About Ann O'Connell

Professor Ann O'Connell is Professor of Law at Melbourne Law School specialising in taxation. She is also Special Counsel at Allens Linklaters, a member of the Advisory Panel to the Board of Taxation and a member of the Australian Tax Office Public Rulings Panel. She is also a member of the Working Group established by the Assistant Treasurer in 2012 to consider the tax concessions for the Not-For-Profit Sector.

Australian Feminist Judgments: Righting and Re-Writing Law: Book Review

By Professor Ann O’Connell

Do women think differently to men? Do women lawyers think differently to their male counterparts? More importantly, do women judges judge differently to male judges? A new book, the product of an Australian Research Council grant, seeks to deal with this question. The book is Australian Feminist Judgments: Righting and Re-Writing Law, edited by legal academics Professor Heather Douglas, Dr Francesca Bartlett, Dr Trish Luker and Professor Rosemary Hunter. The book draws inspiration from similar projects in the United Kingdom and Canada, but, as its title indicates, the focus is on Australian judicial decisions. The purpose of the project is to investigate the ‘possibilities, limits and implications of a feminist approach to legal decision making’.

The Australian project involved 55 (mainly) academic lawyers who were tasked with revisiting and rewriting significant decisions in their chosen field which were ‘influenced by, or alternatively, offended feminist principles’. Most, but not all the contributors are women. Most, but not all of the judgments are High Court decisions. The oldest judgment is from 1963 but the majority are more recent cases: 17 of the 26 decisions being handed down since 2000. This is significant because the task was not about updating the judgments to reflect contemporary social mores, but rather it was to step into the shoes of the judge (or judges) as if deciding the case afresh but at the time of the original decision.

The book contains 26 rewritten judgments covering a range of legal subjects. Some of the areas covered might be regarded as covering predictable ‘feminist’ subjects — family law, sexual offences and discrimination law — but the book also deals with less obviously feminist areas of law such as immigration, tort law, taxation, constitutional law, environment and indigenous issues. Four themes were identified to group the judgments: public law; private law; crime and evidence and interpreting equality. The contributors comprised a ‘judge’ (or ‘judges’) who rewrote the judgment and a commentator who provided the context for the original decision and a discussion of the rewritten judgment. Continue reading

Protecting the Integrity of Securities Markets — What is an ‘Artificial Price’?: DPP (Cth) v JM

By Professor Ann O’Connell

DPP (Cth) v JM Case Page

In 1814 a uniformed man posing as ‘Colonel du Bourg’ arrived at Dover bearing news that Napoleon had been killed and his armies defeated. The effect on the London Stock Exchange was dramatic — more than £1.1 million of government bonds were sold in one day before it became clear that the news was a hoax. Captain de Berenger, who posed as the Colonel, was charged with having conspired by spreading false rumours to increase the price of the bonds so that he (and others) could profit from the sale (R v de Berenger (1814) 3 M&S 67). More recently, in January of this year an anti-coal activist released a fake press release purporting to be from the lenders to a mining project to be carried out by listed company, Whitehaven Coal Ltd. The press release announced that the lender was withdrawing from the project for ‘ethical reasons’. The effect was to cause panic selling and the price of Whitehaven’s shares fell dramatically before a trading halt was implemented.

In DPP (Cth) v JM [2013] HCA 30, the High Court considered the legality of a less dramatic way of affecting the securities market: strategically buying shares. The Commonwealth Director of Public Prosecutions alleges that JM asked a family member to buy shares in a company for the purpose of lifting its share price sufficiently high to prevent a bank from requiring extra collateral for a loan he took out to buy call options in the same company. JM has been charged with the crime of creating or maintaining an ‘artificial price’ in a financial market. In advance of his trial, the High Court agreed to resolve a dispute about the meaning of ‘artificial price’. Continue reading