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Winner of the 2018 Inner Temple New Authors Book Prize and the 2016 SLS Peter Birks Prize for Outstanding Legal Scholarship. Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts. The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration. The book was the winner of the 2016 SLS Peter Birks Prize for Outstanding Legal Scholarship and the 2018 Inner Temple New Authors Book Prize.
The original thesis of this book is that, in Australia, natural justice has become an aspect of constitutional rather than administrative law. This view of procedural justice is developed in the context of UK and Commonwealth law in a way that brings both historical and doctrinal research to bear on important contemporary issues in judicial review. The author traces the origins and fluctuating development of the idea and practice of natural justice in England and its adaptation to the planned state in Australia. Consideration is given to the impact of the so-called new property and the broadening protection of citizens' rights, the growing significance of the doctrine of legitimate expectations, and the changing role of the notion of ultra vires as a legitimizing basis for judicial review. The book culminates in a critical examination of the idea of common law constitutionalism and the need to develop present-day rationales for the protection of procedural rights.
Modern Administrative Law provides an authoritative overview of administrative law in Australia. It clarifies and enlivens this crucial but complex area of law, with erudite analysis and thoroughly modern perspectives. The contributors - including highly respected academics from 11 Australian law schools,as well as eminent practitioners including Chief Justice Robert French AC and Justice Stephen Gageler of the High Court of Australia - are at the forefront of current research, debate and decision making, and infuse the book with unique insight. The book examines the structure and themes of administrative law, the theory and practice of judicial review, and the workings of administrative law beyond the courts. Administrative law affects innumerable aspects of political, commercial and private life, and yet is often considered difficult to understand. Modern Administrative Law unravels the intricacies and reveals how they are applied in real cases. It is an essential reference for students and practitioners of administrative law.
This book lays out foundations for a "science of morals." Binmore uses game theory as a systematic tool for investigating ethical matters. He reinterprets classical social contract ideas within a game-theory framework and generates new insights into the fundamental questions of social philosophy. In contrast to the previous writing in moral philosophy that relied on vague notion such as " societal well-being" and "moral duty," Binmore begins with individuals; rational decision-makers with the ability to empathize with one another. Any social arrangement that prescribes them to act against their interests will become unstable and eventually will be replaced by another, until one is found that includes worthwhile actions for all individuals involved.
This book examines the Australian High Court's enormously controversial and politically explosive transformation during the 1990s. Led by Chief Justice Anthony Mason, the Court embarked on a concerted effort to recast its role within Australia's legal and political systems. The Court moved to the storm center of Australian politics as it became a catalyst for reforms that appeared unobtainable through parliamentary means, including rights for Australia's indigenous population and free speech protections. Securing unprecedented access to Australia's High Court and senior appellate judges, Pierce describes how the transformation unfolded, identifies the conditions that encouraged it, and explores how the Mason Court reforms have attenuated in recent years in the face of a hostile conservative government and in the absence of formal support structures, such as a bill of rights. The book situates the High Court's transformation in the wider context of similar changes that occurred in other common law judicial systems during recent decades, including the United States, Great Britain, and Canada. "Inside the Mason Court Revolution is the 'go to' book for a solid, accessible analysis of recent jurisprudential changes on Australia's High Court, an informative explanation of why these changes occurred, and thoughtful commentary on how permanent they may be." -- Law & Politics Book Review "Pierce intelligently analyses the reasons for the Court's activism during this period, such as the passage of the Australia Act 1986 and Australia's growing legal independence, the introduction of compulsory retirement for High Court judges, and the requirement for leave to appeal in virtually all cases. This excellent work cogently analyses the criticisms made of the Court during this period that it was too 'activist' and political' for an unelected body." -- Law Institute Journal "The book is based on more than eighty in-depth interviews with the senior judiciary in Australia in the late 1990s... Pierce quotes at length from the interviews, and it is extremely valuable to hear these judges in their own words... the quotes are enormous fun, and can be very thought provoking." -- Oxford University Commonwealth Law Journal "Herein lies the book's great importance, Pierce so convincingly argues--utilising the remarks of the very echelon of the Australian profession as support--that how courts function is dependent upon a complex interplay of legal, individual, institutional and political variables that neither camp--lawyer or political scientist--can remain happily in their comfort zone." -- Federal Law Review "Against what sorts of political standards do we assess claims of the use and abuse of judicial powers? The relevance of Pierce's fascinating book is that it provides a fresh answer to this quite fundamental question... Pierce deserves many non-Australian readers." -- The American Review of Politics "Pierce has thoroughly researched his subject and, for that reason, this book is a worthwhile addition to any library." -- Precedent Magazine "[T]he judicial comments recorded in this book are in many cases both thoughtful and thought-provoking. They provide great insight into the judicial role and method from those who practise it. Both the divergences and similarities in views are instructive and this material could well prove useful for future studies on the judiciary." -- Melbourne University Law Review
The High Court, the Constitution and Australian Politics is an in-depth exploration of the relationship between decisions of the High Court and broader political currents in Australia. It begins with an investigation of the patterns and effects of constitutional invalidation and dissent on the High Court over time, and their correlation with political trends and attitudes. It also examines the role of constitutional amendment in expressing popular constitutional understandings in the Australian system. Subsequent chapters focus on the eras marked by the tenure of the Court's 12 Chief Justices, examining Court's decisions in the context of the prevailing political conditions and understandings of each. Together, the chapters canvass a rich variety of accounts of the relationship between constitutional law and politics in Australia, and of how this relationship is affected by factors such as the process of appointment for High Court judges and the Court's explicit willingness to consider political and community values.
The doctrine of judicial recusal enables - and may require - a judge who is lawfully appointed to hear and determine a case to stand down from that case, leaving its disposition to another colleague or colleagues. The subject is one of considerable import and moment, not only to 'insiders' in the judiciary, but also to litigants and their lawyers. Understanding the principles which guide recusal is also to understand the fundamentals of judging in the common law tradition. The subject is therefore of considerable interest both at practical and theoretical levels, for it tells us most of what we need to know about what it means "to be a judge" and what the discharge of that constitutional duty entails. Unsurprisingly therefore, the subject has attracted controversy, and some of the most savage criticisms ever directed at particular judges. The book commences with an introduction which is followed by an analysis of the essential features of the law, the legal principles (common-law origins, the law today in the USA, UK and Commonwealth) and the difficulties which currently arise in the cases and by operation of statute. The third part looks at process, including waiver, necessity, appellate review, and final appeals. Three specific problem areas (judicial misconduct in court, prior viewpoints, and unconcious bias) are then discussed. The book ends with the author's reflections on future developments and possible reforms of recusal law.
The High Court is taking an increasingly important role in shaping the contours of democracy in Australia. In deciding fundamental democratic questions, does the Court pursue a consistent and overarching democratic vision? Or are its decisions essentially constrained by institutional and practical limitations? Judging Democracy, first published in 2000, addresses this question by examining the Court's recent decisions on human rights, citizenship, native title and separation of powers. It represents the first major political and legal examination of the Court's new jurisprudence and the way it is influencing democracy and the institutions of governance in Australia. A foreword to the book has been written by the former Chief Justice of the High Court, Sir Anthony Mason.