2022 Fellow Spotlight

A selection of books, conference presentations and other contributions to the law from Fellows of the Academy.  

Emeritus Professor David Barker AM FAAL has written a history of the Australian Academy of Law - A Sense of Common Purpose, published by Federation Press.

The book recounts the history and development of the Academy from its early beginnings in 1996, through its official launch in July 2007 at Government House in Brisbane to the end of 2020. It traces the influence on its development of the recommendations of the Australian Law Reform Commission in 2000 in its Report Managing Justice – A Review of the Federal Civil Justice System (ALRC Report 89), which recommended the establishment of such an Academy.

Sponsored by the Academy, the book has the advantage that its author, David Barker, has been involved with the organization from the beginning, then later as a Foundation Fellow and as its Secretary to the present time. His early involvement has meant that he has been able to observe the influence on its development exercised by both its Foundation and current Fellows, its three Presidents, all of whom have been Judges of the Federal Court of Australia, and its three Patrons, all of whom have been Chief Justices of the High Court of Australia.

The book will be of great interest to those concerned with the Academy’s role since its inception in promoting discussion on important issues within the Australian legal system and in supporting the future development of law in Australia.    

The book was launched on 21 June 2022 by the Hon Chief Justice James Allsop AO, Chief Justice of the Federal Court of Australia, and the event was chaired by the Hon Melissa Perry, a Judge of the Federal Court. 

The speech of the Chief Justice is at this link.

Other details about the book are on the Federation Press website. 

Professor David Barker, Justice Melissa Perry and Chief Justice James Allsop

29 July 2022

Academy fellows Mr Michael Murray and Professor Jason Harris have published the 11th edition of Keay’s Insolvency which has become a recognised text on personal and corporate insolvency law and practice in Australia. It is widely used by practitioners, academics, students and policy makers, and it is regularly cited in court judgments.   

This edition explains Australian insolvency law under the Bankruptcy Act 1966 and the Corporations Act 2001, in light of the substantial case law and practice developments flowing from the changes made by the Insolvency Law Reform Act 2016. The changes include new powers of the courts and the regulators, ASIC and AFSA, and new practitioner registration and regulation regimes.  Further changes to the law in relation to safe harbour, ‘ipso facto’ and phoenix companies, and debt agreements, and then further reforms again as a consequence of the economic and social impacts of COVID-19, are also explained.  

While Keay’s Insolvency continues with the authors’ views on the need for major reform of insolvency law and practice, in chapter 1, they explain what they see as initial structural reforms necessary to address significant gaps and deficiencies in the operation of insolvency law in Australia. These were the subject of the authors’ presentation to an Academy roundtable in August 2021: see Australian Academy of Law - Sydney Insolvency Roundtable.

Keays is now approaching its 30th year of publication with this, its 11th edition. The original first edition was written by Professor Andrew Keay, now of the University of Leeds in the UK.  Michael Murray has been involved since the 4th edition and Jason Harris since the 7th edition. 

Further details can be found here: Keay's Insolvency: Personal & Corporate Law and Practice, 11th Edition – Thomson Reuters Australia

27 July 2022

Allegiance, Citizenship and the Law - The Enigma of Belonging has recently been published by Academy Fellow , Professor Emerita Helen Irving, of Sydney Law School. 

“Weaving together theoretical, historical, and legal approaches, this book offers a fresh perspective on the concept of allegiance and its revival in recent times, identifying and contextualising its evolving association with theories of citizenship.

The book explores how allegiance was historically owed in return for the sovereign’s protection but has been redeployed by modern governments to justify the withdrawal of protection. It examines allegiance from multiple perspectives, including laws for the revocation of citizenship, new ideas of citizenship education, the doctrine of treason, oaths of allegiance, naturalisation tests, and theories of belonging. This thought-provoking book ultimately finds allegiance to be a feudal concept that is inappropriate in the liberal democratic state, and is misplaced, even dangerous, in its association with modern citizenship. Rejecting allegiance, but reaching a constructive resolution, it explores modern alternatives to describe the bond between citizens, advancing a new perspective on the ‘enigma’ of belonging.

With its carefully constructed analysis, this work will prove pivotal in furthering our understanding of allegiance and citizenship. Its legal–theoretical account of a complex and under-theorised concept make it valuable reading for legal and political theorists, legal historians, and scholars of citizenship, law, and social politics”.

The book is published by Edward Elgar Publishing: for purchase and other details please see this link:  Allegiance, Citizenship and the Law (e-elgar.com)

Allegiance, Citizenship and the Law

19 July 2022

Professor Irving’s comment on the recent High Court of Australia decision in Alexander v Minister for Home Affairs [2022] HCA 19 (8 June 2022) concerning the invalidity of section 36B of the Australian Citizenship Act 2007, as to the cessation of a person’s citizenship if certain conduct “demonstrates that the person has repudiated their allegiance to Australia”, is on the Australian Public Law blog.

Zines and Stellios's The High Court and the Constitution, 7th edition by James Stellios

It has been seven years since the publication of the 6th edition of Professor Zines’s classic book on Australian constitutional law, The High Court and the Constitution. In that time the High Court has handed down a range of important decisions transforming, extending and developing existing constitutional law principles.

The 7th edition of the book, by Professor James Stellios, contains analysis and critique of the High Court’s jurisprudence over that period. Revisions have been made to almost all chapters to update the existing law. The most significant revisions relate to:

  • The new developments on the implied freedom of political communication, including the adoption of structured proportionality;
  • The alignment of the intercourse and trade and commerce limbs of s 92 in the context of border closures to address the COVID-19 pandemic, and the acceptance of structured proportionality in that context;
  • The acceptance of a reciprocal intergovernmental immunities doctrine;
  • The High Court’s continuing development of Chapter III principles;
  • The interpretative method of the Court, including in cases on dual citizenship; and
  • The updated analysis of principles of characterisation, particularly in relation to the aliens power and incidental power.

Published by Federation Press: full details here.

8 July 2022

Academy Fellow Professor Matthew Groves of Deakin University has co-edited a new book - The Ombudsman in the Modern State - with Professor Anita Stuhmcke of UTS.

Ombudsmen are a global phenomenon. They are also a critical part of the public law frameworks of modern liberal democracies. This is the first edited collection to examine the place of the ombudsman in the modern state.

In its sixteen chapters, it brings together key international scholars to discuss current and future challenges for the Ombudsman institution and the systems of government within which they operate, with its authors heralding from most continents - Canada, the Netherlands, the United Kingdom, Australia, New Zealand, Hong Kong, South Africa, Germany, and Austria.

Professor Groves and Professor Stuhmcke open the collection with a joint chapter on the evolution and future of the ombudsman. Academy fellow Professor John McMillan of the ANU also provides a chapter, on Complaint Handling Effectiveness: What Can We Learn from Industry-Based Ombudsmen Schemes?

This global analysis is both in-depth and expansive in its coverage of the operation of Ombudsmen across civil and common law legal systems.

The book has two key themes:

- the enduring question of the location and operation of Ombudsmen within public law systems in a changing state, and

- the challenges faced by Ombudsmen in contemporary governance.

This collection adds to the public law scholarship by addressing a common problem faced by all avenues of public law review – the evolving nature of modern public administration.

The book is published through Bloomsbury at this link The Ombudsman in the Modern State: : Matthew Groves: Hart Publishing (bloomsbury.com)

The Ombudsman in the Modern State cover

7 July 2022

A number of fellows of the Australian Academy of Law are attending or have papers at the quadrennial conference in London of INSOL International, from 25-28 June 2022. INSOL is the world-wide federation of national associations of accountants and lawyers who specialise in turnaround and insolvency.

Academy fellow Mr Scott Atkins, of Norton Rose Fulbright, is the President of INSOL International and as such is responsible for the organisation of what is the 40th anniversary of INSOL International itself, with over 930 delegates attending the conference comprising judges, regulators, academics and practitioners from all over the globe. 

INSOL comprises 45 Member Associations with over 10,500 professional members. INSOL also has ancillary groups that represent the judiciary, regulators, financiers, academics, insolvency mediators and arbitrators, each of which has individual sessions at the conference.  

At the Academics Colloquium, Academy fellow Professor Christopher Symes (Adelaide) has a paper jointly authored with his colleague Dr Sulette Lombard (Uni SA), as presenter, on their insolvency litigation funding project.

Academy fellows Adjunct Professor Rosalind Mason (QUT) and Mr Michael Murray have jointly authored a paper with Professor Paula Moffatt of Nottingham Law School, Nottingham Trent University, comparing insolvency practitioner regulation in the UK and Australia, the paper being presented by Professor Moffatt, with Professor Mason. 

Both topics – litigation funding, and practitioner regulation - are of current significance in Australian law reform.