian professor of law to be forced to resign, when a controversy over private coaching of students ended his academic career. He was the first Australian professor of law of Jewish heritage, his family having settled in northern England after leaving Russian Poland as anti-Semitism flared there in the early 1880s. Before it appointed Phillipson, the University received private warnings that he was Jewish. While he conceded the truth of the key allegations that led to his resignation, he believed that he was unfairly treated. The details of the controversy, recorded in archival sources, allow it to be seen in the context of Phillipson’s life and the University’s history.

John Waugh

Controversy and Renown: Coleman Phillipson at the Adelaide Law School

争议与声誉：科尔曼·菲利普森在阿德莱德法学院

This article examines the revolution of socially responsible approaches to financing in the sustainable debt market, primarily in green bonds and sustainability-linked loans. Specifically, this article considers the risk of greenwashing, and the regulatory governance and contractual mechanisms in place that attempt to ameliorate this risk. The concept of ‘impact’ is also examined to demonstrate the difficulty market participants face in measuring and managing outcomes. To ensure systemic legitimacy and thereby sustained growth in sustainable debt financing, it is contended that contracting parties to these debt instruments need to incorporate performance-based provisions within the relevant legal documentation to better ensure that positive social and environmental externalities are achieved from their investments. Relatedly, market participants must continually strive to develop a comprehensive, tailored understanding of how ‘impact’ is most relevantly measured. A better understanding of ‘impact’ will then inform the contractual targets to be set, as well as provide standardisation for future sustainable investments.

Ryan Chan

Ensuring impactful performance in green bonds and sustainability-linked loans

确保绿色债券和可持续发展挂钩贷款的显著表现

Criminal laws in all Australian states and territories facilitate the prosecution of repeated or persistent child sexual abuse by allowing for a single charge that may be proved by evidence of multiple instances of abuse. One approach, pioneered in Queensland, is to create an offence where an adult ‘maintains an unlawful sexual relationship with a child’. In this article, we compare the recent implementation of this approach in South Australia with the Queensland law to illuminate ongoing difficulties in the drafting, interpretation, and operation of these laws and provide recommendations for future reform.

Elizabeth Dallaston

Ben Mathews

'Unlawful Sexual Relationships': A Comparative Analysis of Criminal Laws Against Persistent Child Sexual Abuse in Queensland and South Australia

“非法性关系”：昆士兰州和南澳大利亚州持续儿童性虐待刑事法律的比较分析

确保绿色债券和可持续发展挂钩贷款的有效表现

短名
Journal Impact	0.23
国际分区	LAW(Q3)

涉及主题	政治学法学艺术文学类出版项目调试社会学经济哲学历史计算机科学地理考古业务政治生物心理学法律与经济学认识论语言学
出版信息	出版商: University of Adelaide，出版周期: ，期刊类型: journal，开源期刊: 否
基本数据	创刊年份: 2019，原创研究文献占比: 85.71%，自引率:0.00%， Gold OA占比: 0.00%

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Administrative Law Parallels with Private Law Concepts: Unconscionable Conduct, Good Faith and Fairness in Franchise Relationships

Losing our birthright: 'Singh v Commonwealth'

ABORTION IN THE SHADOW OF THE CRIMINAL LAW? THE CASE OF SOUTH AUSTRALIA

Pre-trial defence disclosure in South Australian criminal proceedings: time for change?

'Sentencing Parents: The Consideration of Dependent Children

Controversy and Renown: Coleman Phillipson at the Adelaide Law School

Ensuring impactful performance in green bonds and sustainability-linked loans

'Unlawful Sexual Relationships': A Comparative Analysis of Criminal Laws Against Persistent Child Sexual Abuse in Queensland and South Australia

Ensuring impactful performance in green bonds and sustainability-linked loans

Controversy and Renown: Coleman Phillipson at the Adelaide Law School

ISSN	0065-1915
h-index	4