Indigenous People, Crime and Punishment examines criminal sentencing courts changing characterisations of Indigenous peoples identity, culture and postcolonial status. Focusing largely on Australian Indigenous peoples, but drawing also on the Canadian experiences, Thalia Anthony critically analyses how the judiciary have interpreted Indigenous difference. Through an analysis of Indigenous sentencing remarks over a fifty year period in a number of jurisdictions, the book demonstrates how judicial discretion is moulded to dominant white assumptions about Indigeneity. More specifically, Indigenous People, Crime and Punishment shows how the increasing demonisation of Indigenous criminality and culture in sentencing has turned earlier `gains in the legal recognition of Indigenous peoples on their head. The recognition of Indigenous difference is thereby revealed as a pliable concept that is just as likely to remove concessions as it is to grant them. Indigenous People, Crime and Punishment suggests that Indigenous justice requires a two-way recognition process where Indigenous people and legal systems are afforded greater control in sentencing, dispute resolution and Indigenous healing
Malice of Law examines how criminal legal doctrine and jurisprudence organises and expresses ideas about wickedness through the prism of malice. Whilst many legal theorists accept that the criminal legal system is a system of blaming, they do not consider that blaming involves censure or reproof for fault, wrong, badness or wickedness. Historically, the link between criminal law and morality was explicit, and expressed through evaluative terms in offence formulae such as malice and mens rea. Now, however, there is a tendency to think of crime in neutral procedural terms and to avoid reference to its normative elements. Through an analysis, which is both historical and contemporary, Penny Crofts reverses this modern tendency by addressing how the legal system communicates what it means to be at fault - to be bad, or to be wicked. Despite claims to the contrary, criminal law communicates and sanctions particular models of wickedness. Arguing that the current dominant idea of wickedness communicated in criminal law lacks nuance and fails to explain much of what the legal system does, Malice of Law examines its implications in terms of the legal subject, social responsibility and the jurisdiction of the legal system.
Written by leading experts in the area, this volume investigates the ways in which emerging masculinities theory in law could inform feminist legal theory in particular and law in general.
Hohmann, J 2013, The Right to Housing: Law, Concepts, Possibilities, Hart Publishing, UK.
This is Australia's first publication dedicated to social media law and marketing.
Holland, G, Yap, W & Crossley, K 2013, Social media Law and Marketing, 1, Thomson Reuters, Sydney.
Hubbard, J, Thomas, C & Varnham, S 2013, Principles of Law for New Zealand Business Students, 5, Pearson, New Zealand.
Redmond, PM 2013, Corporations and financial markets law, 6th Edition, Thomson Reuters, Sydney, Australia.
Ries, N 2013, Public Health Law and Policy in Canada, 3rd, LexisNexis Canada.
Gabrielle Simm's critical re-evaluation of sex between international personnel and local people examines the zero tolerance policy on sexual exploitation and abuse and its international legal framework. Whereas most preceding studies of the issue have focused exclusively on military peacekeepers, Sex in Peace Operations also covers the private military contractors and humanitarian NGO workers who play increasingly important roles in peace operations. Informed by socio-legal studies, Simm uses three case studies (Bosnia, West Africa and the Democratic Republic of the Congo) to illustrate the extent of the problem and demonstrate that the problems of impunity for sexual crimes are not just a failure of political will but the result of the structural weaknesses of international law in addressing non-state actors. Combining the insights of feminist critique with a regulatory approach to international law, her conclusions will interest scholars of international law, peace and conflict studies, gender and sexuality, and development.
Berg, LA 2013, 'Migrating Rights' in Arvanitakis, J & Matthews, I (eds), The Citizen in the 21st Century, Inter-Disciplinary Press, Oxfordshire, United Kingdom, pp. 63-72.
Berg, LA & 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. 121-153.
Cantley-Smith, R 2013, 'A Human Right to a Healthy Environment' in Castan, M & Gerber, P (eds), Contemporary Perspectives on Human Rights Law in Australia.
Dorsett, SG & McVeigh, S 2013, 'Section 223 and the shape of native title: the limits of jurisdictional thinking' in Rowse, T & Ford, L (eds), Between Indigenous and Settler Governance, Routledge, Oxon, pp. 162-173.
Grossi, R 2013, ''The Radicalism of Romantic Love' Catalogue Essay', School of Art Foyer Gallery, Australian National University.
Hitchens, LP 2013, 'Commercial Content and its Relationship to Media Content: Commodification and Trust' in Price, ME, Verhulst, SG & Morgan, L (eds), Routledge Handbook of Media Law, Routledge, New York, pp. 87-104.
Li, G 2013, 'Finding the balance point in deciding the scope of the communications ombudsman scheme' in Sylvia Kierkegaard (ed), Law & Practice: Critical Analysis and Legal Reasoning, International Association of IT Lawyers, Denmark, pp. 423-434.
In Australia, The Teiecommunitations Industry Ombudsman (TIO) is a private corporation acting as the sole alternate dispute resolution mediator between carriage service providers (CSPs) and consumers. Currently, the Telecommunications Act requires all CSPs to become members of the TIO scheme in Australia. The TID has been receiving a very large number of complaints since 2006, especially when compared to what appears to be the position in the United Kingdom. Statistics showed that the TIO has been receiving and handling 193,702 new complaints a year, whereas the equivalent UK organisations seemed to be handling only 14% of that number. A research project is conducted during June to November 2013 to investigate this situation. This project aims to study the scope of the TIO scheme by comparing it with its UK peer organisations. In conclusion, this research believes that the scope of the TIO scheme is considerably larger than that of the UK ombudsman schemes. This situation contributed significantly to the large number of the complaints received by the TIO and the scope of the TIO scheme is calling for a careful review to achieve a better regulatory environment.
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.
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.
Muir, K & Goldblatt, B 2013, 'Complementing or conflicting human rights conventions? Realizing an inclusive approach to families with a young person with a disability and challenging behaviour' in Moore, M (ed), Moving Beyond Boundaries in Disability Studies: Rights, Spaces and Innovations, Routledge, Oxon, pp. 121-134.
Opeskin, B & Nwauche, E 2013, 'Constitutions, Populations and Demographic Change' in Tushnet, M, Fleiner, T & Saunders, C (eds), Routledge Handbook of Constitutional Law, Routledge, USA, pp. 455-468.
In late 2011 the world marked the arrival of its seven- billionth human inhabitant. It had taken just 12 years for the last billion people to be added to world population; the next billion is expected to be added within 14 years, by 2025. The United Nations projects that 2.4 billion people will be added to the world’s 2010 population by 2050. Some 97 percent of this growth will be in less developed regions—mostly in Africa and Asia—and nearly all in urban centres. Europe, by contrast, is projected to decline in absolute population, despite signifi cant immigration. Changes of this scale generate signifi cant long- term social transformations within countries, as populations change in size, composition and spatial distribution. It might be expected that constitutions would anticipate or refl ect such changes because constitutions are intended to establish an enduring legal architecture for the governance of social and political communities. While many constitutions reveal an awareness of population dynamics, for others the impact can be subtle or fragmented. The link between constitutions and populations attracted attention in the 1970s and 1980s, after Paul Erlich’s book, The Population Bomb , generated widespread international concern about the Malthusian calamity that might arise from unchecked population growth in a world of fi nite resources (Ehrlich). In that context, several scholars examined how the US Constitution might regulate demographic processes, but the issue has now largely slipped from view. This Chapter seeks to address this gap.
Rawling, MJ & Howe, J 2013, 'The Regulation of Supply Chains: An Australian Contribution to Cross-National Legal Learning' in Stone, KVW & Arthurs, H (eds), Rethinking Workplace Regulation: Beyond the Standard Contract of Employment, Russell Sage Foundation, New York, pp. 233-252.
ONE OF the key features of the standard employment contract is a direct relationship between an employer and an employee. Labor law scholars have for some time highlighted the artificiality of this restriction on the regulatory scope of labor law, in that it excludes workers deserving of social protection but engaged under nonstandard work arrangements (for Australia, see Stewart 2002). Moreover, in the last three decades, business and government have become increasingly decentralized as a result of contracting out or outsourcing the provision of goods and services. This vertical disintegration or fragmentation of large organizations has meant that many workers are no longer directly employed by core businesses or government.
Ries, N 2013, 'Human Health Care: The Promise of Animal Biotechnology' in Brunk, C & Hartley, S (eds), Designer Animals: Mapping the Issues in Animal Biotechnology, University of Toronto Press.
Riley, J 2013, 'Regulatory responses to the blurring boundary between employment and self-employment: A view from the Antipodes' in Kiss, G (ed), Recent developments in labour law, Akademiai Kiado, Wolters Kluwer group, Budapest, pp. 131-149.
INTRODUCTION This chapter outlines the system of tertiary education in New Zealand within its constitutional ... and legal basis for education because of the importance accorded to language in nation building in Aotearoa New Zealand.
Varnham, S 2013, 'New Zealand' in Russo, PC (ed), The handbook of comparative higher education law, Rowman and Littlefield publishers, US, pp. 227-252.
Vrdoljak, A 2013, 'Enforcement of Restitution of Cultural Heritage through Peace Agreements' in Francioni, F & Gordley, J (eds), Enforcing International Cultural Heritage Law, Oxford University Press, Oxford, United Kingdom, pp. 22-39.
Peace agreements consolidated in modern times provide an important source of international law. They have been especially significant in the formulation of the international and regional protection of cultural heritage from the early 20th century onwards.' There has been a marked escalation in the number, and a transformation in the nature, of armed conflicts since the end of the Cold War.2 Most are intra-state conflicts, with many driven by ethnic and religious differences,3 with minorities and indigenous peoples 'often the targets, rather than the perpetrators of violence'.4 This period has also witnessed a concomitant proliferation in peace agreements.s Although peace agreements covering intra-state conflicts had increased, a significant proportion of conflicts resumed, particularly those with an 'ethnic' element.' The UN Secretary-General noted, '[N]urturing ethnic cultures and traditions lay[s] the foundations for lasting stability'.'
Vrdoljak, A 2013, 'Gross Violations of Human Rights and Restitution: Learning From Holocaust Claims' in Lyndel, LV, Redmond-Cooper, R & Urice, S (eds), Realising Cultural Heritage Law, Institute of Art and Law Ltd, United Kingdom, pp. 163-188.
Vrdoljak, A 2013, 'Liberty, Equality, Diversity: States, Cultures and, International Law' in Ana Vrdoljak (ed), The Cultural Dimension of Human Rights, Oxford University Press, Oxford, United Kingdom, pp. 26-70.
To what extent should the law permit cultural defences to general rules? What role does human rights law have in the protection of minority cultures? This volume examines such pivotal questions.
Adjei, P & Stoianoff, NP 2013, 'The World Intellectual Property Organisation (WIPO)and the Intergovernmental Committee: Developments on Traditional Knowledge and Cultural Expressions', Intellectual Property Forum, vol. 2013, no. 92, pp. 37-48.
The past 20 years has seen Indigenous or traditional knowledge take centre stage in discourses on the conservation of biological diversity, sustainable socio-economic development and poverty alleviation in developing countries. It is these countries that contain the majority of mega-biologically diverse regions in the world with Australia being one of two exceptions to the rule. The utility of knowledge in the conservation and sustainable use of biological resources, held by traditional custodians of land, is specifically addressed in the Convention on Biological Diversity 1992 (CBD). Articles 8 (j), I 10 (C)2 and 18 (4)3 of the CBD recognise the significance of such traditional knowledge and custom. Equally, the need to "respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles" ,4 "encourage customary use"s and "methods of cooperation"6 are emphasised in the context of prior informed consent and mutually agreed terms with a view to the fair and equitable sharing of the benefits arising out of the utilisation of such knowledge
In 1671 the nautical instrument and mapmaker John Seller published The English Pilot, which contained a map titled `A General Chart of the West Indias. 1 In 1733, Jonathan Swift published On Poetry, a rhapsody, a sarcastic and satirical litany of advice to aspiring poets and critics, which included the quatrain: So Geographers, in Afric-Maps, With Savage Pictures fill their Gaps, And oer unhabitable Downs, Place Elephants for want of Towns. 2 In 1735 the first statute explicitly to provide legal protection against copying engravings was passed by Parliament.3 In 1767, that statute was amended by a second Act which explicitly extended that protection to cover maps, charts and plans
The grant of special leave in Bugmy v The Queen 1 has provided an occasion for the High Court to rule on the significance of Indigenous background in sentencing in relation to other sentencing considerations. In particular, the Court must reconcile the sentencing considerations of detmence, community protection, offence seriousness and criminal history with the principles of individualised justice and the recognition of factors specific to the Indigenous defendant. These sentencing objectives may appear to be in conflict, but they' can be reconciled if the Court accepts that the aim of community protection and deterrence is furthered through accounting for Indigenous context and providing sentences that address Indigenous disadvantage. The emphasis placed by the New South Wales Court of Criminal Appeal and other state and territory higher courts on the seriousness of the offence has diminished the significance of the disadvantaged circumstances of Indigenous offenders in sentencing, and has contributed to increased levels of Indigenous imprisonment. Bugmy v The Queen will be important in providing clearer direction on the common law's interpretation of sentencing principles for Indigenous offenders. These have undergone substantial revision over the past 20 years. This case provides an opportunity for the High Court to consider the role of criminal sentencing in the dramatic over-representation of Indigenous Australians in prisons, and how sentencing can be structured to promote deterrence outside of prisons.
Anthony, T 2013, 'Indigenous Crime and Settler Law: White Sovereignty After Empire', Alternative Law Journal, vol. 38, no. 1, pp. 63-64.
Anthony, T 2013, 'Justice: A History of the Aboriginal Legal Service of Western Australia', Labour History, vol. May, no. 85, pp. 246-248.
Anthony, T & Blagg, H 2013, 'STOP in the Name of Who's Law? Driving and the Regulation of Contested Space in Central Australia', Social & Legal Studies, vol. 22, no. 1, pp. 43-66.
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This article emerges from a study of the incidence of Indigenous driving offending conducted by the authors in the Northern Territory (NT) from 2006 to 2010 on two central Australian communities. It demonstrates how new patterns of law enforcement, set in train by an `Emergency Intervention in 2007, ostensibly to tackle child sexual abuse and family violence, led to a dramatic increase in the criminalisation of Indigenous people for driving-related offending. We suggest that the criminalisation of driving-related offending was part of a neocolonial turn in the NT through which the state sought to discipline, normalise and incorporate as yet uncolonised, or unevenly colonised, dimensions of Indigenous domain into the Australian mainstream. In terms of methodology, we adopted a mix of quantitative and qualitative approaches, blending criminal justice and policing data with insights from criminological, anthropological and postcolonial theory. We argue that running together the insights from different disciplinary traditions is necessary to tease out the nuances, ambiguities and complexities of crime control strategies, and their impact, in postcolonial contexts.
The article focuses on the cultural awareness through teaching the indigenous issues in criminal law and procedures. Topics discussed include role of the threshold learning outcomes (Twos) in invoking cultural awareness, cultural diversity and legal discrimination. It also discusses the importance of teaching indigenous laws to the students and making it a part of the educational curriculum.
Berg, LA 2013, 'Book Review: Susan Kneebone and Julie Debeljak, Transnational Crime and Human Rights', Australian International Law Journal, vol. 20, pp. 203-206.
This article explores the cultural afterlife of criminal evidence. During the criminal trial, strict rules govern the collection, admission and interpretation of evidence at trial. However, after the conclusion of the trial, this material returns to a notional `archive and is sometimes used by artists, scholars, curators and others, but subject to no rules or standards. This article examines a range of instances in which criminal evidence has been used post-trial, and proposes a jurisprudence of sensitivity for responding to the harm that is sometimes done when criminal evidence leads a cultural afterlife.
Boom, K, Ben-Ami, D, Boronyak, LJ & Riley, S 2013, 'The role of inspections in the commercial kangaroo industry', International Journal of Rural Law and Policy, vol. 2013, no. Occasional, pp. 1-19.
This article provides an assessment of the enforcement of the law governing commercial kangaroo killing, focusing particularly upon inspectorial practices. Australias kangaroo industry is the largest commercial kill of land-based wildlife in the world. Professional shooters hunt kangaroos in rural and remote locations at night. Due to the remote and decentralised nature of the killing, the industry presents unique challenges to law enforcement agencies that are responsible for the enforcement of animal welfare standards. This article focuses upon the role that inspections have in detecting offences within the commercial kangaroo industry. It provides a comparative analysis across the states, highlighting key differences in terms of inspectorial practices and the resulting outcomes. A common theme across all of the jurisdictions is that none of the agencies responsible for enforcement regularly conduct inspections of shooters, making it impossible to ensure that these parties are complying with the National Code of Practice for the Humane Shooting of Kangaroos and Wallabies. Recommendations for reform are offered, including stronger compliance policy, higher rates of inspection, increased resourcing and the introduction of alternative methods of inspection.
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 VISs 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 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 18 sentencing hearings of homicide offenders and semi-structured interviews with 14 family victims, this article examines this claim by exploring offender response to VISs and the nature and incidence of offender remorse observed in the courtroom.
This article reports the findings of my qualitative study of victim participation in the sentencing of homicide offenders in the NSW Supreme Court,
Bowley, RN 2013, '‘DPP v JM: High Court clarifies the meaning of “artificial price under s 1041A’', Butterworths Corporation Law Bulletin, vol. 2013, no. 17, pp. 2-10.
Bowley, RN 2013, '‘Market integrity vs Systemic stability: Should APRA have the power to suspend a regulated entity’s continuous disclosure obligations?’', Butterworths Corporation Law Bulletin, vol. 2013, no. 3, pp. 2-5.
Bowley, RN 2013, '‘NSW Court of Criminal Appeal confirms Contracts for Difference are Division 3 financial products: Joffe v R; Stromer v R  NSWCCA 277’', Butterworths Corporation Law Bulletin, vol. 2013, no. 9, pp. 5-9.
This article explores Australias response to the emerging issue of forced marriage. In light of community and government responses to forced marriage, we review the challenges involved in defining forced marriage and the degree to which the practice overlaps with other forms of exploitative conduct such as servitude and slavery. While we welcome the reform of existing criminal laws to fully reflect Australias international obligations to prohibit `practices similar to slavery, we caution against prioritising prosecutions over preventative and protective strategies. We argue that the creation of specific criminal offences of forced marriage should be accompanied by the introduction of new, family law-based civil remedies for people seeking to avoid or escape forced marriage, and targeted support services for people in, or facing, forced marriage. These measures should be accompanied by investment in community legal education and consultation in order to deepen the communitys understanding of forced marriage in Australia
Byrnes, A & Simm, G 2013, 'Peoples' Tribunals, International Law and the Use of Force', University of New South Wales Law Journal, vol. 36, no. 2, pp. 711-744.
Carney, T 2013, 'Participation and service access rights for people with intellectual disability: A role for law?', JOURNAL OF INTELLECTUAL & DEVELOPMENTAL DISABILITY, vol. 38, no. 1, pp. 59-69.
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Carter, DJ 2013, 'NSW Victim Compensation Scheme Slashed', Alternative Law Journal, vol. 38, pp. 193-193.
Chandler, ER, Millbank, J, Stuhmcke, AG & Karpin, IA 2013, 'Rethinking Consent, Information Giving and Counselling Concerning Stored Embryos in IVF treatment', Journal of Law and Medicine, vol. 20, no. 4, pp. 759-772.
This article presents findings on consent practices 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 their stored embryos created during IVF. In exploring the process of decision-making about stored embryos, participants reflected upon their earlier experiences of clinic information-giving and counselling, particularly at the outset of treatment. The study found that the type and timing of the information given and the range of options presented by clinics in typical consent processes did not meet many participants needs. Informed consent processes in IVF involving the storage of embryos require a number of key changes. Consent to treatment and subsequent decisions about storage and further outcomes for stored embryos need to be addressed separately. To be effective, embryo directive forms should be accompanied by plain language explanations of their legal effects, including what elements are binding, the source of the rules governing decisions, and available formal and informal dispute resolution avenues. Consent and embryo directive forms should be made available on clinic websites to allow greater opportunity for reflection, as well as enabling patients to compare the options available at each clinic. Greater availability of ongoing counselling as well as other external sources of information are crucial to enable informed decision-making.
Contemporary criminal law tends to regard malice through the lens of act, intention and consequence. I argue that this modern reading of malice through contemporary patterns of blameworthiness is a misreading, and loses alternative (legal) ways of organising wickedness. Historical accounts of malice can and should be regarded as a (legal) resource by which to critique and enrich modern accounts of blameworthiness. To this end, I explore the construction of malice as a cogent, resonant concept of legal wickedness by treatise writers in the sixteenth to eighteenth centuries. Treatise writers aimed to ensure that malice was sufficiently broad and malleable so that wickedness would not escape the law. Saunders' case was integral to the construction of malice, and it was used by treatise writers to claim and demonstrate the malleability of malice. Saunders had malice because he caused the death of a subject of the Queen, with premeditation and through the uncanny act of poisoning. The slippage across modern patterns of blameworthiness should not be regarded as a failure to settle upon a pure definition of malice, but as integral to the function of malice to persuade that wickedness would not escape the law.
Crofts, P, Prior, JH & Hubbard, P 2013, 'Policing, planning and sex: governing bodies, spatially', The Australian and New Zealand Journal of Criminology, vol. 46, no. 1, pp. 51-69.
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Analysis of intersection of planning and policing in the regulation of sex services premises in NSW. Argument that planning and policing have a complex relationship, and criminological analysis should be applied to planning powers.
This article considers the significant modifications made to English Chancery procedure by the first rules of court of the Supreme Court of New Zealand (1843/44). In the first part of the nineteenth century, across the empire colonial judges used their power to draft their own rules to modify English practice and procedure, often implementing changes ahead of those of the English reform movement. The first rules of court in New Zealand were particularly innovative: they introduced new, simplified and uniform rules for actions and suits, as well as achieving a level of administrative `fusion well before the reforms either of the New York Field Code 1849 or the English Judicature Act 1873.
Garner, A & Kirkby, D 2013, ''Never a Machine for Propaganda'? The Australian-American Fulbright Program and Australia's Cold War', AUSTRALIAN HISTORICAL STUDIES, vol. 44, no. 1, pp. 117-133.
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Greenleaf, G & Tian, Y 2013, 'China Expands Data Protection through New 2013 Guidelines', Privacy Law & Business International Report, vol. April, no. 122, pp. 1-7.
Hawes, C & Kong, S 2013, 'Primetime Dispute Resolution: Television Mediation Shows in China's 'Harmonious Society'', Law & Society Review, vol. 47, no. 4, pp. 739-770.
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Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a turn against law (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a harmonious society; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most appropriate method for resolving interpersonal and neighborhood disputes. Cases drawn from two top-rated mediation shows demonstrate how they privilege morality and human feeling (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a harmony ideologyan attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.
Heino, B 2013, 'The state, class and occupational health and safety: locating the capitalist state's role in the regulation of OHS in NSW', Labour and Industry, vol. 23, no. 2, pp. 150-167.
Hobbs, H 2013, 'Ubi jus ibi remedium or not?: Damages for executive breaches of human rights', Precedent (Sydney, NSW), pp. 10-14.
The 2012 state election landslide for the Liberal National Party has had significant consequences for minority groups in Queensland. The Premier’s election night declaration that his government would make the State a better place to live for all Queenslanders has been pushed to one side, as the Attorney General has set about ‘levelling the playing field so that the laws suit the majority and not the minority’. This article takes a critical look at the government’s legislative agenda, placing its reforms in a historical context to illustrate that each reform is a step backward that unravels centuries of gradually calculated reform aimed at protecting human rights.
On February 26, 2011, in the wake of sweeping protest movements and resulting government-sponsored violence across the Arab world, the Security Council adopted Resolution 1970 referring the Situation in Libya to the Prosecutor of the International Criminal Court (ICC). This was only the second occasion that the Council had, in acting under its Chapter VII powers of the Charter of the United Nations, referred a situation to the Court pursuant to Article 13(b) of the Rome Statute. When, just two weeks later, the United Nations Security Council adopted Resolution 1973 creating the legal basis for military intervention in Libya, it appeared that the ICC was well placed to strike a powerful blow for international criminal law, justice, and the Libyan people. Unfortunately, this has not been the case. This article asks why—it finds that an impasse exists between the ICC and the Libyan National Transitional Council due to the doctrinal uncertainty as to the applicability of the principle of complementarity under Security Council referrals. Although complementarity has been described as the cornerstone of the ICC, questions persist as to whether the Security Council, as the body charged with the primary responsibility for the maintenance of international peace and security, can abrogate this principle and confer jurisdictional primacy upon the ICC. This article seeks to resolve this issue through a comprehensive analysis of the Rome Statute, the Charter of the United Nations and subsequent practice of the Office of the Prosecutor of the ICC. Finding that the Security Council must abide by the principle of complementarity, this article concludes by analyzing the consequences for Libya and for future Council referrals, proposing that an ICC trial in situ offers compelling benefits for this and similar cases involving states transitioning from despotism.
Hubbard, P, Boydell, S, Crofts, P, Prior, JH & Searle, GH 2013, 'Noxious neighbours? Interrogating the impacts of sex premises in residential areas', Environment and Planning A, vol. 45, pp. 126-141.
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Premises associated with commercial sexincluding brothels, striptease clubs, sex cinemas, and sex shopshave increasingly been accepted as legitimate land uses, albeit ones whose location needs to be controlled because of assumed `negative externalities. However, the planning and licensing regulations excluding such premises from areas of residential land use are often predicated on assumptions of nuisance that have not been empirically substantiated. Accordingly, this paper reports on a survey of those living close to sex industry premises in New South Wales, Australia. The results suggest that although some residents have strong moral objections to sex premises, in general residents note few negative impacts on local amenity or quality of life, with distance from a premise being a poor predictor of residents experiences of nuisance. These i ndings are considered in relation to the literatures on sexuality and space given regulation which ultimately appears to reproduce heteronormative moralities rather than respond to genuine environmental nuisances.
Karpin, IA, Stuhmcke, AG, Millbank, J & Chandler, ER 2013, 'Analysing IVF Participant Understanding of, Involvement in, and Control over Embryo Storage and Destruction in Australia', Journal of Law and Medicine, vol. 20, no. 4, pp. 811-830.
This article examines patient responses to the issues of embryo storage and destruction in IVF
Kirkby, D 2013, '"Those Knights of the Pen and Pencil": Women Journalists and Cultural Leadership of the Women's Movement in Australia and the United States', LABOUR HISTORY, no. 104, pp. 81-99.
Over ten years ago now Peter Burke, an early-modern European historian, wrote that ‘historians still do not take the evidence of the image seriously enough’, leading others to speak of the ‘invisibility of the visual’ and the ‘condescension towards images’, which this implies. ‘Relatively few historians’, he pointed out, ‘work in photographic archives, compared to the numbers who work in repositories of written and typewritten documents. Relatively few historical journals carry illustrations and when they do, relatively few contributors take advantage of this opportunity.’ 1 This, despite the fact that social historians such as Raphael Samuel in the UK became aware of the value of photographs for exploring ‘history from below’ in the mid- 1960s. 2 Historians had discovered that the visual records of documentary photography were sometimes all they had for the poor and illiterate subjects of social histories. 3 Meanwhile art historians had taken up the challenge to write the social history of art.4 Nevertheless the use of images for historical analysis was confined to a small group of scholars and slow to move into the mainstream
Lambert, H 2013, 'The next frontier: Expanding protection in europe for victims of armed conflict and indiscriminate violence', International Journal of Refugee Law, vol. 25, no. 2, pp. 207-234.
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This article examines the protection currently afforded in Europe to victims of armed conflict and indiscriminate violence in the context of article 15c of the EC Qualification Directive (QD) and article 3 of the ECHR. It analyses the recent case law of the Court of Justice of the European Union (CJEU), the European Court of Human Rights, and five member states (the UK, Germany, France, the Czech Republic and the Netherlands) with a view to identifying current legislation and state practice within Europe. It builds on an article by Lambert and Farrell to show how article 15c, as interpreted by the CJEU in Elgafaji, provides scope for broadening protection. It also discusses the relationship between article 3 ECHR and article 15c QD and human dignity as a core value in international protection. Finally, it considers the recent case law of European courts (both regional and national) and argues that this shows practical reasoning about the range of threats facing people fleeing conflict and violence and an awareness of a wider range of problems than previously recognized in protection cases. Nonetheless, there continues to be uncertainty regarding the threshold of indiscriminate violence required to satisfy article 15c. © The Author (2013). Published by Oxford University Press. All rights reserved.
Landrigan, M 2013, 'Can the Implied Freedom of Political Discourse Apply to Speech by or About Religious Leaders?', Adelaide Law Review, vol. 34, no. 2.
Leary, DK 2013, 'Year in Review-International Maritime Organization', Yearbook of International Environmental Law, vol. 22, pp. 618-622.
Lenta, P 2013, 'In Defen Ce of the Right of Religious Associations to Discriminate: A Reply to Bilchitz and De Freitas', South African Journal on Human Rights, vol. 29, pp. 429-447.
Lenta, P 2013, 'Revelation and Legitimation in Albie Sachs’s The Strange Alchemy of Life and Law', English in Africa, vol. 40, pp. 79-97.
Libesman, T 2013, 'Book Review of Hannah McGlade, Our greatest challenge - Aboriginal Children and Human Rights', Alternative Law Journal, vol. 38, no. 2.
Luker, T 2013, 'Decision Making Conditioned by Radical Uncertainty: Credibility Assessment at the Australian Refugee Review Tribunal', International Journal of Refugee Law, vol. 25, no. 3, pp. 502-534.
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The increasing global magnitude and exigency of refugee status determination is resulting in recent attention to the parameters of credibility as part of evidentiary assessment in refugee law. In Australia, as in other countries, it is well recognised that applications for review of primary level decisions on refugee status commonly fail on the basis of credibility evidence. Furthermore, it has been suggested that the assessment of credibility is likely to be a source of error in decision making. This article reports on the results of a small-scale study into decision making and credibility assessment at the Australian Refugee Review Tribunal involving interviews with decision makers. Drawing on feminist theories of epistemic responsibility, it argues for a revised standard of proof, suggesting a rebuttable presumption of credibility, or truthfulness, on the part of the applicant seeking asylum. Such an approach may go some way towards addressing the potential for epistemic injustice and is consistent with a position of epistemological responsibility demanded by an ethical obligation to the refugee.
The Australian approach to legal parentage is particularly complex in the context of trans-national surrogacy arrangements. Australian law does not generally recognise parental status granted in other jurisdictions and overseas commercial surrogacy arrangements are excluded from specifically enacted domestic surrogacy laws that enable transfer of legal parentage in certain circumstances. Thus Australian administrators and judges have had to grapple with the claims of Australians trying to return with a foreign born child with whom they usually have a genetic link and a primary caregiving role, but no legally recognised relationship. This recognition has occurred through ad hoc liberalisation of interpretations of `parent and `child in particular pieces of legislation, which has left parents in a state of ambiguous, labyrinthine and `limping legal parentage. This article presents an analysis of the problems posed by the current lacunae before going on to explore the risks and potentiality of possible reforms to federal law. The analysis in this article is informed throughout by my own view of surrogacy as a valid method of family formation which should be respected. The State has a legitimate objective in trying to ensure that surrogacy is undertaken with the informed and continuing consent of all the parties, and most particularly the surrogate, given the unique impact and significance of the gestational relationship. This must be balanced with the need to accord certainty of parental status to children being raised in surrogacy families.
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, IA & Stuhmcke, AG 2013, 'TOWARDS FACILITATIVE REGULATION OF ASSISTED REPRODUCTIVE TREATMENT IN AUSTRALIA', Journal of Law and Medicine, vol. 20, no. 4, pp. 701-711.
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.
In 1977 Chief Justice Barwick gave one of the first statistical snapshots of the Australian courts as a ‘judicial system’ in his inaugural ‘State of the Australian Judicature’ address. Since then, there has been no detailed statistical examination of the characteristics of the Australian judicature, due in part to the paucity of reliable data. After the passage of 36 years, this article provides a second examination of Australian courts and judges using data from the Productivity Commission and other sources. The article describes and analyses key attributes and observable trends in the judicature from the perspectives of both the supply side (judicial labour) and the demand side (court lodgements). This is done across six domains: size and growth; tiers of the court hierarchy; state versus federal systems; civil versus criminal subject matter; regional dynamics; and gender composition. What emerges is a complex picture of a dynamic judicial system that does not always comport with common assumptions about its structure and organisation. There is a critical need for the collection of additional data on the judicature, and for research that provides a better understanding of the forces that will shape the evolution of the Australian judicial system over the coming decades.
Plater, D & Crofts, P 2013, 'Bushrangers, the Exercise of Mercy and the ‘Last Penalty of the Law’ in New South Wales and Tasmania 1824-1856', The University of Tasmania Law Review, vol. 32, no. 2, pp. 295-343.
The death penalty in the 19th century in both colonial Australia and Great Britain was widely seen as necessary for punishment and deterrence. However, the prerogative of mercy served a vital role during this period in mitigating the effects of capital punishment. This article examines the exercise of the death penalty and the prerogative of mercy in colonial Australia during the period from 1824 to the grant of responsible government in 1856 with respect to bushrangers. Bushrangers despite their often celebrated and even sympathetic status in 'popular culture' were perceived (in official and 'respectable' circles at least) as more than mere colonial criminals and as posing a particular threat to the often tenuous stability and even existence of early colonial society. However, even offenders 'beyond the pale' such as bushrangers were not exempted from the benefit of mercy. It is argued that the prerogative was taken seriously in colonial Australia by the public, the press and notably the authorities to even the worst of capital offenders such as bushrangers. Different conceptions were expressed during the time, ranging from ideas of mercy as based on desert and equity, as something that was predictable and consistent, to ideas of mercy as an undeserved gift. These debates about the prerogative of mercy articulated different conceptions of law and order, community and justice in an embryonic, self-governing society.
Prior, JH, Crofts, P & Hubbard, P 2013, 'Planning, law, and sexuality: Hiding immorality in plain view', Geographical Research, vol. 51, no. 4, pp. 354-363.
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Emerging research in sexuality and space outlines the diverse forms of spatial governmentality used to discipline non-normative sexual behaviours, exploring how exclusion, concealment, and repression combines to ensure that `immoral sexualities are out of the sight of the `moral majority. In this paper, we explore this contention in relation to planning for sex service premises (brothels) in New South Wales, Australia. Though such sex service premises are now legal, our analysis nonetheless considers the way that these premises have been subject to forms of planning constraint that reflect planners assumptions about the appropriate manifestation of sex premises within the urban landscape. By exposing the assumptions written into planning law that sex premises are legal but potentially disorderly, we demonstrate the evidential power of planning to reinforce dominant moral geographies through instruments which, at first glance, appear to be focused on objective questions of amenity and the `best use of land. This paper hence explores the ways in which planners have translated assumptions of disorder into categories of visibility and distance, meaning that brothels have become hidden in plain view so as not to disturb the integrity of residential `family spaces.
Ries, N 2013, 'Research with Blood Donated for Transfusion Purposes', Health law review, vol. 21, no. 2.
Ries, N & Fisher, K 2013, 'The Increasing Involvement of Physicians in Complementary and Alternative Medicine: Considerations of Professional Regulation and Patient Safety', Queen's Law Journal, vol. 39, no. 1, pp. 273-299.
Riley, J, McCallum, R & Stewart, A 2013, 'Resolving Disputes over Employment rights in Australia', Comparative Labor Law and Policy Journal, vol. 34, pp. 843-879.
Riley, S 2013, ''Buffalo Belong Here, As Long As He Doesn't Do Too Much Damage': Indigenous Perspectives on the Place of Alien Species in Australia', Australasian Journal of Natural Resources Law and Policy, vol. 16, no. 2, pp. 157-196.
ABSTRACT: Over the last three decades, commentators from the social sciences and beyond have produced a copious body of literature, linking the regulation of invasive alien species (IAS) with nativism and xenophobia. This discourse has largely developed without adequately engaging with key areas of the wider regulatory debate, including the views of community groups, such as, the agricultural product sector, environmentalists and Indigenous land managers. Notwithstanding these omissions, few commentators have addressed the allegations of nativism and xenophobia levelled against IAS regimes. Alien species can, and do, become invasive, threatening human pursuits and biodiversity. At the same time, society has developed complex relationships with alien species where species such as introduced pigs and horses can be seen as both an IAS and a resource. What is more, Indigenous land managers regard all species as living beings that can earn their place in country. The strength of the social sciences discourse lies in its premise that society needs to re-define its relationship with nature, including species that humans have introduced. Indigenous perspectives, as they apply in Australia, potentially offer a `road map for drawing together commonalities in the IAS literature, which in turn can lead to better-quality regulation, particularly with regard to animal IAS.
A country report on environmental developments in Australia for 2012.
Riley, S 2013, 'Peak Coordinating Bodies And Invasive Alien Species: Is The Whole Worth More Than The Sum Of Its Parts?', Loyola of Los Angeles International and Comparative Law Review, vol. 35, no. Summer 2013, pp. 453-492.
The development of regimes to regulate invasive alien species (IAS) has historically progressed in a fragmented and ad hoc manner. To remedy this situation the United States of America and Great Britain have introduced peak coordination bodies to draw their regimes together. However, in Australia, the Senate has expressed concern at the consequences of establishing such bodies, concluding that they merely duplicate regulation at the various levels of government; and, additionally, have the potential to destabilize Australias constitutional balance of powers. Using a comparative methodology based on the `functionalist approach, this paper undertakes a comparative study of IAS regulation in Australia, the United States of America and Great Britain to evaluate coordination mechanisms instituted by way of a peak coordinating body. It is argued that coordination is essential to the effective operation of IAS regimes and that peak coordinating bodies are well-placed to draw together initiatives established at different levels of government; making the whole worth more than the sum of its parts.
Schofield-Georgeson, E 2013, 'A different inequality: The politics of debate about remote Aboriginal Australia', Australian Aboriginal Studies, vol. 1, pp. 118-120.
Schofield-Georgeson, E 2013, 'Mandatory sentencing reinvigorated', The Alternative Law Journal, vol. 38, no. 1.
Selim, Y 2013, 'Opportunities and challenges of participation in transitional justice in Nepal', Development Bulletin, pp. 31-31.
Simmonds, AP 2013, 'Trading Sentiments Friendship and Commerce in John Turnbull's Voyages (1800-1813)', Journal Of Pacific History, vol. 48, no. 4, pp. 369-385.
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This paper explores the relationship between commerce, cross-cultural friendship and empire in the published Voyages of Pacific salt pork trader John Turnbull. Turnbull published two versions of his Voyages, the first in 1805 and the second in 1813. Thro
There is a lack of international and Australian research about offenders who have been convicted of human trafficking, slavery and slave-like practices. In Australia, 15 offenders have been convicted of such crimes. The publicly available court judgments about these offenders contain invaluable information about the characteristics and motivations of offenders, the intersection of trafficking offending with other forms of criminality and the common methods offenders use to control and exploit their victims. By analysing these cases, this paper provides an accessible and timely assessment of offenders who commit human trafficking, slavery and slave-like crimes in Australia. This paper is part of a wider program of research undertaken by the AIC on this type of crime in Australia and the AsiaPacific region, which is funded by the Australian Government as part of its national Action Plan to Eradicate Trafficking in Persons.
Smith-Khan, L 2013, 'Overcoming Barriers to Education for Refugees with Disabilities', Migration Australia, vol. 3.
Together innovation and intellectual property play a significant role in industrial growth. However, in the field of information technology, much controversy surrounds the patenting of software and business methods. There are claims of stifling innovation on the one hand and equally claims of significant national economic benefit on the other. This article analyses the state of play in these related controversial fields of technology providing a background to the Australian software industry drawn from `whole of industry studies and the authors own empirical research into Australian patent ownership. The meaning of patentable subject matter and the ability of software based inventions and business methods to gain patent protection are considered across key jurisdictions. A critical analysis of case law across those jurisdictions will make plain the difficulties encountered by the courts in being able to identify where to draw the line between patentable and non-patentable subject matter. Arguments for and against patentability will be weighed in the context of the purpose of the patent system and in the light of the Raising the Bar amendments to the Australian patents regime.
Stuhmcke, AG & Stewart, PE 2013, 'The rise of the common law in statutory interpretation of tort law reform legislation: Oil and water or a milky pond?', Tort Law Journal, vol. 21, no. 1, pp. 1-26.
The common law world has long puzzled over the interplay between common law and statute. This article demonstrates nuance in the approach to statutory interpretation in the six cases decided by the High Court between 2009 and 2013 involving interpretation of the tort law reform legislation: Adeels Palace Pty Ltd v Moubarak,1 Strong v Woolworths Ltd,2 Wallace v Kam,3 Wicks v State Rail Authority of New South Wales,4 Insight Vacations Pty Ltd v Young5 and Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd.6 The cases evidence that, in the interpretation of a single statute the Civil Liability Act 2002 (NSW) the High Court employs a diversity of statutory interpretation techniques which may be characterised as ranging between an `oil and water approach (to those statutory provisions which limit or abrogate previous common law rules and rights) to a `milky pond approach (where the common law is used analogically to interpret and develop statute law). This article argues that the employment of this range of techniques underlines the view that legislation and common law cannot be seen as separate and independent simply because of their independent sources. Rather they `exist in a symbiotic relationship7 as `products of the same inherently dynamic legal process
Stuhmcke, AG, Karpin, IA, Chandler, ER & Millbank, J 2013, 'Use of Stored Embryos in IVF Following Separation or Death of a Partner', Journal of Law and Medicine, vol. 20, no. 4, pp. 773-788.
This article examines legal and policy restrictions on the use of stored IVF embryos after relationship separation and death.
Thomson, M 2013, 'Abortion Law and Professional Boundaries', Social and Legal Studies: an international journal, pp. 191-210.
Thomson, M & Fox, M 2013, 'Realising social Justice in public health law', Medical Law Review, pp. 278-309.
Tian, Y 2013, 'Fair Competition and Preferential Taxation Policy for Small and Medium Retail Stores in China: A Comparative Study', Journal of Chinese Tax and Policy, vol. 3, no. Special Issue.
Tian, Y & Greenleaf, G 2013, 'Data protection widened by China’s consumer law changes', The Privacy Laws & Business (PL&B) International Report, no. 126, pp. 27-28.
Todd, BA 2013, 'Reparar el silencio: justicia reparativa para los daños lingüísticos causados por colonización y conflicto', Revista de Derecho Público, no. 31, pp. 1-39.
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This article considers a concept of linguistic reparative justice for indigenous peoples, that is, reparative measures addressing the consequences of conquest and colonization on indigenous languages. Particular attention is given to Colombia, where the cultures of indigenous communities have been further afflicted by the armed conflict, in regards to whether the recent native languages law can play a remedial role.
van Rijswijk, HM 2013, 'Stolen Generations: Online Testimonies as Sources of Social Justice: Towards an Ethics of Encounter', Australia and New Zealand Law and History E-Journal, vol. 2013, no. 10, pp. 1-13.
In this paper, I am using the provocation of `the source to examine the significance of a recent iteration of Stolen Generations testimonies to questions of contemporary social justice. This testimonial form has had a complicated and fraught history across Australian legal and cultural domains: in the handful of cases that have dealt with injuries arising out of the Stolen Generations, courts have placed oral testimony in contest with state documentary records1 ; oral testimony has also featured in different iterations of extra-legal Stolen Generations projects, which have been produced by state, corporate and Indigenous parties, sometimes leading to the problem of testimonies being co-opted into state and private projects, which do not necessarily benefit Indigenous people
Vijeyarasa, R 2013, 'Stigma, stereotypes and Brazilian soap operas: road-blocks to ending human trafficking in Vietnam, Ghana and Ukraine', GENDER PLACE AND CULTURE, vol. 20, no. 8, pp. 1015-1032.
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Vijeyarasa, R 2013, 'Women at the Margins of International Law: Reconceptualizing Dominant Discourses on Gender and Transitional Justice', International Journal of Transitional Justice, vol. 7, no. 2, pp. 358-369.
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Vijeyarasa, R & Bello Y Villarino, JM 2013, 'Modern day slavery? A Judicial Catchall for Trafficking, Slavery and Labour Exploitation: A Critique of Tang and Rantsev', Journal of International Law and International Relations, vol. 9, no. 1, pp. 36-61.
Slavery and trafficking in persons continue to draw global attention, fostering debates in sociological, political, academic and legal circles. Governments, in particular, value being seen on the global stage as working to combat the trafficking of human beings to and from their territories. With prosecution of traffickers difficult in many jurisdictions, civil society organizations and others always welcome efforts by regional courts to hold governments accountable for their failure to fulfil their counter-trafficking international obligations, or those by domestic courts to find traffickers guilty
When people seeking refugee status come before departmental officers or administrative bodies, the applicants first person testimony plays a crucial role since there is often little or no other evidence such as documents or witnesses to support the claim being made. The distinctly narrative form of refugee applicants evidence and its central place in the status determination process make such testimony an ideal site from which to explore the laws relationship with narrative. In this article I use one Refugee Review Tribunal decision to exemplify how demands for narrativity, in relation to both the content and form of evidence, influence determinations about the plausibility of refugee testimony. I argue that part of the laws requirement for `plausible evidence involves an expectation that refugee applicants tell a good story that is, one that predominantly conforms to the conventions of model narrative forms. When the law responds to the events and accidents within refugee testimony, narrative expectations are at play and the precise terms of these standards and the content of `good, orderly narratives are implicit, shifting and inconsistent.
Book review of 'A Trobled Marriage' by Leigh Goodmark (New York University Press, 2012)
This article discusses what recent statistics and public reports reveal about the funding of GEERS (now the FEG) and its bottom line. The article examines (1) whether there has been a “blowout” in the scheme which guarantees the recovery of employee entitlements in liquidations and (2) what might be done to put the scheme on a firmer fiscal footing.
Wellard, MN 2013, 'Debts “incurred” by receivers, administrators and liquidators : the case for a harmonised construction of ss 419, 443A and 556(1)(a) of the Corporations Act', Insolvency Law Journal, vol. 21, pp. 60-81.
This article analyses the inconsistent approaches taken by courts when interpreting provisions of the Corporations Act which address debts or expenses “incurred” by receivers, administrators and liquidators. The article contends for a consistent construction of these provisions which will enable the legislation to operate (as was intended) for the benefit of persons who supply goods, services or labour to companies in external administration. The article explains how and why debts can be “incurred” by insolvency practitioners continuing on pre-existing contracts. Specifically, the article contends for a construction of ss 419 and 443A of the Corporations Act which renders receivers and administrators personally liable for certain entitlements of employees (eg, wages and superannuation contributions) which become due and payable by reason of the decision of a receiver or administrator to continue a pre-existing contract rather than terminate it.
Widdowson, L & Li, G 2013, 'Telecommunications industry self-regulation: assessing the Telecommunications Industry Ombudsman Scheme in Australia', International Journal of Private Law, vol. 6, no. 3, pp. 315-328.
Booth, T 2013, 'Building on the Theoretical: an Ethnographic study of victim participation in the courtroom', Criminology on Trial - The British Society of Criminology Conference, Wolverhampton, UK.
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.
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 2013, '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.
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.
Carter, DJ 1970, 'The History of Medical Manslaughter in Australia: A Revision', 31st Annual Australian and New Zealand Law and History Society Conference;, Sydney, Australia.
Dorsett, SG 2013, '"Peculiar Courts: Maori and the Resident Magistrates Court 1846-1852"', ANZLHS Annual Conference, Dunedin.
Dorsett, SG 2103, 'Belonging (to law) on the Edge of ..... Empire"', On the Edge, University of British Columbai.
Dorsett, SG 2013, 'Maori before the Resident Magistrates' Court 1846-1852', American Society for Legal History, Miami, Florida.
Dorsett, SG & McVeigh, S 2013, 'Public Authority Beyond the State: Jurisdiction and Forms of Public Life', Public Authority in the Era of Globalisation, Whitlam Institute, University of Western Sydney.
Fallah, KL 2013, 'Constructing the "Humanitarian": The Regulatory Impact of Self-Characterisation of the Private Military Industry', 'Power, Privilege, and the Pursuit of Justice: Legal Challenges in Precarious Times', Law and Society Annual Meeting, Boston.
Fallah, KL 2013, 'Corporate Construction of "Humanitarianism": The Regulatory Impact of Self-Characterization of the Private Military Industry', IGLP: The Conference, Harvard Law School, Institute for Global Law and Policy.
Methven, EP 2012, 'DIRTY WORDS? CHALLENGING THE ASSUMPTIONS THAT UNDERPIN OFFENSIVE LANGUAGE CRIMES', The 6th Annual Australian and New Zealand Critical Criminology Conference, Annual Australian and New Zealand Critical Criminology Conference, University of Tasmania, University of Tasmania, Hobart, pp. 97-106.
Mowbray, AS, Greenleaf, G & Chng, P 2013, 'Ten years after: What WorldLII offers users and collaborating LIIs', Law via the Internet, Jersey, Cannel Islands.
Riley, S 2013, 'Buffalo Belong Here, as Long as he Doesnt Do Too Much Damage: Indigenous Perspectives on the Place of Alien Species in Australia', Buffalo Belong Here, as Long as he Doesnt Do Too Much Damage: Indigenous Perspectives on the Place of Alien Species in Australia, The Search for Environmental Justice, International Union for the Conservation of Nature, Waikato University, Hamilton, New Zealand, pp. 1-1.
Over the last three decades, commentators from the social sciences and beyond have produced a copious body of literature, linking the regulation of invasive alien species (IAS) with nativism and xenophobia. This discourse has largely developed without adequately engaging with key areas of the wider regulatory debate, including the fact that alien species can, and do, become invasive, thereby threatening biodiversity, human pursuits and Indigenous biocultural diversity. Notwithstanding these omissions, few commentators have addressed the allegations of nativism and xenophobia levelled against IAS regimes. A notable exception is Simberloff, who cogently argues that the bulk of management decisions are made in response to the threats or damage posed by IAS. Yet the notion of what amounts to a threat or damage can vary. Indigenous peoples, for example, tend to have more forgiving perspectives with regard to animal IAS and this has engendered tension with non-indigenous land managers. The strength of the social sciences discourse lies in its premise that society needs to re-define its relationship with nature, including species that humans have introduced. Indigenous perspectives, as they apply in Australia, potentially offer a roadmap for drawing together commonalities in the IAS literature, which in turn can lead to improved regulation, particularly with regard to animal IAS
Schofield-Georgeson, E 2013, 'A brief history of the right to silence in New South Wales', Australia and New Zealand Law & History Society Conference, Dunedin.
Steele, LR 2013, 'The "problems" with Jane: Violence Against Women with Cognitive and Psychosocial Disability', Disability at the Margins: Vulnerability, Empowerment and the Criminal Law, Wollongong, Australia.
Steele, LR, Bell, F & Shackel, R 2013, ''The books don't talk to me!': Postgraduate student groups and research student identity formation', Research and Development in Higher Education: The Place of Learning and Teaching, Higher Education Research and Development Society of Australasia Annual Conference, Auckland, New Zealand.
This paper explores alternative spaces for learning amongst postgraduate research (PGR) students in the form of research-related groups such as reading and discussion groups, writing groups, seminar series or social groups. Our research with PGR students and academics explores the pedagogy and role of such groups in student learning and identity formation. In this paper, we discuss our findings related to PGR student needs and the factors prompting the formation of research-related groups. A survey of 36 PGR students revealed that students were reasonably satisfied with the formal components of their research degrees such as supervision and mandatory units of study. Yet general dissatisfaction with other opportunities for intellectual engagement, and feelings of isolation, were also prevalent. We hypothesise that though a majority of students might feel supported to complete their higher research degree, they are not necessarily feeling supported in the transition to becoming scholars or in developing broader scholarly interests and networks. As other academic literature has opined, research-related student groups can fulfil a dual function, assisting students towards completion of their research degree but also socialising students into academia. This paper discusses the role that higher education institutions and faculties might play in supporting research-related groups. In particular, there is a balance to be achieved between facilitating groups and enabling sustainability while ensuring that PGR students maintain autonomy and a reciprocal degree of responsibility in governance of such groups, which are key to developing an academic identity.
Tian, Y 2013, 'Cloud Computing and the Protection of Personal Information – China as a Case Study', The Conference: Up in the Cloud: Legal and Privacy Challenges in Cloud, the Law and Technology Centre of the Faculty of Law, The University of Hong Kong, and sponsored by Microsoft (Invited Only)..
Tian, Y 2013, 'Personal Information Protection in China - Recent Development of the Chinese Civil and Criminal Cases', the 3rd Asian Privacy Scholars Network Conference, (invitation-only Feature Panel on Greater China), 3rd Asian Privacy Scholars Network Conference, Law and Technology Centre of the Faculty of Law, the University of Hong Kong.
Varnham, S 2013, 'Regulation, Representation and Responsiveness the three `Rs of university governance? universities, students and the law', Informa Inaugural conference on Academic Governance, Sydney.
Varnham, S, Stuhmcke, AG, Olliffe, BM, Kamvounias, P & Evers, M 2013, 'Different Country, different hemisphere - same challenges: the student and the Australian University', Annual Conference of ENOHE/OIAHE, St Catherine's College, Oxford, UK.
Wangmann, JM 2012, 'Family Law and Different Types of Intimate Partner Violence: Some Comments from Australia', Socio-Legal Studies Annual Conference, York, UK.
Wangmann, JM 2013, 'From Theory to Practice: Typologies and the Family Law System in Australia', Typologies of Intimate Partner Violence: Theory and Practice, Brisbane, Queensladn, Australia.
Burn, JM 2013, Anti-Slavery Australia submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, pp. 1-5, Parliament of Australia website.
This submission supports the extension of existing vulnerable witness protections available to children, adult victims of slavery, slavery-like practices and human trafficking as well as “special witnesses”. It further supports the creation of Victim Impact Statements, which take into account physical, psychological and emotional suffering as well as economic loss.
Burn, JM 2013, Reconsideration of visas intended to provide protection and support to people who have experienced human trafficking, slavery and slavery-like practices, pp. 1-7, Fourth National Roundtable on Human Trafficking and Slavery Senior Officials Meeting.
This information sheet discusses Australia’s current trafficking visa framework and highlights where gaps exist in the provision of support to victims of human trafficking.
Burn, JM & UTS Students 2013, Anti-Slavery Australia submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade Inquiry into Slavery, Slavery-like Conditions and People Trafficking., pp. 1-67, Parliament of Australia website.
This submission highlights six areas for further engagement by the Australian government to address the issues of slavery, slavery-like conditions and people trafficking in Australia. These areas include national compensation, support programs, forced marriage and the legislative scheme on slavery. The final section provides a more general discussion on vulnerable groups and non-legislative strategies for combatting slavery and people trafficking.
Burn, JM & Wilton, J 2013, Supplementary Anti-Slavery Australia submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade Inquiry into Slavery, Slavery-like Conditions and People Trafficking., pp. 1-11, Parliament of Australia website.
This supplementary submission elaborates on the need for a national compensation scheme for victims of slavery. The submission considers the inconsistency across different Australian jurisdictions for victims of crime compensation schemes, and discusses Australia's international obligations to provide reparations.
Burridge, N, Chodkiewicz, AK, Payne, A, Oguro, SG, Varnham, S & buchanan, J UTS Publishing Service 2013, Human Rights Education in the School Curriculum, pp. 1-75, Broadway, Sydney.
Human Rights Education centres; Professional Teachers Associations; Australian Human Rights Commission
A literature review and overview of findings, with recommended remedial actions
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.
Riley, S Senate Standing Committee on Rural and Regional Affairs and Transport 2013, Submission by Sophie Riley, to the Senate Standing Committee on Rural and Regional, pp. 1-7, http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=rrat_ctte/biosecurity_.
Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport on the Biosecurity Bill 2012
Abbas, F 2013, '“Laura committed to improve procedures to identify, protect refugees with disabilities”', Pakistan Special, pp. 5-5.
Interview (cover story) for Pakistan Special
This article outlines the findings of the NSW Community Relations Commission report on human trafficking, raising the profile of modern forms of slavery such as forced labour or forced marriage.
Dehm, S 2013, 'Cholera in Haiti: Is UN immunity now impunity?', Lowy Institute for International Policy.
Dehm, S 2013, 'Cholera in Haiti: Is UN immunity now impunity?', The Interpreter.
Dehm, S 2013, 'Refugees and Hunger Strikes: The need to appeal ASIO assessments', The Conversation.
Dehm, S & Storr, C 2013, 'Unreasonable Refusal to Adjourn: Minister for Immigration and Citizenship v Li', Melbourne Law School.
Grossi, R 2013, ''Does same-sex marriage necessarily mean 'radical love'?'', The Conversation.
Grossi, R 2013, ''Romantic Love - a Feminist Conundrum?'', The Feminist Wire.
Selim, Y 2013, 'Participation of victims in Nepal’s Transitional Justice process', Insight on Conflict.
Tong, K 2013, 'Asylum Seekers: A Compassionate Approach', Hope 103.2FM.
Vogl, A 2013, 'Comment: Aggravated People Smuggling', Alternative Law Journal, pp. 276-276.
Vogl, A 2013, 'FOI Documents Reveal Mining Lobby’s Demand For EDO Closure', Alternative Law Journal, pp. 56-57.