Stewart, PE & Stuhmcke, AG 2009, Australian Principles of Tort Law, 2, The Federation Press, Sydney, Australia.
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Legislative reform has recently transformed the law of torts in Australia. It is no longer a body of unified common law but is an area governed by a diverse array of non-uniform statutes in each Australian jurisdiction. This textbook is one of the first to provide both commentary and critical analysis of this tort law reform legislation. It provides a fresh interpretation of historical events and analyses the new challenges and developments facing the law of torts in the twenty first century. Offering ideas and perspectives on the law of torts, it assists all those wishing to traverse this fascinating area of law. Nevertheless the work is written with the aim of making tort law accessible to students new to the field and provides a foundation for ongoing engagement in the area. Essential reading for all those seeking guidance on the tort law reform legislation, this text makes a valuable contribution to scholarship in the field, while its clear and comprehensive style make it a reliable and interesting textbook for law students.
Kassisieh, G & Millbank, J 2009, 'Same-sex couples and their families' in Fallon, M (ed), The law handbook: Your practical guide to the law in New South Wales 11th edition, Redfern Legal Centre, Redfern, pp. 957-992.
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In 2008, significant reforms to state and federal laws have brought greater recognition to same-sex couples and their children. Equal rights and responsibilities have been extended to same-sex couples who are de facto partners across almost all laws throughout Australia, and to lesbian co-parents also in NSW and federal law. This chapter describes recent changes in state and federal law, and how same-sex couples and parents are recognised. The new definitions and their interpretation are outlined, then rights in various substantive areas are discussed.
Millbank, J & Berg, L 2009, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants' in Robson, R (ed), Sexuality and Law - Volume III: Sexual Freedom, Ashgate, Farnham, Surrey, pp. 321-349.
Berg, L & Millbank, J 2009, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants', JOURNAL OF REFUGEE STUDIES, vol. 22, no. 2, pp. 195-223.
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This article draws upon psychological and sociological literature to explore the issues that arise in eliciting and presenting a refugee narrative when the claim is based upon sexual orientation. Rigid notions of homosexual identity may consciously or subconsciously shape decision-makers' approaches in this field. First, we identify psycho-social issues of particular significance to lesbian, gay and bisexual claimants which may act as barriers to eliciting their narrative of self-identity, including: a reluctance to reveal group membership as the basis of a claim, the experience of passing or concealment strategies, the impact of shame and depression on memory, common experience of sexual assault, and sexualization of the identity narrative in the legal process. Secondly, we explore factors which inhibit the reception of such narratives in the legal process. In particular we explore the psychological 'stage model' of sexual identity development and examine the pervasive impact this model has had upon decision-makers' 'pre-understanding' of sexual identity development as a uniform and linear trajectory. © The Author [2009]. Published by Oxford University Press. All rights reserved.
Booth, T & Townsley, L 2009, 'The Process is the Punishment: The Case of Bail in New South Wales', Current Issues in Criminal Justice, vol. 21, no. 1, pp. 41-58.
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In the context of bail, punitive crime policies in NSW have led to a gradual erosion of the presumption in favour of bail, the conflation of bail conditions and penalty and a steady increase in the number of persons being held on remand. Continuing this punitive turn in crime police, the Bail Act 1978 was recently amended in respect of s22A. It is this amendment and the resultantant changes to the configuration of bail that is the subject of this article.
Millbank, J 2009, '‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations', International Journal of Refugee Law, vol. 21, no. 1, pp. 1-33.
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Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of 'fast-track' processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group (PSG) ground decisions made on the basis of sexual orientation over the past fifteen years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to found recommendations for structural and institutional change aimed at improving more generally the credibility assessment process in refugee determinations. © The Author (2009). Published by Oxford University Press. All rights reserved.
Millbank, J 2009, 'From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom', The International Journal of Human Rights, vol. 13, no. 2-3, pp. 391-414.
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© 2009 Taylor & Francis. In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim for refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could ‘expect’ refugee applicants to ‘co-operate in their own protection’ by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by ‘choice’. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicant’s claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and Westernised notions of ‘gayness’ as a template against which the applicants were judged.
Booth, T 1970, 'Sentencing and a Multitude of Victims: towards the development of a victimology for crimes involving mass victimisation', Victimology and Human Security: the 13th International Symposium on Victimology, Mito, Japan.
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This paper aims to contribute to developing victimology with regard to victim participation in the sentencing of offenders convicted of crimes involving mass victimisation. Such crimes include terrorism related offences, human trafficking and arson. Although not without controversy, victim participation in the sentencing of 'conventional' homicide offenders has become a well established feature of many national systems. Unique issues arise however in circumstances of mass victimisation and several jurisdictions have already experienced significant legal and political difficulties grappling with victim impat evidence in domestic terrorim cases (Indonesia, USA). A contemporary challenge for legislators is to formulate policy and implement an appropriate legislative framework that will maintain due process and faciltate participation by crime victims in conformity with community standards and expectations. Drawing on the exeperiences of US courts that have recently grappled with the phenomenon of victim impact evidence in domestic terrorism cases, this paper will explore particular issues including the selection of victims to be heard, the enormous volume of victim impact evidence an courtroom governance of concomitant emotions.
