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James Cook Univeristy Law Review (JCULR)
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Graw, Stephen --- "Preface" [2023] JCULawRw 1; (2023) 29 James Cook University Law Review i


The signature legal event for 2023 was, without doubt, the referendum on 14th October seeking approval for an amendment to the Australian Constitution to enshrine an Indigenous Voice to parliament, fulfilling an undertaking made by Prime Minister Albanese on the election of his Labor government in May 2022.

In this year’s annual Mayo Lecture, Dr Bryan Keon-Cohen AM KC, a key figure in the Mabo Case in 1992, examines the backgrounds, motivation and conduct of the main players in that case – individuals, communities, and governments – both before and during it, and explores how the referendum, and Voice, Treaty, Truth reforms, could have assisted to resolve many of the issues that arose then, and which continue as challenges today. As his lecture was delivered before the date of the referendum the paper now also includes a postscript, reflecting on the possible consequences of that failure and considering how the issues that were to have been addressed through the Voice can now be best progressed.

In a paper initially presented as part of JCU’s Law Seminar Series, Justin Greggery KC, Counsel Assisting the Royal Commission into the Robodebt Scheme, continues with the justice theme by discussing the Commission’s examination of a debt assessment and recovery system that controversially, and unlawfully, claimed nearly $2 billion in ‘overpaid’ social security entitlements from over 400,000 individuals. He notes that the Commission’s recommendations were ‘directed to key failings in the systems and structures which were overcome by the willingness of individuals to circumvent the existing checks and balances’ and that they are ‘no doubt ... under active consideration by the government’.

Government process failures are also the subject of Bede Harris’ paper. It discusses pork-barrelling in Australia, the inadequacy of legal remedies to prevent it and how constitutional protection of socioeconomic rights could provide an avenue for suppression of the practice. He notes that courts in South Africa have interpreted socioeconomic rights provisions in that country’s Constitution to require that government funding of socioeconomic programmes be allocated in accordance with a standard of reasonableness – and have created novel remedies to require the executive to revise how funds are distributed when that standard has been breached. He concludes that, if similar rights were protected in the Australian Constitution, that ‘would constitute a powerful disincentive against governments using public funds for political purposes.’

Dr Tom Middleton continues the governmental theme by examining ASIC’s administrative power under s 206F of the Corporations Act 2001 (Cth) to disqualify persons from managing a corporation for up to five years. He argues that, while it is intended to assist ASIC to achieve its regulatory objectives of protecting and promoting the confidence of Australian business participants and enforcing the corporations legislation efficiently and cost-effectively, the section is not as effective as it could be – largely because of uncertainties in the interpretation of its language. He concludes that s 206F should be redrafted to provide ASIC with a clearer and more efficient and effective disqualification power.

Chris Davies’ paper on women’s sport and the law moves the direction of discussion to individual rights. With the continuing rise of women’s sport at national and international levels a number of legal issues have emerged, including in relation to player contracts, equal pay, draft systems, labour market controls and discrimination, the implications of all of which are discussed in the paper.

Individual rights are also the subject of Karnika Bansal’s paper, although in the context of performers’ rights under copyright law. Unlike the situation with other ‘authors’, including lyricists, composers, and production companies, performers do not receive equivalent property rights and that hinders their recognition and protection. The paper considers existing frameworks and suggests that there is a case for recognition of co-authorship rights for performers.

Moving from individual rights to group rights Dr Daniel Lavery’s paper examines whether native title is proprietary in nature. A Full Federal Court decision in May 2023 determined that native title is more than a mere ‘bundle of rights’. It is, instead, ‘property’ within the terms of s 51(xxxi) of the Constitution. Special leave to appeal that decision to the High Court was granted on 19 October 2023 and the appeal is scheduled to be heard in Darwin in August 2024. The paper considers the Full Federal Court’s decision and the issues that are likely to be argued on the appeal.

Finally, Chris Davies and Neil Dunbar consider two cases with clear significance for contracts between sporting clubs – Leeds United Football Club Limited v RasenBallsport Leipzig GmbH and Cardiff City Football Club Limited v SASP Football Club de Nantes. Both involved disputes over financial liability under player transfer agreements that did not pan out as at least one of the parties in each case had intended. Given the amounts involved, they demonstrate the need for careful planning.

As a closing note, the Editorial Board would also like to record, formally, our gratitude to all of the contributors to this 29th volume of the JCULR. The varied subject areas covered are, once again, a testament to the diversity of legal scholarship. We would also like to express our thanks to our reviewers whose comments provided the authors with such valuable guidance. We thank them all.

Emeritus Professor Stephen Graw

(for the Editorial Board)

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