Stuhmcke, A 2018, 'Ombuds can, ombuds can’t, ombuds should, ombuds shan’t: a call toimprove evaluation of the ombudsman institution' in Hertogh, M & Kirkham, R (eds), Research Handbook on the Ombudsman, Edward Elgar Publishing, pp. 415-435.
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The public sector ombudsman has become one of the most important administrative justice institutions in many countries around the world. This international and interdisciplinary Research Handbook brings together leading scholars and practitioners to discuss the state-of-the-art of ombudsman research. It uses new empirical studies and competing theoretical explanations to critically examine important aspects of the ombudsman’s work. This comprehensive Handbook is of value to academics designing future ombudsman studies and practitioners and policymakers in understanding the future challenges of the ombudsman.
Booth, T 2018, 'Victim Impact Statements and Sentencing Homicide Offenders: A Critical Analysis of Recent Changes to the Crimes (Sentencing Procedure) Act 1999 (NSW)', University of New South Wales Law Journal, vol. 41, no. 1, pp. 130-156.
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The use of victim impact statements (‘VISs’) from family victims in homicide matters, particularly as evidence of aggravating factors, is contentious in NSW courts. Until July 2014, the law prevented VISs influencing penalties imposed on homicide offenders (Previtera). However, the Crimes (Sentencing Procedure) Act 1999 was amended in 2014 in order to overrule Previtera and enable VISs to ‘count’ in sentencing homicide offenders. This article draws on a case study of 39 homicide sentencing judgments, July 2014–April 2017, to determine whether, and if so the extent to which, the new law has changed the role of VISs from family victims in sentencing. It also considers the practical implications of these findings for future family victims and argues that not only has the new law made little practical difference to the use of VISs in homicide matters, but there are also potential adverse consequences for family victims in the sentencing process.
Booth, T, Bosma, AK & Lens, KME 2018, 'Accommodating the Expressive Function of Victim Impact Statements: The Scope for Victims’ Voices in Dutch Courtrooms', The British Journal of Criminology, vol. 58, no. 6, pp. 1480-1498.
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The expressive function of victim impact statements (VISs) enables victims to have a voice in legal proceedings—to speak and be heard about the harm caused by the offence. VISs have been adopted in many jurisdictions. While research reveals legal and institutional constraints on the expressive function of VISs in many jurisdictions with adversarial proceedings, we know little about the implementation of VISs in inquisitorial systems. We address this gap by reporting findings of an observational study that examines the scope for victims’ voices in criminal legal proceedings in the Netherlands. We find that these proceedings are better adapted to accommodate the expressive function of VISs. There is greater scope for victims to speak and be heard through their VISs.
Dehm, S & Millbank, J 2018, 'Witchcraft Accusations as Gendered Persecution in Refugee Law', Social & Legal Studies, vol. 28, no. 2, pp. 202-226.
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Witchcraft-related violence (WRV), in particular directed towards women and children, has become a source of increasing concern for human rights organizations in the current century. Yet for those fleeing WRV, this heightened attention has not translated across into refugee status. This research examines how claims of WRV were addressed in all available asylum decisions in English, drawn from five jurisdictions. We argue that WRV is a manifestation of gender-related harm; one which exposes major failings in the application of refugee jurisprudence. Inattention to the religious and organizational elements of witchcraft practices, combined with gender insensitivity in analysis, meant that claims were frequently reconfigured by decision makers as personal grudges, or family or community disputes, such that they were not cognizable harms within the terms of the Refugee Convention; or they were simply disbelieved as far-fetched. The success rate of claims was low, compared to available averages, and, when successful, claims were universally accepted on some basis other than the witchcraft element of the case. This article focuses in particular upon cases where the applicant feared harm as an accused witch, while a second related article addresses those fearing persecution from witches or through the medium of witchcraft.
Millbank, J 2018, 'The Role of Professional Facilitators in Cross Border Assisted Reproduction', Reproductive Biomedicine & Society Online, vol. 6, pp. 60-71.
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© 2018 The Author The operations of those who facilitate travel across international borders for access to assisted reproduction are little understood. Within the broader field of research into medical travel facilitators, most empirical studies have addressed websites and promotional materials, with few qualitative investigations of individuals who are service providers. The research presented here centres on interviews with 23 professionals facilitating cross-border assisted reproduction. This study sought to understand how facilitators and service providers operate within a professional framework, examining their understanding of the ethical limits on their roles within a largely unregulated and rapidly evolving international ‘marketplace’. Broadly, participants trusted in the market to ‘find its own level’, such that unscrupulous players would not succeed because others would not refer to, or work with, them. In instances where a clear risk to the health of reproductive contributors or to the well-being of future children was perceived, participants understood their own ethical duty to be limited to service denial or withdrawal of participation. Among the eight facilitators who were not legal or medical professionals, there was a striking commonality, in that all had personal experience of assisted reproduction, both as patients and as reproductive contributors. Within this group, and particularly among the six women who directly ‘matchmade’ arrangements between intended parents, egg donors and surrogates, was a strong sense of ‘embodied’ expertise and claims to ethical practice based upon that expertise.
Millbank, J 2018, 'What is the Responsibility of Australian Medical Professionals Whose Patients Travel Abroad for Assisted Reproduction?', Medical Law Review, vol. 27, no. 3, pp. 365-389.
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Abstract Australian medical professionals whose patients undertake assisted reproductive treatment abroad face a conflict: to try to provide optimal and on-going care for their patient at the same time as ensuring compliance with Australian legal, ethical, and professional rules which proscribe as unsafe or unethical key aspects of such treatment. A major suggestion from literature on medical travel is that risks to the patient can be mitigated through the involvement of the local professional. However, the force of legal regulation and ethical guidance in Australia strenuously directs clinicians away from involvement in overseas reproductive treatment. This article reports on 37 interviews with Australians travelling abroad for surrogacy, egg donation, and embryo donation, reflecting on patients’ experiences with Australian medical professionals both before and after they travelled. Patient reports demonstrate a fragmented and bewildering medical landscape in Australia, in which the ability to access domestic care and expertise varied markedly depending upon the kind of treatment patients were seeking abroad, and the mode of practice of the Australian doctor. Doctors practicing within licensed IVF clinics were notably more constrained than those outside such a setting. Patients seeking egg donation were offered information and received a wide range of diagnostic and preparatory treatments, while those seeking surrogacy were shunned, chided and offered limited (and sometimes covert) assistance. While recent changes to national ethical guidance improve clarity on information giving, the ethical and legal propriety of Australian medical professionals providing diagnostic or preparatory treatment for cross border reproduction remains uncertain.
Millbank, J & Vogl, A 2018, 'Adjudicating Fear of Witchcraft Claims in Refugee Law', Journal of Law and Society, vol. 45, no. 3, pp. 370-397.
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In refugee applications involving witchcraft‐related violence (WRV), those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues that WRV is a manifestation of gender‐related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of religion, combined with gender insensitivity in analysis, meant that claims were frequently reconfigured by decision makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside what is understood to be objective, verifiable, or Convention‐related. Male applicants struggled to make their claims comprehensible as a result of the feminized and ‘irrational’ characterization of witchcraft fears and beliefs.
Sibbritt, D, Kaye, M, Millbank, J, Stuhmcke, A, Wardle, J & Karpin, I 2018, 'How are complementary health professions regulated in Australia? An examination of complementary health professions in the national registration and accreditation scheme', Complementary Therapies in Medicine, vol. 37, pp. 6-12.
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© 2018 Elsevier Ltd Objectives: This study aims to provide an empirical examination of how complementary medicine practice in Australia is actually regulated under the current national registration model. Methods: Data was obtained from Australian Health Practitioner Regulation Agency (AHPRA) Annual Reports for the years 2011/12–2014/15 and supplemented by the Chinese Medical Registration Board of Victoria (CMRBV) Annual Reports in 2011/12 for Chinese Medicine complaints. The data analysed includes complaint statistics, stage of closure of complaints and the outcome of complaints concerning Chinese medicine, chiropractic and osteopathy under the National Law. Results: During 2014–2015 the number of complaints per 100 registrants for was highest for the medical board (4.4), while much lower for the chiropractic (1.5), osteopath (0.7) and Chinese medicine (0.5) boards. For conventional boards, 58% of complaints were closed at the assessment stage, while 57%, 29% and 16% of complaints to the osteopath, Chinese medicine and chiropractic boards respectively were closed at the assessment stage. The decision to suspend or cancel registration of health professionals was 17% from the Chinese medicine board, 14% from the Osteopathy Board, 1.5% from the chiropractor board and 0.6% from the medical board. Conclusion: It appears that complementary medicine practitioner regulation works at least as well as conventional regulation, and at most complementary medicine boards take a stricter interpretation of misconduct though more research would need to be undertaken to state this definitively. Our findings indicate that the public are using the statutory complaint mechanisms available to them with respect to the three CM groups.
Booth, T 1970, 'Law, integrity and judicial empathy: managing direct and personal cross-examination of victims of family violence by alleged perpetrators of that violence in family law proceedings.', Judging, Emotion and Emotion Work, International Institute for the Sociology of Law workshop, Onati, Spain.
Booth, T 1970, 'The Law's response to victims of intimate partner violence - different legal domains, shifting legal identities and traumatic legal processes', International Victimology symposium, Hongkong.
Kaye, M, Booth, T & Wangmann, J 2018, 'Submission on Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018'.
Kaye, M, Booth, T & Wangmann, J 2018, 'Submission to Attorney-General's Department on Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018'.
