: DUAO - Vol 37(2)

DUAO - 2012 - Vol 37(2)

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Developments around the country

DownUnderAllOver is a round-up of legal news from both State and federal jurisdictions, and contains topical articles and short pieces from Alternative Law Journal committees around the country.

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Bargwanna on proper use of trust funds by Trustees

Ellen Seymour
Federal

There are many organisations that use a trust as a vehicle for holding funds intended to be used for the purposes of their charity. Any that do so should carefully consider the decision handed down by the High Court on 29 March 2012 in Commissioner of Taxation v Bargwanna [2012] HCA 11.

The Court was concerned with whether the income tax exemption under Division 50 of the Income Tax Assessment Act 1997 (Cth) (‘the Act’) for a private charitable fund could be met if the trust fund was used for multiple purposes in addition to the charitable purpose. The Court considered whether it constituted a breach of trust by the trustees to use trust money in their personal capacity.

(2012) 37(2) AltLJ 133

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Rethinking the law curriculum: strategies for rural and regional Australia

Jennifer Nielsen and Amanda Kennedy
Federal
In 2001, a themed issue of the Alternative Law Journal (26(2)) explored issues related to access to the law and to legal services in regional, rural and remote communities. In their editorial, Jeff Giddings and Jennifer Nielsen called for increased research attention to better understand what constitutes regional, rural and remote communities, and to assist the formulation of more appropriate policy to meet their legal service and other needs.
(2012) 37(2) AltLJ 134

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New Evidence Act

Simon Rice
ACT

On 1 March 2012 the Evidence Act 2011 (the Act) commenced. The Act implements the model uniform evidence law which has been endorsed by all Australian Attorneys-General, and which has been implemented by the Commonwealth, NSW, Victoria, Tasmania and the Northern Territory.

The new Act goes further than other States and Territories in that it incorporates the ‘journalist privilege’ contained in the Commonwealth Evidence Act 1995, and model provisions not adopted by the Commonwealth, such as a ‘professional confidential relationship privilege’, mutual recognition of self incrimination certificates, and a wider range of circumstances in which a person is taken to not be available to give evidence.

(2012) 37(2) AltLJ 135

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Self-defence and police restraint

Simon Rice
ACT

The ACT Attorney-General, Simon Corbell MLA, has referred to the Law Reform Advisory Council a Bill which would limit people’s ability to rely on self-defence when accused of assaulting police.

The Crimes Legislation Amendment Bill 2011 says that a plea of self-defence may not be relied on by a person who resists what they believe was unlawful imprisonment, if that perceived unlawful imprisonment was due to restraint imposed by a police officer. Examples of ‘restraint’ in the Bill are detention for breath analysis, and a direction to remain at a place while roadside drug screening test is carried out.

The Bill, which is at the same time subject to scrutiny by the ACT Legislative assembly’s Standing Committee on Justice and Community Safety, appears to raise issues such as a person’s rights in responding to the exercise of police powers, and how best to address the question of assaults on police.

(2012) 37(2) AltLJ 135

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Housing protest afloat

Simon Rice
ACT
A university student is living in a teepee on a floating platform on Canberra’s Lake Ginninderra, as an alternative to the high cost of student accommodation. In late March, after two months on the lake, William Woodbridge was told by the ACT Department of Territory and Municipal Services to vacate the lake. Woodbridge said he would defy the order to move on, even though the ACT had said it would not enforce fines if he vacated as required. In early April Woodbridge applied to ACT Supreme Court for an injunction, relying on an unspecified ‘serious question of law’, and ‘authority’ given to him by local Ngambri people to remain on the lake.
(2012) 37(2) AltLJ 135

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