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A Critique of the Development in the High Court’s Jurisprudential Approach: Extinguishment of Native Title and the Principle of Equality before the Law

Introduction

One of the most challenging aspects of the law of native title is its historical underpinnings in the development of international jurisprudence of European colonial powers regarding settlement, conquest and cession,[1] which asserts and legitimises the sovereign power assumed by the Crown to be able to extinguish native title rights and interests,[2] herein after generally referred to as ‘traditional title’ and ‘traditional title rights and interests’, which seems a less derogatory way of referring to it.[3] While repudiating the legal fiction of terra nullius and holding that the Crown’s radical title acquired upon settlement was burdened by the prior traditional title rights and interests, the High Court maintained that tradition title could be extinguished by valid legislative and executive acts.[4] I will argue that, irrespective of which legal test for extinguishment is applied, while the protection of traditional title appeared to be grounded upon the application of the principles of equality, ultimately, because traditional title was deemed to have a “unique status” – due to its source, not from Crown grant, but traditional law and custom – which rendered it uniquely vulnerable to extinguishment, the fact that it is not being protected to the same degree by the universal presumption against Parliament intending to extinguish private property rights, evinces a fundamental rejection of the principles of equality.[5]   

This essay will begin by critically examining the different approaches to equality in Mabo v Queensland (Mabo (No 1)),[6] contrasting the narrower, literal approach of Wilson and Dawson JJ with the broader approach of Brennan, Gaudron, Toohey and Deane JJ. I will explore how these distinctive approaches mirror the tension in international law between the protection of minority rights versus distinctive collective rights, such as the right to self-determination for indigenous peoples.[7] Having laid this foundation, I will examine the underpinnings of the “clear and plain intention” test in Mabo (No 2)[8] in the common law presumption regarding Parliament’s interference with private property rights.[9] I will discuss some of the laws regarding compulsory acquisition and its relationship to extinguishment of native title. Following from this, I will explore the shift in jurisprudential approach towards the “inconsistency of incidents” test,[10] and the later shift back to the “clear and plain intention” test[11] – critically examining the connection between these different approaches and the application (or repudiation) of the principles of equality.[12] Finally, I will examine the critical opinions of the extinguishment of native title in Australian law,[13] the jurisprudence of regret and genuine acknowledgement of difference in developing a pluralistic jurisprudence.[14]

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Recognition of Non-Binary Genders on Birth Certificates: The Case for Gender Abolitionism from Queer & Feminist Perspectives

This is the critical essay based upon my earlier Project Proposal, which you can read here. I achieved 20/20 for my Project Proposal, and this Major Project (my critical essay) achieved 60/60.

Introduction

Considering the important, if not central, place that the law plays in the development and maintenance of social regulation,[1] it is not surprising to see how entrenched the heteronormative/cis-normative conception of sex/gender is within Australian law.[2] This paper will examine the current position in law regarding the recognition of transgender, intersex and other non-binary genders within Australian law,[3] focusing on the ability given to adults to register change from their assigned sex/gender at birth in acknowledgement of their self-identified gender outside the gender binary. This will involve an examination of the historical development of the understanding of sex/gender in UK, Australian and international law, [4] before turning to a close examination of the current Births, Deaths and Marriages Registration (‘BDMR’) laws in Queensland (as an example of the continued persistence of a bio-medical model[5] within Australian law), compared to the more progressive reforms in Tasmania and Victoria (as examples of a move towards a self-identification model of sex/gender).[6]

My critique will involve exploring various aspects of queer and feminist theories that relate to how sex/gender could be conceptualised, the relationship between embodiment and gender, sex as biological fact versus gender as social construct, and of the concept of ‘value-free science’.[7] Applying these various theoretical perspectives, I will critique the relevance of gender in law, and argue for developing towards a genderless society – as envisioned by certain queer and feminist theorists.[8]

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A Critical Examination of the Doctrine of Separate Legal Personality and Piercing/Lifting the Corporate Veil

Introduction

From its inceptions in the late Middle Ages, the incorporation of business activities has remained an area of controversy both in legal scholarship and the political and social sciences. In the early days of the twentieth century, Ambrose Bierce wrote in his Devil’s Dictionary, that a corporation is ‘an ingenious device to obtain profit without individual responsibility.’[1] On many levels, this satirical statement captures the practical realities behind the concept of separate legal personality, limited liability and the veil of incorporation. This essay will examine these doctrines from both traditional theoretical perspectives and critical perspectives, with an emphasis upon the implications for these doctrines to the development of jurisprudence related to corporate groups.[2]

This essay will begin with an introduction to the doctrines of separate legal personality and limited liability, their basis in the general law[3] as well as those relevant sections of the Corporations Act 2001 (Cth) (‘CA’) which affirm them.[4] I will then turn to an examination of the doctrine of the corporate veil, from a traditional theoretical framework in concession[5] and contractarian theories,[6] including a discussion of some of the reasons behind the court’s reluctance to pierce or lift the corporate veil.[7] This will lead into a discussion of the several areas where the courts have decided to pierce or lift the corporate veil in the general law.[8]

Following on from this, I will turn to discuss several critical theories of the corporation – communitarian theories and CSR,[9] feminist critiques of the corporation[10] and Islamic jurisprudence and its relevance to international corporate activities.[11] Thus, I hope to shed light on the potential for recognising theoretical plurality in our understanding of corporate law jurisprudence in Australia.[12]

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Recognition of Non-Binary Genders on Birth Certificates

Recognition of Non-Binary Genders on Birth Certificates: A Comparison of Biomedical vs Self-Identification Models Underlying State BDMR Laws, with Reference to Feminist & Queer Theories of Sex, Gender and Embodiment

This is the Project Proposal for my current Critical Research Essay for my Gender & The Law Course. I hope my readers appreciate it. I’ll be working on the actual Major Project which will be due in mid-October. Here is the published Major Project (critical essay) which achieved 60/60.

Introduction – Topic Outline

I will be investigating the different models of sex/gender underlying the current differences in legislation regarding change of sex/gender in Queensland[1] compared to more progressive legislation in Victoria[2] and Tasmania.[3] Queensland’s law requires ‘sexual reassignment surgery’,[4] defined as:

A surgical procedure involving the alteration of a person’s reproductive organs carried out – (a) to help the person to be considered to be a member of the opposite sex; or (b) to correct or eliminate ambiguities about the sex of the person.[5]

Births, Deaths and Marriages Registration Act 2003 (Qld), sch 2 (definition of ‘sexual reassignment surgery’).

In contrast, the Victorian and Tasmanian legislation has recently been reformed in 2019 to allow a person to make a declaration of their gender identity based on their own self-identification.[6] Thus, on a spectrum between the traditional gender binary based on the biomedical model and an acknowledgment of gender diversity, based upon an individual’s self-identification of gender identity, Queensland’s law is still closer to the traditional biomedical model, whereas Victoria and Tasmania are much closer to a more progressive self-identification model.

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