Berg, L & Millbank, J 2013, 'Developing a Jurisprudence of Transgender Particular Social Group' in Thomas Spijkerboer (ed), Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum, Routledge, Oxford, pp. 55-81.
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Berg, LA & Millbank, J 2013, 'Sexuality and Equality Law' in Goldberg, SB (ed), Sexuality and Equality Law, Routledge, Burlington, pp. 275-299.
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Millbank, J 2013, 'Sexual orientation and refugee status determination over the past 20 years: Unsteady progress through standard sequences?' in Thomas Spijkerboer (ed), Fleeing Homophobia Sexual Orientation Gender Identity and Asylum, Routledge, Oxford, pp. 32-54.
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In this chapter, I sketch a framework for analysis of sexual orientation based asylum claims that aims to accommodate Doth common themes and divergent ourcomes (Jansen and Spijkerboer 2011: 14; O'Dwyer 2008; and more generally Ramji-Nogales et al. 2009) across the range of jurisdicrions grappling with these issues to date. I take as my starting point Kees Waaldijk's work from the late 1990s, in which he claimed a discernible trend of 'steady progress' through 'standard sequences' in the development of sexual orientation rights across the European Union in the last third of the twentieth century (Waaldijk 2001b). Waaldijk suggested that within these trends there were two 'laws' or preconditions to reform, which he titled the 'law of small change' and the 'law of symbolic preparation'. I suggest that progress in sexuality rights in refugee status determination (RSD) has in fact been rather tlnsteady, with significant informal resistance springing up to take the place of doctrinal obstacles as these are dismantled.
Booth, T 2013, 'Victim Impact Statements and the Nature and Incidence of Offender Remorse: Findings from an Observation Study in a Superior Sentencing Court', Griffith Law Review, vol. 22, no. 2, pp. 430-455.
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Scholars have argued that disclosure of the impact of the crime on the victim through victim impact statements has the potential to produce an emotional response in offenders that creates an opportunity for offenders to express remorse and apologise to crime victims in the sentencing hearing. Implicit in this claim is the concept that the incidence of such victim focused remorse is a virtue and a positive restorative element of VISs. Drawing from data largely generated by observation of eighteen sentencing hearings of homicide offenders and semistructured interviews with fourteen family victims, this article examines this claim by exploring offender response to victim impact statements, and the nature and incidence of offender remorse observed in the courtroom.
Booth, T 2013, 'Victim Impact Statements in the Contemporary Courtroom', PacifiCrim, vol. 10, no. 2, pp. 8-8.
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This article reports the findings of my qualitative study of victim participation in the sentencing of homicide offenders in the NSW Supreme Court,
Karpin, IA, Millbank, J & Stuhmcke, A 2013, 'Editorial: Towards Facilitative Regulation of Assisted Reproductive Treatment in Australia'.
Karpin, IA, Millbank, J & Stuhmcke, A 2013, 'Editorial: Towards Facilitative Regulation of Assisted Reproductive Treatment in Australia', Journal of Law and Medicine, vol. 20, no. 4, pp. 701-711.
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This editorial introduces four articles reporting on the results of a four-year ARC-funded research project undertaken at the University of Technology Sydney. The study explored how Australian laws and policies across States and Territories affected the decisions of assisted reproductive treatment users with respect to their frozen embryos. In this editorial we offer some conclusions about the impact of the law which we argue fundamentally fails to take account of the diversity of ways in which embryos have meaning for the women and men who created them. We believe that informed choice and autonomy in the area of reproduction is vital. This goes beyond 'consent' to a particular outcome and involves an active and ongoing process of selection. State intervention in decisions about family formation should only occur in pursuit of legitimate objectives, justified by evidence, and intrude only to the extent that is absolutely necessary. Therefore, we conclude that there must be a fundamental rethinking of the role of the state in the regulation of assisted reproductive treatment towards one of facilitative regulation. Major reforms that follow from this reconceptualisation include the provision of external information-giving and dispute resolution body or bodies to assist genuinely informed decision-making.
Millbank, J, Chandler, E, Karpin, IA & Stuhmcke, A 2013, 'Embryo Donation for Reproductive Use in Australia', Journal of Law and Medicine, vol. 20, no. 4, pp. 789-810.
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This article presents empirical findings on embryo donation for the reproductive use of others in Australia, drawn from a larger research project about the impact of law, ethical guidelines and clinical policies and practices upon the decisions that people make about stored embryos created during IVF. The authors interviewed 10 people who had actually donated embryos for the reproductive use of others and four people who were recipients of donated embryos. In addition, another nine interviewees had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. The article places the present findings in the context of Australian and international research on widespread unwillingness to donate for reproductive use of others. The article then examines why the donors interviewed here were willing and able to donate, and presents findings concerning the donation process and models in operation, including matching and counselling practices and the contentious question of 'directed donation'. The article also reports the experiences of several 'would-be' or thwarted donors and examines the rationales for some of the external barriers to donation identified in the course of the study.
Millbank, J, Karpin, I & Stuhmcke, A 2013, 'Guest editorial TOWARDS FACILITATIVE REGULATION OF ASSISTED REPRODUCTIVE TREATMENT IN AUSTRALIA', JOURNAL OF LAW AND MEDICINE, vol. 20, no. 4, pp. 701-711.
Booth, T 1970, 'Building on the Theoretical: an Ethnographic study of victim participation in the courtroom', Criminology on Trial - The British Society of Criminology Conference, Wolverhampton, UK.
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A marked and often contentious feature of contemporary criminal justice policy in common law jurisdictions such as Britain and Australia is the prioritisation of the perceived interests and concerns of crime victims. The use of victim impact statements (VISs) in the sentencing hearing, particularly those VISs read aloud to the court by victims, has been especially controversial sparking considerable debate amongst legal professionals and scholars. Opponents of oral VISs have expressed concerns that the emotionality of such statements has potential to threaten the courts integrity and the offenders entitlement to a fair hearing. Proponents of VISs argue that the communicative capacities of VISs provide legitimate restorative benefits for victims during the hearing. Although a rich scholarship in relation to VISs has emerged, aside from a small study by Rock (2010), very little work has been done to test these claims in the context of actual victim participation in the courtroom. This paper will explore the construction and challenges of an ethnographic study of the participation of family victims in the sentencing of homicide offenders in the NSW Supreme Court with particular focus on the use of courtroom observation and narrative analysis techniques to generate and analyse data.
Booth, T 1970, 'Building on Theory: An Ethnographic Study of Victim Participation in the Courtroom', Australian and New Zealand Society of Criminology, 2013 conference, Brisbane.
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The use of victim impact statements (VISs) in the sentencing hearing, particularly those VISs read aloud to the court by victims, has been especially controversial sparking considerable debate amongst legal professionals and scholars. Opponents of oral VISs have expressed concerns that the emotionality of such statements has potential to threaten the courts integrity and the offenders entitlement to a fair hearing. Proponents of VISs argue that the communicative capacities of VISs provide legitimate restorative benefits for victims during the hearing. Although a rich scholarship in relation to VISs has emerged, aside from a small study by Rock (2010), very little work has been done to test these claims in the context of actual victim participation in the courtroom. This paper will explore the construction and challenges of an ethnographic study of the participation of family victims in the sentencing of homicide offenders in the NSW Supreme Court with particular focus on the use of courtroom observation and narrative analysis techniques to generate and analyse data.
Booth, T 1970, 'Think Dynamic, Adaptive and Reflective: Better Integration of Victims and their Victim Impact Statements', Promoting a Neutral and transparent criminal justice system for victims of crime, Melbourne.
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This paper focuses on the integration of victim impact statements (VIS) and the treatment of victims in the sentencing hearing. I set out to challenge the traditional conception of the adversarial sentencing hearing in which the `private interests of the victim are regarded as compromising the rights and protections afforded to the offender and threatening the overall legitimacy of the criminal justice system (Ashworth, 1993). Instead I argue that the contemporary sentencing hearing should be re-conceptualised as a forum charged by the community to deal with the aftermath of crime (Shapland, 2010). In such a forum, while offenders clearly have an entitlement to a fair hearing, the principle of fairness requires that victims cannot be ignored or treated with disrespect in the courtroom without the potential for casting doubt on the integrity of the legal proceedings. Here the metaphor of `balancing competing interests is misleading: the interests of the offender and the victim in the sentencing hearing are qualitatively different and not mutually exclusive. While a legislative right to submit a VIS can create an image of a fair process, the treatment of the victim in the courtroom is crucial to that victims assessment of the fairness of the hearing (Wemmers). Drawing from examples of recent cases particularly in Victoria and South Australia and the findings of a study of 18 sentencing hearings in the NSW Supreme Court, I identify and analyse specific aspects of the sentencing proceedings that have a significant impact on the victims experience in the courtroom and make suggestions as to how victims might be better integrated in the sentencing hearing.
Varnham, S, Stuhmcke, AG, Olliffe, BM, Kamvounias, P & Evers, M 1970, 'Different Country, different hemisphere - same challenges: the student and the Australian University', Annual Conference of ENOHE/OIAHE, St Catherine's College, Oxford, UK.
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Invited panel
Millbank, J, Stuhmcke, AG, Karpin, IA & Chandler, ER UTS Printing 2013, Enhancing Reproductive Opportunity Report, Sydney.
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This report presents the results of a four year study about law, policy and practice concerning frozen IVF embryos in Australia. The report drew on the experience of over 400 past and present IVF patients in over twenty clinical sites across Australia, spanning two decades of experiences.
