Alexander, I 2017, 'Sayer v. Moore (1785)' in Landmark Cases in Intellectual Property Law, Hart Publishing Limited, UK, pp. 59-86.
View description>>
This volume explores the nature of intellectual property law by looking at particular disputes that have become landmark cases.
Anthony, T 2017, 'FactCheck Q&A: Are Indigenous Australians the Most Incarcerated People in the World?' in Watson, J (ed), The Conversation Yearbook 2017: 50 Articles That Informed Public Debate, Melbourne University Press, Melbourne, pp. 84-86.
View description>>
In a time of heightened hostility towards experts, academics and scientists, the 2017 collection of the best Conversation articles and essays. This article examines the assertion that Indigenous Australians are the most incarcerated people in the world to find that in fact...
Berg, L & Millbank, J 2017, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants' in Sexuality and Equality Law, Routledge, pp. 275-304.
View/Download from: Publisher's site
Biber, K 2017, 'The Cultural Afterlife of Criminal Evidence' in Rafter, N & Brown, M (eds), Oxford Research Encyclopedia of Criminology and Criminal Justice, Oxford University Press, New York, pp. 1-20.
View/Download from: Publisher's site
View description>>
This article explores what happens to criminal evidence after the conclusion of legal proceedings, described here as the afterlife of evidence. The text investigates the ways that this material proliferates in the shadow of the law, in both cultural and commercial contexts. During the criminal trial, the rules of evidence and criminal procedure operate to tightly regulate the collection, admissibility, and interpretation of evidence. After the criminal trial, these rules no longer control evidence, and this material is sometimes subject to the substantial cultural curiosity associated with true crime and its artifacts. This article sets out some of the new questions that are posed by this material when it is transferred beyond the law’s control.
Booth, T & Carrington, K 2017, 'Victims support in policy and legal process in Australia' in Walklate, S (ed), Handbook of Victims and Victimology, Routledge, Great Britain, pp. 293-307.
View/Download from: Publisher's site
View description>>
Rosie Batty, 2015 Australian of the Year and prominent advocate for the rights of victims of domestic violence, has lead a remarkable campaign to raise public consciousness in relation to the needs of such victims, particularly the dearth of appropriate services. A significant outcome in September 2015 was the Australian federal government’s announcement of a $300 million funding package directed to improve the services and support available to victims of domestic violence. Nonetheless, victims in Australia continue to occupy both an ambivalent and contested role in policy and law. This chapter looks at the role of victims in both policy and legal settings and argues that despite an apparent expansion of services and entitlements, the politics of victims’ rights remains fraught.
Buonamano, R 2017, 'The economy of violence: Derrida on law and justice' in Derrida and Law, pp. 105-116.
Crock, M 2017, 'Migrants and Rights' in Crock, M (ed), Migrants and Rights, Routledge, pp. 287-320.
View/Download from: Publisher's site
View description>>
© 2015 Mary Crock. [This article aims to identify jurisprudence which advances the standards of treatment of unauthorised migrants in the context of often hostile domestic laws and political rhetoric. Due to its universalist and humanist underpinnings, many would consider international human rights law to be a natural source of rights protecting migrant workers. However, human rights doctrine takes a chequered approach to the protection of those living or working in a foreign state without visa authorisation. Even the Migrant Workers Convention recognises states’ sovereign prerogative over immigration control, and thereby fails to cater to the especially precarious position of irregular migrants who decline to assert their rights for fear of facing sanctions under immigration laws, It is argued that we need to look to regional judicial forums to find international legal doctrine which articulates a progressive legal framework robustly protective of irregular migrants’ rights. This article canvasses jurisprudence in the regional Human Rights Courts in Europe and the Americas which succeeds, in different ways, at decoupling the absolute discretion of states to regulate border control from the substantive rights of irregular migrants once present in a host state.]
Crofts, P 2017, 'Homicide in Television Drama Series', Oxford University Press.
View/Download from: Publisher's site
View description>>
This chapter analyzes the representation of homicide in contemporary television drama series. The chapter draws upon critical analysis from the fields of criminal law, criminology, law and literature, and cultural studies to provide various analytical frameworks and perspectives through which to understand and critique specific dramas and the portrayal of homicide drama generally. If criminology is an effort to understand crime and criminals, then crime dramas including homicide television dramas can be considered a form of popular criminology that can and should be analyzed in terms of cultural representations of crime and criminal justice. Theorists have proposed that crime fiction can be categorized as mystery, detective fiction, or crime fiction. This framework provides a means for analyzing homicide drama, including the possibility of resolution and justice, geographic and temporal settings, the portrayal of the murder, and the construction of the three stock characters of crime fiction (the victim, the detective, and the murderer). The chapter concludes with a presentation of theories about the impact of media portrayals of crime upon public beliefs about crime, criminality, and the criminal legal system.
Crofts, P & Haesler, A 2017, 'Criminal Law' in Law Handbook, Redfern Legal Centre Publishing, Australia, pp. 467-525.
Cunneen, C 2017, 'Visual Power and Sovereignty: Indigenous Art and Colonialism' in Brown, M & Carrabine, E (eds), Routledge International Handbook of Visual Criminology, Routledge, London and New York, pp. 376-388.
View/Download from: Publisher's site
View description>>
‘Evidence’ is a noun and a verb. It refers to a thing and a process. It might be religious or profane, legal and literary, and perhaps all of these at once. It can be the testimony of a witness, the contents of a document or a real object or place. For the lawyer, evidence can be circumstantial, provisional, rebuttable, presumptively true, reliable, unreliable, or it might demand that inferences be drawn from it. It can be voluminous and complex and it might require specialised knowledge to understand it. It could be something we all know, or it might be something recovered by forensic examination. It can be visible to the naked eye or retrievable only by means of a device. It can be digital, ephemeral, or a trace left behind. Because lawyers love rules, there are lots of laws of evidence, and so evidence must be approached with formality, seriousness and deliberation. Evidence – in law – must never be self-evident and, where it is, there are rules about that too.
‘Representation’ has a distinctive legal orientation. In law, the term ‘representation’ (amongst other uses) can describe any act which conveys meaning. If somebody speaks, smiles, frowns, shrugs their shoulders, raises a hand, raises a fist, rolls their eyes or stamps their feet, these are representations. If they write a note, deliver a lecture or whisper a secret, these are representations. If a person paints the wall of a cave, posts a status update, tags a train, or takes a photograph, each is a representation. Beyond the fact of their occurrence, they mean something. Representations are asserted facts, whether express or implied by their maker, and regardless of what is inferred by the person who hears or observes them. Representations might be made accidentally or fortuitously. They might be factual assertions made by somebody who doesn’t know the facts. They might be statements of belief or desire, intention or expectation, they might be designed to deceive, but they nevertheless contain some ke...
Edmond, G, Kemp, R, Porter, G, Hamer, D, Burton, M, Biber, K & Roque, MS 2017, 'Atkins v The Emperor, the ‘cautious’ use of unreliable ‘expert’ opinion' in Expert Evidence and Scientific Proof in Criminal Trials, Routledge, pp. 303-323.
View/Download from: Publisher's site
Goldblatt, B 2017, 'Citizenship and the right to child care' in Gouws, A (ed), (Un)thinking Citizenship: Feminist Debates in Contemporary South Africa, Ashgate Publishing, pp. 117-136.
View/Download from: Publisher's site
View description>>
In this chapter it will be argued that the right to citizenship in the Bill of Rights should entail state assistance for parents including, hi particular, the provision of childcare. This argument draws a distinction between the broad concept of citizenship in our Constitution and the more specific right to citizenship within the Bill of Rights that may be one of the vehicles for giving effect to the concept. Citizenship is generally understood narrowly by lawyers to involve questions of nationality. It will be argued that the concept has a much wider reach and concerns the entitlements of citizens as well as questions of democratic participation in the civic and political life of the country. The chapter draws on the important insights of feminist political theory to support an expansive and transformative interpretation of citizenship in our Constitution.
Goldblatt, B 2017, 'Constitutional approaches to gender and social and economic rights' in Constitutions and Gender, Edward Elgar Publishing, UK, pp. 482-500.
View/Download from: Publisher's site
View description>>
The requirement that states contribute towards meeting the material needsof their citizens, in the form of social rights such as health, education,social security and housing, is frequently present in national constitutions.Economic rights such as the right to strike and form trade unions,that assist employees in the labour market, also appear in many constitutions.There is growing interest in the use of constitutional rights toaddress the persistent problems of poverty and inequalities of wealth inrich and poor countries alike (Thiruvengadam and Hessebon 2012).Poverty should not, however, be understood in gender-neutral termssince poverty and gender inequality are closely related. Gender inequalityis multi-dimensional and is shaped by political, economic and culturalfactors that interact in complex ways (Fredman 2011). It manifests withinthe labour market where male and female work is differently defined andunequally valued; in households in relation to choices over the allocationof resources and reproductive responsibilities; and at the level of theState where law and policy are influential on the spheres of work andhome (UNRISD 2010: 108). Women are more likely to live in povertythan men in the majority of countries in the world and have feweremployment and economic opportunities. Only half of the world’swomen are in the labour force compared to three quarters of the world’smen (UN Women 2015: 74) and their work is often located in theinformal sector and in part-time and precarious work. In many parts ofthe world women have less access to housing, land and productiveresources and face greater barriers to education. For example, in theMiddle East and North Africa, ownership of property by women isfrequently restricted (UN Women 2015: 32) while in Sub-Saharan Africa,even where women farmers have access to land, they are more likely tolack the capital to profit from the land (UNRISD 2010: 129). While therehas been an increase...
Goldblatt, BA 2017, 'Social (In)Security and Inequality in Australia: The Limited Role of Human Rights in the Policy Debate' in Durbach, A & Edgeworth, B (eds), Law and Poverty in Australia40 Years after the Poverty Commission, Federation Press, Annandale, pp. 183-198.
View description>>
This chapter explores the place of human rights within policy and legislativedebates on social security in Australia 40 years after the Sackville Reportrecommended that the government treat income support as a right. It examinesrecent consideration by the Federal Parliament of the right to social securityand the response by non-governmental bodies to violations of the right by theAustralian Government. The chapter concludes that the international right tosocial security, while gaining greater prominence and definition, has provedlimited in its capacity to improve the lives of Australians facing poverty, insecurityand inequality in the current political and legal context. The chapterproposes that calls for a right to social security should be linked to a right toequality and reiterates the long-standing and widely-held view that enforceablehuman rights are overdue in Australia.
Greenleaf, G, Chung, P & Mowbray, AS 2017, 'Free Scholarship: Developing a National Legal Scholarship Library' in Peruginelli, G & Faro, S (eds), Access to legal scholarship: Tools, approaches, technologies, Giappichelli, pp. 187-212.
Grossi, R 2017, 'Romantic love as a political strategy in the same-sex marriage debate' in The Radicalism of Romantic Love: Critical Perspectives, Routledge, Oxon, pp. 175-190.
View/Download from: Publisher's site
Grossi, R & West, D 2017, 'Introduction' in The Radicalism of Romantic Love: Critical Perspectives, Routledge, Oxon, pp. 1-8.
View/Download from: Publisher's site
Hobbs, HO & Williams, G 2017, 'Citizen Participation in Australia' in Morales, G (ed), Mechanisms of Citizen Participation: A Global Experience (Instituto Electoral del Estado de Queretaro), Tyrant, Mexico, pp. 49-64.
Johns, F & Dobinson, I 2017, 'Legal Research as Qualitative Research' in McConville, M & Chui, W (eds), Research Methods for Law, Research Methods for the Arts and Humanities, Edinburgh, pp. 18-47.
View description>>
Drawing on actual research projects, Research Methods for Law discusses how legal research as process impacts on research as product.
Karpin, IA 2017, 'Health Law and People with Disability' in Farrell, AM, Devereux, J, Karpin, IA & Weller, P (eds), Health Law, Cambridge University Press, Cambridge UK, pp. 293-304.
View/Download from: Publisher's site
Karpin, IA 2017, 'Regulating Emerging Reproductive Technologies' in Farrell, AM, Devereux, J, Karpin, I & Weller, P (eds), Health Law, Cambridge University Press, Cambridge, UK, pp. 180-189.
View/Download from: Publisher's site
Karpin, IA 2017, 'Regulating Reproduction' in Farrell, AM, Devereux, J, Karpin, I & Weller, P (eds), Health Law, Cambridge University Press, Cambridge, UK, pp. 162-179.
View/Download from: Publisher's site
Libesman, T & Cripps, K 2017, 'Aboriginal and Torres Strait Islander children's welfare and well-being' in Young, L, Kenny, M & Monahan, G (eds), Children and the Law in Australia, LexisNexis, Australia, pp. 307-336.
Lindsay, D 2017, 'The Role of Proportionality in Assessing Trans-Atlantic Flows of Personal Data' in Svantesson, D & Kloza, D (eds), Trans-Atlantic Data Privacy Relations as a Challenge for Democracy, Intersentia, Cambridge, UK, pp. 49-84.
View/Download from: Publisher's site
View description>>
Proportionality is a general principle of European Union (EU) law; and has emerged as a key principle of EU data privacy law. This chapter explains and critically analyses the role the principle of proportionality plays in evaluating the legality of trans-Atlantic transfers of personal data, especially in the context of the collection of the personal data of EU data subjects by U.S. intelligence agencies. In doing so, the chapter critically evaluates the ruling of the Court of Justice of the European Union (CJEU) in its important ruling in Maximillian Schrems v Data Protection Commissioner (Case C-362/14, 6 October 2015), which invalidated the EU-U.S. safe harbour agreement. In particular, the chapter explains the Schrems ruling, and the legal background to the ruling, from the particular perspective of the role of the principle of proportionality, as developed under EU law. From this analysis, the chapter identifies key legal difficulties and uncertainties in the application of proportionality analysis to cases involving interference with the rights to privacy and data privacy. Beyond this, the chapter addresses two fundamental conceptual issues arising from the Schrems ruling. First, the chapter explains and analyses the relationship between privacy and democracy in the context of contemporary surveillance practices, explaining the importance of an appropriately rigorous proportionality principle in reigning in apparently inexorable tendencies to unconstrained surveillance. Second, the chapter examines issues relating to the protection of rights against unconstrained extra-territorial state surveillance, contending that the controversy surrounding trans-Atlantic data flows should be seen in the broader context of the obligations of territorially-based states in relation to the rights of those outside of their territories. The chapter concludes with an explanation and analysis of the adequacy of the Privacy Shield agreement, which is proposed to replac...
Methven, E 2017, 'Offensive Language Crimes in Law, Media, and Popular Culture' in Oxford Encyclopedia of Criminology and Criminal Justice, Oxford University Press, UK, pp. 1-31.
View/Download from: Publisher's site
View description>>
In Australia, Canada, and the United Kingdom, public order laws criminalize the use of swearing, offensive, or abusive language in a public place. Police officers use these laws as tools to assert “their authority” or command respect in public spaces where that authority is perceived to be challenged via the use of profanities such as “fuck.” Alongside the legislature, the executive, and the judiciary, representations of swearing in the media influence ideas about whether swear words warrant criminal punishment. A particular “common-sense” assumption about language (language ideology) prevalent in media representations of offensive language crimes, echoed by politicians and police representatives, is that disrespecting or challenging police authority via “four-letter words” warrants criminal sanction.
However, popular culture can counter dominant ideologies with respect to offensive language, police, and authority. This article examines how the use of swear words in N.W.A’s popular rap song “Fuck tha Police” (1988) and in the HBO television series The Wire (Simon & Burns, 2002–2008) can inform and challenge legal assessments of community standards with regards to offensive language.
O'Connell, K & Karpin, I 2017, 'Human Genetics and the Law' in Farrell, A, Devereux, J, Karpin, I & Weller, P (eds), Health Law, Cambridge University Press, UK, pp. 269-280.
View/Download from: Publisher's site
O'Connell, K & Karpin, I 2017, 'Social Determinants of Health and the Role of Law' in Farrell, A, Devereux, J, Karpin, I & Weller, P (eds), Health Law, Cambridge University Press, UK, pp. 34-47.
View/Download from: Publisher's site
Redmond, PM 2017, 'Environmental Modeling with Stakeholders' in Gray, S, Paolisso, M, Jordan, R & Gray, S (eds), The Changing face of corruption in the Asia Pacific, Springer International Publishing.
View/Download from: Publisher's site
Riley, J 2017, 'Brand new 'sharing', or plain old 'sweating'? A proposal for regulating the new 'gig economy'' in Levy, R, O'Brien, M, Rice, S, Ridge, P & Thornton, M (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform, ANU Press, Canberra, pp. 59-69.
View description>>
Politicians on both sides of the political spectrum in Australia have been embracing what they are calling the ‘sharing’, or ‘collaborative’ economy, typified by new app-enabled business enterprises linking up consumers with service providers of many kinds. Examples include Uber and Lyft in the passenger transport business; Airtasker and TaskRabbit in the market for odd-job services; Deliveroo and Foodora in takeaway food delivery; and Airbnb in short-term accommodation letting. The notion that these businesses involve ‘sharing’ or ‘collaboration’ depends on seeing them as means by which those who have surplus energy or assets can make money from sharing their skills
Riley, J 2017, 'Regulating Work in the Gig Economy' in Ronnmar, M & Votinius, JJ (eds), Festschrift till Ann Numhauser-Henning, Juristforlaget i Lund, Sweden, pp. 669-684.
Riley, J 2017, 'The Challenge of Massive Open Online Courses (MOOCs) to Traditional Legal Education: The Australian Experience' in Legal Education In The Global Context, Routledge, pp. 223-231.
View/Download from: Publisher's site
Sheldon, S 2017, 'Unwilling Fathers and Abortion: Terminating Men’s Child Support Obligations?' in Parents and Children, pp. 291-310.
View/Download from: Publisher's site
View description>>
There is broad agreement across the western industrialised world that men who father children outside of marriage share in an obligation to support their offspring financially. Against this consensus, some men’s groups have claimed that if women are accorded control over the decision to continue or to terminate a pregnancy then it is unfair to hold genetic fathers financially liable for child support. This paper assesses the merits of this claim from a feminist perspective. Having considered a number of arguments, it suggests that the currently accepted grounding of child support liability (in voluntary creation of need) provides little scope for refuting the men’s groups’ argument. The paper then moves on to argue that voluntary creation of need is, however, inadequate as a basis for child support liability, and that the current analysis offers compelling grounds for preferring a collective model of support obligations.
Silink, A & Stewart, P 2017, 'Compensation for Survivors of Institutional Child Sexual Abuse in Australia: Tortious Rights and Challenges for Reform' in Young, L, Kenny, MA & Monohan, G (eds), Children and the Law, LexisNexis, pp. 337-375.
Silink, AJ 2017, 'Protecting children from abuse and neglect' in Young, L, Kenny, MA & Monahan, G (eds), Children and the Law in Australia, LexisNexis Butterworths, Chatswood Australia.
Simmonds, A 2017, 'Intimate Jurisdictions: Reflections upon the Relationship Between Sentiment, Law and Empire' in Clark, A, Rees, A & Simmonds, A (eds), Transnationalism, Nationalism and Australian History, Springer Singapore, Singapore, pp. 179-190.
View/Download from: Publisher's site
Simmonds, A, Rees, A & Clark, A 2017, 'Testing the Boundaries: Reflections on Transnationalism in Australian History' in Clark, A, Rees, A & Simmonds, A (eds), Transnationalism, Nationalism and Australian History, Springer Singapore, Singapore, pp. 1-14.
View/Download from: Publisher's site
View description>>
Transnational history in Australia is in an ebullient mood. Ten years
after Marilyn Lake and Ann Curthoys' path-breaking work, Copy"ected
Worlds, there has been an entire generation of scholars raised on malltras
of mobility, imperial circuitry and the need to think beyond national
borders. ' "Entangled histories" are the new orthodoxy, and circulation
metaphors pepper the scholarly lexicon. ' Within a remarkably short time,
transnational history ITas nioved from the Inargins to the mainstream.
Only recently a radical critique of national 11istoriographies, it is today
among the most influential forms of history making. ' In the wake of
these developments, our conception of the Australian past - and the
work of historical research and writing - has been transformed. N0 10nger
a quarantined field of study, Australian history now appears on the
o11ter rint of Pacific and Indian Ocean studies, as a nodal point in British
imperial studies and connected, or cast in a comparative IiglTt, witli other
settler colonial nations. The transnational has not only become a type of counter-narrative to the ITation, It has also helped complicate
understandings of national ITistory
Stewart, PE & Silink, A 2017, 'Compensation for survivors of Institutional Child Sexual Abuse in Australia: Tortious rights and challenges for reform' in Young, L, Kenny, MA & Monahan, G (eds), Children and the Law in Australia, LexisNexis Butterworths, Chatswood Australia, pp. 337-375.
View description>>
The risk and incidence of sexual abuse of children in an institutional context has been brought to increasingly greater public attention since the 1990’s, both in Australia and around the world. In Australia, several state inquiries since the mid-1990’s addressed sexual abuse of children in state care and religious institutions in Australia, and there have been numerous other state and federal inquiries in that time which have considered in some way the issue of child sexual abuse in the context of a broader or different remit. However, on 11 January 2013 a national Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) was established to focus specifically on how to better prevent, report and respond to child sexual abuse in an institutional context. It is expected to deliver its final report by the end of 2017. The Royal Commission’s work is revealing the nature and extent of child abuse in a wide range of different institutional contexts in Australia. As at 10 September 2015, the Royal Commission had received allegations relating to 3,566 different institutions. In its Consultation Paper on Redress and Civil Litigation (“Consultation Paper”), the Royal Commission analysed the data obtained from private sessions held between 7 May 2013 and 31 August 2014 in relation to reported incidents of child sexual abuse and categorised it by institution type, or activity. The incidence per category was as follows: 34.6% in out-of-home residential care; 28.1% in educational day and boarding schools; 16.6% in religious activities; 7.6% in out-of-home foster or kinship care; 4.2% in recreational, sporting and hobby groups or institutions; 2.1% in health and allied fields or by medical practitioners; 1.1% in juvenile justice; 0.9% in childcare centres, and smaller representation of incidents in other institutional categories. A significant proportion of this reported abuse related to faith-based institutions. For...
Stewart, PE & Stuhmcke, A 2017, 'The Child in utero and ex utero' in Young, L, Kenny, MA & Monahan, G (eds), Children and the law in Australia, LexisNexis, Chatswood, pp. 55-82.
Stoianoff, NP 2017, 'A Governance Framework for Indigenous Ecological Knowledge Protection and Use' in Levy, R, O'Brien, M, Rice, S, Ridge, P & Thornton, M (eds), New Directions for Law in Australia, ANU Press, Canberra, pp. 231-241.
View/Download from: Publisher's site
Stoianoff, NP, Cahill, A & Wright, EA 2017, 'Indigenous knowledge: what are the issues?' in Stoianoff, NP (ed), Indigenous Knowledge Forum: Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture, LexisNexis, Australia, pp. 11-37.
Stubbs, J & Wangmann, J 2017, 'Australian Perspectives on Domestic Violence' in Buzawa, E & Buzawa, C (eds), Global Responses to Domestic Violence, Springer International Publishing, Switzerland, pp. 167-188.
View/Download from: Publisher's site
View description>>
This chapter provides an overview of the historical and contemporary responses to domestic violence in Australia. The idea that domestic violence is a private matter largely prevailed until the 1970s, when feminist activism and governmental inquiries emphasised that it is a social problem mostly affecting women. Contemporary policy responses in Australia draw on a gendered analysis of domestic violence although some groups challenge that approach. The terms domestic and family violence are often used interchangeably in Australia, in part because many Indigenous communities prefer family violence as it encompasses Aboriginal kinship. The term family violence does not necessarily signal a gender-neutral approach. Legal responses to domestic violence include civil protection orders which were introduced in Australian States and Territories from the 1980s. Police have a central role in civil protection order systems which marks out Australian approaches as distinctive. The chapter examines the available evidence concerning the prevalence of domestic violence in Australia, and legal responses to domestic violence. It also discusses the experiences of marginalised women, particularly Indigenous women whose experience of family violence is mediated by the ongoing effects of colonisation and discrimination. The chapter looks beyond the traditional legal focus of civil and criminal law and includes information about other measures to respond to domestic violence, such as emergency accommodation, perpetrator programs and recently introduced multidisciplinary groups tasked with responding to high risk victims. It concludes by identifying areas that require greater attention in Australia.
Thomson, M 2017, 'Masculinity, Reproductivity and Law' in Ethics, Law and Society, Routledge, pp. 135-147.
View/Download from: Publisher's site
Turner, A, Ries, N & Baker, A 2017, 'Ethics in Mental Health–Substance Use' in Cooper, DB (ed), Ethics in Mental Health-Substance Use, CRC Press.
View/Download from: Publisher's site
van Rijswijk, HM 2017, 'Encountering Aboriginal Legalities through a Literary Jurisprudence of Suffering' in Challenges to Living Together Transculturalism, Migration, Exploitation. for a Semioethics of Human Relations, Mimesis, Italy, pp. 323-332.
View description>>
In Australia, law’s imaginary is part of our colonial legacy. Law’s narratives and figures, as well as what we might more widely think of as its practices of representation, produce social, economic and political realities. The imaginary is therefore an important domain of intervention for social justice, which must be interrogated and challenged. Such interrogation can be thought of as a ‘literary jurisprudence’, which involves taking up exemplary practices of representation that model ways alternative ways of thinking about relations between Aboriginal and Western laws. This means thinking beyond the abstractions of legal analytic categories to include affect, experience and culture, providing a method that can resist and re-situate Western law’s continuing claims to authority over Aboriginal people. In this chapter, by way of an example of these practices, I provide a reading of harm and authority in the latest novel by Alexis Wright, a leading Australian novelist. I argue that what is needed, and what this reading provides, is a literary jurisprudence that challenges law’s imaginary.
Varnham, S 2017, 'The Role of Catholic schools in Australia in educating for human rights and social justice: An overview' in de Groof, J & Du Plessis, G (eds), Religion, Law and Education: Tensions and Perspectives, Wolf Legal Publishers, The Netherlands, pp. 251-268.
View description>>
The Role of Catholic Schools in Australia in Educating for Human Rights and Social Justice: An overview ' .. a human rights act will not, alone, magically create a rights aware, and rights-respecting culture … We’ll also need a strong ongoing national program of human rights education.' The role played by schools in educating for human rights and social justice cannot and should not be underestimated. Both the content of formal schooling and the manner in which schools behave, provides a crucial template for the life of citizens and the welfare of the nation. The notion of educating about human rights has formed part of an international human rights framework since the adoption of the Universal Declaration of Human Rights in 1948, and the urging of State Parties by the United Nations to disseminate the Declaration and to educate citizens about its contents. All major UN human rights treaties since the Universal Declaration of Human Rights have incorporated human rights education. The international focus on human rights education culminated in 2011 with the United Nations Declaration on Human Rights Education and Training, and the inception of the three phases of the World Programme for Human Rights Education with the Third Phase to be undertaken from 2015 to 2019.In Australia, the Melbourne Declaration on Educational Goals for Young Australians (2008) provides, within its two overarching goals, for an education system which promotes equity and equality and ensures that all young Australians become active and informed citizens. A number of recent initiatives, the National Human Rights Consultation in 2009, and the Australian Human Rights Framework of 2010, acknowledge that human rights education in schools is essential to achieving this aim.Despite these ideals, research in Australia shows an absence of concerted government drive for human rights education. However Catholic schools, which now make up 20% of the Australian compulsory educat...
Varnham, S & Evers, M 2017, 'Australia: Constitutional responses to religious rights' in Meix Cereceda, P & de Groof, J (eds), Religious and Ideological Rights in Education: judicial perspectives from 32 legal systems, wolf Legal Publishers, The Netherlands, pp. 487-500.
View description>>
IntroductionReligion has played a significant role in the education of young people in Australia from the early days of British settlement. During the 18th and 19th centuries, in addition to the arrival of colonists, Australia’s settlement was characterised by the transportation of huge numbers of convicts from Great Britain. The education of the children of these convicts and poorer settlers was largely seen as a function of the churches. A compulsory and secular system of government schooling was introduced in Australia in the second half of the 19th century. Despite this, non-government and predominantly religious schools within the Catholic systemic education system, continue to play an important role in the education of young Australians. Controversially they receive a significant amount of Commonwealth government funding. In 2016 more than 765,000 students (one in every five students across Australia) are educated in Catholic schools. The primary purpose of this article is to discuss the cases which have asked the High Court of Australia to consider the constitutional validity, of this funding and of the funding of a religious-based program within schools. We begin however by considering the place of religion generally within Australia’s ‘secular’ education system. Australian society generally, as elsewhere, is confronted with issues relating to freedom from religion and freedom of religion. Australian schooling is not immune from these issues and there are many indications that this tension is increasing as Australia becomes more and more multi-cultural and multi-ethnic , and each group is understandably concerned to educate their children within their own religious beliefs and convictions, and to protect them from other, or any, religious influences. Australian courts and tribunals have seen only a ‘sprinkling’ of matters in the education context, largely concerning freedom from religion in government schools. At their heart th...
Vogl, AF 2017, 'Against International Relations Norms' in Epstein, C (ed), Against International Relations Norms: Postcolonial Perspectives, Routledge, UK, pp. 158-174.
View/Download from: Publisher's site
View description>>
This chapter focuses on the offshore processing centre on Nauru, in order to interrogate how the norm of sovereignty is used, or rather, abused in the Australian policy of offshore processing. The Australian Government has repeatedly and consistently claimed that under the laws of sovereignty, Nauru is responsible for the refugee processing centre on its territory. Against this view, I argue in this chapter that the Australian Government abuses foundational norms of sovereignty in the policy of offshore processing in order to avoid liability for refugee detention and processing on Nauru. In so doing, the Australian Government undermines Nauru's formal sovereign status, exercises effective control over Nauruan territory, and in essence implements its own migration and asylum policy on Nauruan soil. This chapter further argues that Australia's offshore processing regime on Nauru is best understood through a postcolonial lens; that is, Australia's use of Nauruan territory to establish a processing centre beyond Australian legal regulation is directly continuous with Australia's colonial history in the Pacific, and with Nauru in particular. Australia's ability to exploit Nauru's territory and its sovereignty in order to implement its own migration and 'border control' strategies is made possible by Australia's former colonial relationship with Nauru. In turn, offshore processing extends and continues Nauru's ongoing relationship with Australia of dependence and aid, which began with Australia's colonial exploitation of Nauru's land and resources.
Vrdoljak, AF 2017, 'Cultural Heritage, Human Rights and the Privatisation of War' in Durbach, A & Lixinski, L (eds), Heritage, Culture and Rights: Challenging Legal Discourses, HART PUBL, Oxford, pp. 61-89.
View description>>
Hugo Grotius in De jure belli ac pacis (1625) observed that under the law of nations
an enemy ’ s property, even if it was ‘ sacred, that is, things dedicated to God or to the
gods ’ , could be destroyed and pillaged during war. 1 He quotes the words of Cicero
in support: ‘ Victory has made profane the sacred things ’ . One rationale for this
interpretation of the law was that it would demoralise the enemy and hasten their
surrender. This sentiment was reiterated by Emmerich de Vattel in his Le droit des
gens ou principes de la loi naturelle (1758) but with an important proviso. He wrote:
‘ For whatever cause a country be devastated, those buildings should be spared
which are an honour to the human race and which do not add to the strength of
the enemy’ . 2 This changing outlook was crystallised in nineteenth century efforts
to humanise the laws of war through codifi cation. By the time of the Nuremberg
trials in the mid-twentieth century, the prohibition against the destruction and
pillaging of cultural (and religious) property during armed confl ict and belligerent
occupation was found to be customary international law, binding on all states.
These developments in turn informed subsequent specialist treaties on the protection
of cultural heritage and human rights. However, the early twenty-fi rst century
has brought changes to how war and occupation is conducted; changes which have
exposed the limitations of existing human rights and humanitarian law norms.
Vrdoljak, AF 2017, 'The Routledge Companion to Cultural Property' in Anderson, J & Geismar, H (eds), The Routledge Companion to Cultural Property, Routledge, London, pp. 54-69.
View/Download from: Publisher's site
View description>>
In August 2014, the UN Security Council condemned the gross, systematic and widespread
violation of international humanitarian and human rights law by various armed groups in
Syria and Iraq including:
[I]ndiscriminate killing and deliberate targeting of civilians, numerous atrocities,
mass executions and extrajudicial killings, including of soldiers, persecution of individuals
and entire communities on the basis of their religion or belief, kidnapping of
civilians, forced displacement of members of minority groups, killing and maiming
of children, recruitment and use of children, rape and other forms of sexual violence,
arbitrary detention, attacks on schools and hospitals, destruction of cultural
and religious sites and obstructing the exercise of economic, social and cultural
rights, including the right to education.
(UN 2014a: para. 2).
Through its inclusion of acts directed against cultural heritage in this list, the Security
Council reaffirmed the opprobrium with which the international community holds them. In
later resolutions, and in line with existing customary international law, it condemned the
incidental or deliberate destruction and pillage of cultural heritage. More significantly, it
recognised that looting and the illicit traffic of cultural objects is used by these groups to raise
funds, as they do with other economic resources (oil, precious metals) and illicit activities
(kidnapping for ransom). Viewed as facilitating acts which threaten international peace and
security, it calls on Member States to repress these activities and ensure that those who
engage in such acts be ‘brought to justice’ (UN 2015a).
This chapter considers the criminalisation of illicit traffic of cultural objects in international
law and its impact for domestic law. The regulation of the trade in cultural objects has long
been resisted in so-called market States, which host major auction houses and art and antiquities
dealers. The lobbying was particularly directed against ...
Wright, EA, Cahill, A & Stoianoff, NP 2017, 'Australia and Indigenous traditional knowledge' in Stoianoff, NP (ed), Indigenous Knowledge Forum: Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture, LexisNexis, pp. 39-68.
YU, Y & Ding, G 2017, ''Three Stages, Six Steps and Full Participation' Model - An Exploration of Practical Teaching Reform' in 法学教育研究 第十八卷, pp. 75-86.
View description>>
本书设理论探讨,教学研究,教材体系,管理经纬,比较研究,教育法制等栏目,收录了卓越法律人才培养共同体研究中山大学法律实践性教学探索法学跨领域课程的教学困境与方法等文章.
Alexander, I & Jankowska, M 2017, 'Rights in geospatial information: A shifting legal terrain', Melbourne University Law Review, vol. 41, no. 3, pp. 957-998.
View description>>
The growing significance of 'big data' raises new issues for copyright law, not least when the data is presented visually or graphically to generate new and useful information and insights. One such example is the case of digital maps. Maps and written descriptions of geographic information have long presented challenges for the law of copyright, most particularly because they are perceived as factual compilations. The appearance of maps, and the information they contain, has changed considerably over time. However, the last few years has seen an extraordinary transformation in the methods and practices of collecting, storing, representing and disseminating geospatial data and information. This article considers how copyright law applied in the analogue era to regulate the production and dissemination of geographic information, the effects of new technologies and digitisation on how law applies to geospatial data and associated products and systems, and whether either a database right or some other form of protection is required.
Anthony, T 2017, 'NTER Took the Children Away', Arena Magazine, no. 148, pp. 21-25.
View description>>
Almost ten years after the Northern Territory Intervention was rolled out, the federal government was made aware of Aboriginal child abuse. It’s not the kind of abuse that ostensibly precipitated the Intervention. It’s more a symptom of the Intervention. The abuse was broadcast on the ABC’s Four Corners in July 2016 and included images of large, stocky white men beating Aboriginal children, spraying tear gas in their faces and all over their bodies, caging them in isolated cells, and trapping their heads in hoods and their wrists and ankles in shackles. This abuse took place in youth detention.
Anthony, T & Crofts, P 2017, 'Special edition: Limits and prospects of criminal law reform- past, present, future guest editors' introduction', International Journal for Crime, Justice and Social Democracy, vol. 6, no. 3, pp. 1-7.
View/Download from: Publisher's site
View description>>
This special issue traces multifaceted readings of criminal law reform in the context of developments in Australia, North America and Europe. It addresses a range of criminal law legislative regimes, frameworks and issues confronting criminal law reform including as they relate to family violence, organisational liability for child sexual abuse, drug‐driving and Indigenous under‐representation on juries. In doing so, the articles variously assess the impacts of past criminal law reforms, current processes of reform, areas in need of future reform and the limitations of reform. It poses a number of challenges: Who does law reform serve? What principles should guide the work of criminal justice reform? What is the role and responsibility of universities in law reform? Who are the natural allies of academics in agitating for reform? Is reform of criminal law enough for progressive social change? Do public inquiries and law reform assist with progressive change or do they have the potential to undermine the struggle for more humane and equitable social responses?
The term criminal ‘law reform’ is a broad one that encompasses any government legislation, policy or measure, and the articles in this issue reflect such breadth. However, the analysis in this Introduction to the special issue—responding to some of the for bearing questions—is concerned with the potential for law reform as an antidote to the myopic politics of social control. The use of the term ‘law reform bodies’ denotes a government agency dedicated to the considered and balanced appraisal of policy and operates relatively insulated from populist politics. Law
reformers more broadly—including academics, community legal centres and other non‐government organisations—have the potential to counterbalance the impetus for politicians to pursue knee‐jerk policy. These bodies provide a voice of dissent, including in the public arena and through the processes of petitioning, ministerial lobbying and activism.
Anthony, T & Longman, C 2017, 'Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds', International Journal for Crime, Justice and Social Democracy, vol. 6, no. 3, pp. 25-46.
View/Download from: Publisher's site
View description>>
Indigenous peoples in Australia, the United States and Canada are significantly overrepresented as defendants in criminal trials and yet vastly underrepresented on juries in criminal trials. This means that all-white juries mostly determine the guilt of Indigenous defendants or white defendants responsible for harming Indigenous victims. In this article, we explore cases in which Indigenous defendants have perceived that an all-white jury’s prejudice against Indigenous people would prevent them receiving a fair trial. It focuses on Indigenous defendants (often facing charges in relation to protesting against white racism) challenging the array of all-white juries. Across these cases, Australian courts rely on formal notions of fairness in jury selection to dismiss the Indigenous defendant’s perception of bias and foreclose an inquiry into the potential prejudices of white jurors. We compare the Australian judicial ‘colour-blindness’ towards all-white juries with that of the United States and Canada. We argue that the tendency for courts in the United States and Canada to question jurors on their biases provides useful lessons for Australian judiciaries, including in relation to the impending trials of Indigenous defendants in Kalgoorlie, Western Australia, accused of committing crimes in response to white racist violence. Nonetheless, across all jurisdictions where there is a challenge to the array based on racial composition, courts consistently uphold all-white juries. We suggest that the judicial view of the racial neutrality of white jury selection misapprehends the substantive biases in jury selection and the injustice perceived by defendants in having a white jury adjudicate an alleged crime that is committed in circumstances involving protest against white prejudice.
Anthony, T, Marchetti, E, Behrendt, L & Longman, C 2017, 'Individualised Justice through Indigenous Community Reports in Sentencing', JOURNAL OF JUDICIAL ADMINISTRATION, vol. 26, no. 3, pp. 121-140.
View description>>
There is a growing pool of research on court outcomes in sentencing Indigenous people but relatively little research on the information available to sentencing courts to consider Indigenous background. Although Australian courts mostly have discretion to consider Indigenous circumstances, such consideration depends on submissions and reports tendered in court. The High Court in Bugmy v The Queen (2013) stated “it is necessary to point to material tending to establish [the defendant’s deprived] background” if it is to be relevant in sentencing.1 The main repository of court information on defendant background is counsel submissions and, where the defendant is facing imprisonment, Community Corrections’ Presentence Reports. Based on 18 interviews with judicial officers, lawyers and court staff in New South Wales and Victoria, this article identifies the need for more information on relevant Indigenous background factors in sentencing. The introduction of discrete Indigenous community reports that present Indigenous perspectives on the person’s background and rehabilitation was regarded as important for addressing the Bugmy requirement. This article makes reference to the wide-scale experience in Canada of First Nations presentence reports, known as “Gladue Reports”, and the more small-scale Australian experiences of Indigenous cultural reports, to indicate how this material can enhance individualised justice in sentencing Indigenous peoples.
Bai, J & Hobbs, H 2017, 'Appointing Attorneys-General to the High Court: A case for reform', Alternative Law Journal, vol. 42, no. 4, pp. 286-291.
View/Download from: Publisher's site
View description>>
Throughout 2016, Attorney-General George Brandis QC repeatedly denied he intended to leave the Federal Parliament and take up a position on the High Court of Australia. In this article we explore the experiences of the two most recent politicians-cum-High Court Justices: Garfield Barwick and Lionel Murphy; and note that Australia’s current judicial appointment process would have permitted Brandis to make a similar transition. We argue that this process should be revamped to enhance transparency and accountability in the appointments process, to the benefit of our judicial system and its public perception.
Beaupert, F, Steele, L & Gooding, P 2017, 'Introduction to disability, rights and law reform in Australia: Pushing beyond legal futures', Law in Context. A Socio-legal Journal, vol. 35, no. 2, pp. 1-14.
View/Download from: Publisher's site
View description>>
.
Bennett, B & Carney, T 2017, 'Public Health Emergencies of International Concern: Global, Regional, and Local Responses to Risk', Medical Law Review, vol. 25, no. 2, pp. 223-239.
View/Download from: Publisher's site
View description>>
© 2017. Oxford University Press. All rights reserved. The declaration in 2009 that the H1N1 pandemic constituted a public health emergency of international concern (PHEIC) was the first such declaration under the revised International Health Regulations that were adopted in 2005. In the period since then PHEIC have been declared in relation to polio, Ebola, and Zika. This article evaluates initiatives that have been introduced globally, within the Asia-Pacific region, and within Australia, to strengthen preparedness for public health emergencies. Through analysis of evolving conceptualisations of risk, surveillance of zoonotic diseases, and development of public health capacities, the article argues that to date the global community has failed to make the necessary investments in health system strengthening, and that without these investments, global public health emergencies will continue to be an ongoing challenge.
Bennett, B, McDonald, F, Beattie, E, Carney, T, Freckelton, I, White, B & Willmott, L 2017, 'Assistive technologies for people with dementia: ethical considerations', Bulletin of the World Health Organization, vol. 95, no. 11, pp. 749-755.
View/Download from: Publisher's site
View description>>
© 2017, World Health Organization. All rights reserved. The sustainable development goals (SDGs) adopted by the United Nations in 2015 include a new target for global health: SDG 3 aims to “ensure healthy lives and promote well-being for all at all ages.” Dementia care of good quality is particularly important given the projected increase in the number of people living with the condition. A range of assistive technologies have been proposed to support dementia care. However, the World Health Organization estimated in 2017 that only one in 10 of the 1 billion or more people globally who could benefit from these technologies in some way actually has access to them. For people living with dementia, there has been little analysis of whether assistive technologies will support their human rights in ways that are consistent with the United Nations Convention on the Rights of Persons with Disabilities. The aim of this paper is to examine the relevant provisions of the convention and consider their implications for the use of assistive technologies in dementia care. Assistive technologies can clearly play an important role in supporting social engagement, decision-making and advance planning by people living with dementia. However, concerns exist that some of these technologies also have the potential to restrict freedom of movement and intrude into privacy. In conclusion, an analysis of the implications of assistive technologies for human rights laws is needed to ensure that technologies are used in ways that support human rights and help meet the health-related SDG 3.
Berg, L & Farbenblum, B 2017, 'Remedies for migrant worker exploitation in Australia: Lessons from the 7-eleven wage repayment program', Melbourne University Law Review, vol. 41, no. 3, pp. 1035-1084.
View description>>
Temporary migrants comprise approximately 11% of the Australian workforce and are systemically underpaid across a range of industries. The most vulnerable of these workers (including international students and backpackers) rarely successfully recover unpaid wages and entitlements. In 2015, media revealed systematic exploitation of 7-Eleven's international student workforce, reflecting practices that have since been identified in other major Australian franchises. In an unprecedented response, 7-Eleven head office established a wage repayment program, which operated until February 2017. As of mid- 2017, the program had determined claims worth over $150 million - by far the highest rectification of unpaid wages in Australian history. Drawing on interviews with international students and a range of stakeholders across Australia, this article uses 7-Eleven as a case study to illuminate systemic barriers that prevent temporary migrants from accessing remedies for unpaid entitlements within existing legal and institutional frameworks. We identify the unique attributes of the 7-Eleven wage repayment program that have contributed to its unusual accessibility and efficacy, and which may point to conditions needed to improve temporary migrants' access to justice through state-based institutions and business-led redress processes.
Biber, K 2017, 'Evidence in the Museum: Curating a Miscarriage of Justice', Theoretical Criminology, vol. 22, no. 4, pp. 505-522.
View/Download from: Publisher's site
View description>>
© The Author(s) 2017. After the conclusion of criminal proceedings, criminal evidence sometimes survives in what is described here as an afterlife. In its afterlife, criminal evidence is preserved in various locations; this article explores the museum as a repository for evidentiary exhibits. It examines the case of Lindy Chamberlain, the victim of Australia’s most notorious miscarriage of justice, and the evidence that has survived since her exoneration. Drawing upon interviews with Chamberlain herself, and also the curator of the Chamberlain collections at the National Museum of Australia, this article examines the challenges posed by curating a wrongful conviction.
Biber, K 2017, 'The Archival Turn in Law: The Papers of Lindy Chamberlain in the National Library of Australia', Sydney Law Review, vol. 36, no. 3, pp. 277-301.
View description>>
Lindy Chamberlain is the victim of Australia’s most notorious miscarriage of justice; in 1982 she was wrongly convicted of the murder of her baby daughter, Azaria. In the decades following her exoneration, Lindy Chamberlain-Creighton, as she is now known, came to an arrangement with the National Library of Australia to care for the papers she had accumulated as a result of her daughter’s death and the legal processes that followed. This article examines the ‘Chamberlain Papers’ through the lens of materiality and scholarship associated with the ‘archival turn’ in the humanities, social sciences and information sciences. This approach affords an understanding of documents as objects, artefacts and technologies. Working materially with documents provides new opportunities for legal scholars to understand files, papers, recordkeeping and bureaucracy, and gives legal significance to papers created outside the law.
Bigby, C, Douglas, J, Carney, T, Then, S, Wiesel, I & Smith, E 2017, 'Delivering decision making support to people with cognitive disability — What has been learned from pilot programs in Australia from 2010 to 2015', Australian Journal of Social Issues, vol. 52, no. 3, pp. 222-240.
View/Download from: Publisher's site
View description>>
AbstractThe UNCRPD has generated debate about supported decision making as a way to better enable people with cognitive disability to participate in decision making. In Australia, between 2010–2015, a series of projects have piloted various models of delivering decision making support. A critical review was conducted on the program documents and evaluations of these pilot projects. The pilots were small scale, conducted by both statutory and non‐statutory bodies, and adopted similar designs centred on supporting a decision maker/supporter dyad. Primarily, participants were people with mild intellectual disability. Themes included: positive outcomes; uncertain boundaries of decision support; difficulty securing supporters; positive value of program staff and support to supporters; limited experience and low expectations; and varying value of written resources. The lack of depth and rigour of evaluations mean firm conclusions cannot be reached about program logics, costs or outcomes of the pilots. The pilots demonstrate feasibility of providing support for decision making rather than resolving issues involved in delivering support. They suggest that some form of authority may facilitate the role of decision supporters, help to engage others in a person's life, and integrate decision making support across all life domains.
Bowley, R 2017, 'Flexible Yet Firm: The Practice of the AAT and the Courts in Reviewing ASIC's s 206F Management Disqualification Orders', INSOLVENCY LAW JOURNAL, vol. 25, no. 4, pp. 170-198.
View description>>
Section 206F of the Corporations Act 2001 (Cth) provides ASIC with a cheap and flexible enforcement power to disqualify for up to five years persons who have been involved in managing two or more failed companies within a seven-year period. Individuals who have been disqualified under s 206F may challenge such disqualifications through the merits review process at the Administrative Appeals Tribunal (AAT), and in further limited circumstances through the courts. This article examines the 36 AAT decisions that have determined challenges to the corporate regulator’s disqualification orders. It shows that while the AAT has set aside or varied around half of these disqualification orders (based in several cases on the consideration of fresh evidence) the AAT has nevertheless demonstrated a firm approach to upholding standards of responsible corporate management in those disqualification orders it has affirmed. The article concludes by outlining potential reforms to s 206F to further enhance the effectiveness of this provision in deterring insolvent trading and ensuring responsible corporate management practices.
Buchan, J & Nicholls, R 2017, 'FLIPPING OUT: FLIP CLAUSES ARE ENFORCEABLE IN THE UNITED STATES AGAIN!', COMPANY AND SECURITIES LAW JOURNAL, vol. 35, no. 1, pp. 65-69.
Buonamano, RL 2017, 'The Hermeneutics of Deference in Strasbourg Jurisprudence: Normative Principles and Procedural Rationality', Journal européen des droits de l'homme - European Journal of Human Rights, vol. 2017, no. 4, pp. 311-337.
View description>>
The protection of human rights throughthe European Convention on HumanRights and Fundamental Freedoms occursthrough a model of constitutional pluralismcharacterised by the interplay of the principleof subsidiarity and the function of supranationaljudicial supervision. Whereas theobligations imposed upon contracting Statesby the Convention assume a certain level ofinteraction between the European Court ofHuman Rights and the national authorities,the precise relationship between the twohas largely evolved through the interpretiveand adjudicative practices of the Court, aswell as the reactions of States to the Court’sjudgments. The focus of this article is thehermeneutical techniques employed by theCourt which contribute to the developmentof normative principles in the application ofConvention rights. It highlights the limitationswith the Court’s use of the doctrine ofthe “margin of appreciation,” and identifiesthe increasingly significant normative roleof procedural rationality within its jurisprudence.
Burn, J 2017, 'Legal Narratives, Human Trafficking and Slavery in Australia', History Compass, vol. 15, no. 5, pp. e12368-e12368.
View/Download from: Publisher's site
View description>>
AbstractIn this paper, I will explore the Australian context of human trafficking and slavery by reviewing narratives drawn from two separate coronial inquiries into the deaths of two people who were never legally recognised as being trafficked into Australia. Puongtong Simaplee died in Villawood Detention Centre in Sydney on 26 September 2001, and Manjit Singh died on 26 August 2011 in the intensive care unit of a Sydney hospital from complications of surgery.
Callaghan, S & Newton-Howes, G 2017, 'Coercive community treatment in mental health: An idea whose time has passed?', Journal of Law and Medicine, vol. 24, no. 4, pp. 900-914.
View description>>
Community treatment orders (CTOs) emerged in the 1970s as an innovative, 'less restrictive' alternative to involuntary inpatient orders for people with chronic and severe mental illness. Now, after three decades of practice, numerous studies have concluded that CTOs do not achieve their main clinical aims, while involuntary orders in mental health continue to be strongly criticised in light of the requirements of the Convention on the Rights of Persons with Disabilities. The question now arises whether CTOs are still a justifiable option for treatment. This article reviews the history and features of community treatment orders in Australia and New Zealand, concluding that the CTO system was based on goals that were both normatively and epistemically flawed. In light of these facts, the article argues that CTOs can no longer be justified if the goals of non-discrimination and supported decision-making enshrined in the Convention are to be taken seriously by states parties.
Carney, T 2017, 'Prioritising Supported Decision-Making: Running on Empty or a Basis for Glacial-To-Steady Progress?', Laws, vol. 6, no. 4, pp. 18-18.
View/Download from: Publisher's site
View description>>
Honouring the requirement of the Convention on the Rights of Persons with Disabilities
to introduce supported decision-making (SD) has largely been a case of much talk and little real
action. As a socio-economic right, actualising support is resource-intensive as well as being fairly
uncharted territory in terms of what works, to what degree and for how long benefits last. This paper,
drawing lightly on mainly Australian examples, considers unexplored (and sometimes unorthodox)
approaches such as the ‘needs-based’ principle for setting social welfare priorities as possible ways
of revitalising SD through progressive realisation, whether through civil society programs or under
the law. It argues that pure repeal of proxy decision-making on its own is not viable in realpolitik
terms so progressive realisation of ‘repeal with adequate support’ must instead be devised for SD
implementation to progress.
Carney, T, Walton, M, Chiarella, M & Kelly, P 2017, 'Health complaints and practitioner regulation: justice, protection or prevention?', Griffith Law Review, vol. 26, no. 1, pp. 65-88.
View/Download from: Publisher's site
View description>>
© 2017 Griffith University. This article reviews the objectives pursued by health complaints entities (HCEs), how they mesh with bodies concerned with the regulation of health practitioners, and how these functions map against those of administrative review and theories of consumer accountability. We show that HCEs pursue multiple and diverse objectives shared by ‘hybrid’ institutions dealing with complex ‘polycentric’ disputes or dynamic circumstances, constituting one part of a network or meta-regulatory web of regulatory and grievance agencies. We suggest that these health entities, which represent an atypical form of complaint handling (differing from administrative merits review) have associated trade-offs between objectives and overall system complexity that may have regulatory merit, but not be readily understood by health consumers. The article cautions that system-level perspectives (i.e. regulatory theory objectives) should not detract unduly from accountability and redress for individual complaints (complaints-resolution theory). We conclude that further empirical research is needed into: the balance between objectives of a complainant’s focus (justice), professional regulation (prevention) and public risk management (protection) and the optimal organisational linkages between complaints management and professional regulation.
Cave, M & Nicholls, R 2017, 'The use of spectrum auctions to attain multiple objectives: Policy implications', Telecommunications Policy, vol. 41, no. 5-6, pp. 367-378.
View/Download from: Publisher's site
View description>>
The first spectrum auctions generally assigned the chosen number of licences of predetermined size to the highest bidders, but auctions now allow a greater choice of outcomes, with bidders with existing spectrum portfolios competing, with others, for multiple lots, often in different bands. Modern auctions also contain design features expressly directed at efficiency and equity objectives. In relation to efficiency, spectrum caps or set asides for new entrants can be incorporated to combat the exercise of market power downstream. In relation to equity objectives, licence conditions may specify obligations to provide coverage in non-commercial areas, or promises of the attainment of social objectives can be given a weighting, with revenue, in the determination of winning bids. The paper provides and overview of the wide use of such tools and the consequences for the operation of the auction process. Some lessons are drawn for future spectrum auctions.
Crofts, P 2017, 'Review: Making the Modern Criminal Law: Criminalization and Civil Order by Lindsay Farmer', Current Issues in Criminal Justice, vol. 29, no. 1, pp. 99-102.
View/Download from: Publisher's site
Crofts, P 2017, 'Review: What Went Wrong With Money Laundering Law? by Peter Alldridge', Current Issues in Criminal Justice, vol. 29, no. 2, pp. 191-194.
View/Download from: Publisher's site
Crofts, P 2017, 'Criminalising Institutional Failures to Prevent, Identify or React to Child Sexual Abuse', International Journal for Crime, Justice and Social Democracy, vol. 6, no. 3.
View/Download from: Publisher's site
View description>>
Although there is increasing academic recognition of corporations as criminogenic, the criminal legal system has demonstrated difficulties in conceptualising corporate culpability. The current Royal Commission into Institutional Responses to Child Sexual Abuse provides ample evidence of why organisations can and should be criminalised for systemic failures. I demonstrate that the emphasis upon individualistic subjective culpability by the criminal legal system does not adequately encapsulate the institutional failings detailed before the Royal Commission. Whilst mandatory reporting offences are important, these offences do not adequately respond to the kinds of organisational failings identified by the Royal Commission. I argue in favour of developing a new institutional offence constructed upon realist concepts of negligence and/or corporate culture that recognises that organisations are capable of wrongdoing and sufficiently blameworthy to justify the imposition of criminal sanctions. I conclude by arguing that the expressive role of criminal law justifies and requires the criminalisation of this kind of organisational wrongdoing.
Diane Kirkby & Lee-Ann Monk 2017, 'Indian Seamen and Australian Unions Fighting for Labour Rights: “The Real Facts of the Lascars' Case” of 1939', Labour History, no. 113, pp. 209-209.
View/Download from: Publisher's site
View description>>
© 2017 Australian Society for the Study of Labour History. In 1939, the outbreak of war prompted strikes by Indian seafarers across the empire. This article traces events in Australia as Indian seafarers asserted their labour rights and in doing so contested their exploitative working conditions as "lascars" or the seagoing equivalent of shore-based indentured "coolie" labour. While the Australian government responded in ways that reinforced the "coolie" status of Indian seafarers, the Australian labour movement, most notably the maritime unions, threw their support behind the strikers. The Seamen's Union of Australia and Waterside Workers' Federation provided material aid, funded the strikers' legal costs and, significantly, challenged official and media representations of the Indian seafarers as "coolies" with explanations of their exploitative conditions as "workers." This action was significant because western seafarers' lack of support has been seen as contributing to Indian seafarers' difficulties in challenging their working conditions and status as "lascars." Showing how Indian and Australian workers together resisted labour categories and fought for political rights complicates prevailing views of the relationship between Australian unions and Asian workers and demonstrates a consistency with the earlier internationalism of Australian maritime unions identified by previous historians.
Diane Kirkby & Sophie Loy-Wilson 2017, 'Introduction', Labour History, no. 113, pp. iii-iii.
View/Download from: Publisher's site
Diduck, A & Sheldon, S 2017, 'Introduction', Social & Legal Studies, vol. 26, no. 6, pp. 665-675.
View/Download from: Publisher's site
View description>>
This short article introduces the five review articles, which make up this special issue to mark the 25th anniversary of Social & Legal Studies.
Dietz, HP, Shek, KL & Callaghan, S 2017, 'Perinatal and Maternal Outcomes After Training Residents in Forceps Before Vacuum Instrumental Birth', Obstetrics & Gynecology, vol. 130, no. 4, pp. 910-910.
View/Download from: Publisher's site
Dorsett, SG 2017, 'The First Procedural Code in the British Empire: New Zealand 1856', New Zealand Universities Law Review, vol. 27, pp. 690-714.
View description>>
In 1856 New Zealand enacted a new regime for civil procedure. In so doing,
it became the first colony in the Empire to create a comprehensive code of
civil procedure. Innovative and wide-ranging, its authors drew on multiple
sites from around the Empire (and beyond), instituting reforms not yet
possible in England, and establishing the foundations for New Zealand’s
modern system of civil procedure. This article traces the origins of, and
inspirations for, the 1856 Code. It focuses on two key aspects of reform:
pleading and “fusion”. The article seeks to draw attention to the neglected
history of procedure in general and to the place of New Zealand in the story
of 19th century procedural reform in England and its Empire in particular.
Earp, BD, Hendry, J & Thomson, M 2017, 'Reason and Paradox in Medical and Family Law: Shaping Children's Bodies', Medical Law Review, vol. 25, no. 4, pp. 604-627.
View/Download from: Publisher's site
View description>>
Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what constitutes ‘reasonable parenting’ or a child’s ‘best interests’ and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the controversial case of B and G [2015]. In this case, Sir James Munby stated that the cutting of both male and female children’s genitals for non-therapeutic reasons constituted ‘significant harm’ for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of non-therapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective—specifically with reference to local paradoxes—to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded.
Evers, M, Olliffe, B & Dwyer, A 2017, 'Law’s not hard; it’s just hard to get into: a study of alternative entry students to law school', The Law Teacher, vol. 51, no. 2, pp. 151-169.
View/Download from: Publisher's site
View description>>
© 2016 The Association of Law Teachers. Widening access to higher education is a challenge currently under discussion in Australia and the United Kingdom. The increasing number of alternative entry programs offered by universities has made tertiary study, including law study, more accessible. One concern with widening access to legal education is the ability of students entering law school through means other than very high academic scores to undertake a law degree successfully. Students who enter law school are generally referred to as “high achievers”, having qualified through an admission policy based on competitive rankings. The implementation of equitable access programs in some Australian universities has resulted in a number of places being made available to final year high school students who meet the eligibility criteria. Lowering the entry requirements to some courses provides opportunities for students whose circumstances have affected their ability to attain competitive ranking scores. The Principals’ Recommendation Scheme (PRS) is one of these programs. The University of Technology Sydney in New South Wales, Australia commenced the PRS in 2012. UTS:Law was one of the first Faculties to develop a strategy to support these students. The Faculty is committed to resourcing all students in their study and, as a result, is engaged in the ongoing evaluation of the academic and co-curricular programs provided to students. This paper explains the implementation of the PRS and the relevant support infrastructure available to students. It also considers the research into student retention and academic success and makes a preliminary assessment that, to date, the PRS students are succeeding in the transition from secondary education to law school, and that the existing infrastructure is accommodating the needs of these students. The PRS is an alternative entry scheme that provides a model for consideration by other law schools, committed to widening ac...
Farbenblum, B & Berg, L 2017, 'Migrant workers’ access to remedy for exploitation in Australia: the role of the national Fair Work Ombudsman', Australian Journal of Human Rights, vol. 23, no. 3, pp. 310-331.
View/Download from: Publisher's site
View description>>
© 2017 Australian Journal of Human Rights. Exploitation of temporary migrant workers in Australia has emerged as a significant human rights concern. However, limited attention has been paid to the State’s responsibility to ensure individual workers can access remedies for rights violations. This article considers whether Australia’s government agencies and institutional frameworks are suitable to enabling remedies for temporary migrant workers, and how well they deliver remedies to individuals in practice. Drawing on new empirical data, it focuses on the role of the national labour inspectorate, th Fair Work Ombudsman (FWO). FWO has undertaken various education, compliance and deterrence initiatives directed to systemically improving conditions for migrant workers. This article considers the extent to which individual migrant workers seek assistance from FWO to recover their personal unpaid wages, and the remedial outcomes of individual claims lodged with the agency. We illuminate structural factors contributing to migrants’ reluctance to engage with FWO, as well as factors contributing to low wage recovery rates for those who do contact FWO. We conclude that although these challenges are numerous and multi-layered, they are not all inevitable. Reforms should incorporate a new migrant-centred approach that recalibrates the risks and costs of seeking remedies against the likelihood of obtaining a just outcome.
Flanagan, F 2017, 'Symposium on work in the ‘gig’ economy: Introduction', The Economic and Labour Relations Review, vol. 28, no. 3, pp. 378-381.
View/Download from: Publisher's site
View description>>
AbstractThis introduction overviews four approaches to theoretical and empirical research on the ‘gig’ economy, framing them within the concept of the ‘fissuring of the workplace’. It outlines arguments that ‘gig’ or digital work is not a new phenomenon but a resurgence of older, unregulated labour extraction methods and outlines the need for a more nuanced way of measuring the dimensions of job insecurity and their corrosive effects. In foreshadowing potential policy approaches to addressing the regulatory deficit surrounding gig economy work, it argues for an eclectic approach to using and strengthening legislation designed to safeguard the rights of consumers and providers of services, including contractors, and regardless of employment status. Finally, it foreshadows a study of how a successful union movement respond to the gig economy – negotiation with a digital platform to bring advertised hourly pay rates into line with the minima set within the industrial relations system for employment in the relevant industries.
Fox, M & Thomson, M 2017, 'Bodily Integrity, Embodiment, and the Regulation of Parental Choice', Journal of Law and Society, vol. 44, no. 4, pp. 501-531.
View/Download from: Publisher's site
View description>>
In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non‐therapeutic interventions on children should be considered within a decision‐making framework that prioritizes embodied integrity. This would counter the excessive decision‐making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best‐interests assessment where a non‐therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.
Goggin, G, Steele, L & Cadwallader, JR 2017, 'Normality and disability: intersections among norms, law, and culture', Continuum, vol. 31, no. 3, pp. 337-340.
View/Download from: Publisher's site
Goldblatt, B 2017, 'Claiming women’s social and economic rights in Australia', Australian Journal of Human Rights, vol. 23, no. 2, pp. 261-283.
View/Download from: Publisher's site
View description>>
© 2017 Informa UK Limited, trading as Taylor & Francis. The article discusses the status of social and economic rights within Australia and why these rights have special significance for women, particularly under neoliberalism. It argues that unless these rights are realised, women’s equal and meaningful participation within our democracy will remain constrained. The article examines the issues that advocates have raised regarding these rights through international and domestic avenues. It suggests that despite their limited enforceability, framing women’s claims in terms of social and economic rights has some value within struggles to achieve women’s equality and deepen democracy in Australia.
Healey, D & Nicholls, R 2017, 'Enhancing Competition: Challenges for Australian Retail Banking', JOURNAL OF BANKING AND FINANCE LAW AND PRACTICE, vol. 28, no. 1, pp. 48-71.
Heino, B 2017, 'Book Review: The Great Leveler: Capitalism and Competition in the Court of Law by Brett Christophers', Capital & Class, vol. 41, no. 2, pp. 392-395.
View/Download from: Publisher's site
Heino, B 2017, 'Trading hours deregulation in Tasmania and Western Australia: large retailer dominance and changing models of development', Labour & Industry: a journal of the social and economic relations of work, vol. 27, no. 2, pp. 95-112.
View/Download from: Publisher's site
Hobbs, H 2017, 'Democratic Theory and Constitutional Design: Hearing Persistent Electoral Minorities', International Journal on Minority and Group Rights, vol. 24, no. 4, pp. 341-389.
View/Download from: Publisher's site
View description>>
Questions of constitutional design, that is, of structuring the political relationship between dominant and non-dominant communities, are recurrent across the globe. While the particular issues faced by each state are distinct, at their root lies a common problem: how should legal and political institutions and processes be designed to provide minority groups or peoples with the capacity to have their interests heard in the processes of government? In this article, I explore how democratic theory conceives of, and answers, this fundamental question.
HOBBS, H 2017, 'Towards a Principled Justification for the Mixed Composition of Hybrid International Criminal Tribunals', Leiden Journal of International Law, vol. 30, no. 1, pp. 177-197.
View/Download from: Publisher's site
View description>>
AbstractThe justification for a majority of international judges sitting on hybrid international criminal tribunals is tremendously undertheorized. At present, policymakers must rely on base pragmatic considerations that allege that local judges are either too incapable or too corrupt. This may or may not be true. It is, however, certainly unattractive and inadequate as an argument. In this article, I sketch out a principled theoretical argument defending internationalization of hybrid tribunals. Drawing on debates in municipal jurisdictions on the principle of fair reflection, my principled justification centres on institutional and sociological legitimacy. As international crimes strike at two societies – the local and the global – hybrid tribunals should be composed of both international and local judges. In principle, the severity of international crimes dictates that international judges should predominate. However, peculiar contextual factors may suggest moderating the principle of fair reflection in appropriate circumstances.
Hobbs, H & Trotter, A 2017, 'THE CONSTITUTIONAL CONVENTIONS AND CONSTITUTIONAL CHANGE: MAKING SENSE OF MULTIPLE INTENTIONS', ADELAIDE LAW REVIEW, vol. 38, no. 1, pp. 49-85.
View description>>
The delegates to the 1890s Constitutional Conventions were well aware that the amendment mechanism is the ‘most important part of a Constitution’, for on it ‘depends the question as to whether the state shall develop with peaceful continuity or shall suffer alternations of stagnation, retrogression, and revolution’. However, with only 8 of 44 proposed amendments passed in the 116 years since Federation, many commentators have questioned whether the compromises struck by the delegates are working as intended, and others have offered proposals to amend the amending provision. This paper adds to this literature by examining in detail the evolution of s 128 of the Constitution — both during the drafting and beyond. This analysis illustrates that s 128 is caught between three competing ideologies: representative and responsible government, popular democracy, and federalism. Understanding these multiple intentions and the delicate compromises struck by the delegates reveals the origins of s 128, facilitates a broader understanding of colonial politics and federation history, and is relevant to understanding the history of referenda as well as considerations for the section’s reform.
Hobbs, H & Williams, G 2017, 'The case for a national whole-of-government anti-corruption body', Alternative Law Journal, vol. 42, no. 3, pp. 178-183.
View/Download from: Publisher's site
View description>>
Australia’s anti-corruption system needs reform. The diffusion of responsibilities across multiple agencies risks under-reporting of corrupt conduct, while gaps in the regime mean that the system fails to hold people accountable. As a result, community and public confidence in Australia’s institutions is eroded. The solution is a national whole-of-government anti-corruption body encompassing the public sector with the power to apply a uniform standard of corrupt conduct.
Hobbs, H, Lynch, A & Williams, G 2017, 'The High Court under Chief Justice Robert French', AUSTRALIAN LAW JOURNAL, vol. 91, no. 1, pp. 53-71.
View description>>
On Chief Justice Robert French’s retirement from the High Court of Australia, it is appropriate to reflect on his impact and legacy. In this article we first revisit the circumstances of Chief Justice French’s appointment, before offering an overview of the dynamics of the French Court, noting the patterns of decision-making that emerged during his tenure.We then examine the French Court’s constitutional law jurisprudence, focusing on the three dominant and most contentious areas of its activity: cases on the executive power of the Commonwealth; the Ch III restrictions on State legislative power; and the legal problems raised by Australia’s asylum seeker policies.
Houston, LG & Dobinson, I 2017, 'ICAC’s Operation ‘Hale’: A Low Point in the History of the Agency', Current Issues in Criminal Justice -Sydney-, vol. 29, no. 1, pp. 57-75.
View description>>
In May 2014, a somewhat innocuous motor vehicle accident triggered an unpredictable series of events. The incident involved Deputy Senior Crown Prosecutor, Margaret Cunneen, and led initially to a proposed investigation by the Independent Commission Against Corruption (‘ICAC’) called Operation Hale. The New South Wales (‘NSW’) Court of Appeal and the High Court ruled that the alleged conduct was not corrupt conduct. In response, the NSW Government convened a Review Panel, resulting in the Inspector of the ICAC’s Report on Operation Hale, alleging that the ICAC had engaged in unreasonable, unjust and oppressive maladministration. Premier Baird referred the Report to the Parliamentary Committee on the ICAC for review, which led to the tabling of the Inspector’s Review of the ICAC. In its October 2016 Report, the Committee made 35 recommendations, including restructuring the ICAC. This restructure, along with other recommendations, has now been enacted. This article discusses this process and its outcomes.
Jackson, E, Millbank, J, Karpin, IA & Stuhmcke, A 2017, 'Learning from Cross-Border Reproduction', Medical Law Review, vol. 25, no. 1, pp. 23-46.
View/Download from: Publisher's site
View description>>
© The Author 2017. Published by Oxford University Press; all rights reserved. Drawing upon the preliminary findings of an Australian empirical project on cross-border reproduction (CBR), this article argues that regulators and policymakers could learn from the experiences of those who travel overseas in order to access fertility treatment and surrogacy. It makes four principal observations. First, the distinction between so-called 'altruistic' and 'commercial' gamete donation and surrogacy is increasingly unsustainable and is not experienced as meaningful by many participants in CBR. Secondly, the status of the law in CBR is profoundly equivocal; for participants it is often there and not there at the same time. Thirdly, self-sourced information, from the internet and more specifically social media such as Facebook, is now the principal source of information and peer support for reproductive travellers. Fourthly, and relatedly, domestic reproductive services providers are often sidestepped. If one of the goals of regulation is to minimise the risk of harm to participants, it is not clear that it is currently achieving this aim, and this article argues that any reforms will only work if they are more responsive to the reality of CBR.
Kaye, M, Wangmann, J & Booth, T 2017, 'Preventing personal cross-examination of parties in Family Law proceedings involving family violence', Australian journal of family law, vol. 31, no. 2, pp. 94-117.
Kaye, MH 2017, 'Immunisation disputes in the family law system', Australian journal of family law, vol. 31, no. 2, pp. 73-93.
View description>>
This article examines the impact of the new ‘No Jab, No Pay’ and ‘No Jab, No Play’ laws on future Family Court disputes between parents in relation to immunisation of children. The article reviews previous disputes in relation to immunisation, looking particularly at what evidence has been required by the court in disputes and how the courts have formulated the best interests of the child in these disputes. Given that most cases result in orders for immunisation of children, the article recommends that such cases should be settled without lengthy litigation, but recognises that the entrenched views of the parties in these disputes prevent settlement.
Kirkby, D 2017, 'Connecting work identity and politics in the internationalism of ‘seafarers … who share the seas’', International Journal of Maritime History, vol. 29, no. 2, pp. 307-324.
View/Download from: Publisher's site
View description>>
‘We seafarers … who share the seas’ is the expression of a collective identity and mutual responsibility. This article examines that collective identity among members of the Seamen’s Union of Australia and asks, what did internationalism mean in practice to seafarers themselves? Employing an oral history method, coupled with a reading of the union’s own printed media, it explores the seafarers’ understanding of internationalism that they claimed was ‘the language of seafarers’. It was grounded in the nature and reality of their work, and became their politics. The article takes as a case study the campaigns to restore democracy in Greece and Chile after military coups in 1967 and 1973 respectively, and the longer campaign against apartheid in South Africa, which began earlier, before 1960, and ended later, in 1990. These campaigns were conducted alongside many other trade unions, both in Australia and overseas, but maritime workers brought a unique inflection to activism as their internationalism expressed their connectedness across the oceans on which they sailed.
Kirkby, D 2017, 'EDITORIAL', Labour History, no. 112.
View/Download from: Publisher's site
Kirkby, D & Loy-Wilson, S 2017, 'Introduction', Labour History, no. 113, pp. III-V.
View/Download from: Publisher's site
Kirkby, D & Monk, LA 2017, 'Indian Seamen and Australian Unions Fighting for Labour Rights: “The Real Facts of the Lascars’ Case” of 1939', Labour History, no. 113, pp. 209-239.
View/Download from: Publisher's site
View description>>
In 1939, the outbreak of war prompted strikes by Indian seafarers across the empire. This article traces events in Australia as Indian seafarers asserted their labour rights and in doing so contested their exploitative working conditions as “lascars” or the seagoing equivalent of shore-based indentured“coolie” labour. While the Australian government responded in ways that reinforced the “coolie” status of Indian seafarers, the Australian labour movement, most notably the maritime unions, threw their support behind the strikers. The Seamen’s Union of Australia and Waterside Workers’ Federation provided material aid, funded the strikers’ legal costs and, significantly, challenged official and media representations of the Indian seafarers as “coolies” with explanations of their exploitative conditions as “workers.” This action was significant because western seafarers’ lack of support has been seen as contributing to Indian seafarers’ difficulties in challenging their working conditions and status as “lascars.” Showing how Indian and Australian workers together resisted labour categories and fought for political rights complicates prevailing views of the relationship between Australian unions and Asian workers and demonstrates a consistency with the earlier internationalism of Australian maritime unions identified by previous historians.
Kirkby, D & Monk, L-A 2017, 'Indian Seamen and Australian Unions Fighting for Labour Rights: 'The Real Facts of the Lascars' Case' of 1939', LABOUR HISTORY, no. 113, pp. 209-239.
View/Download from: Publisher's site
Landrigan, M 2017, 'Do Catholic Leaders Try To Influence Catholic MPs’ Conscience Votes? A Case Study on Therapeutic Cloning', Journal for the Academic Study of Religion, vol. 30, no. 1, pp. 73-91.
View/Download from: Publisher's site
View description>>
A conscience vote (or free vote) allows an MP to consider the merits of a parliamentary bill free from the constraints of his or her political party’s typical voting requirements. A free vote therefore allows MPs greater deliberative choice. The article reviews a case study – on therapeutic cloning – in which two Catholic leaders sought to influence state Catholic MPs’ conscience votes. The Catholic leaders did so by implying that Catholic politicians might be denied the Sacraments if the MPs did not oppose legislative reforms on therapeutic cloning. The article reviews the methods chosen by the Catholic leaders to influence MPs’ conscience votes and considers the responses of MPs to the Catholic leaders’ overtures.
Leary, D 2017, 'Drones on ice: an assessment of the legal implications of the use of unmanned aerial vehicles in scientific research and by the tourist industry in Antarctica', Polar Record, vol. 53, no. 4, pp. 343-357.
View/Download from: Publisher's site
View description>>
ABSTRACTUnmanned aerial vehicles (UAVs), also known as drones, are used in scientific research and a diverse range of other applications across the globe. They are also being used increasingly for scientific research in Antarctica and to a lesser extent by tourists visiting the world's last great frontier tourist destination. Their use in scientific research in Antarctica offers many benefits to science and if used responsibly may be less invasive than other research techniques, offering a rich source of new scientific data. For tourists, UAVs also offer unique aerial photographic perspectives on Antarctica — the ultimate holiday snap shot. Concerns have been raised about the safety of drone use in the harsh and unpredictable Antarctic conditions, as well as possible environmental impacts. This paper considers these issues and the emerging regulatory response to drone use in Antarctica focusing on theAntarctic Unmanned Aerial Systems (UAS) Operator's Handbook, which provides guidelines to national Antarctic programmes on the use of UAVs in the Antarctic Treaty area, and the temporary ban on use of drones by tourists imposed by the International Association of Antarctica Tour Operators (IAATO). Both measures arguably constitute a good first response to this emerging issue, although more still needs to be done.
Leary, D 2017, 'Drowning cliefden caves: Environmental law and geoheritage protection in New South Wales', Environmental and Planning Law Journal, vol. 34, no. 4, pp. 317-337.
View description>>
Through the lens of the current controversy surrounding the impact of a proposed dam on the Cliefden Caves in central-western New South Wales, this article highlights the need for environmental law and policy (and environmental lawyers) to pay greater attention to abiotic nature conservation and the protection of geoheritage in particular. It argues that existing environmental law in New South Wales provides inadequate protection for the State’s geoheritage, and in particular for the unique geoheritage of the Cliefden Caves and associated fossil deposits of international significance. This is contrasted with the Tasmanian experience, which highlights how greater protection of geoheritage can be achieved through a combination of legislation and effective, well-resourced policy implementation.
Leary, D 2017, 'The prevailing wind: recent developments, challenges and future prospects for wind energy in the coastal zone in key jurisdictions in the Asia-Pacific region', Asia Pacific Journal of Environmental Law, vol. 20, no. 1, pp. 115-137.
View/Download from: Publisher's site
View description>>
This article provides an update on recent developments in wind energy use in the coastal zone (both onshore and offshore) in the Asia-Pacific region with a particular focus on China, South Korea, Japan and Australia. The focus of the article is on legal and policy measures in these jurisdictions relevant to recent developments in wind energy in the
coastal zone. It argues that a range of policy measures, especially market-based mechanisms built around obligations to purchase renewable energy, including portfolio standard or quota systems, feed-in tariffs and renewable energy targets have been central to the promotion of renewable energy more broadly, and wind energy in the coastal zone in particular. However, all jurisdictions have experienced some measure of policy inconsistency as significant changes or abolition of various marketplace mechanisms have occurred over the past decade. This is contrary to industry demands for policy certainty. The article also examines the central role of environmental impact assessment in development of renewable energy projects in the coastal zone.
Lee, E, Sheldon, S & Macvarish, J 2017, 'After the ‘need for … a father’: ‘the welfare of the child’ and ‘supportive parenting’ in assisted conception clinics in the UK', Families, Relationships and Societies, vol. 6, no. 1, pp. 71-87.
View/Download from: Publisher's site
View description>>
The law governing assisted conception in the United Kingdom (UK) (the Human Fertilisation and Embryology Act 1990) mandates through section 13(5) that clinicians make ‘child welfare’ assessments before proceeding with treatment. In the 1990 Act, section 13(5) stated that assessment should take into account ‘the need … for a father’, but in section 13(5) of a revised Human Fertilisation and Embryology Act in 2008 the words ‘a father’ were replaced with ‘supportive parenting’ in order to signal official recognition of same-sex parents. This article challenges the idea that this might be seen as an unequivocally progressive development through reference to a growing body of scholarship that critically evaluates the attention that policy makers have come to pay to ‘parenting’. It discusses the sociopolitical context that gave rise to section 13(5) and the pressures that led to its reform. Findings from an interview study with members of staff who work in assisted conception clinics in the UK are then discussed, focusing on staff’s perceptions of the new policy, the meanings they ascribe to the term ‘supportive parenting’ and their opinions about the responsibility they are given under law for child welfare. The article concludes that professionals’ understandings of their role resonate strongly with the wider realities of the oversight of parent–child relations considered characteristic of policies on parenting.
Lee, K 2017, 'ACMA VARIES COMPLIANCE AND MONITORING ARRANGEMENTS FOR THE TELECOMMUNICATIONS CONSUMER PROTECTIONS CODE', AUSTRALIAN JOURNAL OF COMPETITION AND CONSUMER LAW, vol. 25, no. 1, pp. 62-64.
Lenta, P 2017, 'Is Corporal Punishment Torturous?', Journal of Applied Philosophy, vol. 34, no. 1, pp. 74-88.
View/Download from: Publisher's site
View description>>
AbstractThe aim of this article is to determine whether fixed courses of judicial corporal punishment (JCP) and non‐abusive corporal punishment of children (CPC) amount to torture. I assess the reasons that have been offered for distinguishing fixed courses of JCP from torture and argue that none is successful. I argue that non‐consensual JCP that inflicts severe pain is appropriately classifiable as torture, but that JCP that inflicts mild pain and entirely consensual JCP are not torturous. I consider whether any of the reasons offered for distinguishing JCP from torture can distinguish non‐abusive CPC from torture given certain important differences between CPC and JCP. I submit that none of these reasons is successful. I consider other possible reasons for distinguishing non‐abusive CPC that inflicts severe pain from torture and argue that none is successful. I conclude that fixed courses of non‐consensual JCP which inflict severe pain and non‐abusive CPC that inflicts severe pain are correctly classifiable as torture.
Libesman, T 2017, 'Indigenising indigenous child welfare', Indigenous Law Bulletin, vol. 8, no. 28, pp. 16-19.
Light, EM, Robertson, MD, Boyce, P, Carney, T, Rosen, A, Cleary, M, Hunt, GE, O'Connor, N, Ryan, CJ & Kerridge, IH 2017, 'How shortcomings in the mental health system affect the use of involuntary community treatment orders', Australian Health Review, vol. 41, no. 3, pp. 351-351.
View/Download from: Publisher's site
View description>>
Objective The aim of the present study was to examine stakeholder perspectives on how the operation of the mental health system affects the use of involuntary community treatment orders (CTOs). Methods A qualitative study was performed, consisting of semi-structured interviews about CTO experiences with 38 purposively selected participants in New South Wales (NSW), Australia. Participants included mental health consumers (n = 5), carers (n = 6), clinicians (n = 15) and members of the Mental Health Review Tribunal of NSW (n = 12). Data were analysed using established qualitative methodologies. Results Analysis of participant accounts about CTOs and their role within the mental health system identified two key themes, namely that: (1) CTOs are used to increase access to services; and (2) CTOs cannot remedy non-existent or inadequate services. Conclusion The findings of the present study indicate that deficiencies in health service structures and resourcing are a significant factor in CTO use. This raises questions about policy accountability for mental health services (both voluntary and involuntary), as well as about the usefulness of CTOs, justifications for CTO use and the legal criteria regulating CTO implementation. What is known about this topic? Following the deinstitutionalisation of psychiatric services over recent decades, community settings are increasingly the focus for the delivery of mental health services to people living with severe and persistent mental illnesses. The rates of use of involuntary treatment in Australian community settings (under CTOs) vary between state and territory jurisdictions and are high by world standards; however, the reasons for variation in rates of CTO use are not well understood. What does this paper add? This paper provides an empirical basis for a link between the politics of mental health and the uptake and usefulness of CTOs. What are the implications for practitioners? This paper makes explicit the...
Lindsay, D 2017, 'WEBSITE BLOCKING INJUNCTIONS TO PREVENT COPYRIGHT INFRINGEMENTS: PROPORTIONALITY AND EFFECTIVENESS', UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL, vol. 40, no. 4, pp. 1507-1538.
View description>>
The jurisdiction to award no-fault injunctions against Internet intermediaries, such as ISPs, to block Internet access to deter online copyright infringement is the most recent addition to intermediary liability law. In Australia, s 115A of the Copyright Act 1968 (Cth), which provides for injunctions against intermediaries that provide access to online locations outside Australia, came into effect on 27 June 2015; and the first injunctions were awarded by Nicholas J of the Federal Court on 15 December 2016. The jurisdiction to award this form of injunction was inspired by s 97A of the Copyright, Designs and Patents Act 1988 (UK), which implements a European Union directive, while the drafting was influenced by equivalent provisions of the Singapore Copyright Act introduced in 2014. This article identifies and analyses issues relating to the limits on this new jurisdiction, focusing on the potential role of the proportionality principle, as developed under EU law, to set principled limits on the award of blocking orders. In doing so, the article examines three difficult issues that arise in applying the proportionality principle to website blocking: the application of ‘rights-balancing’ proportionality; the effectiveness of blocking orders; and the costs of blocking, including the allocation of costs between right holders and intermediaries. The article concludes that, despite the significant challenges involved in assessing the proportionality of blocking orders, there is scope for Australian law to develop to more explicitly take into account considerations arising from proportionality analysis, including ‘rights-balancing’ and the relative effectiveness of blocking techniques.
Luker, T 2017, 'Feminist Judgments: Rewritten Opinions of the United States Supreme Court. By Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford (Eds.). New York: Cambridge University Press, 2016.', Law & Society Review, vol. 51, no. 4, pp. 1008-1011.
View/Download from: Publisher's site
Luker, T 2017, 'Decolonising Archives: Indigenous Challenges to Record Keeping in ‘Reconciling’ Settler Colonial States', Australian Feminist Studies, vol. 32, no. 91-92, pp. 108-125.
View/Download from: Publisher's site
View description>>
© 2017 Informa UK Limited, trading as Taylor & Francis Group. Feminist and queer engagements with archives and archival theory have emphasised the affective dimensions of archival processes, particularly the meaning and place of archives when they concern marginalised people and intimate lives. In settler colonial contexts such as Australia and Canada, these ways of thinking about archives have been influential in responding to histories of removal, institutionalisation and abuse of Indigenous children. This article investigates the importance of feminist engagements with archives and historiography in ‘reconciling’ settler colonial states, with attention to sites of archival contention. Feminist modes of history that foreground affect in the formation of public culture need to take account of divergent views regarding the propriety of archival records in ‘reconciling’ settler colonial states. Indigenous peoples’ mistrust of state and institutional archives, demands for control of archives and legal actions for destruction of records, as well as establishment of autonomous archives, all contribute to the important and fraught process of decolonising settler colonial archives.
McDonald-Norman, DJ 2017, 'No One To Bear Witness: Country Information and LGBTQ Asylum Seekers', Refuge: Canada's periodical on refugees, vol. 33, no. 2, pp. 88-100.
View description>>
This article examines the use of country information in determining claims for refugee status based on sexual orientation or gender identity. Limitations to country information remove diverse individual experiences from the “historical record” and obstruct marginalized individuals’ ability to prove their claims for protection. Discrimination and marginalization may be echoed and perpetuated within country information itself, which privileges certain voices over others. MD (same-sex-oriented males: risk) India CG [2014], the United Kingdom’s current “country guidance” decision on claims for protection by same-sex oriented men from India, is examined in light of these themes.
Cet article étudie l’utilisation de renseignements sur le pays d’origine afin de déterminer les demandes de statut de réfugié en lien avec l’orientation sexuelle et l’identité de genre. Les limites en matière de renseignements sur le pays d’origine effacent du registre historique diverses expériences individuelles et font obstruction à la capacité qu’ont des personnes marginalisées de justifier leur demande de protection. La discrimination et la marginalisation peuvent être répétées et prorogées par l’information même délivrée par les pays, qui privilégie certaines voix sur d’autres. À la lumière de ces thèmes de réflexion est étudié le document du Upper Tribunal (Royaume-Uni) MD (same-sex oriented males: risk) India CG [2014], qui établit les lignes directrices actuelles de pays en matière de décision concernant les demandes de protection pour les hommes homosexuels provenant d’Inde.
Michael, K, Michael, MG, Galliot, JC & Nicholls, R 2017, 'Socio-Ethical Implications of Implantable Technologies in the Military Sector [Guest Editorial]', IEEE Technology and Society Magazine, vol. 36, no. 1, pp. 7-9.
View/Download from: Publisher's site
Millbank, J 2017, 'Exploring the Ineffable in Women’s Experiences of Relationality with their Stored IVF Embryos', Body & Society, vol. 23, no. 4, pp. 95-120.
View/Download from: Publisher's site
View description>>
© 2017, © The Author(s) 2017. This article contributes to a more nuanced and contextual approach to women’s decision-making concerning their stored IVF (in vitro fertilisation) embryos through attempting to craft a space for the expression of the complex, and contradictory, emotions attached to these decisions, unhooked from any notion of abstract moral status inhering in the embryo itself. Women struggle to express the confounding nature of the relationship to the stored IVF embryo as something of-the-body but not within the body, neither self nor other, person nor thing. In order to try to address this sense of the ineffable, I draw in this article upon a series of images by German-born American artist, Kiki Smith. The article explores three major themes, each alongside one of Smith’s artworks connecting to an experience of discomfort or confounding unease.
Millbank, J, Kaye, M, Stuhmcke, A, Sibbritt, D, Karpin, I & Wardle, J 2017, 'Complementary health practitioners disciplined for misconduct in Australia 2010-2016', Journal of Law and Medicine, vol. 24, no. 4, pp. 788-802.
View description>>
This article examines disciplinary proceedings brought against complementary medicine (CM) practitioners in Australia at tribunal level since the inception of the Health Practitioner Regulation National Law. The article looks at all 32 such cases and identifies trends in the kinds of misconduct established, and the orders imposed.These findings are compared with earlier and more sizable studies of tribunal-level outcomes for disciplinary proceedings against doctors in Australia and New Zealand. While there are some clear comparisons - such as the gender ratio of respondent practitioners and the most common type of misconduct, ie sexual misconduct - there were also notable differences. Specifically, the rate of removal from practice, either by suspension or cancellation of registration, of CM practitioners was found to be significantly higher than that reported in earlier studies of cases against doctors. More research needs to be done to explore the reasons for this apparent disparity.
Millbank, J, Stuhmcke, A & Karpin, I 2017, 'Embryo donation and understanding of kinship: the impact of law and policy', Human Reproduction, vol. 32, no. 1, pp. 133-138.
View/Download from: Publisher's site
View description>>
© The Author 2016. Published by Oxford University Press on behalf of the European Society of Human Reproduction and Embryology. STUDY QUESTION What is the impact of law and policy upon the experience of embryo donation for reproductive use? SUMMARY ANSWER Access to, and experience of, embryo donation are influenced by a number of external factors including laws that impose embryo storage limits, those that frame counselling and approval requirements and allow for, or mandate, donor identity disclosure. WHAT IS KNOWN ALREADY To date only three qualitative studies in Australia and New Zealand have been completed on the experience of embryo donation for reproductive purposes, each with a small cohort of interviewees and divergent findings. STUDY DESIGN, SIZE, DURATION Embryo donors, recipients, and would-be donors were interviewed between July 2010 and July 2012, with three additional interviews between September 2015 and September 2016, on their experiences of embryo donation. The sampling protocol had the advantage of addressing donation practices across multiple clinical sites under distinct legal frameworks. PARTICIPANTS/MATERIALS, SETTINGS, METHODS Participants were recruited from five Australian jurisdictions and across 11 clinical sites. Twenty-six participants were interviewed, comprising: 11 people who had donated embryos for the reproductive use of others (nine individuals and one couple), six recipients of donated embryos (four individuals and one couple) and nine individuals who had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. In total, participants reported on 15 completed donation experiences; of which nine had resulted in offspring to the knowledge of the donor. MAIN RESULTS AND THE ROLE OF CHANCE Donors positively desired donation and did not find the decision difficult. Neither donors nor recipients saw the donation process as akin to adoption. The process and practice of donation varied cons...
Morris, N & Nicholls, R 2017, 'Do it once, get it right: Wholesale regulatory intervention in price and cost disclosure', Law and Financial Markets Review, vol. 11, no. 2-3, pp. 110-116.
View/Download from: Publisher's site
View description>>
Price regulation of the utility sector occurs mainly at the wholesale level. In contrast, in Australian superannuation, regulation requires limited disclosure of fees and costs at the retail level. This paper reviews the regulatory theory that has led utilities regulators to focus on wholesale-level disclosure. It then applies the insights used in these sectors to analyse mechanisms for price and cost disclosure which could be applied to Australian superannuation. The paper argues that intervention done once, but done right, may reduce the need for mandatory retail-level disclosure and would reduce some aspects of regulatory information asymmetry.
Mykitiuk, R & Karpin, I 2017, 'Fit or fitting in: deciding against normal when reproducing the future', Continuum, vol. 31, no. 3, pp. 341-351.
View/Download from: Publisher's site
View description>>
© 2017 Informa UK Limited, trading as Taylor & Francis Group. ‘Normal’ is a contentious term. Descriptively, ‘normal’ represents ‘what is’ as a statistical average. However, the term also represents normative or prescriptive content about what is ‘right’ or ‘what should be’. Correspondingly, abnormality is a deviation from the norm. It is both a factual exception to the average and a value judgement about what is a ‘wrong’ state of being. Pursuing ‘normal’ or deciding against it can be a defining moment in the high technology environment of assisted reproduction. Here, we explore notions of normalcy articulated through legal and policy regimes around screening and testing of gamete and embryo donors. We draw on the work of disability scholars and the diversity of responses to the idea of normal that were registered by four women interviewed in our studies. Three of the interviewees had used or were intending to use donated gametes and the fourth had intended to donate her embryos. We demonstrate how the choice of a particular donor may reveal ingrained or structural prejudice that reconstructs difference as disability. Equally, however, it may reveal a multitude of ways in which difference or deviation from a normative standard is incorporated as a normal part of family formation.
Nelson, J & Dunn, K 2017, 'Neoliberal anti-racism', Progress in Human Geography, vol. 41, no. 1, pp. 26-43.
View/Download from: Publisher's site
View description>>
Racism cannot be treated as a spatially homogeneous phenomenon. This review reports on the merits of a localized approach to anti-racism, and delivers a frank assessment of the challenges faced when developing local responses to racism in a neoliberal era. Under neoliberalism, local actors are responsibilized, and for anti-racism this means action can potentially be closely aligned to local inflexions of racism. But localized responses to racism under neoliberalism are associated with deracialized and depoliticized policies on interethnic community relations. Neoliberal anti-racism promotes competition among local agencies rather than coalition building, and is associated with spatially uneven and non-strategic action.
Nicholls, R 2017, 'Implanting Military RFID: Rights and Wrongs', IEEE Technology and Society Magazine, vol. 36, no. 1, pp. 48-51.
View/Download from: Publisher's site
View description>>
There are potential benefits and potential risks that flow from the implantation of radio frequency identification (RFID) devices into humans. The potential benefits with respect to military personnel may be considered great enough to outweigh any potential risks. In particular, the ability to identify military personnel without the need for dog tags, worn around the neck, could be beneficial.
Nicholls, R & Buchan, J 2017, 'The Law of Unintended Consequences: The Effects of Voiding Ipso Facto Clauses in Business Format Franchise Agreements', AUSTRALIAN BUSINESS LAW REVIEW, vol. 45, no. 6, pp. 433-447.
O’Connell, K 2017, 'Eccentricity: the case for undermining legal categories of disability and normalcy', Continuum, vol. 31, no. 3, pp. 352-364.
View/Download from: Publisher's site
View description>>
© 2017 Informa UK Limited, trading as Taylor & Francis Group. Disability discrimination laws are directed at protecting people with disabilities, including people with ‘disturbed’ behaviour, or behaviour that is a manifestation of a disability, from unfavourable treatment. Yet, in doing so, discrimination laws contribute to the creation of a stigmatized and seemingly static legal category of disability. In response, this paper presents eccentricity as a ‘border’ region between disability and normalcy, one that can disturb the strict and stigmatizing boundary between these artificially separate categories of identity. Eccentricity, understood as a set of socially unusual or unconventional behaviours and traits, is a heightened version of the quirks and idiosyncrasies we all share, and reveals the interconnection of disability and normalcy. This paper asks whether current legal and biomedical definitions of disability, especially under disability discrimination law, have unnecessarily eradicated this rich and destabilizing category of identity and behaviour. Is law complicit in the narrowing of what it means to be ‘normal’, the expansion of what it means to be ‘disabled’ and the destruction of what would otherwise connect those two imagined states of being? This paper examines the way that law deals with eccentricity and argues that it is a concept that can potentially enrich our approach to discrimination law.
O'Connell, K 2017, 'Should We Take the ‘Disability’ Out of Discrimination Laws? Students with Challenging Behaviour and the Definition of Disability', Law in context (Bundoora, Vic.), vol. 35, no. 2, pp. 108-128.
View description>>
Disability discrimination law has been of limited benefit to peoplewith atypical and challenging behaviour. The role that law might playin upholding the equality rights of people with challenging behaviouris potentially expanded by changing medical and scientific knowledgeabout such behaviour, which brings more people within the definitionof ‘disability’ and the protective ambit of the law. Yet this protectivepromise has not translated into legal gains, with few successful equalitylaw cases decided in Australian courts and tribunals. This articlecritically examines the role of law, particularly anti-discriminationlaw, in regulating (or protecting) divergent behaviour, using a casestudy of students with challenging behaviour in Australian schools. Itconsiders the lack of successful discrimination law cases in the educationcontext, and asks whether, given this seeming legislative failure,disability discrimination laws have anything left to offer schoolstudents in terms of protecting their equality rights. The article givesan overview of anti-discrimination complaints and cases brought bystudents with challenging behaviour. It includes interview data fromState and federal anti-discrimination bodies, legal practitioners anddisability activists to complement case law and other public reportsof discrimination. Using this background data, the article considerswhether current discrimination law models do enough to protectthe rights of students with challenging behaviour to education andinclusion in public life or whether new legal and policy measures areneeded. It specifically examines changes to the regulatory landscape,including the Convention on the Rights of Persons with Disability,and whether there are any real prospects for law reform
Opeskin, B 2017, 'The Supply of Judicial Labour: Optimising a Scarce Resource in Australia', Oñati Socio-Legal Series, vol. 7, no. 4, pp. 847-878.
View description>>
Developed societies generate a multitude of controversies between their members, which need to be resolved fairly if society is to function well. Judicial officers play a central role in that process by hearing and determining disputes according to law, but they are costly and their long tenure entrenches labour market rigidities. This is an inconvenience for modern governments, as they attempt to keep the wheels of justice turning, while facing budgetary constraints that drive them to seek ever greater cost-efficiencies. This article surveys the ways in which governments in Australia have sought to optimise the judicial labour force by creating a more flexible and cost-effective supply. The system of justice that has evolved in response to these developments is a complex one, with many complementary parts. There is no unique solution to the question of how many judicial officers society needs to quell disputes because this goal can be achieved in different ways. But great care needs to be taken to ensure that government action to find flexible sources of labour to meet the demand for judicial dispute resolution does not come at too high a price in terms of respect for the rule of law.
Ries, NM 2017, 'Choosing Wisely: Law's Contribution as a Cause of and a Cure for Unwise Healthcare Choices', SSRN Electronic Journal, vol. 25, no. 1, pp. 210-228.
View/Download from: Publisher's site
View description>>
The provision of unnecessary health care is a serious problem in Australia and involves two key legal issues. First, doctors’ fear of litigation drives defensive practices – ordering tests and procedures, making referrals, and prescribing drugs to reduce perceived legal risks, rather than to advance patient care. Second, suboptimal communication and decision-making processes undermine a patient’s right to make informed health care choices. This article critically analyses these problems and proposes solutions. An extensive body of medico-legal literature is synthesised to highlight the gaps between legal requirements and what happens in practice. Negligence case law is discussed to clarify legal principles and shows that courts discourage defensive practice. Finally, the article presents practical strategies to enhance communication and shared decision-making in the clinical encounter.
Ries, NM 2017, 'Law matters: How the legal context in Canada influences interprofessional collaboration', Journal of Interprofessional Care, vol. 31, no. 4, pp. 417-419.
View/Download from: Publisher's site
Ries, NM, Thompson, KA & Lowe, M 2017, 'Including People with Dementia in Research: An Analysis of Australian Ethical and Legal Rules and Recommendations for Reform', Journal of Bioethical Inquiry, vol. 14, no. 3, pp. 359-374.
View/Download from: Publisher's site
View description>>
© 2017, Journal of Bioethical Inquiry Pty Ltd. Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation precludes a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives.
Rock, E 2017, 'Accountability: A Core Public Law Value?', SSRN Electronic Journal, vol. 24, no. 3, pp. 189-203.
View/Download from: Publisher's site
Rock, E 2017, 'Accountability: A Core Public Law Value?', AUSTRALIAN JOURNAL OF ADMINISTRATIVE LAW, vol. 24, no. 3, pp. 189-203.
Rogers, D, Wong, A & Nelson, J 2017, 'Public perceptions of foreign and Chinese real estate investment: intercultural relations in Global Sydney', Australian Geographer, vol. 48, no. 4, pp. 437-455.
View/Download from: Publisher's site
View description>>
© 2017 Geographical Society of New South Wales Inc. Moving foreign human and financial capital through landed property is not a new phenomenon in Sydney. It is a recurring geopolitical strategy that is replete with intercultural tension and deep colonial roots. In contemporary Australia, there is an assumption in public policy and media rhetoric that there is a high level of public concern about foreign investment. However, there is little empirical data that examines public perceptions. In this study, we are interested in whether the dominant voices in this debate represent broad public views about this issue. We sought to fill this gap by conducting a survey of almost 900 Sydney residents, looking at their perceptions of foreign and Chinese investment. We find high levels of public concern and discontent about foreign investment amongst Sydneysiders, with Chinese investors being a key target of this discontent. In the context of high housing prices in Sydney, there were widely held concerns about housing affordability. Survey respondents had a sophisticated understanding of what influences house prices, but with an overemphasis on the role of foreign investment. There is a general lack of support for policy that encourages foreign investment, and a lack of confidence in how the government is regulating foreign investment. Half of our participants reported that they would not welcome Chinese foreign investment in their suburb.
Ryan, CJ & Callaghan, S 2017, 'The impact on clinical practice of the 2015 reforms to the New South Wales Mental Health Act', Australasian Psychiatry, vol. 25, no. 1, pp. 43-47.
View/Download from: Publisher's site
View description>>
Objectives: The Mental Health Act 2007 (NSW) ( MHA) was recently reformed in light of the recovery movement and the United Nations Convention on the Rights of Persons with Disabilities. We analyse the changes and describe the impact that these reforms should have upon clinical practice. Conclusions: The principles of care and treatment added to the MHA place a strong onus on clinicians to monitor patients’ decision-making capacity, institute a supported decision-making model and obtain consent to any treatment proposed. Patients competently refusing treatment should only be subject to involuntary treatment in extraordinary circumstances. Even when patients incompetently refuse treatment, clinicians must make every effort reasonably practicable to tailor management plans to take account of any views and preferences expressed by them or made known via friends, family or advance statements.
Sheldon, S 2017, 'Abortion law reform in Victoria: lessons for the UK', Journal of Family Planning and Reproductive Health Care, vol. 43, no. 1, pp. 25-25.
View/Download from: Publisher's site
Sheldon, S & Fletcher, J 2017, 'Vacuum aspiration for induced abortion could be safely and legally performed by nurses and midwives', Journal of Family Planning and Reproductive Health Care, vol. 43, no. 4, pp. 260-264.
View/Download from: Publisher's site
View description>>
BackgroundSome 40% of abortions carried out in England and Wales are done by vacuum aspiration. It is widely assumed that, in order to be lawful, these procedures must be performed by doctors.Aim and designThis study aimed to provide a detailed reassessment of the relevant law and the clinical evidence that supports this assumption.ConclusionsA close reading of relevant law reveals that this assumption is unfounded. On the contrary, it would be lawful for appropriately trained nurses or midwives, acting as part of a multidisciplinary team, to carry out vacuum aspiration procedures. This interpretation of the law offers the potential for developing more streamlined, cost-effective abortion services, which would be both safe and highly acceptable to patients.
Simmonds, A 2017, '‘She Felt Strongly the Injury to Her Affections’: Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia', The Journal of Legal History, vol. 38, no. 2, pp. 179-202.
View/Download from: Publisher's site
View description>>
© 2017 Informa UK Limited, trading as Taylor & Francis Group. This paper examines the relationship between law, medical knowledge and romantic suffering in early twentieth-century Australia. Drawing upon a sample of breach of promise of marriage actions from 1824 to 1930, it argues that where the plaintiff’s pain was largely presumed in the nineteenth century, by the twentieth century mastering the language and performance of anguish became crucial to legal success. The less that women suffered socially from romantic disappointment, the more they sought to prove it in court. Women dressed the lesions of their hearts in the disinterested language of medicine and borrowed psychological categories of trauma from victims of war and railway injuries. Heartbreak was thus legitimized as a species of pain by a convergence of law, medicine and women’s audacity to take their feelings seriously. The court’s response to these new bodily articulations of suffering provides a counter-history to the usual tale of law’s preference for the tangible over the intangible. Somatic injury was relegated to special damages, determined by the evidence of doctors and with less lucrative compensation, while emotional injury occupied the dominant, more profitable category of general damages. The history of heartbreak thus demonstrates the historical contingency of legal hostility to emotional injury.
Simmonds, AP 2017, 'Cross-Cultural Friendship and Legal Pluralities in the Early Pacific Salt-Pork Trade', Journal of World History, vol. 28, no. 2, pp. 219-248.
View/Download from: Publisher's site
View description>>
This article contributes to scholarship on the legal relationships between people in imperial and colonial settings through analyzing the juridical meanings that could be found in the Tahitian word taio and its European cognate, friendship, in the late-eighteenth and early-nineteenth centuries. I argue that taio provided a space for the negotiation of trade, sentiment and authority across cultures; it was where European and Tahitian juridical traditions of friendship became entangled. Interrogating how missionaries, traders and colonial administrators engaged with taio demonstrates the historiographical necessity of going beyond present-day European legal language to examine how non-European laws were taken up by imperial actors and shaped to create hybrid legal forms.
Somes, T 2017, 'The devil’s in the detail: to what extent can a written agreement protect an older person in an assets for care arrangement with their children?', Retirement and Estate Planning Bulletin, vol. 19, pp. 196-199.
Steele, L 2017, 'Disabling forensic mental health detention: The carcerality of the disabled body', Punishment & Society, vol. 19, no. 3, pp. 327-347.
View/Download from: Publisher's site
View description>>
“Disabling” forensic detention involves challenging the self-evidence of the meaning of disability in forensic mental health law, and in turn illuminating the significance of this meaning to the possibility and permissibility of forensic detention and other interventions in the bodies of people designated with cognitive impairments and psychosocial disabilities (“people designated as disabled”). I apply this approach to an examination of a case study of one individual subjected to forensic detention: an Indigenous Australian woman with Fetal Alcohol Spectrum Disorder, Roseanne Fulton. By examining Fulton’s forensic detention, in the context of her earlier life circumstances and her subsequent journey through various “alternatives” to this forensic detention I show the interrelationships of forensic detention with a range of legal options for punishing, regulating and intervening in designated as disabled bodies and situate these interrelationships in a broader range of issues of violence, institutional failure, social disadvantage, settler colonialism, and ableism. My central argument is that the ongoing subjection of Fulton to a range of forms of control across her life suggest that the possibility of forensic detention and other forms of punishment of people designated as disabled is not attached to a particular material architectural space or a particular court order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space. I propose that more directly it is the disabled body that is the space of punishment and the disabled body makes material architectural spaces punitive. A “reform”, indeed even an “abolition”, approach focused on material architectural spaces of disabled punishment will not interrupt the ongoing processes of control of criminalized people designated as disabled if it does not also acknowledge and challenge the temporal and carnal...
Steele, L 2017, 'Policing normalcy: sexual violence against women offenders with disability', Continuum, vol. 31, no. 3, pp. 422-435.
View/Download from: Publisher's site
View description>>
© 2017 Informa UK Limited, trading as Taylor & Francis Group. This article explores police responses to sexual violence reported by women offenders designated as having cognitive and psychosocial disabilities. The article does so by reference to the critical disability studies analytical approach to disability as socially constructed ‘abnormality’. This article utilizes this approach in analysing the recorded police contacts of one woman offender designated as disabled, ‘Jane’. Jane has had multiple contacts with police over a period of 15 years as a victim of sexual violence, alleged offender and ‘mentally ill’ person. The article finds that through multiple contacts with police as victim, alleged offender and ‘mentally ill’ person, the police events records build a narrative of Jane as an ‘abnormal’ body who is reduced to a drain on police and public health resources, a dishonest and nuisance offender and an attention seeker. The article argues that it is the interlocking discourses of gender, disability and criminality that produce Jane as unworthy of victim status and, perversely, in need of punishment by the criminal justice system for her public displays of trauma, mental distress and requests for police assistance. Ultimately, the article concludes that we need to give greater attention to the relationship between disability and affect, and to the broader cultural, institutional, legal and economic discourses that shape individuals’ affective responses, in understanding police responses to violence against women offenders designated as disabled and in contesting these women’s status as ‘ungrievable’ victims of violence.
Steele, L 2017, 'Temporality, disability and institutional violence: revisitingIn re F', Griffith Law Review, vol. 26, no. 3, pp. 378-400.
View/Download from: Publisher's site
View description>>
© 2018 Griffith University. A recent suggestion of some disability legal scholars is to provide a non-discriminatory legal framework to regulate non-consensual medical and care interventions in relation to disabled people through adapting the doctrine of necessity. This article rejects this approach through a close reading of the leading decision on the doctrine of necessity in medical and care settings, In re F (Mental Patient: Sterilization) [1990] 2 AC 1. This decision confirms that any such suggestion for the application of the doctrine will impact disabled people differentially due to divergent legal constructions of temporality between disabled and able people. To use this doctrine in relation to ongoing disabled medical and care interventions the law constructs disabled people as being in a permanent state of mental incapacity. On the other hand, the doctrine of necessity constructs able people as temporarily mentally incapacitated from their usual state of autonomy, thus only requiring minimal medical and care interventions to return them to their prior state. Therefore, able people cannot, under this doctrine, lawfully be subject to similarly long periods of intervention and such a broader range of interventions. Application of the doctrine of necessity will thus exacerbate inequality of and violence against disabled people.
Steele, L, Danylevich, T & Mangat, A 2017, 'Book Reviews', Journal of Literary & Cultural Disability Studies, vol. 11, no. 3, pp. 369-380.
View/Download from: Publisher's site
Stuhmcke, A 2017, 'Australian Ombudsmen: Drafting a Blueprint for Reform', AUSTRALIAN JOURNAL OF ADMINISTRATIVE LAW, vol. 24, no. 1, pp. 43-62.
View description>>
The ombudsman institution was introduced across all Australian jurisdictions from the
1970s as a central piece of administrative law reform. The original role of the office was to
scrutinise administrative decision making and to promote government accountability
through the resolution of citizen complaints. However, since the 1970s all Australian
governments have undergone significant change. Government has expanded involvement into areas such as whistle blower and disability protection and human rights. Government
also increasingly outsources decision-making to private companies, leading to the
introduction of private industry ombudsmen and the removal of control from the purview
of administrative law transparency mechanisms. This article argues that this transformation
necessitates discussion as to reform of the ombudsman institution and suggests a new
blueprint for such reform
Sutherland, C & Riley, J 2017, 'Major court and tribunal decisions in Australia in 2016', Journal of Industrial Relations, vol. 59, no. 3, pp. 340-353.
View/Download from: Publisher's site
View description>>
This annual survey of the more significant tribunal and court decisions in Australia in 2016 covers recent developments in the relatively new Fair Work jurisdiction to adjudicate complaints of workplace bullying, practices and processes in enterprise bargaining, some observations on the evolution of standards of civil discourse in industrial negotiations, and clarification of when employers will be held responsible for employees who commit crimes at work. It concludes with a brief note on a recent UK development, making Uber responsible for meeting minimum wage and working time regulations in respect of rideshare drivers.
Thorpe, DE 2017, 'The Evidential gap in the Essendon Doping Case and its Continuing Influence on Sport Arbitration', Australian and New Zealand Sports Law Journal, vol. 2015 (10), no. 1, pp. 67-96.
View description>>
In 2016, the Court of Arbitration for Sport found a number of players with the Essendon Bombers Football Club guilty of using the banned substance Thymosin-Beta 4. In most anti-doping cases athletes are convicted through an ‘analytical positive’; the presence of a banned substance or its metabolites in a sample of the athlete’s body fluid. An analytical positive establishes liability with a high degree of certainty. The Essendon players were adjudged according to circumstantial and hearsay evidence, which, according to the CAS, formed ‘strands in the cable’ establishing guilt. Several individuals named as suppliers of Thymosin-Beta 4 were in the jurisdiction and could have been subpoenaed to appear before the CAS. After an analytical positive direct witness evidence would almost certainly be the most reliable. They were not called. This paper considers the question of ‘why not’
van Rijswijk, H 2017, 'The Continuing Problem of the Universal to Questions of Justice: A Feminist Reading of Lars von Trier’s Dogville', Liverpool Law Review, vol. 38, no. 1, pp. 33-46.
View/Download from: Publisher's site
View description>>
© 2017, Springer Science+Business Media Dordrecht. What are the terms of evaluation that seem relevant in deciding whether a film is feminist or anti-feminist? Which critical practices should be engaged in such an evaluation? In recent and contemporary critical feminist practices, feminist arguments are no longer based on a stable subject category of “woman” and there is no longer any particular methodology upon which feminist theorists rely. The category of “woman” has been revealed to be not an ahistorical, stable category but an effect of material and representational practices. Further, feminist methodologies have been concerned to contextualize the framing of the questions they ask, as well as their place in the methodologies they employ. In addition to the refusal of an essentialized female subject, feminists have called into question the idea that it is possible to produce a “feminist method” based on the standpoint of a female subjectivity, even where this subjectivity is admitted as a construct, arguing that this extrapolation to the general from a particular point of view produces political, and frequently racist, effects. In this essay, I consider Lars von Trier’s controversial film Dogville (2003) as a case study to explore the relation of practices of representation to questions of feminist justice. I argue that the film does a lot of good critical work in showing the ways in which certain practices of representation can be mobilized to produce a collectivity (or “sovereignty”) that is seen to emanate from “the people” and to thereby instantiate authority, while simultaneously disguising the material and political effects of its subjugation of “others.” However, in doing this work the film produces its own problematic construction of universality and particularity. Further, the film instrumentalises representations of sexual violence and subjection in order to prove its point, and as productive as these tactics are to illuminating questions...