Alexander, IJ 2018, 'The Copyright/Design Interface in Australia' in Derclaye, E (ed), The Copyright/Design Interface: Past, Present and Future, Cambridge University Press, UK, pp. 226-268.
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The law relating to designs in Australia has long been the subject of dissatisfaction. As long ago as 1936, Sir Owen Dixon referred to the Designs Act 1906 as ‘rather peculiar’1, while the interface between copyright and designs has garnered even more pointed criticism, being called ‘troubled’2, ‘vexed’3 and an area of ‘(perennial) confusion’.4 At different times Australia has adopted different approaches to the overlap, moving from potential cumulation (or dual protection as it is more commonly known in Australia) to demarcation and then to partial cumulation (for two-dimensional works) combined with demarcation (for three-dimensional works). Legislative implementation of these policies, however, has been far from straightforward. At each stage, Australia looked to the United Kingdom to inform its legislative approach. While never simply slavishly copying the UK’s legislative language, the tendency was at first to follow generally where the UK led. From 1968, however, the position of the two countries diverged, with Australia pursuing a stricter approach of demarcation until it adopted partial cumulation in 1989. Moreover, while the UK simplified its legislative provisions, Australia’s approach was to add further detail – an approach that has not necessarily resulted in greater clarity.
The first section of this chapter examines the history of designs and the copyright/design interface in Australia from 1852 to the present, while the second section briefly looks at some of the ongoing problems in this area. Although issues also arise as to the interrelationship between patents and designs, and to a lesser extent between trade marks and designs, this chapter does not address these in any detail.
Biber, K 2018, 'The Art of Bureaucracy: Redacted Ready-mades' in Manderson, D (ed), Law and the Visual Representations, Technologies, and Critique, University of Toronto Press, Toronto, Buffalo, London, pp. 286-309.
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In the final days of its regime, agents of the Ministerium für Staatssicherheit, or Stasi, destroyed documents on a mass scale. Most were pulverised using a feuchtschredder, or wet shredder. Agricultural composters were retooled to destroy papers, microfilm and audio tapes, producing enormous lumps. Some of these were buried, some were discharged into the Leipzig municipal sewer system, which several days later became clogged before spewing watery pulp into the streets. Today these grey rocks, dimensions variable, are exhibited by the artist Daniel Knorr in his series The State of Mind (2007). The original documents within these ‘file-stones’ can be vaguely perceived but cannot be read. They testify not only to the secrecy of the regime from which they originated, but also to the malign artistry of its officials.
This chapter investigates official secrecy as bureaucratic creativity. Visual techniques of official secret-keeping display the art of administration, driven by the need to create new methods of destruction, obfuscation and concealment. That these techniques might be imagined as art becomes possible through the intervention of contemporary artists whose work is made from the tangible remainders of official secrets. This chapter examines several art projects which draw on redacted or otherwise wilfully damaged official records. Whilst most critics and commentators in this area are interested in exploring what these records might reveal about the secrets that have been removed from them, artworks made from redacted records can also teach us about the creativity and artistry involved in bureaucracy itself. These artworks, whilst attributed to a named artist, are in fact originally made by officials of the state. Usually these officials are unknown, sometimes they work in collaboration with others, mostly we have no idea of how they operate. All we can see is physical evidence of their endeavours, made manifest because they have visibly, tangibly,
creativ...
Blagg, H & Anthony, T 2018, '"Stone walls do not a prison make": Bare Life and the Carceral Archipelago in colonial and postcolonial societies' in Stanley, E (ed), Human Rights and Incarceration: Critical Explorations, Palgrave Macmillan, Germany, pp. 257-283.
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This chapter offers what Edward Said (1993) referred to as a ‘contrapuntal’ reading of Australian prisons as exclusive sites of settler colonial repression. We suggest that Indigenous peoples are part of The Camp outside of the prison where settler colonial relations reduce their lives to ‘bare life’. We refer to transcripts from the 2016-17 Royal Commission into Child Protection and Youth Detention in the Northern Territory to reveal how the racist treatment of Indigenous children in prisons is part of the same continuum of the racist treatment of Indigenous people across the Northern Territory. Imprisonment is characterised not as an exceptional state of un-being, outside of ‘normal’ social relationships for Indigenous people. Rather, in the colony the exception is the norm. While we support penal abolitionism, we maintain that this can only be meaningful within a decolonizing process that also decolonizes other sites of exception and indistinction for Indigenous people. The rights for Indigenous people cannot be afforded individually but need to recognise and account for Indigenous dispossession, state domination and Indigenous sovereign claims.
Booth, T & Carrington, K 2018, 'Victims support in policy and legal process in Australia: Still an ambivalent and contested space' in Walklate, S (ed), Handbook of Victims and Victimology, Taylor and Francis, Great Britain, pp. 293-307.
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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.
Byrnes, A & Simm, G 2018, 'International Peoples' Tribunals: Their Nature, Practice and Significance' in Byrnes, A & Simm, G (eds), Peoples' Tribunals and International Law, Cambridge University Press, Cambridge UK, pp. 11-41.
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This chapter by the editors provides a tour d'horizon of the phenomenon of international peoples' tribunals from their emergence on the stage in the late 1960s to the present. We explore the nature, composition, normative frameworks, legitimacy, impact and special contributions that peoples' tribunals have made to the development of a just international order and the implementation of human rights guarantees.
Byrnes, A & Simm, G 2018, 'Reflections on the Past and Future of International Peoples' Tribunals' in Byrnes, A & Simm, G (eds), Peoples' Tribunals and International Law, Cambridge University Press, Cambridge, UK, pp. 259-273.
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In this chapter we draw together the major themes of the essays and reflect on the future of peoples' tribunals. The chapter engages with three substantive questions. First, to what extent are the peoples' tribunals discussed here representative of international peoples' tribunals more generally? Second, what is the relationship between peoples' tribunals, social movements and international law? Third, what impact do peoples' tribunals have on the implementation and development of international law?
Crofts, P 2018, 'Don't Blink: Monstrous Justice and the Weeping Angels of Doctor Who' in Peters, T & Crawley, K (eds), Envisioning Legality: Law, Culture and Representation, Routledge, New York, pp. 46-67.
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The Doctor Who episode “Blink” introduced the Weeping Angels,1 aliens that when perceived look like statues of angels covering their eyes in sadness, but in the blink of an eye can touch their victims and send them to another time. The plot centres on Sally Sparrow (played by Carey Mulligan), a young woman who has never met the Doctor and only interacts with him for a few moments. She is a photographer, and when we first see her, she is breaking into an old, abandoned house. In the background is a beautiful statue of a crying angel. Sally’s attention is drawn to a wall with words that are barely visible behind peeling wallpaper. She peels back the wallpaper in time to see that the words are a message addressed to her, telling her to duck. She does so, just in time to avoid being hit by a rock flying through the window – and just in time for us to notice that the beautiful statue has moved toward her.
A Weeping Angel – when seen – appears as a statue, carved into the shape of an angel, usually with its hands daintily covering its eyes as though it were weeping. When observed, it is serene and lovely. However, though still as stone when observed, a Weeping Angel is capable of extremely quick movements when not observed. If you blink, a Weeping Angel will have silently come up beside you. If the Weeping Angel touches you, then you are gone. Weeping Angels thrive by consuming all of the energy from the future lives of their victims. They deposit their victims in a past time, though not a time through which they have already lived. Their victims feel no pain and the rest of their lives are theirs to live as they are able in their new temporal and spatial locations. The Doctor states that they are ‘the only psychopaths in the universe to kill you nicely.’
The Weeping Angels render strange and threatening the familiar sight of statues of females in classic poses. Weeping Angels are portrayed not just as stone ornaments, but as mobile monsters that can take us away from ...
Crofts, P & van Rijswijk, HM 2018, 'Traumatic origins in Hart and Ringu' in Pearson, A, Giddens, T & Tranter, K (eds), Law and Justice in Japanese Popular Culture: from crime fighting robots to duelling pocket monsters, Routledge, UK.
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Dehm, S 2018, 'Accusing 'Europe': Articulations of Migrant Justice and a PopularInternational Law' in Brynes, A & Simm, G (eds), Peoples' Tribunals and International Law, Cambridge University Press, UK, pp. 157-181.
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This chapter examines a recent civil society initiative, Tribunal 12, as an internationalised articulation of migrant justice.1 Tribunal 12 was held in Stockholm in May 2012, and sought to put ‘Europe’ on trial for the systematic violations of the rights and dignity of refugees, asylum seekers and migrants. By adopting a legal and aesthetical framework, the initiative aimed to draw attention to the increased global securitisation of borders, criminalisation of unauthorised migrants and systemic exploitation of undocumented people in Europe. It also intended to generate support for migrant struggles within Europe by highlighting the morally unjust and harmful effects of European border practices. Although the Tribunal differed significantly from earlier international peoples’ tribunals in that it did not hear any witness testimonies from migrants themselves, I nonetheless locate Tribunal 12 within a legacy of peoples’ tribunals and their entanglement with international law and institutions.
Dehm, S 2018, 'Passport' in Hohmann, J & Joyce, D (eds), International Law's Objects, Oxford University Press.
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This chapter explores the passport both as an object of concern for international law and as an object that has been shaped through international action and institutions. It unpacks this dynamic relationship along four registers: first, as a historical object that functions as a technology of statecraft and emerged with the consolidation of the modern territorial nation-state; second, as an object of government that works towards the control of individuals, the construction of border regimes, and the global segregation of populations; third, as a jurisprudential object that crafts a particular juridical human; and finally, as an object of resistance taken up in political struggles to challenge the nation-state’s asserted monopoly on territorial authority. Along each of these registers, the passport reveals how the deeply state-centric order produced through international law shapes and regulates human mobility and identity.
Dehm, S & Walden, M 2018, 'Refugee Policy: A Cruel Bipartisanship' in Gauja, A, Chen, P, Curtin, J & Pietsch, J (eds), Double Dissolution The 2016 Australian Election, ANU Press, pp. 593-617.
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Dorsett, SG 2018, 'Traditions: Tracing Legal History, Aboriginal/Indigenous Law (Australia/New Zealand)' in Dubber, MD & Tomlins, C (eds), The Oxford Handbook of Legal History, Oxford University Press.
Fam, DM, Leimbach, T, Kelly, S, Hitchens, L & Callen, M 2018, 'Meta-considerations for Planning, Introducing and Standardising Interdisciplinary Learning in Higher Degree Institutions' in Fam, DM, Neuhauser, N & Gibbs, P (eds), Transdisciplinary theory, practice and education: The art of collaborative research and collective learning, Springer, Germany, pp. 85-102.
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Tertiary institutions across Australia and internationally are increasingly moving toward implementing innovative frameworks for teaching and learning to facilitate cross-disciplinary, interdisciplinary and transdisciplinary forms of education. Such programmes are characterized by learning and research that transgresses disciplinary boundaries, and supports collaborative research and practice to generate novel approaches to complex problems. In creating programmes that cross faculties, disciplines and epistemological perspectives, both challenges and opportunities undoubtedly arise. This chapter investigates the range of perceived and actual barriers to implementing interdisciplinary postgraduate programmes at an institutional level at the University of Technology Sydney. Over a 12-month research project, 25 interviews with faculty deans, senior executives, and teaching and learning and operations staff across the university were conducted, highlighting cultural, institutional, governance, planning and marketing issues that needed to be overcome for interdisciplinary and transdisciplinary postgraduate programmes to be successful in the long term. We sought to ensure the validity of the research findings by holding a half-day workshop Validity of the research findings were sought through a half-day workshop with senior faculty and operations staff to collaboratively identify major barriers and mitigation strategies for the success of interdisciplinary programmes in the future. This chapter, therefore, is not only an illustrative example of the challenges faced by programmes aiming to reform collaborative education; it also provides insight into the process of collaboratively developing recommendations for how new programmes might support cultural change, successful planning, governance and the operationalization of programmes that transgress disciplinary and faculty structures for the improvement of teaching and learning
Goldblatt, BA 2018, 'Violence against women in South Africa: Constitutional Responses and Opportunities' in Dixon, R & Roux, T (eds), Constitutional Triumphs, Constitutional Disappointments A Critical Assessment of the 1996 South African Constitution's Local and International Influence, Cambridge University Press, Cambridge, UK, pp. 141-173.
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Violence against women, present in every society in the world, is deeply embedded in South Africa’s past and is a central feature of the post-democratic society. The South African Constitution is path-breaking in acknowledging this reality by providing a right to be free from violence in public and private realms. Over the past two decades since democracy, advocacy groups have been successful in lobbying and working with government to secure new legislation in the areas of domestic violence and rape. Implementation of these laws has, however, been mixed or poor and recourse to the law is limited for many, if not most, victims of this violence. A number of significant decisions have emerged from the Constitutional Court in relation to these laws and regarding aspects of the common law relevant to violence against women. This chapter surveys the jurisprudence on violence against women in assessing the Court’s record in this area. While finding these decisions valuable in advancing the constitutional framework, the chapter suggests that fuller interpretation of the Constitution and more creative litigation and jurisprudence is necessary in contributing to the removal of the scourge of violence against South Africa’s women.
Grossi, R 2018, 'What has happened to the feminist critique of romantic love in the same-sex marriage debate?' in Adriana, G-A, Gunnarsson, L & Jonasdottir, A (eds), Feminism and the Power of Love: Interdisciplinary Interventions, Routledge, London and New York, pp. 55-72.
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Hoping to escape suffering it is to suffering that they run. In the desire for happiness, out of delusion, they destroy their own happiness, like an enemy.
Leary, DK 2018, 'International Environmental Law, Sustainable Generation of Energy from the Ocean and Small Island Developing States in the Pacific' in Kotzur, M, Matz-Lück, N, Proells, A, Verheyen, R & Sanden, J (eds), Sustainable Ocean Resource Governance. Deep Sea Mining, Marine Energy and Submarine Cables, Brill-Nijhoff, Leiden, pp. 84-100.
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Pacific Island countries and territories (PICTs) are heavily dependent upon
imported fossil fuel to meet their energy needs.1 The combined effect of low
GDP, high energy prices, small population density and remoteness means that
PICTs are extremely vulnerable to external energy crises.2 The importance of
energy security for PICTs and the role renewable energy can play in providing
such security in a sustainable manner has been recognized in a range of soft
law instruments and other international initiatives over the past few decades.
While there has been developed a range of different technologies that harness
energy from the oceans, most research has focused on three key areas:
(1) hydrokinetic energy, where the energy of ocean currents and tides are captured
by devices which are installed under the surface of the water; (2) wave
energy, where the energy of the surface wind waves is used to produce electricity
by a variety of devices installed on the surface of the Sea; and (3) Ocean
thermal Energy conversion or OTEC, which utilizes the temperature differential
between cold water from the deep ocean and warm surface water.3 This
paper considers the potential role that these technologies could play in sustainably
meeting the energy needs of PICTs
Libesman, T 2018, 'Human Rights and Neoliberal Wrongs in the Indigenous child welfare space' in Hendry, J, Tatum, M, Jorgensen, M & Howard-Wagner, D (eds), Indigenous Justice : New Tools, Approaches, and Spaces, Palgrave, London, pp. 69-87.
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May 2017 marked the 20th anniversary of Bringing Them Home, the Australian Human Rights Commission report into the forced and unjustified removals of Indigenous children from their families (NISATSIC 1997). The report concluded that these actions were part of a sustained campaign by the Australian government to eradicate Aboriginal and Torres Strait Islander families, communities, and culture. Nearly a third of the report examined and made recommendations with respect to contemporary removals under child welfare, juvenile justice, and family law. These recommendations were part of the reparations and were aimed at creating laws and policies designed to ensure the discriminatory practices would cease and would not be repeated. Twenty years post-Bringing Them Home, however, Indigenous children are being removed from their families in unprecedented numbers (Libesman 2016, pp. 46–7).
Libesman, T & Briskman, L 2018, 'Indigenous Australians: Continuity of colonisation in law and social work' in Rice, S, Day, A & Briskman, L (eds), Social Work - in the shadow of the law, Federation Press, Sydney, pp. 256-277.
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Murphy, JR, Grant, E & Anthony, T 2018, 'Indigenous courthouse and courtroom design in Australia: Case studies, design paradigms and the issue of cultural agency' in The Handbook of Contemporary Indigenous Architecture, Springer, Germany, pp. 495-525.
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If it is true that public buildings “…reflect the beliefs, priorities and aspirations of a people” (Powell 1995: ix), what do Australia’s public buildings say about Australians? More specifically, what does the design of Australia’s courthouses say about the beliefs, priorities, aspirations and agency of Australian people and in particular, Aboriginal and Torres Strait Islander peoples?
Ries, N & Shelley, J 2018, 'Public Health Law' in White, B, McDonald, F & Willmot, L (eds), Health Law in Australia, pp. 697-727.
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Rock, E 2018, 'Fault and Accountability in Public Law' in Elliot, M, Varuhas, J & Wilson Stark, S (eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives, Hart Publishing, pp. 171-192.
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Ross, NM, Ries, N, Meredith, J & Campbell, S 2018, 'Local to Global: Incorporating Overseas Work and Study in the Law School Curriculum' in Hall, T, Gray, T, Downey, G & Singh, M (eds), The Globalisation of Higher Education - Developing Internationalised Education in Research and Practice, Springer, Germany, pp. 291-305.
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Legal education traditionally focuses on domestic law, but a major shift is underway to internationalize the law school curriculum with the aim of developing twenty-first-century lawyers as global lawyers. This chapter first identifies important contextual factors influencing Australian law schools to incorporate overseas work and study immersion courses into the curriculum. Second, it presents a case study and proposed evaluation of internationalization initiatives at the University of Newcastle Law School, New South Wales, focused on overseas work-integrated learning and intensive study trips in the Asia–Pacific region. Third, the chapter concludes with reflections on the opportunities and challenges from the perspective of legal educators who must develop their own intercultural competence and navigate new ways of working with overseas service providers and academic institutions
Ryan, PA 2018, 'Exploring the Use of Artificial Intelligence to Improve Law Students’ Self- Assessments' in The Future of Australian Legal Education, Thomson Reuters, Australia.
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Simm, G 2018, 'Peoples' Tribunals, Women's Courts and International Crimes of Sexual Violence' in Byrnes, A & Simm, G (eds), Peoples' Tribunals and International Law, Cambridge University Press, pp. 61-83.
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This chapter compares peoples' tribunals with women's courts, focussing on international crimes of sexual violence.International criminal law has been the focus of much feminist activism and contestation to the extent that it has been claimed that 'feminism rules'. At the same time, unofficial or peoples' tribunals and women's courts - civil society initiatives - continue to proliferate. This chapter examines the treatment of international crimes of sexual violence by peoples' tribunals through a focus on the former Yugoslavia. It explores two key questions. First, what do peoples' tribunals offer to victim-survivors of international crimes of sexual violence that is lacking in official courts? Second, to what extent do 'mainstream' peoples' tribunals suffer from the same defects as official courts, thereby rendering 'women's tribunals' necessary?
Simmonds, AP 2018, 'Domesticating Violence: Reading the politics of the Family Court into the Luke Batty Coronial Inquest' in Nelson, C & Robertson, R (eds), The Book of Dangerous Ideas About Mothers, University of Western Australia Press, Perth, Western Australia.
Steele, L 2018, 'Restrictive Practices in Australian Schools: Institutional Violence, Disability and Law' in Trimmer, K, Dixon, R & Stewart Findlay, Y (eds), The Palgrave Handbook of Education Law for Schools, Springer, Germany, pp. 533-552.
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The current legal framework governing restrictive practices in schools regulates, rather than prohibits, restrictive practices. The central aim of this chapter is twofold: (i) to provide an overview of the legal framework of the use of restrictive practices in schools, and (ii) to identify some critical entry points into questioning the self-evidence of this legal framework and consequently reframe restrictive practices in schools as a lawful form of institutional violence. The chapter begins by introducing restrictive practices in schools and then provides an overview of the current legal framework that regulates the use of restrictive practices, and ultimately positions these practices beyond legal definitions of unlawful violence and hence beyond legal liability. The chapter then discusses the United Nations Convention on the Rights of Persons with Disabilities and recent Australian government inquiries, which provide a strong policy basis for viewing restrictive practices as violence, which should be prohibited.
Steele, LR 2018, 'Policing Normalcy: Sexual Violence Against Women Offenders with Disability' in Goggin, G, Steele, L & Cadwallader, JR (eds), Normalcy and Disability: Intersections Among Norms, Law, and Culture, Routledge, UK, pp. 86-99.
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Steele, LR 2018, 'Sterilisation, Disability and Wellbeing: The Curative Imaginary of the “Welfare Jurisdiction”' in Spivakovsky, C, Seear, K & Carter, A (eds), Critical Perspectives on Coercive Interventions Law, Medicine and Society, Routledge Frontiers of Criminal Justice, UK.
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Court-authorised sterilisation of women and girls with disability has been widely criticised by disability rights advocates and international human rights bodies as a form of violence and discrimination. This chapter examines the Family Court of Australia’s power pursuant to its ‘welfare jurisdiction’ to authorise parental consent to non-therapeutic sterilisation of girls with disability. The chapter locates the Family Court’s welfare jurisdiction at the intersections of health law, family law and Australian Constitutional law, and draws on critical disability studies approaches to disability and critical legal approaches to jurisdiction in order to explore how the judiciary is positioned to legitimately permit the violence of sterilisation. The chapter engages in a close analysis of the majority judgments in two leading High Court of Australia decisions on sterilisation: Secretary, Department of Health and Community Services v JWB (1992) (Marion’s Case) and P v P (1994). The chapter argues that judicial authority to permit sterilisation both shores up limits and gaps in the scope of state authority vis-à-vis disabled girls’ bodies and individualises and privatises the injustices of sterilisation. This argument signals the need for greater engagement with discourses of humanitarianism, care and flourishing, particularly when these discourses are mobilised by law in coercive and violent contexts against people with disability.
Stoianoff, N & Wright, EA 2018, 'Fair Use and Traditional Cultural Expressions' in Corbett, S & Lai, JC (eds), Making Copyright Work for the Asian Pacific: Juxtaposing Harmonisation with Flexibility, ANU Press, Australia, pp. 75-94.
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Indigenous knowledge may be broadly described as the system of knowledge developed and maintained by Indigenous and local communities and transmitted from generation to generation and includes:
[L]iterary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks; names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.3
Stuhmcke, A 2018, 'Ombuds Can, Ombuds Can’t, Ombuds should, Ombuds Shan’t: A Call to Improve Evaluation of the Ombudsman Institution' in Hertogh, M & Kirkham, R (eds), Research Handbook on the Ombudsman, Edward Elgar Publishing, pp. 415-435.
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The public sector ombudsman has become one of the most important administrative justice institutions in many countries around the world. This international and interdisciplinary Research Handbook brings together leading scholars and practitioners to discuss the state-of-the-art of ombudsman research. It uses new empirical studies and competing theoretical explanations to critically examine important aspects of the ombudsman’s work. This comprehensive Handbook is of value to academics designing future ombudsman studies and practitioners and policymakers in understanding the future challenges of the ombudsman.
van Rijswijk, HM 2018, 'From Sentimentality to Sadism: Visual Genres of Asylum Seeking' in Manderson, D (ed), Law and the Visual Representations, Technologies, and Critique, University of Toronto Press, Toronto, pp. 189-209.
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Proceeding chronologically, the volume offers leading analyses of the juncture between legal and visual culture as witnessed from the fifteenth to the twenty-first centuries.
Varnham, S 2018, 'Education Law in Aotearoa New Zealand' in Russo, CJ (ed), Handbook of Comparative Education Law: British Commonwealth Nations, Rowman & Littlefield Publishers, Maryland US, London UK, pp. 45-72.
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Historically there is no discreet discipline known as ‘Education Law’ in New Zealand. The term more correctly refers to the wide body of policy, statutes, common law and international instruments which comprise the right to education and rights in education. The last decades have seen a greater recognition of the myriad of ways in which the law impacts on education, and an attendant and increasing need for scholarship and discourse between lawyers, law and education practitioners and scholars.
This chapter explores the law as it applies to the exercise of the right to, and the rights in education by New Zealand children and young people. It begins by tracing the history and development of the ‘free, compulsory and secular’ system of compulsory education. It will next consider the exercise by young people of particular rights within education which apply equally to educators, for example, the right not to be discriminated against. Then it touches on legislation and policy which relates particularly to the employment of those educators. It will conclude by discussing some emerging issues faced by schools and educators, and discuss the challenges and opportunities presented by modern developments to the education system as a whole and impact on every child attending school in New Zealand.
Education is clearly the key to the realisation of life’s expectations and to the future of the nation, and exercise of the right to education is fundamental to the welfare of society. While often, the implementation of successive government policies may lead one to question the ideal, it is axiomatic that education is a public good. In New Zealand, it has been said that the rationale for this, since the beginnings of the education system, is contained in four key points: ‘… social control, the need for an educated electorate, investment in economic productivity, and equal individual rights
Varnham, S 2018, 'Risk and responsibility: Liability of school authorities for harm to pupils' in The Palgrave Handbook of Education Law for Schools, Springer, Germany, pp. 59-80.
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This chapter considers the responsibility of school authorities for the physical, mental and emotional harm suffered by their pupils. It examines the potential for school liability for physical injury within the duty of care owed in the tort of negligence and the approach of the courts to what may reasonably be expected of educators particularly in light of civil liability legislation. It then considers the parameters of school liability for psychiatric harm caused by the intentional acts of others, such as bullying, cyberbullying and sexual abuse. It touches on developing initiatives towards practising citizenship and restorative practice aimed at reducing many of the threats to young people by school cultures characterised by respect and responsibility.
Varnham, S & Squelch, J 2018, 'Legal Approaches to Social Control in Australian Schools: old ideas and new trends' in Deakin, J, Taylor, E & Kupchik, A (eds), The Palgrave International Handbook of School Discipline, Surveillance, and Social Control, Palgrave MacMillan, London, UK, pp. 105-127.
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Ensuring education in a safe environment falls inevitably on the school. As societal issues enter Australian schools as those elsewhere, there are many new threats added to the old. While legislation and policy traditionally provide the means to assist schools, questions of safety and security focus increasingly on the parameters of control and responsibility. This chapter considers social control within the frame of safety in Australian schools—from ‘traditional’ school discipline and an investigation of trends towards various forms of surveillance to current initiatives designed to reduce many of the threats to young people. These aim to develop school cultures where respect and responsibility are uppermost and which nurture the human capacity for restitution, resolution, and reconciliation.
Vrdoljak, AF 2018, 'Indigenous peoples, intangible cultural heritage and participation in the United Nations' in Antons, C & Logan, W (eds), Intellectual Property, Cultural Property and Intangible Cultural Heritage, Routledge, Oxford, pp. 50-66.
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While there is growing international and regional promotion of cultural diversity
and acknowledgment of the importance of cultural heritage to the maintenance
and development of individual and collective identities, the capacity of groups
This is because international law (and international society) remains dominated
age. This chapter focuses on indigenous peoples’ efforts to participate in United
Nations initiatives for the protection and promotion of intangible cultural heritage
to explore the participation by non-state actors and the responses of key
Organization (UNESCO), World Intellectual Property Organization (WIPO) and
UN Environment Programme (UNEP).
Despite the dominance of the state in the protection of cultural heritage in
international law, multilateral organizations have, in recent years, repeatedly reaf-
mon heritage of all mankind’ (Art. I(3) 1966 UNESCO Principles). At the same
time and within the same instruments, the international community has explicitly
linked cultural diversity and human rights norms (Art. 1 Universal Declaration
on Cultural Diversity). The links between human rights law and cultural heritage
have been most overtly explored at the international level in respect of Article
15 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR, United Nati...
Williams, S & Simm, G 2018, 'Assistance to Disaster Victims in an Armed Conflict: the Role of International Humanitarian Law' in Giustiniani, FZ, Sommario, E, Casolari, F & Bartolini, G (eds), Routledge Handbook of Human Rights and Disasters, Routledge, United Kingdom, pp. 43-62.
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This chapter considers the interaction between International Humanitarian Law (IHL) and International Disaster Law (IDL) in governing humanitarian assistance to disaster victims in an armed conflict. Disasters may occur in a State that is already experiencing armed conflict; or a disaster or series of disasters may lead to armed conflict. The relationship between IHL and IDL, and which law applies in practice, is unclear. Using examples from the Asia-Pacific region, this chapter discusses the International Law Commission (ILC) Draft Article that treats IHL as lex specialis in disasters. First, it outlines the principles of IHL on humanitarian assistance and how they potentially apply to those affected by a disaster. Next, it considers how the ILC has approached the role of IHL, before examining how IHL and IDL may interact in practice. Finally, the chapter argues that a more nuanced understanding of the relationship between IHL and IDL is required so as to take into account the context in which disasters occur and to recognise that the IHL and IDL may be complementary and mutually reinforcing.
Alexander, I & Jankowska, M 2018, 'Rights in geospatial information: A shifting legal terrain', Melbourne University Law Review, vol. 41, no. 3, pp. 957-998.
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© 2017 Melbourne University Law Review. All rights reserved. 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.
Alexander, IJ 2018, 'Cartography, Empire and Copyright Law in Colonial Australia', law&history, vol. 5, no. 1, pp. 24-53.
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Recent scholarship has established the centrality of maps and mapmaking to the imperial project, both as expressions of surveillance, spatial construction and control, as well as in the role maps played in making and supporting claims of property and ownership. Much less attention has been paid to the question of ownership in the map itself. This is important because the person, or entity, who owned the map could determine how the land depicted in the map was portrayed, and how access to that information was disseminated. It also affected how the map was perceived in terms of the authority, or accuracy, of its claims. This article examines several disputes that arose in colonial Australia over the ownership of maps, exploring how different interests arose and came into conflict in relation to their control, dissemination and commercialisation. It suggests that a consideration of these cases reveals the role that copyright law played as a technology of empire.
Anthony, T 2018, '“They Were Treating Me Like a Dog”: The Colonial Continuum of State Harms Against Indigenous Children in Detention in the Northern Territory, Australia', State Crime Journal, vol. 7, no. 2, pp. 251-277.
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The analytic lens of state crime can inform our understanding of the mistreatment of Indigenous children and young people in settler-colonial state institutions. Based on a critical analysis of the proceedings and findings of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016–2017), this article identifies state crimes of torture and abuse inflicted on Indigenous children in carceral and non-carceral institutions. These crimes breach international human rights laws but are more than a set of individual harms. They are also part of a pattern of ongoing structural violence that reasserts the settler-colonial state’s sovereign position. This article identifies that the Royal Commission itself is complicit in reproducing state sovereignty. It argues that redressing state crimes against Indigenous children requires challenging
the structural injustice of the settler-colonial state.
Anthony, T 2018, 'An Interview with Associate Professor Thalia Anthony', Pandora's Box, vol. 25, pp. 69-75.
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In 2016, the nation was horrified when footage showing youth in Don Dale Juvenile Detention Centre was released, and subsequently the Royal Commission into the Protection and Detention of Children in the Northern Territory was established to investigate failings in the child protection and youth detention systems of the Territory. This article discusses the implications and consequences of that Royal Commission for the incarceration of Indigenous youth.
Anthony, T 2018, 'Growing Up Surplus to Humanity: Aboriginal Children in the Northern Territory', Arena Journal, vol. 51/52, pp. 40-70.
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This article examines the transcripts of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016–17) to uncover processes and discourses of exclusion of Aboriginal children who have been rendered by the state surplus to humanity. It draws attention to the state’s practices in youth detention and the justifications of guards and detention managers before the Royal Commission as premised on notions of Aboriginal children’s disorder and deviance. This characterisation, and the ensuing harmful state practices, have taken on a new intensity since the federal government introduced racially discriminatory policies and practices in 2007 in order to restrict the rights of Aboriginal people living in remote NT communities and town camps.
Anthony, T 2018, 'Policing in Redfern: Histories and Continuities', Court of Conscience, vol. 12, pp. 46-55.
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Redfern is a microcosm of many colonial and postcolonial frontiers across Australia. Colonial violence in the early nineteenth century was met with resistance by the Gadigal people and other clans of the Eora nation. State violence and Aboriginal struggle cast long shadows over Aboriginal experiences in Redfern. The wounds of injustice that lie open, especially in recent decades from policing, continue to be a focal point for local Aboriginal people and organisations. A flashpoint for the injustice in Redfern is the death of Aboriginal teenager TJ Hickey in a police chase in 2004 and the lack of subsequent accountability. This article traces the fraught history of discriminatory policing in Redfern and the ongoing plight for justice.
Anthony, T & Sherwood, J 2018, 'Post-disciplinary Responses to Positivism’s Punitiveness', Journal of Global Indigeneity, vol. 3, no. 1, pp. 1-33.
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This article posits a post-disciplinary framework to offer an alternative to the epistemological premise of positivist criminology. We seek to destabilise the punitive, deficit analysis of Indigenous people by Western, positivist Criminology. Instead, we look towards Indigenous strengths and resilience to counter deficit narratives about Indigenous people that have served to over-criminalise and over-incarcerate Indigenous peoples since colonisation. In doing so, we argue that positivist disciplinary knowledge is complicit in undermining Indigenous knowledges. We provide a case study that contrasts an institutional approach to researching ‘grog trials’ with the approach of the Tangentyere Research Hub, our ongoing research partner in Alice Springs (Central Australia). Our case study demonstrates the benefits of Tangentyere’s reliance on local Indigenous knowledges and perspectives, rather than disciplinary assumptions, for empowering, strengthening and supporting Indigenous communities and self-governance. In attempting to decolonise criminology, we advance a postdisciplinary approach that highlights questions of Indigenous wellbeing and its relationship with Indigenous self-determination over inquiries into Indigenous crime and the punitive role of the state.
Appleby, G, Le Mire, S, Lynch, A & Opeskin, B 2018, 'Contemporary Challenges Facing the Australian Judiciary: An Empirical Interruption', Melbourne University Law Review, vol. 42, no. 2.
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The structures that regulate and support the Australian judiciary reflect and serve the traditional judicial values of independence, impartiality and the rule of law. Yet modern society places emphasis on an additional range of values that are expected of government and public institutions. These contemporary values include diversity, transparency, accountability and efficiency. Reforms to introduce regulatory and support structures that prioritise and facilitate these values in the judicial arm has proved challenging, sometimes contentious. This article reports on a survey of Australian judicial officers (n=142) from across different jurisdictions. Participants were asked what they considered to be the most pressing challenges that face the various levels of the Australian judiciary, and whether the current regulatory and support environment achieves international best practice. The responses provide a nuanced picture of the state of the modern Australian judiciary as it appears to those within it. The study facilitates an understanding of the degree to which judicial officers are satisfied with the current legal and regulatory framework, and, where they are dissatisfied, the nature of their disquiet. While not seeking to offer complete resolutions to the many issues canvassed, the data and analysis presented in this article serve as an interruption to regulatory and academic studies of the Australia judiciary, with the potential to illuminate and re-orientate the reform conversation in light of the judicial perspective on these various issues.
Bello Villarino, J-M & Vijeyarasa, R 2018, 'The indicator fad: How quantifiable measurement can work hand-in-hand with human rights - A response to Sally Engle Merry's The Seductions of Quantification', New York University Journal of International Law and Politics, vol. 50, no. 3, pp. 985-1020.
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Berg, LA & Farbenblum, B 2018, '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.
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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 2018, 'Evidence in the museum: Curating a miscarriage of justice', Theoretical Criminology, vol. 22, no. 4, pp. 505-522.
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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.
Booth, T 2018, 'VICTIM IMPACT STATEMENTS AND SENTENCING HOMICIDE OFFENDERS: A CRITICAL ANALYSIS OF RECENT CHANGES TO THE CRIMES (SENTENCING PROCEDURE) ACT 1999 (NSW)', University of New South Wales Law Journal, vol. 41, no. 1, pp. 130-156.
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The use of victim impact statements (‘VISs’) from family victims in
homicide matters, particularly as evidence of aggravating factors, is
contentious in NSW courts. Until July 2014, the law prevented VISs
influencing penalties imposed on homicide offenders (Previtera).
However, the Crimes (Sentencing Procedure) Act 1999 was
amended in 2014 in order to overrule Previtera and enable VISs to
‘count’ in sentencing homicide offenders. This article draws on a
case study of 39 homicide sentencing judgments, July 2014–April
2017, to determine whether, and if so the extent to which, the new
law has changed the role of VISs from family victims in sentencing.
It also considers the practical implications of these findings for
future family victims and argues that not only has the new law made
little practical difference to the use of VISs in homicide matters, but
there are also potential adverse consequences for family victims in
the sentencing process.
Booth, T, Bosma, AK & Lens, KME 2018, 'Accommodating the Expressive Function of Victim Impact Statements: the scope for victims’ voices in Dutch Courtrooms', British Journal of Criminology, pp. 1480-1498.
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The expressive function of victim impact statements (VISs) enables victims to have a voice in legal proceedings—to speak and be heard about the harm caused by the offence. VISs have been adopted in many jurisdictions. While research reveals legal and institutional constraints on the expressive function of VISs in many jurisdictions with adversarial proceedings, we know little about the implementation of VISs in inquisitorial systems. We address this gap by reporting findings of an observational study that examines the scope for victims’ voices in criminal legal proceedings in the Netherlands. We find that these proceedings are better adapted to accommodate the expressive function of VISs. There is greater scope for victims to speak and be heard through their VISs.
Bowley, RN 2018, 'An analysis of challenges to ASIC's s 920A banning orders against financial services providers in the AAT and the courts', Company and Securities Law Journal, vol. 36, no. 4, pp. 307-341.
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Section 920A of the Corporations Act 2001 (Cth) provides ASIC with a flexible power to ban individuals from the Australian financial services industry on a number of grounds. The objective of this power is to protect consumers through upholding compliance with the law and adherence to professional standards. Banned individuals may apply to the Administrative Appeals Tribunal (AAT) to review the merits of such decisions, and on limited points of law such cases may be further appealed to the Federal Court of Australia (FCA). This article analyses the practice of the AAT and the FCA in determining challenges to s 920A banning orders. The 50 AAT cases examined in the article provide interesting examples of misconduct by financial advisers, stockbrokers and traders, insurance brokers and operators of investment schemes. The article shows that whilst the AAT has shown a flexible approach in considering the circumstances of each banning (setting aside four bans and varying the length of 15 bans), it has nevertheless exhibited a firm approach in the other 31 cases in affirming bans following serious misconduct. The article concludes by suggesting some minor reforms to further enhance the range of protective enforcement tools available to ASIC.
Brennan, D 2018, 'The Copyright Tribunal as Exception-maker: Are Both Flexibility and Certainty Achievable?', Australian Intellectual Property Journal, vol. 28, no. 3, pp. 83-96.
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This article proposes an approach to address the current fair use impasse in Australia. This is by the conferral of delegated legislative power upon the Copyright Tribunal of Australia for it to periodically determine new public interest exceptions. The reform would require, for separation of powers reasons, that the Tribunal be reconstituted to perform such a legislative function. The proposal is one that navigates a course between the current law and the open slather adoption of US-style fair use recommended by the Australian Law Reform Commission by creating a public interest rulemaking power within an existing Australian copyright institution. It is also proposed to use as the vehicle for the delegation of power an overhauled s 200AB, so that the three-step test no longer nakedly applies in domestic law, but instead operates as criteria to inform the legislative choices of the Tribunal.
Cadwallader, JR, Spivakovsky, C, Steele, LR & Wadiwel, D 2018, 'Institutional Violence Against People with Disability: Recent Legal and Political Developments', Current Issues in Criminal Justice, vol. 29, no. 3, pp. 259-272.
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International and Australian domestic evidence suggest that the prevalence of violence against people with disability is substantially higher than for the rest of the community. Much of the violence experienced by people with disability in Australia occurs within the
purview of a variety of institutions, including group homes, large residential institutions, Australian Disability Enterprises (that is, disability employment facilities), schools, psychiatric facilities, hospitals and correctional facilities. This comment discusses recent domestic and international legal and political attempts to grapple with the issue of
institutional violence against people with disability, focusing in particular on a series of Senate Committee inquiries into abuse and violence, regulation related to the National Disability Insurance Scheme, the coming into force of the Convention on the Rights of Persons with Disabilities, Australia’s anticipated ratification of the Optional Protocol to the Convention Against Torture and recent calls by Disability People’s Organisations and academics for a Royal Commission into violence against people with disability.
Carter, D, Brown, JJ & Saunders, CM 2018, 'Understanding Public Expectations of Healthcare Quality and Safety Regulation in Australia.'.
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Carter, DJ 2018, 'Are you at risk of criminal prosecution?', The Australian Hospital & Healthcare Bulletin, vol. 2018, no. Winter, pp. 65-66.
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The successful prosecution of Dr Hadiza Bawa-Garba for gross negligence manslaughter in the United Kingdom has been making headlines in Australia. This article examines the implications for Australia.
Carter, DJ & Hartridge, S 2018, 'Managing Data Breaches and New Mandatory Disclosure Requirements in Medical Practice', Medical Journal of Australia, vol. 17 September 2017.
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The Australian Government has introduced new mandatory disclosure rules, which came into force in February 2018, requiring most health and medical providers to notify patients or others affected when there is a serious data breach that results in unauthorised access to personal information.1 With fines of up to $420 000 for individuals and far higher fines for businesses that fail to report serious data breaches,1 the mismanagement of a breach by a medical practice will potentially be very serious.
With the current scheme, early data show that health care organisations are responsible for almost one-quarter of data breach reports, while just over 50% of all reported breaches are due to human error.2 These results underscore the importance of the scheme for health care practitioners and practices, as well as the central role internal systems and staff play in combatting the risk of a data breach.
Carter, DJ & Hartridge, S 2018, 'Mandatory data breach notification requirements for medical practice.', The Medical journal of Australia, vol. 209, no. 5, pp. 204-205.
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The Australian Government has introduced new mandatory disclosure rules, which came into force in February 2018, requiring most health and medical providers to notify patients or others affected when there is a serious data breach that results in unauthorised access to personal information.1 With fines of up to $420 000 for individuals and far higher fines for businesses that fail to report serious data breaches,1 the mismanagement of a breach by a medical practice will potentially be very serious.
With the current scheme, early data show that health care organisations are responsible for almost one-quarter of data breach reports, while just over 50% of all reported breaches are due to human error.2 These results underscore the importance of the scheme for health care practitioners and practices, as well as the central role internal systems and staff play in combatting the risk of a data breach.
Carter, DJ, Brown, J & Saunders, C 2018, 'The Patient's Voice: Australian Health Care Quality and Safety Regulation from the Perspective of the Public', Journal of Law and Medicine, vol. 25, no. 2, pp. 408-428.
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The quality and safety of health care is a topic of permanent debate in the field of health services policy and regulation. Often absent from this debate, however, are the views and values of the public. These are excluded by a dominant narrative of health care regulation which understands the regulation of quality and safety in health care as principally a technical and instrumental undertaking. This approach constrains the application of law and legal regulation, devaluing their normative and expressive function in this field. In-part as a form of corrective, we offer an analysis based on recent survey data, of the attitudes and perceptions held by the Australian public towards stakeholder responsibility for, and the regulation of, health care quality and safety.
Carter, DJ, Street, D & Bush, S 2018, 'Building Public Confidence in Medical Registration Revalidation: Reform of Medical Registration Law in Australia, a New Risk-based Approach', Journal of Law and Medicine, vol. 25, no. 4, pp. 1009-1032.
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Chiarella, M, Nagy, M, Satchell, CS, Walton, M, Carney, T, Bennett, B, Pierce, SM & Kelly, PJ 2018, 'National Registration of Health Practitioners: A Comparative Study of the Complaints and Notification System Under the National System and in New South Wales – Decision Makers who Handle Complaints/Notifications About Regulated Health Practitioners in Australia', Australian Journal of Public Administration, vol. 77, no. 4, pp. 624-643.
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© 2017 Institute of Public Administration Australia When the National Registration and Accreditation Scheme (NRAS) for health practitioners commenced in Australia in 2010, all jurisdictions joined the scheme for the registration and accreditation of health practitioners, but NSW retained its existing co-regulatory complaint-handling system. We sought to compare the new National notifications and the NSW complaints handling processes, as NSW has an independent investigative and prosecutory body to manage serious complaints. Decision makers from both the National and NSW schemes, who handled notifications/complaints at assessment, were invited to participate in a survey consisting of case studies. A qualitative thematic approach was used to determine and compare contributing factors to decision makers’ priorities when assessing a notification/complaint for the National and NSW schemes. The 123 completed surveys comprised 50 NSW respondents and 73 National respondents from the other jurisdictions. No consistent differences in contributory factors when assessing a complaint/notification were observed between the two schemes. This evidence points towards national consistency in decisions about assessment of complaints and notifications in Australia.
Chiarella, M, Satchell, CS, Nagy, M, Carney, T, Walton, M, Bennett, B & Kelly, PJ 2018, 'Survey of Quasi-Judicial Decision-Makers in NSW and The National Registration Scheme for Health Practitioners.', Journal of Law and Medicine, vol. 25, no. 2, pp. 357-379.
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This study is part of a larger, Australian Research Council-funded project studying comparative analyses of complaints and notification handling between the NSW system and National Registration and Accreditation Scheme (2010). This article explores the assessments and decisions made by Tribunal and other quasi-judicial decision-makers involved in the two schemes, including the key decision-management stages during a disciplinary process. Respondents recruited from both systems completed an online questionnaire comprising a series of closed and open-ended questions to case vignettes. While we found no significant difference between jurisdictions in relation to their decision-making processes in this case, the article provides insights into the rationales for their decisions and the outcomes or sanctions selected by decision-makers as being appropriate to the circumstances presented.
Connor, T, Ries, N, Ross, N, Sobel-Read, K & Matas, D 2018, 'Becoming Global Citizens and Global Lawyers: Incorporating International Work and Study Experiences into the Australian Law School Curriculum', Clinical Law Review: a journal of lawyering and legal education, vol. 25, no. 1, pp. 63-94.
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Much of the literature on global citizenship education asserts a
perceived tension between “neoliberal cosmopolitanism” (enhancing
students’ employability) and “critical democratic cosmopolitanism”
(enhancing students’ critical understanding of cultural diversity and
political and economic inequality). Lilley, Barker and Harris recently
argued these two approaches need not necessarily be in tension be-
cause employers value the skills developed through more critical
approaches.
This article analyzes the reflective journals of 39 Australian law
students who participated in intensive work and study experiences in
Indo-Pacific countries. The students’ journals lend further weight to
the thesis of Lilley, Barker and Harris, here specifically in regard to
law studies. In line with the goals of “critical democratic cosmopoli-
tanism,” the overseas experiences motivated the students to become
more open-minded, self-critical and reflective in their thinking, and
more confident, respectful and empathetic in their interactions with
people of different cultures. A number of recent studies have indi-
cated these kinds of skills and attributes are highly valued by employ-
ers of law graduates. For the law students, rather than identifying a
tension between their ambition to become global lawyers and the re-
sponsibilities associated with global citizenship, the overseas exper-
iences instead led them to frame their understanding of global
lawyering in terms of positive global citizenship.
Crofts, P 2018, 'Monsters and Horror in the Australian Royal Commission into Institutional Responses to Child Sexual Abuse', Law and Literature, vol. 30, no. 1, pp. 123-148.
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This article analyses how the Australian Royal Commission into Institutional Reponses to Child Sexual Abuse negotiates the figure of the pedophile as monster through the horror genre. It analyses the resonance of the category of pedophiles as monsters or monstrous and the ways in which this impacted upon witnesses’ responses to sex offenders, based on assumptions that monsters are outsiders or strangers who are instantly recognizable. I go on to explore the claim that one of the main effects of regarding sex offenders as monsters is that these offenders are construed as having extraordinary powers so that ordinary measures to stop them would be ineffective – accordingly, this reading underplays the significance of institutional responsibility. I conclude that although the Royal Commission consistently undermines and rejects the idea of sex offenders as monsters, a horror reading is still appropriate and insightful. The true “horror” of the Royal Commission is aroused not by the figurative monsters but by the institutions themselves, and their failures.
Crofts, P 2018, 'What went wrong with money laundering law? by Peter Alldridge', Current Issues in Criminal Justice -Sydney-, vol. 29, no. 2, pp. 191-193.
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Dehm, S & Vogl, A 2018, 'Migration Law and Women: Gendering Australia's Migration Program', Precedent, no. 144 (January/February 2018), pp. 22-27.
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In this article, we use two case studies – the admission of
skilled migrants under the Temporary Work (Skilled) visa
(subclass 457) scheme and the admission of refugees under
Australia’s onshore humanitarian program – to understand
the gendered nature, operation and effects of Australian
migration law more generally. These two case studies reveal
that the gendered nature of migration to Australia is evident
in even the most cursory examination of particular visa
categories and forms of migration, even if the experiences of
and implications for women migrants differ across different
streams of migration and specific visa categories. For
example, female temporary skilled migrants are more likely to
be over-represented in low-paid or casualised care industries,
as nurses or carers, and women asylum seekers face risks
of gendered violence when crossing borders unlawfully.
George Lafferty & Shaunnagh Dorsett 2018, 'Surviving on the Brink: New Zealand Workers, Unions and Employment Relations, 1991–2008', Labour History, vol. 115, pp. 67-85.
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Ghezelbash, D, Moreno-La, V, Klein, N & Opeskin, B 2018, 'Securitization Of Search And Rescue At Sea: The Response To Boat Migration In The Mediterranean And Offshore Australia', International and Comparative Law Quarterly, pp. 1-37.
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This article compares the law and practice of the European
Union and Australia in respect to the search and rescue (SAR) of boat
migrants, concluding that the response to individuals in peril at sea in
both jurisdictions is becoming increasingly securitized. This has led to
the humanitarian purpose of SAR being compromised in the name of
border security. Part I contrasts the unique challenge posed by SAR
operations involving migrants and asylum seekers, as opposed to other
people in distress at sea. Part II analyses the relevant international legal
regime governing SAR activities and its operation among European
States and in offshore Australia. Part III introduces the securitization
framework as the explanatory paradigm for shifting State practice and its
impact in Europe and Australia. It then examines the consequences of
increasing securitization of SAR in both jurisdictions and identifies
common trends, including an increase in militarization and
criminalization, a lack of transparency and accountability, developments
relating to disembarkation and non-refoulement, and challenges relating
to cooperation and commodification.
Goldblatt, BA & Rai, SM 2018, 'Recognizing the Full Costs of Care? Compensation for Families in South Africa’s Silicosis Class Action', Social and Legal Studies, vol. 27, no. 6, pp. 671-694.
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This article concerns recognition and compensation of the intimate, gendered work of
caring by family members for workers who became ill with lung diseases as a result of
poor labour conditions in the mines in South Africa. It focuses on a recent decision by a
court in South Africa (Nkala and Others v. Harmony Gold Mining Company Limited and
Others, 2016) that took the unusual step of acknowledging this care work and attempting
to compensate it indirectly. The article combines insights from political economy and law
within a feminist frame to develop an argument about compensation for social reproductive
work to address the harm experienced by the carers of mineworkers. Using the
theory of depletion through social reproduction, it suggests ways of understanding the
costs of care in order to fully compensate the harms suffered by the carers. This is done
with reference to a photographic essay by Thom Pierce called ‘The Price of Gold’ taken
in the mineworkers’ homes after their discharge from work due to illness. The article
argues that ideas of depletion should inform any consideration of compensation of
people engaged in caring in a range of reparatory contexts.
Gould, K 2018, 'SMALL DEFAMATION CLAIMS IN SMALL CLAIMS JURISDICTIONS: WORTH CONSIDERING FOR THE SAKE OF PROPORTIONALITY', University of New South Wales Law Journal, vol. 41, no. 4, pp. 1222-1262.
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Online communication continues to pose challenges for the law and
the administration of justice. One such challenge concerns its
propensity to give rise to small defamation claims between ordinary
people given the often-enormous costs of litigating defamation
claims before the ordinary courts. This article promotes a reform
agenda directed to meeting this challenge by (1) demonstrating the
need for a proportionate means for resolving small defamation
claims, having regard to access to justice considerations and other
wider concerns; (2) establishing reasonable grounds for seriously
considering deploying the traditional small-claims-proportionate
response – small claims jurisdictions – for this purpose
notwithstanding contraindications including the infamous
complexity of defamation law; and (3) advancing a research
pathway for the proportionate treatment of small defamation claims
to guide decision-making and innovation. This article also
advocates for consideration of this important issue in the ‘national
reform process’ launched in 2018 for Australian defamation law
Greenleaf, G, Mowbray, A & Chung, P 2018, 'Building sustainable free legal advisory systems: Experiences from the history of AI & law', Computer Law and Security Review, vol. 34, no. 2, pp. 314-326.
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© 2018 Graham Greenleaf, Andrew Mowbray & Philip Chung The enthusiasm for artificial intelligence (AI) as a source of solutions to problems is not new. In law, from the early 1980s until at least the early 2000s, considerable work was done on developing ‘legal expert systems.’ As the DataLex project, we participated in those developments, through research and publications, commercial and non-commercial systems, and teaching students application development. This paper commences with a brief account of that work to situate our perspective. The main aim of this paper is an assessment of what might be of value from the experience of the DataLex Project to contemporary use of ‘AI and law’ by free legal advice services, who must necessarily work within funding and other constraints in developing and sustaining such systems. We draw fifteen conclusions from this experience, which we consider are relevant to development of systems for free legal advice services. The desired result, we argue, is the development of integrated legal decision-support systems, not ‘expert systems’ or ‘robot lawyers’. We compare our insights with the approach of the leading recent text in the field, and with a critical review of the field over twenty-five years. We conclude that the approach taken by the DataLex Project, and now applied to free legal advice services, remains consistent with leading work in field of AI and law. The paper concludes with brief suggestions of what are the most desirable improvements to tools and platforms to enable development of free legal advice systems. The objectives of free access to legal information services have much in common with those of free legal advice services. The information resources that free access to law providers (including LIIs) can provide will often be those that free legal advice services will need to use to develop and sustain free legal advisory systems. There is therefore strong potential for valuable collaborations between these tw...
Grossi, R 2018, 'Love as a disadvantage in law', Journal of Law and Society, vol. 45, no. 2.
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Hawes, C 2018, 'How Chinese Judges Deal with Ambiguity in Corporate Law: Suggestions for Improving the Chinese Case Precedent System', Australian Journal of Asian Law, vol. 19, no. 1, pp. 1-22.
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This paper examines how Chinese judges struggle with ambiguity in legal statutes. I contrast the typical tools used by common law judges to resolve ambiguity with equivalent methods used by Chinese courts, noting that both interpretive systems have serious limitations, leading to unfairness in some cases. I then demonstrate the defects of the current Chinese approach by critically reviewing a series of Chinese court judgments on the shareholder’s right to seek information in the PRC Company Law.
Despite the recently implemented Guiding Cases system, Chinese courts still regularly produce inconsistent interpretations of the same legal provisions, leading to unpredictable and unsatisfactory outcomes for litigants. To solve this problem, in the third part, I propose delegating publication of persuasive Guiding Cases to the level of regional High Courts, with the Supreme People’s Court only stepping in to resolve intra-regional inconsistency. I also recommend clarifying the rules for using online judgments drawn from the China Judgments Network as a supplement to the Guiding Cases. This modification would make the Guiding Case system much more responsive to interpretive gaps in the law, and it would assist individual judges struggling to resolve difficult legal disputes.
Hobbs, H 2018, 'Constitutional recognition and reform: developing an inclusive Australian citizenship through treaty', Australian Journal of Political Science, vol. 53, pp. 176-194.
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Hobbs, H & Trotter, A 2018, 'Lessons from history in dealing with our most dangerous', UNSWLJ, vol. 41, pp. 319-319.
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Hobbs, H & Wlliams, G 2018, 'The noongar settlement: Australia’s first treaty', Sydney L. Rev., vol. 40, pp. 1-1.
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Hobbs, H, Pillai, S & Williams, G 2018, 'The disqualification of dual citizens from parliament: Three problems and a solution', Alternative Law Journal, vol. 43, pp. 73-80.
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Howe, J, Berg, LA & Farbenblum, B 2018, 'Unfair Dismissal Law and Temporary Migrant Labour in Australia', Federal Law Review, vol. 46, no. 1, pp. 19-48.
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Increasing attention is being given to the exploitation of temporary migrant workers in Australia, in particular in relation to wage underpayments. But very little focus has been given to the ability of temporary migrant workers to access legal remedies under Australian employment law. This article examines whether temporary migrant workers are able to make and pursue a claim for unfair dismissal within the federal jurisdiction. As unfair dismissal law seeks to protect job security and provides an essential check on managerial prerogative, it is important that temporary migrant workers are able to access this legal avenue to protect them from arbitrary dismissal. We argue there are serious deficiencies in the application, coverage and content of federal unfair dismissal law in relation to temporary migrant workers in Australia.
Karpin, I 2018, 'Vulnerability and the Intergenerational Transmission of Psychosocial Harm', Emory Law Journal, vol. 67, no. 6, pp. 1115-1134.
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In the field of science known as the developmental origins of health and disease (DOHaD), there is an emergent body of research examining the biological impact of the psychosocial dimension of harm resulting from sexual and physical abuse. A particular focus has been the way these assaults, when enacted against women, cause levels of stress that can have a biological impact on their future children. In the following Parts, I take a close look at scientific studies that reveal an intergenerational impact resulting from harms perpetrated on a woman prior to the conception and birth of her children, with a particular focus on the impact of stress. I consider the way law might play a role in mediating or mitigating those harms using a vulnerability and inevitable dependency approach derived from Martha Fineman’s body of work.
Kirkby, D 2018, 'Editorial', Labour History, no. 115, pp. v-vi.
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Kirkby, D 2018, 'Editorial', Labour History, no. 114, pp. v-vi.
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Knight, S, Buckingham Shum, S, Ryan, P, Sándor, Á & Wang, X 2018, 'Designing Academic Writing Analytics for Civil Law Student Self-Assessment', International Journal of Artificial Intelligence in Education, vol. 28, no. 1, pp. 1-28.
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Research into the teaching and assessment of student writing shows that many students find academic writing a challenge to learn, with legal writing no exception. Improving the availability and quality of timely formative feedback is an important aim. However, the time-consuming nature of assessing writing makes it impractical for instructors to provide rapid, detailed feedback on hundreds of draft texts which might be improved prior to submission. This paper describes the design of a natural language processing (NLP) tool to provide such support. We report progress in the development of a web application called AWA (Academic Writing Analytics), which has been piloted in a Civil Law degree. We describe: the underlying NLP platform and the participatory design process through which the law academic and analytics team tested and refined an existing rhetorical parser for the discipline; the user interface design and evaluation process; and feedback from students, which was broadly positive, but also identifies important issues to address. We discuss how our approach is positioned in relation to concerns regarding automated essay grading, and ways in which AWA might provide more actionable feedback to students. We conclude by considering how this design process addresses the challenge of making explicit to learners and educators the underlying mode of action in analytic devices such as our rhetorical parser, which we term algorithmic accountability.
Lea, M, Beaupert, F, Bevan, N, Celermajer, D, Gooding, P, Minty, R, Phillips, E, Spivakovsky, C, Steele, L, Wadiwel, DJ & Weller, PJ 2018, 'A disability aware approach to torture prevention? Australian OPCAT ratification and improved protections for people with disability', Australian Journal of Human Rights, vol. 24, no. 1, pp. 70-96.
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© 2018 Australian Journal of Human Rights. In 2017, Australia ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Ratification of OPCAT presents a. unique opportunity to highlight the institutional treatment of people with disability i. range of sites of detention within Australia and build on advancing international protections for people with disability, including those articulated in the Convention on the Rights of Persons with Disabilities (CRPD). This article considers the opportunity presented by OPCAT for improving protections for people with disability against torture and ill-treatment. The article argues for an expansive definition of ‘sites of detention’ that is able to encapsulate both disability-specific and mainstream settings in which people with disability may be deprived of their liberty, as well as to address specific practices such as the use of mechanical restraint, chemical restraint and seclusion. Based on an analysis of international National Preventive Mechanism (NPM) models, it is further argued that people with disability, their representative bodies and other civil society actors must be meaningfully involved in NPM processes, including in the monitoring of sites of detention, and the identification of systemic issues affecting people with disability with lived experience of detention.
Leary, D 2018, 'Marine Genetic Resources in Areas beyond National Jurisdiction: Do We Need to Regulate Them in a New Agreement?', Maritime Safety and Security Law Journal, no. 5, pp. 22-47.
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This paper seeks to question the prevailing orthodoxy on the need for the ‘package deal’ on the proposed international legally-binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction to address marine genetic resources, including questions relating to access and benefit sharing. Through an examination of key documents and reports prepared over the past two decades, the first part of this paper will show that there has been little hard commercial evidence brought forward during debates at the United Nations to justify the inclusion of the marine genetic resources issue within the ‘package deal’. In light of that analysis, the second part of the paper will then go on to offer some initial thoughts on the various options for regulating access and benefit sharing in relation to marine genetic resources in areas beyond national jurisdiction that have been floated during the initial phase of negotiations. In particular, the second part of this paper examines the possible elements of a draft text of an international legally binding instrument set out in the chairs non-paper considered at the 3rd session of the Preparatory Committee established by General Assembly Resolution 69/292. The paper does not seek to trace the extent to which aspects of the chairs non-paper ultimately were contained in the Prep Comm’s final report to the United Nations General Assembly in late 2017. These negotiations are still ongoing and nothing definitive can be read into what was present or absent from that report. Instead, this analysis highlights which proposed elements of the international legally binding instrument would be the preferable outcome from these negotiations in light of the lack of evidence of commercial interest in marine genetic resources in areas beyond national jurisdiction.
Lenta, P 2018, 'Amnesty and Retribution', Public Affairs Quarterly, vol. 32, no. 2, pp. 119-139.
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This paper addresses the relationship between amnesty granted to perpetrators of serious human rights abuses and retributivism. It rebuts arguments advanced by Dan Markel and Lucy Allais in support of their claim that the granting of conditional amnesty – amnesty in exchange for perpetrators’ confessing to, and disclosing the details of, their wrongdoing – by the South African Truth and Reconciliation (TRC) was consistent with retributivism. Markel contends that conditional amnesty was perfectly in line with recipients’ desert, while Allais submits that the TRC secured as much retribution as was possible in the circumstances of South Africa’s democratic transition. The argument of the paper is that, while retributivists have good reasons to view conditional amnesty as justified, the reasons provided by Markel and Allais are not among them.
Lenta, P 2018, 'The ‘reasonable corporal punishment’defence struck down: YG v S', South African Law Journal, vol. 135, pp. 205-219.
Methven, EP 2018, 'A Little Respect: Swearing, Police and Criminal Justice Discourse', International Journal for Crime, Justice and Social Democracy, vol. 7, no. 3, pp. 58-74.
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This article interrogates a commonly articulated idea in relation to the criminalisation of offensive language: namely, that swearing at police challenges their authority and thereby deserves criminal punishment. Drawing on critical discourse analysis, the article examines representations of swearing at police officers in offensive language cases and parliamentary debates, including constructions of power, authority and order. It contributes to—but also denaturalises—conceptions about police power and authority in the context of public order policing. The article argues that criminal justice discourse plays a significant and often under-acknowledged role in naturalising the punishment of swearing at, or in the presence of, police officers.
Methven, EP 2018, 'Book review: Amy Propen and Mary Schuster, Rhetoric and Communication Perspectives on Domestic Violence and Sexual Assault: Policy and Protocol through Discourse', Discourse and Communication, vol. 12, no. 1, pp. 101-104.
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Methven, EP & Billington, L 2018, 'A Practitioner’s Guide to Criminal Code Infringement Notices', Brief, vol. 45, no. 8.
Millbank, J 2018, 'The role of professional facilitators in cross-border assisted reproduction', Reproductive Biomedicine and Society Online, vol. 6, pp. 60-71.
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The operations of those who facilitate travel across international borders for access to assisted reproduction are little understood. Within the broader field of research into medical travel facilitators, most empirical studies have addressed websites and promotional materials, with few qualitative investigations of individuals who are service providers. The research presented here centres on interviews with 23 professionals facilitating cross-border assisted reproduction. This study sought to understand how facilitators and service providers operate within a professional framework, examining their understanding of the ethical limits on their roles within a largely unregulated and rapidly evolving international ‘marketplace’. Broadly, participants trusted in the market to ‘find its own level’, such that unscrupulous players would not succeed because others would not refer to, or work with, them. In instances where a clear risk to the health of reproductive contributors or to the well-being of future children was perceived, participants understood their own ethical duty to be limited to service denial or withdrawal of participation. Among the eight facilitators who were not legal or medical professionals, there was a striking commonality, in that all had personal experience of assisted reproduction, both as patients and as reproductive contributors. Within this group, and particularly among the six women who directly ‘matchmade’ arrangements between intended parents, egg donors and surrogates, was a strong sense of ‘embodied’ expertise and claims to ethical practice based upon that expertise.
Millbank, J & Vogl, AF 2018, 'Adjudicating Fear of Witchcraft Claims in Refugee Law', Journal of Law and Society, vol. 45, no. 3, pp. 370-397.
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In refugee applications involving witchcraft-related violence (WRV),those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues that WRV is a manifestation of gender-related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of religion, combined with gender insensitivity in analysis, meant that claims were frequently recon-figured by decision makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside what is understood to be objective, verifiable, or Convention-related. Male applicants struggled to make their claims comprehensible as a result of the feminized and`irrational' characterization of witchcraft fears and beliefs.
Nagy, M, Chiarella, M, Bennett, B, Walton, M & Carney, T 2018, 'Health care complaint journeys for system comparison.', International Journal of Health Care Quality Assurance, vol. 31, no. 8, pp. 878-887.
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PURPOSE:The "patient journey" technique is one that has been used by health care providers to investigate the strengths and weaknesses of their service delivery. The purpose of this paper is to discuss the experience of adapting this approach for use in an atypical context - the comparison of two systems for managing health care complaints and notifications. It highlights a number of relevant considerations and provides suggestions for similar studies. DESIGN/METHODOLOGY/APPROACH:The design and methods of the study are described, with commentary on the success of key aspects and challenges encountered. To enable comparison between the two systems, this study had a "paired" design, in which examples were selected from each system so that they matched on basic, prescribed, criteria. Data about each matter's journey were then collected from administrative records. FINDINGS:While, overall, the technique provided rich data on the processes of the systems under investigation, the type of data collected (related to administrative/communicative events) and the study's comparative purpose required consideration and management of a number of issues. These included the implications of using administrative records and the impact of differences between the systems on the paired design. ORIGINALITY/VALUE:This paper describes an attempt to apply the "journey" approach in a context that is uncommon in two ways: first, in its focus on regulatory processes (complaint/notification handling), rather than care provision to an individual patient; and second, in its objective of comparing two different systems. It is hoped this account will assist in further development of this technique.
Rawling, M & Schofield-Georgeson, E 2018, 'Industrial Legislation in Australia in 2017', Journal of Industrial Relations, vol. 60, no. 3, pp. 378-396.
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Ries, N 2018, 'Elder abuse and lawyers’ ethical responsibilities: incorporating screening into practice', Legal Ethics, vol. 21, no. 1, pp. 23-45.
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Elder abuse is a serious and under-detected problem. Law reform agencies and legal profession regulatory authorities have called for action to ensure that lawyers meet their ethical obligations to older clients, including identifying and acting on risk factors for abuse. Screening tools to detect situations of elder abuse exist, but they are targeted mainly at health and social care practitioners. Drawing on international literature, this article identifies and discusses screening tools that could be adapted for use by legal professionals. Three general categories of screening are relevant for lawyers who serve older clients: (1) elder abuse screening tools that cover all domains of abuse or target specific behaviours, such as financial exploitation; (2) screening for decision-making capacity, especially taking account of the impact of abuse or neglect on capacity; and (3) screening to probe the suitability of a person to act in a formal decision-making role for an older person. The article emphasises the importance of implementing screening processes and follow-up actions in a manner that fosters a therapeutic relationship between the older client and the lawyer. It concludes with recommendations for further research in this important area.
Ries, N & Kypri, K 2018, 'Government-funded Health Research Contracts in Australia: A Critical Assessment of Transparency', Sydney Law Review, vol. 40, no. 3, pp. 367-394.
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Australian governments claim to be committed to improving transparency and democratic accountability. Yet they are increasingly contracting out research to external consultants, ‘think tanks’ and universities and the contractual relationships formed can, in fact, promote secrecy and undermine the goals of transparency and public scrutiny of government actions. This article reports on a first-in-kind study of research contracts between Commonwealth and New South Wales Government entities and external providers. Our analysis reveals that ‘control clauses’ are prevalent: contractually, governments can insist on the rights to determine whether, when and how the results of research are publicly disseminated, to claim intellectual property rights over work produced, and to terminate contractual relationships at will and without cause. These findings have troubling implications for government openness and accountability, for academic freedom when university researchers face restrictions on publication, and for evidence-informed policymaking. We propose solutions for proactive information disclosure to ensure that government transparency promises are realised in practice. We advocate for comprehensive public release of contract details and urge governments to publish the findings of contract research in an online repository.
Ries, N & Mansfield, E 2018, 'Elder Abuse: The role of general practitioners in community-based screening and multidisciplinary action', Australian Journal of General Practice, vol. 47, no. 4, pp. 132-135.
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Background
There are growing calls for elder abuse screening to be conducted by a range of community-based service providers, including general practitioners (GPs), practice nurses, home care workers and lawyers. Improved screening may be a valuable first step towards improving elder abuse detection and response; however, practitioners need evidence-based strategies for screening and follow-up.
Objective
This article summarises several brief screening tools for various forms of elder abuse. Screening tool properties and evidence gaps are noted. As elder abuse often requires multidisciplinary responses, initiatives to connect health, legal and other service providers are highlighted.
Discussion
GPs are trusted professionals who are well placed to identify older patients at risk of, or experiencing, various forms of abuse. They should be aware of available screening tools and consider how best to incorporate them into their own practice. They also play an important role in multidisciplinary action to address elder abuse.
Ries, N, Douglas, M, Simon, J & Fassbender, K 2018, 'How Do Lawyers Assist Their Clients with Advance Care Planning? Findings from a Cross-Sectional Survey of Lawyers in Alberta', Alberta Law Review, vol. 55, no. 3, pp. 683-701.
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Advance care planning (ACP) is the process of thinking about, discussing and documenting one's preferences for future health care. ACP has important benefits: people who have a written directive are more likely to receive care that accords with their preferences, have fewer hospitalizations, and die in their preferred location. This article focuses on the important role that legal professionals have in advising and assisting clients with ACP. Studies report that people who have a written advance care plan are more likely to have received assistance in preparing the document from a lawyer than from a doctor. Yet virtually no research engages with the legal profession to understand lawyers' attitudes, beliefs, and practices in this important area. This article starts to fill this gap by reporting the findings of a survey of lawyers in the province of Alberta. The results reveal lawyers' practices in relation to ACP, their perceptions of their professional role and factors that support or hinder lawyers in working with clients on ACP, and their preferences for resources to assist them in helping their clients. To the authors' knowledge, this is the first survey of lawyers on their practices in relation to ACP
Roche, MA, Duffield, C, Smith, J, Kelly, D, Cook, R, Bichel-Findlay, J, Saunders, C & Carter, DJ 2018, 'Nurse-led primary health care for homeless men: a multimethods descriptive study.', International Nursing Review, vol. 66, no. 3, pp. 392-399.
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To explore the primary healthcare needs and health service use of homeless men in inner Sydney.People experiencing homelessness have greater health needs than the general population and place high demands on tertiary care, which is expensive and may not be the optimum service for their needs. Accessible, approachable and affordable primary healthcare services could improve the health of homeless persons and potentially decrease costs to the healthcare system.A multimethod design using a cross-sectional survey (n = 40) and administrative data (n = 2 707 daily summaries) collected from a nurse-led primary healthcare clinic for homeless men in Sydney.Survey respondents were aged 27-76 years. Health problems reflected multimorbidity, with mental health issues present in almost all respondents. The majority had attended the clinic more than 20 times in the past year and said the services, treatments and referrals helped them avoid the emergency department. Administrative data indicated that medication administration was the most frequent service provided. Referrals to other health services doubled over the 7-year period.Multiple morbidities, particularly mental health issues, are associated with homelessness. A proactive approach by nurses including preventative services appeared to overcome barriers to health service use.This nurse-led primary healthcare clinic highlights the importance of providing services to homeless men with multiple comorbidities. Respect and trust in addition to easy access to health services appear to be important facilitators of health service use.A greater number of primary health services that collaborate with specialist services, including nurse-led clinics, may facilitate health care for persons who are homeless, reducing the burden on acute services.
Rock, E & Weeks, G 2018, 'Monetary Awards for Public Law Wrongs: Australia's Resistant Legal Landscape', University of New South Wales Law Journal, vol. 41, no. 4, pp. 1159-1186.
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Saunders, CM, Brown, J, Carter, D & Lapkin, S 2018, 'Chronic disease management support in Australian workplaces – low base, rising need', Health Promotion Journal of Australia, vol. 29, no. 3, pp. 257-264.
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Issue addressed
This study investigates the current nature, levels and perceived need for workplace support among mature age Australian workers with chronic illness.
Methods
A cross‐sectional population survey was conducted via a double opt‐in panel sample of Australian workers aged 45 years and older with one or more of six major chronic diseases (diabetes and/or chronic heart, kidney, lung, mental health and/or musculoskeletal conditions).
Results
Three hundred and fourteen respondents reported being in the workforce and having at least one of the chronic conditions under investigation, of which almost one third reported having more than one of the conditions. The findings reveal a number of considerable gaps in Australian workplace support for employees 45 years and older with chronic illness, including workplace flexibility, supportive policies and co‐worker support.
Conclusions
This research adds to a scarce existing literature base on workplace support for workers with chronic illness in Australia. Future research is needed to identify opportunities for effective public policy and implementation of workplace interventions to better support this cohort.
So what?
If timely progress is not made in this area, the projected increase in the aged population and scheduled public policy changes impacting retirement age will multiply potential adverse effects on the health of employees with chronic illness and Australia's labour market productivity.
Schofield-Georgeson, E 2018, 'Regulating Executive Salaries and Reducing Pay Disparities: Is pay disclosure the answer?', Journal of Australian Political Economy, vol. 81, no. Winter, pp. 95-120.
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In 2017 it was reported that Ahmed Fahour, CEO of Australia Post – a
publicly owned company – earned AUD$10.8 million in a single year. In
2015, he was paid 119 times the annual salary of the average Australia
Post employee ($47,000 per annum). Fahour presided over the
organisation's greatest decline in company turnover, accompanied by
large-scale retrenchments of low-paid workers (Evershed, 2017). Yet as
extravagant as Fahour’s pay appears, it is far from the largest executive
remuneration packages paid to CEOs in Australia. In recent years, some
have surpassed $30 million per annum. In the United States (US), CEO
pay can be 300 times that of the average wage within the company
(Mishel and Davis, 2015). Even after a slight ‘correction’ in CEO pay,
which dipped in Australia during the Global Financial Crisis from an
average of $5.5 million per annum to $4.7 million, David Richardson of
The Australia Institute has recently found that CEO pay is on the rise
again, averaging $5.2 million last financial year (Patty, 2018;
Richardson, 2018).
Schofield-Georgeson, E 2018, 'Regulating executive salaries and reducing pay disparities: Is pay disclosure the answer?', Journal of Australian Political Economy, vol. 2018, no. 81, pp. 95-120.
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In 2017 it was reported that Ahmed Fahour, CEO of Australia Post – a
publicly owned company – earned AUD$10.8 million in a single year. In
2015, he was paid 119 times the annual salary of the average Australia
Post employee ($47,000 per annum). Fahour presided over the
organisation's greatest decline in company turnover, accompanied by
large-scale retrenchments of low-paid workers (Evershed, 2017). Yet as
extravagant as Fahour’s pay appears, it is far from the largest executive
remuneration packages paid to CEOs in Australia. In recent years, some
have surpassed $30 million per annum. In the United States (US), CEO
pay can be 300 times that of the average wage within the company
(Mishel and Davis, 2015). Even after a slight ‘correction’ in CEO pay,
which dipped in Australia during the Global Financial Crisis from an
average of $5.5 million per annum to $4.7 million, David Richardson of
The Australia Institute has recently found that CEO pay is on the rise
again, averaging $5.2 million last financial year (Patty, 2018;
Richardson, 2018).
Pay disparities between senior management and workers in the English speaking global metropole – primarily Australia, UK, and the US – have
intensified over the last three decades. At the beginning of the 1980s in
the US, pay ratios ran at about 20:1. Management theorists such as Peter
Drucker first suggested in 1977 that any increase in a 20:1 ratio would
result in ‘resentment and falling morale’ within companies, eroding the
collective effort and trust upon which business depends (Wartzman,
2011). In the UK and Australia at that time, average pay ratios stood at a modest 15:1. Today, that figure in Australia and the UK is 183:1 (Walker,
2016), while in the US some executives earn 373 times the salary of an
average rank-and-file worker (High Pay Centre [HPC], 2014; AFLCIO,
2015). Meanwhile, corporate regulation implemented since the 1980s
appears to have encouraged, rather than stemmed, pay disparity and
lavish executive remunera...
Schofield-Georgeson, E 2018, 'Undoing a Model System: A new federal custody notification service', Alternative Law Journal, vol. 43, no. 2, pp. 108-112.
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Shepherd, SM & Anthony, T 2018, 'Popping the cultural bubble of violence risk assessment tools', Journal of Forensic Psychiatry and Psychology, vol. 29, no. 2, pp. 211-220.
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© 2017 Informa UK Limited, trading as Taylor & Francis Group. Violence risk instruments are administered in medico-legal contexts to estimate an individual’s likelihood of future violence. However, their ostensible limitations; in particular their mono-cultural and risk-centric composition, has drawn academic attention. These concerns may facilitate erroneous risk evaluations for certain non-white populations. Yet it remains unaddressed how cultural differences will be appraised in a risk assessment framework and which specific cultural factors should be considered. Provisions under the Canadian Criminal Code allow for Gladue Reports, to be sought by judicial officers prior to sentencing Indigenous people. Gladue Reports provide insights into an Indigenous person’s unique circumstances that may have led to their offending as well as community-based options for rehabilitation. We proffer that there may be value in augmenting the risk evaluation with culturally relevant Gladue style considerations identified by relevant Indigenous people to provide a more holistic account of an Indigenous individual’s circumstances.
Sibbritt, D, Kaye, MH, Millbank, J, Stuhmcke, AG, Wardle, J & Karpin, IA 2018, 'How are complementary health professions regulated in Australia? An examination of complementary health professions in the national registration and accreditation scheme', Complementary Therapies in Medicine, vol. 37, pp. 6-12.
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Objectives: This study aims to provide an empirical examination of how complementary medicine practice in Australia is actually regulated under the current national registration model.
Methods: Data was obtained from Australian Health Practitioner Regulation Agency (AHPRA) Annual Reports for the years 2011/12–2014/15 and supplemented by the Chinese Medical Registration Board of Victoria
(CMRBV) Annual Reports in 2011/12 for Chinese Medicine complaints. The data analysed includes complaint statistics, stage of closure of complaints and the outcome of complaints concerning Chinese medicine, chiropractic and osteopathy under the National Law.
Results: During 2014–2015 the number of complaints per 100 registrants for was highest for the medical board (4.4), while much lower for the chiropractic (1.5), osteopath (0.7) and Chinese medicine (0.5) boards. For
conventional boards, 58% of complaints were closed at the assessment stage, while 57%, 29% and 16% of complaints to the osteopath, Chinese medicine and chiropractic boards respectively were closed at the assessment stage. The decision to suspend or cancel registration of health professionals was 17% from the Chinese medicine board, 14% from the Osteopathy Board, 1.5% from the chiropractor board and 0.6% from the medical board.
Conclusion: It appears that complementary medicine practitioner regulation works at least as well as conventional regulation, and at most complementary medicine boards take a stricter interpretation of misconduct though more research would need to be undertaken to state this definitively. Our findings indicate that the public are using the statutory complaint mechanisms available to them with respect to the three CM groups.
Silink, AJ 2018, 'Trustee exoneration from trust assets - Out on a limb? The tension between creditor expectations and the 'clear accounts' rule', Journal of Equity, vol. 12, pp. 58-58.
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This article examines the proper characterisation of the trustee’s right of indemnity with particular focus upon the exoneration limb, pursuant to which a trustee can discharge outstanding trust liabilities directly from trust assets. Its existence is uncontroversial. However, questions have been raised as to whether the exoneration limb should be subject to the so-called ‘clear accounts rule’ which limits a trustee from availing itself of the right to indemnity to the extent that the trustee has an outstanding obligation to restore the trust fund. This limitation upon the availability of the indemnity to the trustee necessarily affects the ability of creditors to access trust assets to discharge trust debts. This is because the creditor’s right to be subrogated to the trustee’s indemnity gives it no higher right than the trustee has — if the indemnity has been lost to the trustee, it is lost to the creditor. This article considers the justification for the clear accounts rule with respect to its application to the exoneration limb of the indemnity.
Silink, AJ 2018, 'Vicarious liability of a bank for the acts of a contracted doctor', Journal of Professional Negligence, vol. 34, pp. 46-46.
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The long-standing dichotomy between employees and independent contractors in vicarious liability - never entirely without its difficulties in application, but nonetheless, a central tenet of vicarious liability for more than a century - has been eroded in the last five years. Confirmed in the mid-nineteenth century in Quarman v Burnett, 1 the delineation has endured despite regular criticism: an employer may be vicariously liable for acts of an employee, but not generally for the negligence or intentional wrongdoing of an independent contractor, aside from directly authorised acts.2
The first steps in dismantling the requirement for an employment relationship were in recognising that working relationships that did not fit the traditional analysis of employment could nonetheless give rise to vicarious liability. In Cox v Ministry of Justice (Cox),3 Lord Reed noted that "in recent years the courts have sought to explain more generally the basis on which vicarious liability can arise out of a relationship other than that of employer and employee'.4 Since 2012, a series of cases has recognised vicarious liability in particular working relationships that do not meet a traditional definition of employment, but which bear certain incidents (defined in Various Claimants v Catholic Child Welfare Society (CCWS) by Lord Phillips5) that could be regarded as "akin to employment' as found in that case between a priest and church, or as between a prisoner performing work duties in a prison and the Ministry of Justice responsible for the prison service (Cox).
Various Claimants v Barclays Bank Plc (Barclays Bank) marks a significant step directly into the once out-of-bounds territory of vicarious liability for acts of independent contractors.6 In this case, the incidents or criteria for the requisite relationship developed in CCWS and Cox were applied to a situation that would otherwise have been traditionally viewed as one of an independent contractor and the court accepted th...
Simm, G 2018, 'Disaster Response in Southeast Asia: The ASEAN Agreement on Disaster Response and Emergency Management', Asian Journal of International Law, vol. 8, no. 1, pp. 116-142.
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Southeast Asia includes some of the states at greatest risk of disasters worldwide, and ASEAN has been at the forefront of using international law to attempt to co-operate in disaster risk reduction and response. The ASEAN Agreement on Disaster Management and Emergency Response (AADMER) is a regional treaty that has been hailed as among the world’s best practice: progressive, comprehensive, and, unusually for a disaster instrument, legally binding. This paper evaluates ASEAN’s responses to two mega-disasters: Cyclone Nargis that hit Myanmar in May 2008 and Super-typhoon Haiyan/Yolanda that hit the Philippines in November 2013. The paper aims further to investigate the role of non-state actors, such as civil society and the private sector, in institutionalizing and implementing AADMER.
Taylor, M, Forbes, M, Opeskin, B, Parr, N & Lanphear, B 2018, 'Further analysis of the relationship between atmospheric lead emissions and aggressive crime: an ecological study', Environmental Health, vol. 17, pp. 1-3.
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After completing our study of lead and aggressive crime [10], it came to our attention that we might have erroneously combined lead in air data from two neighbouring air quality monitoring stations for the Boolaroo, New South Wales (NSW) suburb. We re-examined the data we initially compiled in 2011/2012, and it does appear that data from two neighbouring sites with overlapping names have been combined, as described below. Importantly, this error does not affect the results or conclusions of our original study.
Then, S-N, Carney, T, Bigby, C & Douglas, J 2018, 'Supporting decision-making of adults with cognitive disabilities: The role of Law Reform Agencies - Recommendations, rationales and influence.', International Journal of Law and Psychiatry, vol. 61, pp. 64-75.
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Article 12 of the UNCRPD on equal recognition before the law, places an obligation on member states to 'provide access by persons with disabilities to the support they may require in exercising their legal capacity'. This has resulted in an increased focus on the concept and practice of supported decision-making, as opposed to substitute decision-making, for those with cognitive disabilities. To date, translation of this concept into law has been limited. However, Law Reform Agencies, tasked with reviewing legal decision-making schemes are increasingly recommending incorporation of legally recognised supported decision-making measures. This paper identifies the contribution of Law Reform Agencies' reports and recommendations to the evolving body of knowledge in relation to supported decision-making. In particular, it analyses the rationales for recommendations favouring the introduction of forms of legally recognised supported decision-making and the types of legal models of supported decision-making being recommended by Law Reform Agencies.
Tian, Y 2018, 'Cloud Computing and Cross-Border Transfer Pricing: Implications of Recent OECD and Australi-an Transfer Pricing Laws on Cloud related Multinational Enterprises and Possible Solutions', Rutgers Computer and Technology Law Journal, vol. 44, no. 1, pp. 33-91.
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Cloud computing has significantly changed the way in which information is collected, stored, handled and distributed by individuals, businesses and government agencies. Like many other technology developments, Cloud computing brings us both oppor-tunities and risks. Cloud computing poses significant and difficult questions in tax laws, particularly in the cross-border tax area. As an increasing number of businesses move to cloud computing solu-tions, items we view as tangible products are transformed into in-tangible or digital products. This arguably brings significant chal-lenges to the traditional tax system, which was established on the basis of physical transactions and trade. In international tax, Transfer Pricing is certainly “one of the most important issues.”1 An increasing number of multinational enterprises, particularly the U.S. I.T. Giants, artificially shift profits from high-tax to low-tax countries by a variety of techniques. A study conducted by the U.S. Congressional Research Service in 2015 indicates a significant in-crease in corporate profit shifting over the past several years, and estimates losses from income shifting by multinational corporations are estimated at nearly $100 billion USD per year. This article ex-amines whether and how traditional tax rules on Transfer Pricing, which have their foundations in physical transactions and trade, can apply in the current virtual, digital world of cloud computing. It aims to identify the difficulties current approaches face as they are applied to this developing technology, and attempts to explore some practical solutions for future Transfer Pricing law reforms at both the international and national level by drawing on insights from the Transfer Pricing rules of the OECD and Australia.
Twemlow, J 2018, 'Made by Them, Followed by Us: Challenging the Perception of Law through the Deconstruction of Jurisprudential Assumptions', Griffith Journal of Law and Human Dignity, vol. 6, no. 2, pp. 107-107.
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The standard position within western thought is that the bulk of domestic law derives from, and is legitimised by, the local populous. Through the institution of democratic representation, it is rationalised that the resulting law produced reflects the social consciousness of the population at the time. While there are a number of limitations to this argument, this paper focuses on the juxtaposition of this stance with the public perception that law is inaccessible, complicated, and prestigious. By looking at the ways in which jurisprudential assumptions contribute to this dissonance between law and the public and exploring what accessibility to the law means, this paper argues that law must acknowledge and incorporate different perceptions — that, at its core, access to law is about being able to engage in a conversation.
van Rijswijk, H 2018, 'Complicity as Legal Responsibility', Law & Literature, vol. 30, no. 1, pp. 149-165.
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Complicity is emerging as a key cultural and critical term for understanding settler responsibility in postcolonial contexts – especially in thinking through the sense of responsibility arrived at through transitional justice processes. But what sense can we make of complicity within more pedestrian legal processes? Here, I examine an emergent narrative of complicity in “everyday law” through the framework of evaluating harms provided by the Royal Commission into Institutional Reponses to Child Sexual Abuse (“the Commission”). I analyze one case study in particular – the 19th public hearing of the Commission was held between October 22 and 31, 2014, and on November 14, 2014 (“the Bethcar Case Study”) – to provide a reading of complicity in the context of everyday legal proceedings that took place within the wider context of Australia's postcolonial reckoning of harms suffered by the Stolen Generations. This article focuses on the role and conduct of lawyers, and of law, in the civil proceedings relating to institutional responsibility for abuse, a process at a seeming distance from the scene of original trauma. I argue that the Commission makes available a narrative of the lawyers’ role in the ongoing violence against survivors – one story and case study that, as it concerns abuse in the context of the removal of Aboriginal children, is part of wider structural violence against Aboriginal people. The Commission provides a rich source for analyzing these legal processes and provides an archive of lawyers’ responsibility that is not normally made available through law. It examines the complicity of the legal profession in harms produced by the legal system itself.
van Rijswijk, HM & Crofts, P 2018, 'Introduction: Implicated legal subjects', Law and Literature, vol. 30, no. 1, pp. 1-9.
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Vijeyarasa, R 2018, 'Women leaders in a man's world: A glimpse into Australia's foreign policy under Gillard - Part I', Center for Feminist Foreign Policy.
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Women make the world a better place for other women. Or do they? Some maintain that a woman in the top job will mean a brighter future for fellow women. However, we cannot even accept at face value the assumption that women leaders are good for women. This two-part series explores the case of Julia Gillard, Australia’s first and thus far only female Prime Minister (from 2010-2013), regarding the issue of women’s rights in her domestic and foreign policy agenda. Vijeyarasa discusses.
Vogl, A 2018, 'The Genre and Politics of Refugee Testimony', Law and Literature, vol. 30, no. 1, pp. 81-104.
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This article explores the genre and form of narratives that refugee applicants must present in order to move from refugee applicants to (refugee) citizens. It addresses these narratives as they feature in the adjudicative setting of the oral hearing within refugee status determination (RSD) processes. My argument is that the generic aspects of credible refugee testimony constitute and reflect the non-citizen subject whom refugee-receiving states are willing to accept. Through a close reading of testimonial forms and dialogue within the oral hearing, I show that the narratorial voice required of refugees is that of the realist novel's omniscient narrator, who can confidently account for herself and others. Second, drawing on Joseph R Slaughter's work on the relationship between the novel and human rights discourse, I argue that the narrative of a ‘genuine’ refugee is marked by the literary conventions of the Bildungsroman. Just as in the reconciliatory genre of the Bildungsroman, refugees must present their evidence in the form of a linear narrative that moves towards self-possession and sovereignty, and that resolves in incorporation into the nation-state and citizenship.
Vrdoljak, A 2018, 'Introductory Note to Prosecutor v Ahmad Al Faqi Al Mahdi: Judgment and Sentence and Reparations Order (International Criminal Court)', International Legal Materials, vol. 57, no. 1, pp. 17-79.
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On September 27, 2016, Trial Chamber VIII of the International Criminal Comt (ICC or Court) delivered its Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi. On August 17, 2017, it rendered the Reparations Order in this case. 2 The Court for the first time found a defendant responsible for intentionally attacking protected cultural and religious sites, while relying on specialized treaties for the protection of cultural heritage. It is also the first time that an international criminal court, while drawing on international human rights law, has delivered an order for reparations pertaining to this international crime. The tension between the Court's Judgment and Sentence and its Reparations Order highlights that these two areas of international law, international cultural heritage law and international human rights law, remain unaligned.
Vrdoljak, A 2018, 'World Heritage and Illicit trade in culture', World Heritage Review, vol. 87, pp. 6-12.
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Vrdoljak, AF 2018, 'Indigenous peoples, human rights and world heritage', International Journal of Cultural Property, vol. 25, no. 2.
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Indigenous peoples' emphasis on protecting their cultural heritage (including land) through a human rights-based approach reveals the synergies and conflicts between the World Heritage Convention and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This article focuses on how their insistence on the right to participate effectively in decision-making and centrality of free, prior, and informed consent as defined in the UNDRIP exposes the limitations of existing United Nations Educational, Scientific and Cultural Organization and World Heritage Convention processes effecting Indigenous peoples, cultures, and territories and how these shortcomings can be addressed. By tracking the evolution of the UNDRIP and the World Heritage Convention from their drafting and adoption to their implementation, it examines how the realization of Indigenous peoples' right to self-determination concerning cultural heritage is challenging international law to become more internally consistent in its interpretation and application and international organizations to operate in accordance with their constitutive instruments.
Vrdoljak, AF 2018, 'Indigenous peoples,world heritage,and human rights', International Journal of Cultural Property, vol. 25, no. 3, pp. 245-281.
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© International Cultural Property Society 2018. Indigenous peoples' emphasis on protecting their cultural heritage (including land) through a human rights-based approach reveals the synergies and conflicts between the World Heritage Convention and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This article focuses on how their insistence on the right to participate effectively in decision-making and centrality of free, prior, and informed consent as defined in the UNDRIP exposes the limitations of existing United Nations Educational, Scientific and Cultural Organization and World Heritage Convention processes effecting Indigenous peoples, cultures, and territories and how these shortcomings can be addressed. By tracking the evolution of the UNDRIP and the World Heritage Convention from their drafting and adoption to their implementation, it examines how the realization of Indigenous peoples' right to self-determination concerning cultural heritage is challenging international law to become more internally consistent in its interpretation and application and international organizations to operate in accordance with their constitutive instruments.
Waller, A, Sanson-Fisher, R, Ries, N & Bryant, J 2018, 'Increasing advance personal planning: the need for action at the community level', BMC Public Health, vol. 18.
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Wilding, D & King, I 2018, 'Reviewing the Layered Model', Intermedia, vol. 1, no. 46, pp. 13-17.
Blagg, H & Anthony, T 1970, ''Stone Walls Do Not a Prison Make': Bare Life and the Carceral Archipelago in Colonial and Postcolonial Societies', HUMAN RIGHTS AND INCARCERATION: CRITICAL EXPLORATIONS, Human Rights and Imprisonment Symposium, PALGRAVE, Wellington, NEW ZEALAND, pp. 257-283.
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Booth, T 2018, 'Law, integrity and judicial empathy: managing direct and personal cross-examination of victims of family violence by alleged perpetrators of that violence in family law proceedings.', Judging, Emotion and Emotion Work, International Institute for the Sociology of Law workshop, Onati, Spain.
Booth, T 2018, 'The Law's response to victims of intimate partner violence - different legal domains, shifting legal identities and traumatic legal processes', International Victimology symposium, Hongkong.
Dehm, S 2018, 'Panel Remarks on Doing ‘Southern Histories’ of International Law(s) in our Times', Third World Approaches to International Law, Singapore.
Dehm, S 2018, 'Panel Remarks on Migration in International Legal History', Law and Society Annual Meeting, Toronto, Canada.
Dorsett, S 2018, 'Displacing Tikanga: ‘Micro-encounters’ in the Courts of the Coloniser', ANZLHS Annual Conference 2018, Wollongong.
Dorsett, S 2018, 'Extra-Territoriality in Empire: The Foreign Office, the Colonial Office and the Foreign Jurisdiction Act 1843', Legal Histories of Empire: Perspectives from the Colonized, University of West Indies, Cave Hill, Barbados.
Dorsett, SG 2018, 'Challenge and Change in the Crown Colony Period', Challenge and Change: The Continuing Evolution of the Judiciary in New Zealand, the Annual Conference of the New Zealand Institute for Judicial Studies, Wellington, New Zealand.
Dorsett, SG 2018, 'Extra-Territoriality in Empire: The Foreign Office, the Colonial Office and the Foreign Jurisdiction Act 1843', Legal Histories of Empire: Perspectives from the Colonized, University of the West Indies, Cave Hill, Barbados.
Fallah, KL 2018, 'Acquittals and the Stakes of International Criminal Justice', 2018 Australian International Criminal Law Workshop, University of Tasmania, Hobart.
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What is at stake in an ICC prosecution, and how are these stakes laid bare in the aftermath of the acquittal of a high-profile accused? Through a close examination of the reception of the recent Bemba acquittal, this paper interrogates the claims and aspirations of the international criminal project and asks what we mean when we seek to frame an acquittal as a ‘success’ or a ‘failure’ for international criminal law. In this critical work, I argue that mainstream reactions to the acquittal suggest that we have pinned too much hope on the Bemba case in particular, and we continue to ask too much of the international criminal trial as a means of accounting for large-scale atrocity.
Fallah, KL 2018, 'Humanitarians and the Production of Corporate Violence on the Battlefield: A Provocation in Four Frames', Corporate Power in Global Society II, Harvard Law School.
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The laws of war and private military violence are co-constitutive. At the first conference on Corporate Power in Global Society, I built the case that private military contractors exercise power and seek legitimacy by shaping war and shaping the laws of war. This time, I approach the problem of private military violence from another angle, looking instead at what are ostensibly humanitarian legal strategies of resistance to the private military industry. I argue that four key strategies deployed by humanitarians (the move to ‘muscular humanitarianism’; a focus on ‘human security and development’; the embrace of multi-stakeholder regulatory initiatives; and the proscription of mercenarism) have each worked to produce corporate violence on the battlefield. Rather than constraining violence in war, these strategies have served to consolidate corporate power and entrench the private military contractor's position on the battlefield. I explore the idea that this phenomenon is a product of the humanitarian sector's failure to engage in self-reflection and critique. Humanitarian lawyers and policy-makers have underestimated corporate power and have overestimated the emancipatory potential of international law.
Fallah, KL 2018, 'Private Military Contractor Regulation and the "Muscle Trade" in Asia, Africa and the Pacific: Hidden Narratives of Contractor Vulnerability and Exploitation', Harvard Law School Institute for Global Law and Policy Scholars Workshop, Bangkok, Thailand.
Fallah, KL 2018, 'Restraining or Legitimating Contractor Violence? An Appraisal of Multi-Stakeholder Initiatives to Regulate the Private Military industry', Second Annual Australian Red Cross International Humanitarian Law Symposium, University of Tasmania, Hobart.
Fallah, KL 2018, 'Strangers with Knives Between Their Teeth: Mercenarism's Escape from the Turn to Criminalisation in International Law', Third World Approaches to International Law Conference, Faculty of Law, National University of Singapore.
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The crime of mercenarism is the international crime that never was. Although it was one of the first crimes to be proscribed in international and regional treaties, mercenarism escaped the overwhelming turn to criminalisation in international law: the mercenary conventions did not translate into a practice of domestic or international prosecutions for the specific crime of mercenarism, and the offence of mercenarism never found its way into the statutes of the ad hoc international criminal tribunals or the International Criminal Court (‘ICC’). Instead, war-fighting for profit has been normalised and legally-privileged through a series of international regulatory efforts that see private military contractors invited to self-regulate, contribute to multi-stakeholder oversight initiatives, and submit to voluntary codes of conduct that promise a ‘value-add’ for industry.
In this paper, I offer a TWAIL account of international law’s half-hearted and inchoate efforts at criminalising mercenarism. First, I argue that the prohibition of mercenarism was largely a concern of decolonising and decolonised states, and I contend that from the very beginning, the weak law of mercenarism was an example of a fundamental refusal to accede to Third World demands of international law. The collapse of the norm against mercenarism is emblematic of international law’s routine privileging of the violence of the West in the name of universality.
Second, I ask what we are to make of mercenarism’s quiet departure from international criminal law. While much discussion of the global inequalities produced by the ICC turns on practices of selective application of the Rome Statute and a prosecutorial focus on suspects from the Global South, in this paper I pursue another TWAIL concern: identifying inequalities produced at the substantive, rather than procedural or structural, level of international criminal law. I argue that the failure to designate mercenarism as an international crime withi...
Goldblatt, B & Steele, LR 2018, 'Women and girls with disabilities and menstruation: Issues of intersectional discrimination', Berkeley Comparative Equality and Anti-Discrimination Law Study Group Annual Conference, Melbourne, Australia.
Hacker, C, Debono, DS, Carter, DJ & Travaglia, J 2018, 'Falling through the cracks: the invisible workforce', Law and Society Association of Australia and New Zealand Conference 2018: Inclusion, Exclusion and Democracy, Wollongong, Australia.
Heino, B 2018, 'The Lynchpin of Antipodean Fordism: Australia's Metal Trades Award as a Pace-Setter, 1947-63', Law and Society Association of Australia and New Zealand, University of Wollongong.
Hinchcliff, R, Debono, DS, Carter, D & Banks, M 2018, 'Systematic reviews of the evidence supporting three methods of external accreditation assessment', ISQua’s 35th International Conference - Heads, Hearts and Hands: Weaving the Fabric of Quality and Safety in Healthcare. International Society for Quality in Health Care, Kuala Lumpur, Malaysia.
Methven, EP 2017, '"A Woman’s Tongue" Gender, Swearing and the Law', Law and Society Association of Australia and New Zealand, University of Otago, Dunedin, New Zealand.
Rock, E 2018, 'Locating the Courts within the Australian Accountability System', The Frontiers of Public Law, University of Melbourne.
Rock, E 2018, 'Misfeasance in Public Office: A Tort of Substance', Obligations IX, University of Melbourne.
Ryan, P & Lai, T 2018, 'Stanford CodeX', Beyond ICOs – Blockchain as legal tech, Stanford CodeX FutureLaw, Stanford University.
Steele, LR 2018, 'Towards a Legal Account of (the Endurance of) Disability Institutions’', Disability and (Virtual) Institutions?: Interventions, Integration and Inclusion, International Institute for the Sociology of Law, Onati, Spain.
Tian, Y 2018, 'Blockchain and IP-related Transfer Pricing Arrangement', Law Tech Talks, Law and Technology Centre of the University of Hong Kong Law School.
Tian, Y 2018, 'Cloud Computing and Cross-Border Transfer Pricing: Smart Contract as a Supplementary Solution', Conference on Legal Problems with the Application of Smart Contracts and the Way Forward, City University of Hong Kong Law School, Hong Kong.
Tian, Y 2018, 'IP-related Transfer Pricing and Blockchain - Compliance of Transfer Pricing Rules & Blockchain as a Supplementary Solution', 2018 International Colloquium on IP Law and Cyberspace Law, Intellectual Property Law Research Institute, China University of Political Science and Law, Beijing China.
Vijeyarasa, R 2018, 'Australia's Modern Day Slavery Acts: How legal language can reinforce misconceptions about trafficking, sex work and labour exploitation', Law and Society Association of Australian and New Zealand: Inclusion, Exclusion, Democracy, University of Wollongong.
Vijeyarasa, R 2018, 'Political personas of Asia's women leaders and their failure to represent the women they led', https://sydney.edu.au/content/dam/corporate/documents/sydney-southeast-asia-centre/asaa-2018/ASAA2018_Book%20of%20Abstracts.pdf, Biennial Asian Studies Association of Australia, Sydney, Australia.
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As of August 2015, only 18 women leaders worldwide had reached the highest level of elected office. Contrary to expectations that women leaders will promote the interests of fellow women, it is a misconception and arguably an unreasonable expectation that a woman leader will necessarily want to promote the rights and interests of women. Moreover, many such leaders are plagued by an embedded culture of “institutional masculinity” in most parliaments, making it difficult to introduce a women’s rights friendly agenda, resulting in claims of “western feminism” at play. Yet, despite the limited positive roles that they individually played in the lives of the women they led, all three women leaders – like many in Asia – have been framed as Asia’s tigers. Analyzing the image of the tiger, this paper examines the question ‘For whom and what did they fight?’