Berg, L 2015, 'Hiding in Plain Sight – Au Pairs in Australia' in Cox, R (ed), Sisters or Servants? Au Pairs' Lives in Global Context, Palgrave Macmillan, London, pp. 187-202.
Biber, K 2015, 'The rules of evidence' in Andrew, B & Dyer, K (eds), Evidence (exhibition catalogue), Museum of Applied Arts and Sciences Media, Ultimo NSW, pp. 26-35.
Booth, T 2015, 'Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom' in Wilson, D & Ross, S (eds), Crime, Victims and Policy International Contexts, Local Experiences, Palgrave Macmillan, UK, pp. 161-183.
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Crime, Victims and Policy brings together the work of leading international scholars to examine how the experience of victims of crime, and the formulation of policies and theory that impact upon them, are translated and experienced within ...
Crofts, P 2015, 'Criminal Responsibility and Popular Culture: The Walking Dead' in Crofts, T & Loughnan, A (eds), Criminalisation and Criminal Responsibility in Australia, Oxford University Press, South Melbourne, pp. 208-221.
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Despite its longevity, the reach and boundaries of the defence of self-defence has been the subject of much debate and controversy. These debates have been particularly heated in response to Stand Your Ground laws in many of the states in the USA. This chapter explores the implications of the skirmishes around the defence of self-defence in Australia through the prism of medieval law and the horror series The Walking Dead.
Dehm, S 2015, 'Accusing ‘Europe’: Articulations of Migrant Justice and a Popular International Law' in Brynes, A & Simm, G (eds), Peoples' Tribunals and International Law, Cambridge University Press, UK, pp. 157-181.
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This chapter examines a recent civil society initiative, Tribunal 12, as an internationalised articulation of migrant justice.1 Tribunal 12 was held in Stockholm in May 2012, and sought to put ‘Europe’ on trial for the systematic violations of the rights and dignity of refugees, asylum seekers and migrants. By adopting a legal and aesthetical framework, the initiative aimed to draw attention to the increased global securitisation of borders, criminalisation of unauthorised migrants and systemic exploitation of undocumented people in Europe. It also intended to generate support for migrant struggles within Europe by highlighting the morally unjust and harmful effects of European border practices. Although the Tribunal differed significantly from earlier international peoples’ tribunals in that it did not hear any witness testimonies from migrants themselves, I nonetheless locate Tribunal 12 within a legacy of peoples’ tribunals and their entanglement with international law and institutions.
Gerber, P 2015, 'Surrogacy, Law and Human Rights' in Gerber, P & O'Byrne, K (eds), Surrogacy, Law and Human Rights, Routledge, England, pp. 65-80.
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This book examines the effect on domestic and international law, and on human rights law and theory, of the impact of the sharp increase in the use of surrogacy.
Guglyuvatyy, E & Stoianoff, NP 2015, 'Climate change law and policymaking: the utility of the Delphi method' in Kreiser, L, Andersen, MK, Olsen, BE, Speck, S, Milne, JE & Ashiabor, H (eds), Carbon Pricing, Edward Elgar Publishing, UK, pp. 177-190.
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This chapter utilizes a policy evaluation study as an example of the utility of the Delphi method in climate change policymaking. In this study the Delphi method assisted in prioritizing the criteria used in the evaluation. The need for policy evaluation is not only emphasized within environmental research but also policymakers and administrators are more frequently articulating the necessity for environmental policy evaluations. This chapter discusses the Delphi method as a useful instrument in environmental policy research. Based on the findings of the Delphi study conducted to facilitate climate change policies assessment in Australia the authors analyse the strengths and limitations of the method.
Hitchens, L 2015, 'Media Diversity Law and Regulation' in International Encyclopedia of Digital Communication and Society, 3 Volume Set, Wiley, pp. 1-4.
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AbstractThis entry provides an overview of the media diversity concept and examples of some of the policy and regulatory tools adopted to promote media diversity. It considers whether the advent of the digital environment heralds the end of the need for such policies.
Hitchens, Lesley 2015, 'Media Pluralism and Diversity' in Valcke, P, Sükösd, M & Picard, RG (eds), Media Pluralism and Diversity, Palgrave Macmillan UK, England, pp. 252-266.
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Adopting a truly global, theoretical and multidisciplinary perspective, Media Pluralism and Diversity intends to advance our understanding of media pluralism across the globe. It compares metrics that have been developed in different parts of the world to assess levels of, or threats to, media pluralism.
Horsey, K 2015, 'Revisiting the Regulation of Human Fertilisation and Embryology' in Horsey, K (ed), Revisiting the Regulation of Human Fertilisation and Embryology, Routledge, Oxon, pp. 185-199.
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This book critically evaluates the recent developments in human fertilisation legislation, asking whether the 2008 Act has achieved its stated aim of being fit for purpose.
Kelly, F & Millbank, J 2015, 'Framework and Principles for Decision Making in Childrens Matters' in Fehlberg, Millbank, Kaspiew & Kelly (eds), Australian Family Law The Contemporary Context, Oxford University Press Australia and New Zealand, Sydney, pp. 260-312.
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In this chapter, we examine the application of the legislative framework for the resolution of parenting disputes. In response to dissatisfaction among fathers about the amount of time they were able to spend with their children and strong support for shared parenting among other family law stakeholders, the new legislative framework introduced a presumption of equal shared parental responsibility (a broad term used to describe the ability to engage in major decision making ), which was linked within the legislation to shared parenting time (which involves children living across two households, though not necessarily for equal time). Though
Millbank, J 2015, 'The Legal Recognition of Family Relationships' in Fehlberg, B, Kaspiew, R, Millbank, J, Kelly, F & Behrens, J (eds), Australian Family Law The Contemporary Context, Oxford University Press, Sydney, pp. 73-128.
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In this chapter we examine the legal recognition of family relationships against a background of diversity in the way people identify and live as families in Australia. We begin by providing an overview of social science material on family diversity in Australia and then go on to examine the contest between approaches for guiding relationship recognition in law. We first look at legal recognition of adult relationships, in particular examining the operation of new provisions in the Family Law Act 1975 (Cth) (FLA), which extended the operation of the Act to cover de facto partner financial (that is, property and maintenance) disputes on relationship breakdown from 1 March 2009. This is followed by an examination of the rules recognising the legal relationship between adults and children, in particular when they are not genetically relatedsuch as in families formed through assisted conception utilising donor gametes or surrogacy or in instances of customary adoption.
Millbank, J, Fehlberg, B, Kaspiew, R & Kelly, F 2015, 'Specific Issues in Parenting Disputes' in Fehlberg, Millbank, Kaspiew & Kelly (eds), Australian Family Law The Contemporary Context, Oxford University Press Australia and New Zealand, Sydney, pp. 313-381.
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In this chapter we extend our discussion of the legal framework for the resolution of Family Law Act 1975 ( Cth) (FLA) parenting disputes by considering in greater detail several key issues that regularly arise. Our focus throughout is on how these issues are dealt with in the case law and how approaches have changed over time. We make reference to material establishing the broader policy and research context where this is available, and at various points reflect on how the broader themes of the book are demonstrated in approaches to these issues. We begin by considering recent case law (and court data) in order to provide insight into the circumstances in which the family law courts appear inclined or disinclined towards equal time and substantial and significant time outcomes (broadly, shared care). We then consider: the relevance of parents views regarding their childrens religious upbringing; the significance of a childs Aboriginal/Torres Strait Islander background in assessing what will be in their best interests; the particular issues that people who are seeking parenting orders, but who are not parents, may face in Part VII proceedings; the extent to which parental incapacity arising from mental illness shapes parenting outcomes; and cases that involve changing where the child will live (applications by a parent to relocate with the child, and cases involving international child abduction).
O'Connell, K 2015, 'Bad Boys’ Brains: Law, Neuroscience and the Gender of ‘Aggressive’ Behavior' in Schmitz, S & Hoppner, G (eds), Gendered Neurocultures, Zaglossus, Vienna, pp. 299-317.
Prior, JH & Crofts, P 2015, 'Lesbian, Gay, Bisexual and Trans-sexual: Commercial Sex' in Wright, J (ed), International Encyclopedia of the Social & Behavioral Sciences, Elsevier, pp. 883-887.
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Forms of commercial sex extend beyond prostitution to include a broad range of businesses that produce sexual goods and services; many of these cater to a broader range of sexual predilections, and include Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) consumers among their clientele. This article provides an overview of the shifting attitudes toward and culture of LGBTI commercial sex, and how the placement and access to LGBTI commercial sex within Western jurisdictions cannot be considered a simple response to patterns of supply and demand, but rather as the outcome of complex interactions of moral codes, legal structures, and other forms of regulations.
Riley, J & MacDermott, T 2015, 'Age discrimination and labour law in Australia: An ambivalent commitment to equality in the face of a demographic imperative' in Numhauser-Henning, A & Ronnmar, M (eds), Age Discrimination and Labour Law, Wolters Kluwer, The Netherlands, pp. 321-336.
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Age Discrimination and Labour Law. Comparative and Conceptual Perspectives in the EU and Beyond, presents a detailed investigation of age discrimination from the dual perspectives of labour law and non-discrimination law.
Stubbs, J & Wangmann, JM 2015, 'Competing Conceptions of Victims of Domestic Violence within Legal Processes' in Wilson, D & Ross, S (eds), Crime, Victims and Policy: International Contexts, Local Experiences, Palgrave Macmillan, UK, pp. 107-132.
Stuhmcke, AG, Olliffe, B & Evers, M 2015, 'Resolution of Student Grievances Within Universities' in Varnham, S, Kamvounias, P & Squelch, J (eds), Higher Education and the Law, Federation Press, Leichhardt, pp. 114-124.
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This book is the first in Australia dedicated to the legal environment of our universities. The law both drives and governs the evolution of Australia’s strong and vibrant system of higher education. Here, experts explore a wide range of areas of topical and salient interest, providing a comprehensive resource for those both within and outside the sector, including managers, governors, academics, legal practitioners and all who have an interest in the impact of the law on its operations.While their primary function today remains the provision of higher education and research, Australia’s universities are now large commercial global corporations. Their operations involve the management of a diverse range of relationships, both internal and external, and the law plays a central role in these. Higher Education and the Law first considers the legal framework of the higher education sector and the relationships universities have externally, particularly with government – their governance, their funding and accountability, and their maintenance of high standards and quality. It then traverses many of the areas where the law has a significant impact on the relationships universities have with their students and their staff.In a clear and readable style, the book covers matters from anti-discrimination and equal opportunity, transparency and due process in decision-making, employment and student matters, to property rights such as copyright and ownership of intellectual property. It focuses on those issues of the most practical relevance to today’s higher education environment.
Tian, GY 2015, 'Cloud computing and copyright' in Privacy and Legal Issues in Cloud Computing, Edward Elgar Publishing.
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Tian, Y 2015, 'Cloud Computing and Copyright' in Cheung, ASY & Weber, RH (eds), Privacy and Legal Issues in Cloud Computing, Edward Elgar Publishing, Cheltenham, pp. 160-179.
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Adopting a multi-disciplinary and comparative approach, this book focuses on the emerging and innovative attempts to tackle privacy and legal issues in cloud computing, such as personal data privacy, security and intellectual property ...
Tyrrell, J & Varnham, S 2015, 'The Student Voice in University Decision-making' in Varnham, S, Kamvounias, P & Squelch, J (eds), Higher Education and the Law, Federation Press, Sydeny, pp. 30-40.
Van Rijswijk, H 2015, 'Interventions into the feeling of popular justice: Australia’s Stolen Generations, the problem of sentimentality, and re-encountering the testimonial form' in Sharp, C & Leiboff, M (eds), Cultural Legal Studies, Routledge, Abingdon, pp. 89-112.
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This collection explores such a question through the lens of the cultural legal studies movement, which proffers a new encounter with the cultural turn in law and legal theory.
van Rijswijk, HM 2015, 'Law and Violence' in Law and Popular Culture in Australia, LexisNexis Butterworths, Chatswood, NSW, Australia.
Varnham, S 2015, 'Student Misconduct and School Responses in Aotearoa New Zealand: Safety and Sensibility' in Russo, C, Oosthuizen, I & Wolhuter, C (eds), Global Interest in Student Behaviour: An Examination of International Best Practices, Rowman & Littlefield Education, Lanham, MD, United States, pp. 29-50.
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A chapter devoted to practices in New Zealand, in the First edition of a global series on student misconduct. Together with chapters from the UK, US, Singapore, South Africa and others
Varnham, S 2015, 'University Governance: Responsibility and Accountability' in Varnham, S, Kamvounias, P & Squelch, J (eds), Higher Education and the Law, Federation Press, Sydney, pp. 16-29.
Vrdoljak, AF 2015, 'Challenges for International Cultural Heritage Law' in Logan, W, Nic Craith, M & Kockel, U (eds), A Companion to Heritage Studies, Wiley, UK, pp. 541-556.
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Vrdoljak, AF 2015, 'Culture and International Economic Law' in Vadi, V & de Witte, B (eds), Culture and International Economic Law, Routledge, London, pp. 124-141.
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Vrdoljak, AF 2015, 'Women, PMSCs, and International Law' in Eichler, M (ed), Gender and Private Security in Global Politics, Oxford University Press, New York, pp. 187-207.
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The failure of the law and regulators to adequately keep up with the rapid expansion and diversification in the use of PMSCs has had a significant impact for victims of human rights violations perpetrated by PMSCs and their employees generally, and for women and girls in particular. To explore these developments, this chapter is divided into two parts. Part One focuses on current initiatives at the international level to provide a regulatory framework for PMSCs and which encompass the obligations of states (and international organisations) in respect of international humanitarian law, human rights law and use of force. Part Two outlines the influence of civil society participation (including feminist academics, women’s NGOs and so forth) in breaking the ‘silence’ within international organisations and international law concerning violence against women and girls and its potential influence upon the regulation of PMSCs. Both parts serve to highlight evolving notions of force and violence, accountability and enforcement, and access to justice and reparations within international law today.
Webb, E & Somes, T 2015, 'What role for the law in regulating older persons’ property and financial arrangements with adult children?: The case of family accommodation arrangements in Australia' in Ruebner, R, Do, T & Taylor, A (eds), International and comparative law on the rights of older persons, Vanderplas Publishing, pp. 333-356.
Abbas, R, Michael, K, Michael, M & Nicholls, R 2015, 'Key government agency perspectives on location based services regulation', Computer Law & Security Review, vol. 31, no. 6, pp. 736-748.
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Alexander, I 2015, 'The Legal Journey of Paterson’s Roads', Imago Mundi, vol. 67, no. 1, pp. 12-32.
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In 1771, Daniel Paterson entered into a publishing agreement with the bookseller Thomas Carnan to print and publish a travel itinerary known as Paterson’s Roads. This book was to become the most enduringly popular practical road book of the period. However, Paterson and Carnan were soon embroiled in litigation. This article examines the legal cases that arose when the geographical information contained in Paterson’s Roads was re-used, and improved upon, in a subsequent publication. It explores the background to the cases, focusing on what they reveal about the inner workings of the book and map trade of the period, as well as considering some of the broader historical ramifications. The article also demonstrates that these cases are of ongoing legal significance because they played an important role in developing some of the doctrines and principles of copyright law that continue to be controversial today.
Anthony, T 2015, 'Two Laws: Indigenous Justice Mechanisms in Context', Journal of Australian Indigenous Issues, vol. 18, no. 1, pp. 99-115.
Anthony, T & Crawford, W 2015, 'Indigenous Sentencing Courts: a renewed legislative foundation', Balance: Journal of the Law Society of the Northern Territory, no. 1, pp. 46-54.
Beaupert, F & Steele, L 2015, 'Questioning Law's Capacity', Alternative Law Journal, vol. 40, no. 3, pp. 161-165.
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The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law. A particular focus has been legal schemes applicable to people with disability found lacking
legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission ('ALRC') in its inquiry into equality, capacity and disability in Commonwealth laws. Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities' ('CRPD') has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people
with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising
the equality of people with disability under domestic legal systems. Bringing these two trajectories in disability law together, in this article we consider how the ALRC's recommendations fare by reference to the human rights advancements reflected in the CRPD, and in particular the approach to capacity. The article argues that the ALRC's recommendations do not go far enough in recognising the right to legal capacity, in particular due to a lack of clarity about how a shift to supported decision-making may be implemented and a failure to explicitly address the problematic role of mental capacity and how it may continue to inform the implementation of any new laws developed. It also considers the need for policy and cultural change to ensure that any new laws developed are not implemented in a manner that contravenes the CRPD.
Bennett, B & Carney, T 2015, 'Planning for Pandemics: Lessons From the Past Decade', Journal of Bioethical Inquiry, vol. 12, no. 3, pp. 419-428.
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Bowley, RN 2015, '‘Federal Court declares multiple contraventions of fundraising and financial services laws in scheme targeting SMSF investors: ASIC v ActiveSuper [2015] FCA 342’', Butterworths Corporation Law Bulletin, vol. 2015, no. 24, pp. 6-10.
Brett Heino 2015, 'Award Regulation and the New South Wales Retail Sector, 1971–88: Crisis and Experimentation amidst Changing Models of Development', Labour History, vol. 109, no. 109, pp. 75-75.
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Buchan, J, Frazer, L, Zhen Qu, C & Nicholls, R 2015, 'Franchisor Insolvency in Australia: Profiles, Factors, and Impacts', Journal of Marketing Channels, vol. 22, no. 4, pp. 311-332.
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Burridge, N, Chodkiewcz, A, Payne, AM, Oguro, S, Varnham, S & Buchanan, J 2015, 'Human Rights Education in the Australian School Curriculum', Human Rights Education in Asia-Pacific, vol. 5, pp. 167-202.
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Australian education systems, at state and federal levels, have been undergoing major reforms to their governance structures and to the nature of their curriculum. At the same time over the last decade there has been a national conversation about our knowledge and understanding of human rights (NHRCC 2009). In this context, it is an opportune time to review the place of education for and about human rights within the school curriculum. The study reported on in this paper outlines and examines the findings of a nationwide investigation into the capacity of each state and territory school education system and their individual curricula to provide opportunities to educate and motivate school students about human rights. It also engages in a discussion of the curriculum reforms being introduced as a result of the national Australian curriculum framework and the extent to which it caters for human rights perspectives. Our data derive from four main sources: a review of the literature; input from roundtable discussions with participants involved in the advocacy for and the delivery of, human rights education in schools; analysis of curriculum and policy documents at the state, territory and national levels; and resources and technologies being used in the teaching of human rights in schools.
Carney, T 2015, 'Searching for workable alternatives to guardianship for vulnerable populations?', Ethics, Medicine and Public Health, vol. 1, no. 1, pp. 113-119.
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© 2015 Elsevier Masson SAS. The right of a person to make their own decisions but be protected from serious harm should cognitive capacity decline poses ethical and practical challenges for the law. The principle of supported decision-making enshrined by the UN Convention on the Rights of Persons with Disabilities 2006 has fuelled the search by law reform bodies for new statutory models or principles capable of better respecting autonomous choice and avoiding undue paternalism in the name of protection of the vulnerable. This paper selectively reviews some law reform models across the spectrum from guardianship and supported decision-making to durable powers of attorney or support. It argues that across these different legal settings there are shifting (and delicate) balance points to be found between competing ethical principles (such as autonomy and protection), adequate accountability and freedom from undue regulation, and "workability" (fidelity of practice to intended objectives).
Carney, T 2015, 'Supporting People with Cognitive Disabilities with Decision-making: Any Australian Law Reform Contributions?', Research and Practice in Intellectual and Developmental Disabilities, vol. 2, no. 1, pp. 6-16.
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© 2015, © 2015 Australasian Society for Intellectual Disability. This article briefly reviews recent law reform achievements or proposals for supported decision-making within Australia against benchmarks such as how well the measure translates supported decision-making principles to cater for the routine needs of people with cognitive impairments; whether it appears robust and workable in practice; and how prone it may be to overreach or unintended consequences. The article suggests that Australian Law Reform Commission reforms are more principled and better targeted on the more mundane needs of people with cognitive impairments, while recent Victorian initiatives rate poorly in terms of avoiding public misunderstandings and unintended outcomes, despite deserving credit for fidelity to the principles of the United Nations Convention on the Rights of Persons with Disabilities and being Australia's first supported decision-making appointments. The article recommends reconsideration of aspects of these proposals, including the retrograde step of an expedited avenue for appointment of parents as guardians or administrators of children with cognitive impairments on turning 18 years of age.
Chandler, E, Slade, D, Pun, J, Lock, G, Matthiessen, CMIM, Espindola, E & Ng, C 2015, 'Communication in Hong Kong Accident and Emergency Departments', Global Qualitative Nursing Research, vol. 2, pp. 233339361557671-233339361557671.
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In this article, we report findings from the first qualitatively driven study of patient–clinician communication in Hong Kong Accident and Emergency Departments (AEDs). In light of the Hong Kong Hospital Authority’s policy emphasis on patient-centered care and communication in the public hospitals it oversees, we analyze clinicians’ perceptions of the role and relevance of patient-centered communication strategies in emergency care. Although aware of the importance of effective communication in emergency care, participants discussed how this was frequently jeopardized by chronic understaffing, patient loads, and time pressures. This was raised in relation to the absence of spoken interdisciplinary handovers, the tendency to downgrade interpersonal communication with patients, and the decline in staff attendance at communication training courses. Participants’ frequent descriptions of patient-centered communication as dispensable from, and time-burdensome in, AEDs highlight a discrepancy between the stated Hong Kong Hospital Authority policy of patient-centered care and the reality of contemporary Hong Kong emergency practice.
Crofts, P 2015, 'Communicating the Culpability of Illegal Dumping: Bankstown v Hanna (2014)', Australian Journal of Environmental Law, vol. II, no. 3, pp. 57-76.
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The use of criminal law as a means to prevent harms to the environment is increasingly common. Despite this, environmental offences tend to be seen as not ‘real’ crimes. Research has consistently demonstrated low rates of identification of perpetrators of illegal dumping, low prosecutions and low penalties. Through a close reading of Bankstown v Hanna (2014) this paper analyses not only the criminalisation of illegal dumping by the state through legislation, but the process through which illegal dumping becomes regarded as sufficiently culpable tojustify criminal sanctions, that is, that it is a ‘real’ crime. This paper analyses the process of substantive criminalisation in terms of the formal labelling of illegal dumping as criminal, the imposition of criminal penalties, and a normative account of illegal dumping as sufficiently blameworthy to justify the imposition of criminal penalties. Although the state has formally labelled illegal dumping criminal, this is undermined by the laws, regulation, procedures and enforcement of offences which are a mix of civil and criminal procedures. The history of casesagainst Hanna reveals a process of shifting from civil to increasingly serious criminal penalties, communicating not only to the general public but also regulators, courts and the wrongfulness of his behaviour. Hanna (2014) asserts a substantive normative account of illegal dumping as blameworthy, drawing upon narratives of harmful consequences and subjective culpability to emphasise the criminality of Hanna’s actions. These narratives draw upon and are informed by principle that the criminal law should only be used to censure people for substantial wrongdoing. This process has accomplished the substantive criminalisation of illegal dumping, such that legal and non-legal actors now perceive this type of behaviour as sufficiently blameworthy as to justify the application of the serious criminal sanction of imprisonment in response to serious offending.
Crofts, P 2015, 'The Identic Turn: The Culpability of Accessories and Perpetrators', Law in Context, vol. 33, no. 1, pp. 37-59.
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The key question this article explores is why was Archer’s culpability so difficult to judge. This is more than a legal historical analysis as the questions of culpability raised in Archer’s case continue to be unresolved in contemporary common legal doctrine. This article does not resolve the doubts and queries about the historical and contemporary legal doctrine of complicity, but instead provides an explanation for them through an analysis of Archer’s case.
Crofts, P & van Rijswijk, H 2015, '“What Kept You So Long?”: Bullying’s Gray Zone and The Vampire’s Transgressive Justice in Let the Right One In', Law, Culture and the Humanities, vol. 11, no. 2, pp. 248-269.
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School bullying has been recognized only relatively recently by policy-makers, media and the courts as a serious and widespread social problem. But despite this recent notice, there has been no evidence that techniques adopted to stop bullying have led to anything more than modest success, implying that we need to do more work to unpack and theorize the nature of bullying. In this article, we consider a recent vampire narrative as a story about bullying. We offer an interpretation of this story via the theories of Claudia Card and Jacques Derrida, arguing that together this archive provides a more nuanced understanding of the kinds of damage inflicted by bullying than has been provided by realist or sociological accounts. In particular, it illuminates damage to the morality of the victim, to their soul, which is a kind of damage that has previously not been given great attention. It also highlights the ways in which practices of judgment can become very tangled when trying to resolve bullying situations, making these experiences resistant to the achievement of justice.
Dehm, S 2015, 'Framing International Migration', London Review of International Law, vol. 3, no. 1, pp. 133-168.
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Evers, M & Townsley, L 2015, 'The Importance of Ethics in the Law Curriculum: Essential or Incidental?', Law Teacher, vol. 51, no. 1, pp. 17-39.
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© 2015 The Association of Law Teachers Recently, the debate as to whether ethics should be a compulsory requirement of a law degree was refuelled when the English and Welsh Legal Education Training Review (LETR) recommended that professional ethics should be primarily addressed in vocational Legal Services and Education Training programmes and that learning outcomes in the academic curriculum should include reference to morality and the law, the values supporting the legal system and their connection to the role of lawyers. This debate is also occurring in other jurisdictions. In Australia the debate is focused on the proposal that ethics be removed as a compulsory subject in the law degree. This proposal has raised a concern that law students will be denied the opportunity to develop as ethically competent lawyers. This paper argues for the continuation of ethics as a core component of a law degree and evidences the model used for the teaching of ethics in the law degree at the University of Technology Sydney in support of our argument. The background to the model is examined to highlight the significance of student feedback and ongoing curriculum review, including the alignment of parallel pedagogical factors. This model serves as an example of not only why ethics should be core to a law degree but, in order to provide graduates who are ethical and reflective practitioners, why ethics should be pervasively taught throughout the degree and supported by an introductory and capstone presence.
Goldblatt, B 2015, 'Intersectionality in international anti-discrimination law: addressing poverty in its complexity', Australian Journal of Human Rights, vol. 21, no. 1, pp. 47-70.
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© 2015 Taylor and Francis Group, LLC. The concept of intersectionality has been progressively incorporated into international anti-discrimination law. This article considers the nature of this incorporation and the different understandings of the term and related concepts by United Nations treaty body committees. It discusses the importance of intersectionality within a substantive equality framework in challenging poverty that is often complex in nature. This is illustrated with examples from the field of social security in India, Australia and South Africa as they concern issues of race, gender, caste and class. The article suggests the need for a clear conception of intersectionality embedded within a substantive approach to equality and for greater uniformity of this equality framework across the human rights treaty system.
Greenleaf, G, Chung, P & Mowbray, A 2015, 'Supporting and influencing data privacy practice: The free access International Privacy Law Library', Computer Law & Security Review, vol. 31, no. 2, pp. 221-233.
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© 2015 Graham Greenleaf, Dr Philip Chung, Andrew Mowbray. Abstract How can legal information institutes (LIIs) providing free online access to legal information, best use their shared resources to assist organisations and individuals involved in data privacy research, complaint resolution and policy development? The International Privacy Law Library (IPLL), located on the World Legal Information Institute (WorldLII) is a resource which attempts to bridge the gap between these two types of organisations. This article explores issues in the development of IPLL, and progress to date in resolving them. We then consider (Part 2) the key problem and our proposed solution to the more general question 'How can LIIs create and maintain subject-oriented resources economically?' WorldLII provides free access, via cooperation between seventeen LIIs, to a considerable amount of the information needed, often buried in very large generic databases of case law, legislation or scholarship. The challenge in building IPLL is to pre-select material potentially relevant to privacy issues to create a high value searchable global collection, but to do so on a low and sustainable budget. The resulting International Privacy Law Library (Part 3) is a combination of two main elements: (i) pre-selected databases, some maintained by active provision of data by DPAs, and some built editorially by the LIIs; and (ii) a set of 'virtual' databases (one each for case law, legislation, scholarship etc) drawn from all other content found on the LIIs. Once these virtual databases are built, they are self-maintaining (updated daily) and expand as relevant new content is added to any collaborating LII. We conclude (Part 4) with an assessment of future development needs and issues, particularly in relation to multi-lingual materials.
Greenman, K 2015, 'A Castle Built on Sand? Article 3 ECHR and the Source of Risk in Non-Refoulement Obligations in International Law', International Journal of Refugee Law, vol. 27, no. 2, pp. 264-296.
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Where international human rights instruments lack explicit prohibitions on refoulement, non-refoulement obligations are read into other substantive rights. In this context, state responsibility is engaged by the act of removal of an individual to a state where he or she will be exposed to a certain degree of risk of having his or her human rights violated. In its so-called medical cases, the European Court appears to position the source of the risk to which removal exposes the individual, in terms of whether it emanates from circumstances that can give rise to the responsibility of the destination state or not, as a significant factor in establishing the proper scope of protection from refoulement under the ECHR. In light of this, this article argues that there is something problematic about the use of the 'removal plus risk' formulation to read prohibitions on refoulement into human rights provisions. This is linked to the failure of the European Court adequately to address the legal basis for reading non-refoulement obligations into the prohibition on torture or inhuman or degrading treatment or punishment. It is the contention of this article that none of the possible legal bases identified in the academic commentary really offer a solid foundation upon which to base implicit non-refoulement obligations and, in this sense, non-refoulement under the ECHR is a castle built on sand.
Grossi, R 2015, 'Understanding Law and Emotion', Emotion Review, vol. 7, no. 1, pp. 55-60.
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Understanding the contributions and the implications of law and emotion scholarship requires an acknowledgement of the different approaches within it. A significant part of law and emotion scholarship is focused on arguing for the relevance of emotion and on identifying emotion in legal processes and actors. Other parts of it venture further to ask how law can affect the expression and content of emotions themselves. This scholarship challenges legal positivist foundations (law as rational and objective), as well as some other established divisions in thinking, both in law, and more generally in the history of ideas (reason vs. emotion, the private vs. the public). The other important factor, which this article explores, is the methodology employed by law and emotion scholarship.
Hawes, C 2015, '‘Framing’ Chinese hi-tech firms: A politicaland legal critique', Australian Journal of Corporate Law, vol. 30, no. 1, pp. 34-57.
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Governments in many countries, including the United States, Australia andCanada, have been highly suspicious of the political motives of Chinesebusiness firms seeking to invest in resource industries and infrastructuredevelopment overseas. This article uses the case of the Chinese hi-techfirm, Huawei Technologies, to demonstrate the tendency of the UnitedStates and other governments to frame their analysis based on unreliable orbiased sources and outdated understanding of the Chinese legal andcorporate environment. The inevitable results of such misguided framing willbe schizophrenic foreign policy decisions, increased international tensions,higher costs for consumers, and retaliation by the Chinese governmentagainst international firms doing business in China.
Hawes, C, Lau, AKL & Young, A 2015, 'LIFTING THE CORPORATE VEIL IN CHINA: STATUTORY VAGUENESS, SHAREHOLDER IGNORANCE AND CASE PRECEDENTS IN A CIVIL LAW SYSTEM', Journal of Corporate Law Studies, vol. 15, no. 2, pp. 341-376.
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© 2015 Taylor & Francis. This article surveys almost 300 court judgments in which shareholders have been sued for corporate debts under Article 20 of the PRC Company Law. The frequency of ‘veillifting’ can indicate how much weight is ascribed in China to fundamental corporate law principles such as limited liability, asset partitioning and the separate legal identity of the corporation. Our survey finds that shareholders were found liable for corporate debts in over 75% of cases, a significantly higher rate of veil-lifting than in jurisdictions elsewhere in the world. We challenge previous scholars’ explanations of this phenomenon. We also argue that statutory vagueness has led to unfair and inconsistent veil-lifting judgments in a number of cases. The current interpretative system of Supreme People’s Court Regulations and Guiding Cases needs modification to ensure that inconsistencies in adjudication are ironed out in a more timely manner.
Hawes, C, Lau, K-LA & Young, A 2015, 'Introducing the One-Yuan Chinese Company: Impacts of the 2014 PRC Company Law Amendments on Shareholder Liability and Creditor Protection', Company Lawyer, vol. 38, no. 5, pp. 163-168.
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Following amendments to the Company Law of the People’s Republic of China in 2014 (the 2014 Company Law), which removed minimum registered capital requirements for most limited liability companies (LLCs), it is now theoretically possible to establish a Chinese company with only 1 yuan of capital.This is a significant change to the Chinese corporate regulatory regime. It is not unusual in civil law jurisdictions to require relatively high levels of registered capital—in Germany, the Gesellschaft mit beschränkter Haftung (GmbH), which is roughly equivalent to the LLC, still sets a minimum capital requirement of €25,000.2 Yet China’s capital requirements were among the highest in the world until the 2014 amendments. Prior to 2006, the PRC Company Law required shareholders establishing an LLC to collectively pay in at least 500,000 yuan (approximately €60,000, or US$80,000) in cash or equivalent-value assets over a regulated time period in order for the LLC’s registration to be valid.3 While the 2006 Company Law reduced this amount to 30,000 yuan for an LLC with two or more shareholders, and 100,000 yuan for a single-shareholder LLC, no opportunity was given for previously registered companies to reduce their capital without going through a cumbersome procedure involving shareholder and creditor approval.4 In the official announcement of the 2014 amendments, the reasons given for removing minimum capital requirements included making the company registration process cheaper, more efficient, and less complex; reducing government interference in the market decisions of investors; and replacing a paternalistic administrative regulatory system with a market-based disclosure and monitoring system. The ultimate aim is to stimulate innovation among businesses and foster economic development.These reasons could have been drawn almost verbatim from the pages of vocal critics of the European company law legal capital rules.6 These critics have roundly attacked the ...
Heino, B 2015, 'Award Regulation and the New South Wales Retail Sector, 1971-88: Crisis and Experimentation amidst Changing Models of Development', Labour History, no. 109, pp. 75-92.
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The 1970s and 1980s were crucial transitional decades regarding the award regulation of the New South Wales (NSW) retail sector. It was only in 1971-72, at the zenith of the post-World War II model of development known as antipodean Fordism, that the five-day work week was achieved for retail workers. The subsequent crisis of Australian capitalism undermined the basis of the 'standard' employment relationship and encouraged the growth of precarious employment forms, such as casual and part-time work, which found particularly strong expression in the retail sector. In the midst of an institutionally entrenched retail union with strong links to the ruling Australian Labor Party (ALP) state government, broader corporatist experimentation, and division in the ranks of retail capital, a new juridic form, the Retail Trade Industrial Tribunal, was created to handle these tensions, an example of 'institutional searching' for ways out of deepening crisis. Beset by jurisdictional squabbles with the NSW Industrial Commission and actively undermined by employers, the Tribunal proved an abortive experiment, creating a vacuum into which unadulterated neo-liberal prescriptions would step.
Heino, B 2015, 'Capitalism, regulation theory and Australian labour law: Towards a new theoretical model', Capital & Class, vol. 39, no. 3, pp. 453-472.
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This article employs the methodology of the Parisian regulation approach to periodise Australian capitalism into distinct models of development. Within such models, labour law plays a key role in articulating the abstract capitalist need to commodify labour-power with the concrete realities of class struggle. Given the differential ordering of social contradictions and the distinct relationship of social forces within the fabric of each model of development, such formations will crystallise distinct regimes of labour law. This is demonstrated by a study of the two successive models of development that have characterised Australian political economy since the post-Second World War era: antipodean Fordism (1945 to mid-1970s) and liberal-productivism (late-1980s to the present). The result of this examination is a model of legal analysis that, although tailored to the Australian experience, is capable of application in other contexts.
Heino, B & Dahlstrom, J 2015, 'War crimes and the parisian régulation approach: Representations of the crisis of antipodean fordism', Journal of Australian Political Economy, vol. 74, no. 74, pp. 95-118.
Jayasuriya, R & Opeskin, B 2015, 'The Migration of Women Domestic Workers from Sri Lanka: Protecting the Rights of Children Left Behind', Cornell International Law Journal, vol. 47, pp. 581-638.
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Remittances that flow from low-skilled labor migration are critical to many developing countries, yet these economic benefits can come at a high price. Roughly half of all migrant workers are women, many of whom are mothers who migrate without their families to perform domestic work abroad. This Article examines the impact of the large-scale migration of women from the Global South on the rights and well-being of the “children left behind.” Sri Lanka is used as a case study because it is numerically significant in its own right (one million Sri Lankan children are directly affected by this migration phenomenon) and provides insights into the challenges posed by these labor migration streams. The possible harms experienced by children left behind include disruption to family relations, diversion from education as children are pressured into domestic roles formerly discharged by the absent parent, psychosocial effects of loneliness and abandonment, and heightened risk of child labor or abuse from alternative carers. This Article analyzes how legal and regulatory frameworks can be leveraged to support the children left behind and minimize their exposure to potential harms. International law provides a dense network of norms that speak to the protection of children left behind, but the system often fails to achieve this goal because of the unwillingness of States to ratify relevant treaties or to implement them when they have been ratified. On the other hand, several domestic laws, policies, and practices offer examples of best practices that address key concerns. Some of these practices are directed to sending States, and others to receiving States, but most aim to improve the prospects of communication, visitation, or permanent reunion that allow children to maintain familial ties that are so essential to their healthy development, despite the migration of their family members
Johns, F 2015, 'I heard it through the grapevine: what do we know about how lawyers research?', Australian Law Librarian, vol. 23, no. 3 and 4 (combined in single issue), pp. 136-147.
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Early predictions of uncertainty and instability in law resulting from online access to legal research sources - consideration of whether this has occurred - interviews with law librarians - finding that little has changed in recognition of authority in legal research - maintenance of library training roles - study of law as an apprenticeship.
Johnstone, R, Nossar, I & Rawling, M 2015, 'Regulating Supply Chains to Protect Road Transport Workers: An Early Assessment of the Road Safety Remuneration Tribunal', Federal Law Review, vol. 43, no. 3, pp. 397-421.
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AbstractThe Road Safety Remuneration Act 2012 (Cth) (the Act) explicitly enables the Road Safety Remuneration Tribunal to make orders that can impose binding requirements on all the participants in the road transport supply chain, including consignors and consignees at the apex of the chain, for the pay and safety of both employee and independent contractor drivers. The tribunal is also specifically empowered to make enforceable orders to reduce or remove remuneration related incentives and pressures that contribute to unsafe work practices in the road transport industry. Recently the tribunal handed down its first order. The article considers whether, and the degree to which, the tribunal has been willing to exercise its explicit power to impose enforceable obligations on consignors and consignees – such as large supermarket chains – at the apex of road transport supply chains. It examines the substance and extent of the obligations imposed by the tribunal, including whether the tribunal has exercised the full range of powers vested in it by the Act. We contend that the tribunal's first order primarily imposes obligations on direct work providers and drivers without making large, powerful consignors and consignees substantively responsible for driver pay and safety. We argue that the tribunal's first order could have more comprehensively fulfilled the objectives of the Act by more directly addressing the root causes of low pay and poor safety in the road transport industry.
Karpin, I & O'Connell, K 2015, 'STIGMATISING THE 'NORMAL': THE LEGAL REGULATION OF BEHAVIOUR AS A DISABILITY', UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL, vol. 38, no. 4, pp. 1461-1483.
Kennedy, A 2015, 'Slice them up or slice them out? Legal liability for operating on the troublesome patient in cosmetic surgery.', J Law Med, vol. 23, no. 1, pp. 137-155.
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The practice of cosmetic surgery is constructed as psychologically beneficial. This therapeutic promise transforms cosmetic surgery into proper medical treatment. However, there is emerging evidence that a significant percentage of cosmetic surgery patients suffer from the condition of Body Dysmorphic Disorder (BDD), which is characterised by excessive preoccupation with imagined or minor defects in appearance. BDD is uniformly identified as a strong contra-indication for cosmetic surgery. Articles in scholarly journals on cosmetic surgery identify the 'red flag' indicators to assist in screening out problem patients. However, a close examination of the most common indicators reveals that most are ineffective in identifying BDD in prospective patients. This article also considers the legal liability of cosmetic surgeons who operate on patients with BDD, and concludes that there is little likelihood of liability in trespass or negligence under current Australia law.
Landrigan, M 2015, 'The Constitutionality Of Draft Legislation Banning The Wearing Of Face Veils And Similar Clothing', Public Law Review, vol. 26, no. 2, pp. 77-82.
Leary, D 2015, '8. International Maritime Organization (IMO)', Yearbook of International Environmental Law, vol. 26, pp. 589-592.
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Leary, D 2015, 'The IMO Mandatory International Code of Safety for Ships: Charting a Sustainable Course for Shipping in the Polar Regions?', The Yearbook of Polar Law Online, vol. 7, no. 1, pp. 426-447.
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Many Asian states such as China are increasingly engaged in maritime activities in the polar regions. The International Maritime Organization (IMO) has developed a mandatory international code of safety for certain types of ships operating in polar waters (the Polar Code) which applies to the vessels of Asian and non-Asian states alike. The Polar Code covers a wide range of issues including ship design and construction, equipment, operation, crew training, search and rescue and environmental protection relating to ships operating in the polar regions. This article examines the Polar Code, which will be implemented via amendments to the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL). It considers the extent to which the Polar Code lays the foundations for a sustainable future for shipping in the polar regions.
Leary, DK 2015, 'The Synthetic Biology Revolution: Mapping a Future Research Agenda', The University of Tasmania Law Review, vol. 34, no. 1, pp. 110-127.
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Synthetic biology represents a startling and perhaps revolutionarydevelopment in the biosciences with significant implications for thefuture of biotechnology and its interface with international environmentallaw. This article identifies the challenges the synthetic biology revolutionposes for international environmental law and sets out key researchquestions for the future. The note opens by first examining how syntheticbiology differs from GMO's and provides a brief insight into the currentscale of research and development relating to synthetic biology and the 'focus of its recent developments. Beyond that the article then goes on tohighlight some of the key environmental risks associated with thisrevolutionary technology. The note examines the ongoing debatessurrounding synthetic biology in the forums associated with the 1992 United Nations Convention on Biblogical Diversity. Finally, the noteconcludes willI a brief comment on the need for responses shaped underinternational environmental law to also be linked to developments inother areas of law especially laws dealing with weapons proliferation andterrorism.
Lenta, P 2015, 'TheLex Talionis, the Purgative Rationale, and the Death Penalty', Criminal Justice Ethics, vol. 34, no. 1, pp. 42-63.
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© 2015, © 2015 John Jay College of Criminal Justice of The City University of New York. In The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences, Matthew Kramer argues that none of the standard rationales used to justify capital punishment successfully vindicates it and that a new justification, the purgative rationale, justifies capital punishment for defilingly evil offenders. In this article, it is argued, first, that a version of retributivism that adheres to the lex talionis as Kramer understands it does seem to call exclusively for the death penalty. Second, it is submitted that the purgative rationale is over-inclusive inasmuch as Kramer considers it applicable to certain offenders with abusive or deprived backgrounds, some offenders indoctrinated to adhere to pernicious ideologies that have impelled their crimes, and wrongdoers who have sincerely repented. Third, doubts are expressed about whether the purgative rationale justifies the execution of any offenders. Even if it is true that the continued existence of an extravagantly evil offender represents an affront to humanity, as Kramer suggests, a moral obligation to execute him does not follow. Since repentance is intrinsically valuable and since repentance would extinguish the affront to humanity, the community in which an unrepentant evil offender abides is duty-bound to foster repentance on the part of the offender by imposing banishment or life imprisonment, sanctions that afford the offender the most extensive opportunity for repentance. The community is therefore obligated to impose one of these sanctions instead of capital punishment.
Li, G 2015, 'Regulating Over-the-Top Services in Australia – From Universal Service Obligation Scheme to OTT Regulation', 2015, 'Regulating over-the-top services in Australia - from universal service obligation scheme to OTT regulation', International Journal of Private Law, vol. 8, no. 1, pp. 30-39.
Li, G 2015, 'Things to Learn and Things to Abandon: A Comparative Study of the Communications Consumer Redress Scheme in Australia, Japan and Korea', Australian Journal of Telecommunications and the Digital Economy, ISSN 2203-1693, vol. 3, no. 2, pp. 47-69.
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This article compares the telecommunications consumer dispute resolution scheme in Australia, Japan and Korea based on the telecommunications consumer policy principles developed by the Organisation for Economic Co-operation and Development (OECD) in 2011 and the guidelines and recommendations developed by the International Telecommunications Union (ITU) in 2013. This article concludes that the Australian consumer dispute resolution scheme (the Telecommunications Industry Ombudsman scheme) appears to be the best practice among these three jurisdictions studied, followed by the consumer scheme in Korea. Both the current Japanese scheme and the proposed new scheme in Japan appear to be less appropriate due to the foreseeable inadequate accessibility and insufficient consumer redress authority created under the scheme. Nonetheless, much experience and exceptional practices can all be shared and learned by the regulatory decisionmakers in all three countries.
Libesman, T & McGlade, H 2015, 'Redress in response to institutional sexual abuse of indigenous children', Indigenous Law Bulletin, vol. 8, no. 17, pp. 34-37.
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In January 2015, the Royal Commission into Institutional Responses to Child Sexual Abuse ('the Commission') published a consultation paper entitled Redress and Civil Litigation.1 In this article, we address four issues relevant to the specific concerns of Indigenous survivors of institutional abuse which we believe are not adequately covered in the consultation paper.
Light, E, Kerridge, I, Robertson, M, Boyce, P, Carney, T, Rosen, A, Cleary, M, Hunt, G, O'Connor, N & Ryan, C 2015, 'Involuntary psychiatric treatment in the community: general practitioners and the implementation of community treatment orders.', Aust Fam Physician, vol. 44, no. 7, pp. 485-489.
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BACKGROUND: There are no data about general practitioners' (GPs') involvement in involuntary psychiatric community treatment orders (CTOs). We examined stakeholder perspectives on the GP's role in this area. METHODS: Semi-structured interviews were conducted around CTO experiences with 38 participants: patients, carers, clinicians and Mental Health Review Tribunal members. Data were analysed using established qualitative methodologies. RESULTS: Sixteen participants specifically spoke about GPs. The analysis identified four themes in their accounts: GPs as 'instruments' of CTOs; GPs as primary caregivers within a CTO; GPs as 'outsiders'; and practical challenges for GPs. Within these themes, participants identified the value of GPs in the provision of care for people living with severe and persistent mental illness, the challenges of coercive processes and the dangers of GPs being isolated from them. DISCUSSION: GPs play an important role in the implementation of CTOs. Failure to better integrate GPs in the care of people on CTOs appears to be a significant shortcoming of its implementation.
Light, E, Robertson, M, Boyce, P, Carney, T, Rosen, A, Cleary, M, Hunt, G, O'Connor, N, Ryan, CJ & Kerridge, I 2015, 'The Many Faces of Risk: A Qualitative Study of Risk in Outpatient Involuntary Treatment', Psychiatric Services, vol. 66, no. 6, pp. 649-652.
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Lindsay, DF 2015, 'A privacy tort for Australia? A critical appreciation of the ALRC report on serious invasions of privacy', Privacy Law Bulletin, vol. 12, no. 1&2, pp. 8-11.
Manderson, D & van Rijswijk, H 2015, 'Introduction to Littoral Readings: Representations of Land and Sea in Law, Literature, and Geography', Law & Literature, vol. 27, no. 2, pp. 167-177.
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McGuinness, S & Thomson, M 2015, 'MEDICINE AND ABORTION LAW: COMPLICATING THE REFORMING PROFESSION', Medical Law Review, vol. 23, no. 2, pp. 177-199.
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The complicated intra-professional rivalries that have contributed to the current contours of abortion law and service provision have been subject to limited academic engagement. In this article, we address this gap. We examine how the competing interests of different specialisms played out in abortion law reform from the early twentieth-century, through to the enactment of the Abortion Act 1967, and the formation of the structures of abortion provision in the early 1970s. We demonstrate how professional interests significantly shaped the landscape of abortion law in England, Scotland, and Wales. Our analysis addresses two distinct and yet related fields where professional interests were negotiated or asserted in the journey to law reform. Both debates align with earlier analysis that has linked abortion law reform with the market development of the medical profession. We argue that these two axes of debate, both dominated by professional interests, interacted to help shape law’s treatment of abortion, and continue to influence the provision of abortion services today.
McWilliam, NJ, Nielssent, O & Moore, J 2015, 'Sorting It Out: A Community Mediation Training Program at a Therapeutic Prison', The Sydney Law Review, vol. 37, no. 1, pp. 69-88.
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A pilot study was conducted to assess the feasibility and effect of a communitymediation program (‘Sorting It Out’) in a therapeutic prison (the CompulsoryDrug Treatment Correctional Centre, or CDTCC). The program is unique asboth staff and inmates were trained together. Also, in contrast to traditionaldispute resolution, which is invoked after conflict has progressed, the program,which is based on therapeutic jurisprudence principles, trains participants inmediation to constructively address issues at the point of identification, prior toescalation. Measured outcomes included pre- and post-program questionnairesincorporating a social climate scale (EssenCES©), qualitative interviews andresearcher observations. The participation rate was high, with all participantsrecommending the program. The outcomes included an enduring improvementin social climate and improvement in the CDTCC operation. Staff reportedincreased feelings of safety and support, and inmates reported increasedunderstanding of staff and their roles. A large majority reported benefits tothemselves and the community, including adoption of attitudes and behaviours learned in the program, improvement in staff–inmate interaction and a positiveeffect on staff work.
Millbank, J 2015, 'Responsive Regulation of Cross Border Assisted Reproduction', Journal of Law and Medicine, vol. 23, no. 3, pp. 346-364.
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My question in this paper is: how might Australian regulators constructively respond to the dynamic and complex challenges posed by cross border assisted reproduction? To begin I summarise the available international scholarship and outline what little we know about Australian cross border reproductive travel. Of the three generally proposed responses to CBRC: prohibition, harm minimisation and harmonisation, I summarily reject the first approach, and instead discuss a mixture of the latter two. The paper proposes the beginnings of an immediate policy response aimed not at stopping cross border practices per se, but rather at understanding and reducing the risks associated with them, as well as flagging the pursuit of more ambitious meta-goals such as developing more equitable and accessible treatment frameworks for ART and encouraging domestic self-sufficiency in reproduction.
Millbank, J 2015, 'Responsive regulation of cross-border assisted reproduction', JOURNAL OF LAW AND MEDICINE, vol. 23, no. 2, pp. 346-364.
Millbank, J 2015, 'Rethinking 'Commercial' Surrogacy in Australia', JOURNAL OF BIOETHICAL INQUIRY, vol. 12, no. 3, pp. 477-490.
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© 2014, Springer Science+Business Media Dordrecht. This article proposes reconsideration of laws prohibiting paid surrogacy in Australia in light of increasing transnational commercial surrogacy. The social science evidence base concerning domestic surrogacy in developed economies demonstrates that payment alone cannot be used to differentiate “good” surrogacy arrangements from “bad” ones. Compensated domestic surrogacy and the introduction of professional intermediaries and mechanisms such as advertising are proposed as a feasible harm-minimisation approach. I contend that Australia can learn from commercial surrogacy practices elsewhere, without replicating them.
Nossar, I, Johnstone, R, Macklin, A & Rawling, M 2015, 'Protective legal regulation for home-based workers in Australian textile, clothing and footwear supply chains', Journal of Industrial Relations, vol. 57, no. 4, pp. 585-603.
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Supply chain outsourcing has posed problems for conventional labour regulation, which focuses on employers contracting directly with workers, particularly employees. These difficulties have been exacerbated by the traditional trifurcated approach to regulation of pay and conditions, work health and safety and workers’ compensation. This paper analyses the parallel interaction of two legal developments within the Australian textile, clothing and footwear industry. The first is mandatory contractual tracking mechanisms within state and federal labour laws and the second is the duties imposed by the harmonised Work Health and Safety Acts. Their combined effect has created an innovative, fully enforceable and integrated regulatory framework for the textile, clothing and footwear industry and, it is argued, other supply chains in different industry contexts. This paper highlights how regulatory solutions can address adverse issues for workers at the bottom of contractual networks, such as fissured workplaces and capital fragmentation, by enabling regulators to harness the commercial power of business controllers at the apex to ensure compliance throughout the entire chain.
Oguro, S, Varnham, S & Payne, AM 2015, 'Integrating Human Rights Education in Schools: legislation, curriculum and practice', International Journal of Law and Education, vol. 20, no. 1, pp. 5-19.
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Given the increasing focus internationally on human rights education in the past two decades, this article examines recent developments in both human rights legislation and education in Australia. Despite opportunities to effectively integrate human rights education into school programs provided by a new Human Rights Framework and National Curriculum, there have been only limited outcomes to date for human rights education. Failure to systemically integrate human rights principles, topics and practices into school curriculum has resulted in a missed opportunity to create a human rights culture and improve understandings of human rights for Australian students.
Opeskin, B & Ghezelbash, D 2015, 'Australian Refugee Policy and its Impacts on Pacific Island Countries', Journal of Pacific Studies, vol. 36.
Prior, J & Crofts, P 2015, 'Is Your House a Brothel? Prostitution Policy, Provision of Sex Services from Home, and the Maintenance of Respectable Domesticity', Social Policy and Society, vol. 14, no. 1, pp. 125-134.
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Policy debates on commercial sex services provide increasingly complex insights into work on the street and in large commercial sex premises, yet remain largely silent on the contribution of the domestic realm to commercial sex, despite estimates that it accounts for a significant proportion of all commercial sex transactions. Policies that affect home-based sex work are ambiguous and at times contradictory, veering from the promotion of working from home to anxieties about the assumed offensiveness of sex work. These policies have been often developed without direct consideration of home-based sex work and in the absence of evidence. Remedying this silence, this article analyses policy development for, and the experiences of, home-based sex workers in New South Wales (NSW), Australia. The article concludes that working from home provides sex workers with opportunities for autonomy and wellbeing that are not available in other sex service environments, with minimal amenity impacts to the community.
Rawling, M 2015, 'Legislative regulation of global value chains to protect workers: A preliminary assessment', The Economic and Labour Relations Review, vol. 26, no. 4, pp. 660-677.
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AbstractThis article argues for domestic legislative regulation of global value chains to protect offshore workers. First, it outlines the policy reasons necessitating such legislation. Empirical evidence confirms that global value chains are a dominant feature of the global economy. It is contended that lead firms wield influence in global value chains in a manner which leads to poor outcomes for offshore workers. Second, the article sets out the minimum steps necessary for a domestic state to attribute the responsibility for transparency of global value chains to lead firms. Then, it proceeds to explore the possibilities and limits of the proposed scheme of regulation. Despite some complexities with implementing the scheme, it is argued that if domestic legislative regulation of global value chains strengthens even to a small extent the monitoring of global labour issues, it is worth pursuing.
Rawling, M 2015, 'Regulating Precarious Work in Australia', Alternative Law Journal, vol. 40, no. 4, pp. 252-256.
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Today millions of Australian workers are engaged in precarious work. As yet there has not been an adequate federal government response but a recent report commissioned by the Australian Council of Trade Unions (ACTU) indicates that the ACTU sees precarious work as a central issue. This article considers policy options to adequately regulate precarious work recently discussed by the ACTU and an ACTU commissioned report. The article argues that an innovative and coherent set of measures to address the root causes of precarious work and those with the potential to be popular with Australian workers should be pursued
Rawling, MJ 2015, 'Cross-Jurisdictional and Other Implications of Mandatory Clothing Retailer Obligations', Australian Journal of Labour Law, vol. 27, no. 3, pp. 191-215.
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This article is about the imposition of mandatory obligations upon effective business controllers of supply chains for the protection of workers. Specifically, the article analyses the genesis, design and operation of New South Wales, South Australian and Queensland mandatory clothing retailer codes and their broader implications, including for the cross-jurisdictional regulation of international supply chains. The extent to which those state mandatory codes already operate cross-jurisdictionally to regulate supply chains spanning across jurisdictions throughout Australia is analysed. It is argued that imposing mandatory obligations upon effective business controllers of supply chains is necessary to adequately address the exploitation of domestic and overseas supply chain labour. In an analogous fashion to the operation of the mandatory clothing retailer codes, domestic legislative regulation of international supply chains can be achieved by piggybacking mandatory requirements onto the intrinsically cross-jurisdictional agreement between an effective business controller and its outside supplier.
Riley, J, Carter, J, Courtney, W, Peden, E & Tolhurst, G 2015, 'Terms implied in law: 'Trust and confidence' in the High Court of Australia', Journal of Contract Law, vol. 32, no. 3, pp. 203-230.
Riley, S 2015, 'DEVELOPING AN ANIMAL LAW CASE BOOK: KNOWLEDGE TRANSFER AND SERVICE LEARNING FROM STUDENT-GENERATED MATERIALS', LEGAL EDUCATION REVIEW, vol. 25, no. 1, pp. 251-269.
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This article discusses the development of an animal law case book, as part of an elective subject, “Animal Law and Policy in Australia”, taught at the University of Technology Sydney (UTS). The Animal Law Case Book Project (the CB Project) provides an example of an innovation in learning and teaching, demonstrating how practice-oriented learning in an emerging area of legal scholarship can also make a valuable contribution to the field of study.
The CB Project was initially funded in 2013 by a Vice-Chancellor’s Learning Grant at UTS and then extended by a Voiceless Grant in 2015. The project had three aims: first, to provide students with a meaningful learning experience that was consistent with the UTS Model of Learning (UTS Model), as well as Learning 2014 (now Learning. Futures) and the graduate attributes established by the Faculty of Law; second, to make a specific contribution to animal law in Australia; and third, to enable students to make a contribution to the community of practice in animal protection. The practice-oriented approach to learning emphasised by the UTS Model readily lends itself to learning that also encompasses community service. Although the scope of activities that come under the umbrella of service learning and community service is vast, at their core is the aim ‘to demonstrate social responsibility and a commitment to the common good’, something that is also consistent with graduate attributes that incorporate public service and social justice issues. It is also important to bear in mind that elements of public service and a commitment to the common good do not take the place of student learning; rather, they inform it by placing students at the centre of knowledge creation that answers both a societal and pedagogical need. The CB Project fulfilled these aims by focussing on student-prepared learning materials that could be used beyond the class room to contribute in a meaningful way to the animal protection community.
Riley, S 2015, 'Model Codes for Humane Treatment of Animals: Australian Law and Policy on Lethal Control of Pests', Journal of International Wildlife Law & Policy, vol. 18, no. 4, pp. 276-288.
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The regulation of ‘invasive’ or ‘pest’ animals presents decision makers with many challenges. These include how to manage species that are instrumental in the decline of native biodiversity, or otherwise conflict with the human use of natural resources. In this context, philosophies of environmental ethics regard the value of animals as an integral component of the decision-making process. This calls into question how regulators appraise competing interests and whether regimes should be shaped by utilitarian notions of welfare or extend to consideration of the life of individual species. The paper uses Australia as a case study, examining sources that include the Model Codes of Practice for the Humane Control of animals such as goats, camels, donkeys and horses (Model Codes). The Model Codes become a locus for acquiescing on the impacts of ‘pest’ animals as well as deciding what welfare considerations are relevant to their eradication. By invoking the risk that invasive or pest species pose, the Model Codes conclude that pest species must be killed, otherwise management goals remain unfulfilled. Killing animals thus becomes an assimilated part of the reality of natural resource management. Yet this approach promotes killing as a first point regulatory response, which does not adequately consider either the long-term effectiveness of culling, or the morality of wholesale killing.
Ryan, C, Callaghan, S & Peisah, C 2015, 'Capacity in mental health law: We are heading in the right direction', Australian & New Zealand Journal of Psychiatry, vol. 49, no. 9, pp. 848-848.
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Ryan, C, Callaghan, S & Peisah, C 2015, 'The capacity to refuse psychiatric treatment: A guide to the law for clinicians and tribunal members', Australian & New Zealand Journal of Psychiatry, vol. 49, no. 4, pp. 324-333.
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Objective: In some Australian states clinicians and mental health tribunal members are already required to assess a person’s decision-making capacity before involuntary treatment can be applied. Professionals in other jurisdictions will likely soon be required to do the same as mental health law reform in most Australian jurisdictions makes the assessment of decision-making capacity a central component of the process of providing unconsented psychiatric treatment. We provide a guide to the legal issues around the capacity to refuse psychiatric treatment to assist with this task. Method: We review the legislation in the four Australian states most advanced in the mental health law reform process and use examples from clinical practice and the common law to describe how decision-making capacity should be assessed by these statutory standards. Results: Clinicians and tribunal members will primarily be required to judge whether a person with mental illness can understand the information relevant to the treatment decision and whether he or she can use or weigh that information to come to a decision. A person with a mental illness is presumed to have capacity, but that presumption can be rebutted. Capacity is specific to the decision at hand and cannot be determined by the nature of the decision made. Conclusions: The information provided should assist clinicians and tribunal members to make determinations of decision-making capacity around treatment refusal in the context of mental illness.
Ryan, CJ, Callaghan, S & Large, M 2015, 'The importance of least restrictive care: the clinical implications of a recent High Court decision on negligence', Australasian Psychiatry, vol. 23, no. 4, pp. 415-417.
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Objective: This paper aims to explain the meaning and implications for practice of the High Court of Australia’s finding in the negligence case, Hunter and New England Local Health District v McKenna [2014] HCA 44. Method: The facts of the case and the law of negligence are reviewed before reporting the Court’s decision. Results: The High Court found that the obligation upon doctors to provide the least restrictive option for care that was imposed by the, then applicable, Mental Health Act 1990 (NSW) was inconsistent with an obligation that might otherwise be imposed by a common law duty to have regard to the interests of those with whom a psychiatric patient may come into contact if not detained. Conclusions: The Court’s finding underlines the importance of clinicians documenting their clinical reasoning around why their negotiated management plan was the option least restrictive of the patient’s freedom and most protective of his or her human rights.
Scarff, G, Fitzsimmons, C & Gray, T 2015, 'The new mode of marine planning in the UK: Aspirations and challenges', Marine Policy, vol. 51, pp. 96-102.
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Seu, IB, Flanagan, F & Orgad, S 2015, 'The Good Samaritan and the Marketer: public perceptions of humanitarian and international development NGOs', International Journal of Nonprofit and Voluntary Sector Marketing, vol. 20, no. 3, pp. 211-225.
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This article reports on a nationwide study investigating public responses to humanitarian communications. Based on focus group data with members of the UK public, the paper discusses two key models through which NGOs identities and activities are understood and judged, both positively and negatively: the Good Samaritan and the Marketer. Thematic analysis of the focus groups extracts exposes the salience of these models in people's thinking, how they speak to each other and how they inform and affect the relationship between NGOs and public. The paper discusses the themes in relation to current debates on organisations' image and trust and confidence in nonprofit organisations and humanitarian NGOs. The data show deep public disillusionment and disappointment deriving from the recognition of the Marketer model being applied to and employed within the realm of humanitarianism. This suggests that NGOs' moving away from traditional notions of charity might be counterproductive and in the long‐term risky. Copyright © 2015 John Wiley & Sons, Ltd.
Sherwood, J, Lighton, S, Dundas, K, French, T, Link-Gordon, D, Smith, K & Anthony, T 2015, 'Who are the Experts Here?: Recognition of Aboriginal women and community workers in research and beyond', AlterNative: An International Journal of Indigenous Peoples, vol. 11, no. 2, pp. 177-190.
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This paper explores how Indigenous-centred methodologies are crucial to the design and conduct of research projects that seek to have meaningful outcomes for Indigenous women and communities. We draw on experiential observations of an advisory group led by Indigenous experts that was part of the Social and Cultural Resilience and Emotional wellbeing of Aboriginal Mothers in prison (SCREAM) research project. From their experience we identify lessons for how Indigenous expertise can be utilized to promote mutually respectful relationships among Indigenous and non-Indigenous researchers, organizations and agencies. We found that the formation of an Indigenous-led advisory group from a project's inception is a powerful vehicle for informing its purposes, method and dissemination of findings back to Indigenous participants and communities. Our approach has produced a set of data on Indigenous women prisoners that prioritizes, rather than pathologizes, Indigenous standpoints, and recognizes the complex effects of colonization for these women. This paper seeks to convey the research process to inform future research that engages Indigenous participants.
Silink, A 2015, 'Can Promissory Estoppel Be an Independent Source of Rights?', University of Western Australia Law Review, vol. 40, no. 1, pp. 39-71.
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This article addresses persistent uncertainty in relation to the question,
‘Can promissory estoppel be an independent source of rights under
Australian law?’ A split has developed between intermediate courts of
appeals in some jurisdictions on this question. This article considers
the operation of stare decisis in relation to a decision of an
intermediate appellate court that departs from the ratio of the High
Court, and the approach which is likely to be taken by the High Court
to resolving the conflict between the states.
Slade, D, Chandler, E, Pun, J, Lam, M, Matthiessen, CMIM, Williams, G, Espindola, E, Veloso, FOD, Tsui, KL, Tang, SYH & Tang, KS 2015, 'Effective healthcare worker-patient communication in Hong Kong accident and emergency departments', HONG KONG JOURNAL OF EMERGENCY MEDICINE, vol. 22, no. 2, pp. 69-83.
Slade, D, Manidis, M, McGregor, J, Scheeres, H, Chandler, E, Stein-Parbury, J, Dunston, R, Herke, M & Matthiessen, CM 2015, 'Communicating in Hospital Emergency Departments', Communicating in Hospital Emergency Departments, pp. 1-158.
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This book was conceived in response to the increasing recognition of the central role of communication in effective healthcare delivery, particularly in high-stress contexts such as emergency departments.
Somes, T & Webb, E 2015, 'What role for the law in regulating older people’s property and financial arrangements with adult children?: The case of family accommodation arrangements', Law in Context, vol. 33, pp. 24-51.
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To some older people, the prospect of moving in with family to be ’cared for’ as they age has considerable appeal. For example, an older person may choose to sell his or her home, invest the money in a child’s property through the construction of a ’granny-flat’ or extension and live in that property. If such arrangements are successful, the older person is likely to enjoy the companionship and support of family as he or she grows older. Unfortunately, the legal position of the older person if ’something goes wrong’ is precarious. In the absence of a legislation addressing family accommodation or ’assets for care’ arrangements written agreement, the older person must navigate the vagaries of several complex areas of law, particularly constructive trusts and estoppel, and endure the stress of proceeding against family members. This article discusses the shortcomings in the existing legal regimen and makes recommendations to provide legal protection for older people entering into such arrangements
Stoianoff, NP & Roy, A 2015, 'Indigenous Knowledge and Culture In Australia — The Case for Sui Generis Legislation', Monash University Law Review, vol. 41, no. 3, pp. 745-784.
Stuhmcke, A 2015, 'The regulation of commercial surrogacy: The wrong answers to the wrong questions.', J Law Med, vol. 23, no. 2, pp. 333-345.
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The criminal ban on commercial surrogacy across Australian jurisdictions is the result of the conflation and confusion of two flawed assumptions. The first being that the criminalisation of commercial surrogacy will discourage a surrogacy 'industry' and the second that commercial surrogacy and altruistic surrogacy are two distinguishable 'types' of surrogacy arrangements. This article argues that the criminalisation of commercial surrogacy has resulted in unforeseen and undesirable consequences, removing opportunity for evidence-based law reform. Moreover, analysis of both the approach of Australian courts and the operation of surrogacy legislation suggests that the binary regulatory approach which distinguishes 'commercial' from 'altruistic' surrogacy is a legal fiction. In summary, this article argues that the current Australian regulation of surrogacy is both blunt and ineffectual, surrogacy is a nuanced and complex practice which requires a regulatory response which is principled, holistic and evidence based.
Stuhmcke, A, Booth, T & Wangmann, JM 2015, 'The Illusory Dichotomy of Plagiarism', Assessment and Evaluation in Higher Education, vol. 41, no. 7, pp. 982-995.
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© 2015 Taylor & Francis. Plagiarism has been characterised as a ‘major problem’ for universities. While tensions between students and universities are inevitable, the problem with the existing system of plagiarism management and prevention is that it operates to problematise the relationship between the university and the student, rather than address the core academic issues. As a result, a dichotomy is created where the student interest is constructed as adverse to that of the institution. This article argues that de-dichotomisation of the current polarity of plagiarism will open space for alternative thoughtful considerations in dealing with plagiarism positively in an institutional context.
Stuhmcke, AG 2015, 'Learning Plagiarism: Law Students Really Must be Special', Journal of the Australasian Law Teachers Association, vol. 8, no. No 1 & 2, pp. 75-94.
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In an earlier volume of this journal I expressed distaste for the growing prevalence of legal educators using rules of citation style to assist in determining whether and when a law student has plagiarised. More particularly, I framed this discussion in terms of a negative view of theover-use of style guides such as the AGLC, warning of the dangers of promoting citation style over an appreciation of academic integrity and good referencing. Rather, I opined the benefit of promoting a desire in law students to see themselves as part of a discipline of law and themotivation to see their work as contributing to the growth of that discipline. Here, in this second piece, I will begin from where the first article left off. I will explore the construction of the ‘discipline of law’ as it pertains to legal referencing and citation. I note inconsistencies inlegal citation rules and identify that there is no such construct as a ‘discipline of law’ when it comes to legal referencing and citation (indeed we, as legal educators, are often remiss in notpassing this fact on to our law students). I consequently argue that overemphasis on citation style by legal educators undermines our desire to produce well-rounded and ‘practice ready’ law graduates.
Thorpe, DE 2015, 'The Restraint of Trade Doctrine in the Era of Digital Markets', Journal of Contract Law, vol. 32, no. 2.
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It is now commonplace for trade in goods and services through the digital communications networks to involve commercial interests as diverse as medical surgery, educational services and the sale of sporting equipment. Rational covenantees will seek to protect and expand their trade interests by imposing on covenantors restraints on their use of cyberspace for purposes of trade. For courts of law the challenge will be to accommodate the competing interests of covenantees and covenantors. To not do so is to award to covenantees as the dominant contracting party a market of increasing global importance. This paper considers the application of the restraint of trade doctrine to the ‘cyber-markets’. The legitimate interests of covenantees and the question of reasonableness are considered. It is proposed that the very nature of the cyber-markets offers a unique opportunity for courts, through the acceptance of ‘micro-markets’ and policy adjustment, to promote freedom of trade in the digital marketplace.
Vogl, A & Methven, E 2015, 'We Will Decide Who Comes to this Country, and How They Behave: A Critical Reading of the Asylum Seeker Code of Behaviour', Alternative Law Journal, vol. 40, no. 3, pp. 175-179.
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Wilding, D 2015, 'The Summer 30 royal prank call: outcomes for Australian broadcasting regulation', Journal of Media Law, vol. 7, no. 1, pp. 92-107.
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© 2015 Taylor & Francis. The prank call by two Sydney radio presenters who tried to speak to the Duchess of Cambridge in November 2012 was followed by the death of nurse, Jacintha Saldanha. It prompted a long-running investigation by Australia’s broadcasting regulator, the Australian Communications and Media Authority, into the decision to record and broadcast, without consent, conversations with Ms Saldanha and another nurse. In March 2015 the High Court of Australia held the ACMA did not require a prior decision of a court in order to find the licensee, Today FM, used the broadcasting service in the commission of an offence under surveillances devices legislation. This cleared the way for the ACMA to find Today FM breached a condition of its license. The case resolves a question concerning the ACMA’s formal powers, but the investigation also reveals deficiencies in the industry-based codes of practice.
