Journal articles on the topic 'Australian Court system'
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1
Johnston, Jane. "Court on Camera: Television Coverage of Australian Legal Proceedings." Media International Australia 100, no. 1 (August 2001): 115–27. http://dx.doi.org/10.1177/1329878x0110000112.
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Despite widespread legal analysis and critical review over the past 20 years, television access into the Australian court system has been slow and piecemeal, with Australia falling behind Canadian and New Zealand initiatives in this area. A recent major report into camera access in the Federal Court has refocused attention on this area, but analysis continues to be primarily from a legal perspective rather than a media one. This paper considers the televised court coverage in Australia to this point, analyses change in the international environment and suggests possible futures for the televising of Australian courts, while also attempting to lay some foundations for discussion beyond the legal, and into the media, domain.
2
May, Lauren, and Mark Burdon. "Information Protection Management Structures in Australian E-courts." Journal of Theoretical and Applied Electronic Commerce Research 1, no. 3 (December 1, 2006): 58–67. http://dx.doi.org/10.3390/jtaer1030022.
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This issues paper is concerned with ensuring the integrity of Australia’s e-court processes through the development of information protection standards and protocols. The integrity of the court process is important to the national interest because businesses and citizens depend on the certainty of court decisions, naturally assuming that their information and privacy is protected. This paper is a catalyst for future research leading to the creation of an information protection framework, including policies and standards enabling courts to define the use of courtroom technologies, thus ensuring that their design and application is grounded within established information protection principles. Without substantiation of the quality of technological structures and processes used by e-courts, the system of certainty upon which the courts and law are based has the potential to become inherently uncertain.
3
Hughes, Julie. "Becoming me: How transgender teens navigate the Family Court System." Alternative Law Journal 42, no. 4 (November 27, 2017): 261–66. http://dx.doi.org/10.1177/1037969x17733156.
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Transgender minors are among the most vulnerable, discriminated against and disenfranchised of adolescents, and Australian law imposes a heavy yoke should they wish to begin treatment for gender dysphoria. Even with the full support of health professionals and parents, Australia takes the unique worldwide stance of requiring court approval. A way must be made to spare transgender teenagers from this fearsome, embarrassing and expensive court process. Informed consideration is important, but a multi-disciplinary tribunal could offer this, while minimising the stress and expense. This article begins and ends with Arnold’s story – a snapshot of a transgender teen, facing the Family Court and wanting to ‘become me’.
4
Stevens, Tracey, and George Williams. "A Supreme Court for the United Kingdom? A view from the High Court of Australia." Legal Studies 24, no. 1-2 (March 2004): 188–209. http://dx.doi.org/10.1111/j.1748-121x.2004.tb00247.x.
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The High Court created by Australia's 1901 Constitution first sat on 6 October 1903. A century on, it is an apt time to consider how the record of the Court can contribute a different perspective to the debate over a possible Supreme Court for the United Kingdom. Of course, it cannot be assumed that common views are held of this record. Indeed, the role of the High Court and its place in the Australian political system remains hotly contested.
5
Henning, Terese. "Ameliorating vulnerability arising from involvement with criminal courts." Journal of Criminological Research, Policy and Practice 2, no. 3 (September 19, 2016): 185–95. http://dx.doi.org/10.1108/jcrpp-10-2015-0046.
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Purpose The purpose of this paper is to provide an overview of major mechanisms instituted in Australia to ameliorate the experience of vulnerability arising as a corollary of involvement in Australian criminal courts as defendants, victims or witnesses of crime or family members/friends of such people. Design/methodology/approach The paper begins by providing an overview of two major categories of vulnerability within the criminal justice system – generally experienced vulnerability arising as a corollary of involvement in Australian criminal courts and attribute-based vulnerability. It focusses on the former locating it within a human rights framework. It then outlines dominant responses to this form of vulnerability. Finally it considers the potential for the Court Network program to achieve a more integrated approach to ameliorating this form of vulnerability. Findings The paper takes the view that major responses to systemic vulnerability in the criminal justice system fall short of adequately managing this form of vulnerability. It suggests that the Court Network model has the potential to address some lacunae in other responses and importantly to provide a gateway to them. Originality/value It explores an aspect of vulnerability that is now infrequently addressed and considers one option to supply lacunae in other major responses that has not yet been brought into the scholarly discussion in any significant way.
6
McEniery, Ben. "Physicality in Australian Patent Law." Deakin Law Review 16, no. 2 (December 1, 2011): 461. http://dx.doi.org/10.21153/dlr2011vol16no2art110.
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It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods — namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.
7
Sarmiento, Eliana, Kate Seear, and Suzanne Fraser. "Enacting Alcohol and Other Drug (Testing)-Related Harms in an Australian Drug Court." Contemporary Drug Problems 46, no. 3 (September 2019): 282–303. http://dx.doi.org/10.1177/0091450919865299.
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Alcohol and other drug testing is used in a range of environments including workplaces, schools, sporting tournaments, substance treatment and criminal justice system settings. It is also the cornerstone of the drug court model. Despite its centrality, it has received little scholarly attention. In this article, we address this gap through a study of how the drug-testing regime unfolds at one Australian drug court. Based on ethnographic observation, qualitative interviews with drug court participants, and analysis of drug court documents, this article examines how participants experience drug testing. Drawing on Carol Bacchi’s poststructuralist policy analysis framework, we examine how the “problem” of substance “dependence” is conceptualized in one drug court’s approach to drug testing, and we consider some of the effects of the policy. We argue that the everyday and seemingly mundane ritual of urination becomes a core technique for the governance of drug court subjects and note that the testing regime is onerous, regimented, and invasive. We also trace some of the effects of this policy and its implementation for participants. We suggest that the urine-testing regimen might operate counterproductively, intensifying participants’ involvement with the criminal justice system. Its reliance on an abstinence model may heighten exposure to substance-related harms and segregate drug court participants from the “rest of society,” inhibiting other aspects of their lives, including their relationships and employment prospects. Overall, we argue that these effects are at odds with the stated purposes of the drug court. We conclude with some reflections on claims about the therapeutic value and potential of drug courts and suggest opportunities for reform.
8
Gray, Anthony. "Discriminatory Taxation in Light of Fortescue: Its Implications for the Development of Northern Australia." Federal Law Review 42, no. 1 (March 2014): 1–23. http://dx.doi.org/10.22145/flr.42.1.3.
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In the recent Fortescue decision, the High Court made some interesting observations regarding interpretation of the word ‘discrimination’ in the context of the Federal Government's power with respect to taxation in s 51(2) of the Australian Constitution. Coincidentally, the Federal Government has commenced consideration of options for the development of northern regions of Australia. Of course, one option would be to introduce a variable taxation system to encourage businesses and individuals to be based, and/or invest, in northern Australia. This article considers possible constitutional issues associated with variable taxation schemes overtly favouring businesses and individuals based in the ‘north’, given the recent High Court decision.
9
Fraser JA, Hugh B. "2017 WA Lee Lecture: The Australian Law of Contractual Penalties." QUT Law Review 18, no. 2 (January 25, 2019): 111. http://dx.doi.org/10.5204/qutlr.v18i2.763.
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In 2005, in Ringrow Pty Ltd v BP Australia Pty Ltd,[1] the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) observed that Lord Dunedin’s formulation in Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd,[2] of the principles governing the identification, proof and consequences of penalties in contractual stipulations had endured for 90 years and had been applied countless times in the High Court and other courts. (The Court cited, as examples, O’Dea v Allstates Leasing System (WA) Pty Ltd,[3] Acron Pacific Ltd v Offshore Oil NL,[4] AMEV-UDC Finance Ltd v Austin,[5] Stern v McArthur,[6] and Esanda Finance Corporation Ltd v Plessnig.[7]) The Court proceeded on the basis that Dunlop continued to express the law applicable in Australia, leaving any more substantial reconsideration for a future case where reconsideration or reformulation might be in issue.
[1] (2005) 224 CLR 656 [12].
[2] [1915] AC 79, 86–8.
[3] (1983) 152 CLR 359, 368, 378, 399, 400.
[4] (1985) 157 CLR 514, 520.
[5] (1986) 162 CLR 170, 190.
[6] (1988) 165 CLR 489, 540.
[7] (1989) 166 CLR 131, 139, 143, 145.
10
Newhouse, George, Daniel Ghezelbash, and Alison Whittaker. "The Experience of Aboriginal and Torres Strait Islander Participants in Australia’s Coronial Inquest System: Reflections from the Front Line." International Journal for Crime, Justice and Social Democracy 9, no. 4 (November 26, 2020): 76–89. http://dx.doi.org/10.5204/ijcjsd.1691.
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This article explains the way that Australian coroners’ courts often fail Aboriginal and Torres Strait Islander peoples. We discuss the gap between the expectations of families of the deceased and the realities of the process of the coroner’s court. The discussion is illustrated with reference to real-life examples, drawn from the authors’ experiences representing the families of the deceased.
11
Spottiswood, Sarah. "The use of Foreign Law by the High Court of Australia." Federal Law Review 46, no. 2 (June 2018): 161–91. http://dx.doi.org/10.1177/0067205x1804600201.
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Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court's use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court's willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court's use of foreign decisions and to address the normative question of how the High Court should use foreign law.
12
Bainbridge, Jason. "‘Rafferty's Rules’: Australian Legal Dramas and the Representation of Law." Media International Australia 118, no. 1 (February 2006): 136–49. http://dx.doi.org/10.1177/1329878x0611800116.
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This paper explores the problems involved in representing the Australian legal system on film and television, how these problems are addressed, and what commentary these texts are making about the practice of law in Australia. It is suggested that the formal and dress requirements of the Australian legal system make the trial process a ritual based around the reification of the lawyer and the stigmatisation of the accused — in short, a degradation ceremony — and that Australian legal dramas reflect this. But because of this lack of dynamism in the courtroom, Australian legal dramas must seek alternative sits of drama — often domestic, and invariably outside the courtroom. In this way, they present a more holistic view of the lawyer/judge's life, reinterpreting court proceedings (and the institution of law itself) as a repressed set-up by actively displacing dramatic tension outside the courtroom, thus denying the courtroom the centrality it occupies in American representations and, by extension, American culture.
13
Powell, Claire. "Comparison and Co-existence: Sources and Purpose of Authority in the Australian, Madayin and Talmudic Legal Systems." Udayana Journal of Law and Culture 1, no. 2 (July 31, 2017): 141. http://dx.doi.org/10.24843/ujlc.2017.v01.i02.p04.
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This article will compare Australian, Madayin and Talmudic law in terms of their respective sources and purposes. It will focus on the characterisation of each system to highlight conceptual similarities and differences which affect their operation and, in particular, their commensurability with other systems. Specific areas of law concerned with coexistence are identified as being both crucial and particularly problematic. Notwithstanding Australian government statements and High Court rulings asserting the sovereignty of Australian law, it will be argued that no legal system is self-contained Accommodations are essential and require legislators to grapple with the difficulties of reconciling differing conceptualisations using an informed comparative framework. Talmudic law is considered here as an example of a system which has demonstrated the ability to coexist adaptively with a variety of other systems without compromising its integrity.
14
Guy, Scott, and Barbara Ann Hocking. "Why Military Matters: Re Colonel Arid; Ex parte Alpert and the 'Service Connection' Test versus the 'Service Status' Test: Competing Approaches to the Triggering of the Defence Power." Deakin Law Review 13, no. 2 (December 1, 2008): 177. http://dx.doi.org/10.21153/dlr2008vol13no2art163.
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<p>With political changes afoot in both Australia and the United States, it is timely to review military regimes and remind ourselves how greatly they matter. Section 51(vi) of the Constitution authorises the Commonwealth Parliament to legislate with respect to: ‘The naval and military defence of<br />the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth…’ One of the concerns in relation to s 51(vi) has been whether this provision supports the establishment of military tribunals and, further, whether these tribunals can<br />be regarded as exercising judicial power of the Commonwealth and thus be regarded as properly constituted courts for the purposes of Ch III of the Australian Constitution. The High Court’s 2004 decision in Re Colonel Aird; Ex parte Alpert has established that military tribunals and, more generally, the military discipline system will be regarded as constitutionally<br />valid and a properly constituted court for the purposes of Ch III provided that it is applied to conduct which can be regarded as ‘service connected’ or invoked for the purposes of enforcing and maintaining discipline among the defence forces. This article examines the decision in Aird’s Case and the associated ‘service connection’ test as a basis for supporting the constitutional validity of the military tribunal system. The concluding section of the article develops some further observations on the newly created Australian Military Court.</p>
15
Kolte, Shilpa G., and Jagdish W. Bakal. "Big Data Summarization Using Novel Clustering Algorithm and Semantic Feature Approach." International Journal of Rough Sets and Data Analysis 4, no. 3 (July 2017): 108–17. http://dx.doi.org/10.4018/ijrsda.2017070108.
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This paper proposes a big data (i.e., documents, texts) summarization method using proposed clustering and semantic features. This paper proposes a novel clustering algorithm which is used for big data summarization. The proposed system works in four phases and provides a modular implementation of multiple documents summarization. The experimental results using Iris dataset show that the proposed clustering algorithm performs better than K-means and K-medodis algorithm. The performance of big data (i.e., documents, texts) summarization is evaluated using Australian legal cases from the Federal Court of Australia (FCA) database. The experimental results demonstrate that the proposed method can summarize big data document superior as compared with existing systems.
16
Mahoney, P. D. "Private Settlement - Public Justice?" Victoria University of Wellington Law Review 31, no. 1 (April 3, 2000): 225. http://dx.doi.org/10.26686/vuwlr.v31i1.5966.
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In this paper, the Principal Family Court Judge discusses the pros and cons of "court-annexed" mediation services. He notes some powerful constitutional arguments against such forms of mediation but eventually agrees with the stand taken by the Australian and New Zealand Council of Chief Justices in support of a fully serviced court-based system. This paper was delivered at the New Zealand Institute for Dispute Resolution Colloquium held on 29 June 1999.
17
Marchetti, Elena, and Kathleen Daly. "Indigenous Partner Violence, Indigenous Sentencing Courts, and Pathways to Desistance." Violence Against Women 23, no. 12 (September 13, 2016): 1513–35. http://dx.doi.org/10.1177/1077801216662341.
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Mainstream sentencing courts do little to change the behavior of partner violence offenders, let alone members of more socially marginal groups. Indigenous offenders face a court system that has little relevance to the complexity of their relations and lived experiences. Assisted by respected Elders and Community Representatives, Australian Indigenous sentencing courts seek to create a more meaningful sentencing process that has a deeper impact on Indigenous offenders’ attitudes and, ultimately, their behavior. Drawing from interviews with 30 Indigenous offenders, we explore the ways in which the courts can motivate Indigenous partner violence offenders on pathways to desistence.
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Zvieriev, Ie O. "Teoh’s case on legitimate expectations in interpretation of international treaties. Lessons for Ukraine." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 287–92. http://dx.doi.org/10.33663/2524-017x-2021-12-48.
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The article provides a detailed overview of a famous Teoh’s case decided by High Court of Australia in 1995, focusing mainly on the issue of legal interpretation of legitimate expectations arising from ratified international treaties not implemented into the domestic legal system. The abovementioned case has been considered a novel approach of the court acting in dualist state. This approach was, however not upheld in further jurisprudence of the Australian High Court namely due to quite harsh response of administrative bodies and subsequent legislation which has further been adopted to specifically address this issue by Australian parliament. This does not, however deny the case’s significance in terms of scholarly attention to interpretation issues it has raised. Ukraine can view this case as an example as it does have its own problems with the status and interpretation of international treaties in domestic legal system. Unlike common law countries adhering to dualist approach to international law reception, Ukrainian Constitution recognizes ratified international treaties to be part of domestic legislation automatically, however it is silent on the status of these treaties in Ukrainian domestic legislation which at times causes certain problems with their interpretation and implementation. The article makes a try to solve the abovementioned issues by referring future interpreters to an alternative approach of international treaties’ interpretation to Article 8 of the Constitution of Ukraine dealing with the rule of law principle. It is the author’s position stipulated in the article that applying Article 8 in terms of the interpretation of international treaties in Ukrainian domestic law enriches the argumentation and shall be viewed as primary source of application to the issue. Keywords: international treaties, interpretation, legitimate expectations, priority of international treaties, Australia, migration law, children’s rights.
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MCASEY, BRIDGET. "A CRITICAL EVALUATION OF THE KOORI COURT DIVISION OF THE VICTORIAN MAGISTRATES’ COURT." Deakin Law Review 10, no. 2 (July 1, 2005): 654. http://dx.doi.org/10.21153/dlr2005vol10no2art298.
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<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The Koori Court Division of the Magistrates’ Court in Victoria has been in operation since 2002. This article seeks to assess its development and operation, with the perspective that the Division has the potential to ad- dress problems Aboriginal people face in the criminal justice system and society generally. The author takes the view, however, that to fulfil this po- tential, the Division’s development and operation must function in a way that makes some effort to adjust the power imbalance between the Abo- riginal and non-Aboriginal community, The author sees a critical ap- proach to an evaluation of the Division as crucial, considering the background of treatment Aboriginal people have received at the hands of the criminal justice system and Australian society as a whole, and the negative impact of previous government policies.</span><span>] </span></p></div></div></div>
20
Spaull, Andrew. "The State School Teachers Decision (High Court 1929) Revisited." Australian Journal of Education 31, no. 3 (November 1987): 236–51. http://dx.doi.org/10.1177/000494418703100302.
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The State School Teachers decision of 1929 was recently overturned in the High Court (June 1986) thereby opening up the possibility for federal teachers organizations to obtain registration in the federal arbitration system, and eventually obtain one or more federal awards. The 1929 decision by the High Court of Australia was a significant decision in education and industrial relations, because it prevented state teachers and other public employees obtaining access to federal awards for the next 54 years. The decision, however, was veiled in unsettled legal argument, because the High Court overturned much of its expansive thinking of the 1918–25 period. Later generations of academic lawyers described the decision as a ‘bad one’ or ‘an anomalous decision’, but they and the current High Court failed to give any satisfactory explanation of why the Court had reached its decision. This paper offers such an explanation, arguing that the decision was not based on law (or the educational situation) but on the High Court's perceptions of the politics of federal-state relations in the period. The state teachers who had asked for a High Court ruling on the application of the Commonwealth's industrial relations powers (section 51 XXXV of the Constitution) to their work and employment were thus dragged momentarily onto the centre stage of Australian politics and law. They found themselves denied access to a federal award because the High Court felt that the federal arbitration ‘experiment’ had caused too much embarrassment to the federal system of government.
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Beatrice, Megan. "A problem-solving approach to criminalised women in the Australian context." Alternative Law Journal 46, no. 1 (January 24, 2021): 41–46. http://dx.doi.org/10.1177/1037969x20985104.
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The upward trend of incarceration rates persists among women in Victoria, with increasingly punitive sentencing and onerous new bail laws. At the same time, the complex needs of women in the criminal justice system are becoming the focus of greater study and documentation. This article presents the case for a specialist women’s list under the Magistrates’ Court of Victoria jurisdiction, based in principles of therapeutic jurisprudence and procedural justice. While the list aims to reduce offending by addressing criminogenic factors unique to women, the picture is far bigger; the Victorian Women’s Court ultimately promotes justice for women who commit crimes.
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Bartkowiak-Theron, Isabelle, and Emma Colvin. "Understanding the impact of bail refusal on the Australian public health system." Journal of Community Safety and Well-Being 7, no. 4 (December 15, 2022): 174–77. http://dx.doi.org/10.35502/jcswb.280.
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Australia’s incarceration rates are the highest they have been in a century. Bail and remand contribute much to this trend, and yet the reasons why police refuse bail to vulnerable people are currently unclear. What is clear, though, is that a disproportionate number of vulnerable people are being refused bail, resulting in periods of remand incarceration which end up either longer than the prison sentence given by a magistrate, or undue if the alleged offender is found not guilty. This tendency is particularly observable for the most vulnerable: Aboriginal people, children, people with a mental health condition, the homeless, and women. The authors investigated how magistrates grant or refuse bail as part of the court process, then looked at two tipping points bracketing the bail continuum: 1) policing interactions leading to court appearance, and 2) the impact of bail refusal on public health and community safety and well-being in general. In the present article, they examined how authorized police officers consider refusing or granting bail. This new project aims to investigate the police bail decision-making process and generate new knowledge about the impact of bail refusal on vulnerable people. Through an iterative process with national practitioners and international experts, the authors aimed to identify factors to consider when bail involves vulnerable people. Expected outcomes included the development of mechanisms to benefit the full remit of criminal justice, reduce costs, and improve fairness, accountability, and procedural justice.
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Blatch, Chris, Andrew Webber, Kevin O’Sullivan, and Gerard van Doorn. "Cost-benefits of a domestic abuse program for Australian offenders." Journal of Criminological Research, Policy and Practice 3, no. 1 (March 13, 2017): 61–74. http://dx.doi.org/10.1108/jcrpp-10-2016-0026.
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Purpose The purpose of this paper is to determine recidivism costs and benefits for 1,030 community-based male offenders enrolled in a domestic abuse program (DAP) compared to an untreated control group (n=1,030) matched on risk factors. Design/methodology/approach The study time frame was October 1, 2007-June 30, 2010 with reconvictions measured to December 31, 2010. Follow up averaged 19 months. Controls received standard community supervision, but no domestic violence group interventions. Follow up measures included court costs for violent and non-violent reconvictions; re-incarcerations and community-based orders costs measured in days. Findings Adjusting for time at risk, DAP enrollees had 29 percent fewer reconvictions, 46 percent fewer violent reconvictions, 34 percent fewer custodial days, but 23 percent more days on community orders. Costs: DAP enrollment avoided $2.52 M in custodial costs, but higher community correction costs (+$773 K) and court costs (+$5.8 K), reducing the DAP’s criminal justice system cost savings to $1.754 M ($8.92 M for the DAP group compared to $10.67M for controls). Cost benefits: when the 64 DAP program costs were deducted ($602 K), the net benefit to the New South Wales criminal justice system was $1,141 M, or $1,108 per enrollee, providing a net benefit/cost ratio of 2.89. If the DAP was completed, the net benefit was $1,820 per offender. These results compares favorably to economic evaluations of other community-based interventions. Practical implications Group interventions for domestically violent (DV) offenders can provide good investment returns to tax payers and government by reducing demand on scarce criminal justice system resources. The study provides insights into justice costs for DV offenders; a methodological template to determine cost benefits for offender programs and a contribution to cost-effective evidence-based crime reduction interventions. Originality/value Using a rigorous methodology, official court, custodial and community correction services costing data, this is the first Australian cost benefit analysis of a domestic violence group intervention, and the first to justify program expenditure by demonstrating substantial savings to the criminal justice system.
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Geissler, Marie. "Contemporary Indigenous Australian Art and Native Title Land Claim." Arts 10, no. 2 (May 11, 2021): 32. http://dx.doi.org/10.3390/arts10020032.
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This paper investigates a select number of examples in which largely non-literate First Nation peoples of Australia, like some First Nations peoples around the world, when faced with a judicial challenge to present evidence in court to support their land title claim, have drawn on their cultural materials as supporting evidence. Specifically, the text highlights the effective agency of indigenous visual expression as a communication tool within the Australian legal system. Further, it evaluates this history within an indigenous Australian art context, instancing where of visual art, including drawings and paintings, has been successfully used to support the main evidence in native title land claims. The focus is on three case studies, each differentiated by its distinct medium, commonly used in indigenous contemporary art—namely, ink/watercolours on paper, (Case study 1—the Mabo drawings of 1992), acrylics on canvas (Case study 2—the Ngurrara 11 canvas 1997) and ochre on bark, (Case study 3—The Saltwater Bark Collection 1997 (onwards)). The differentiation in the stylistic character of these visual presentations is evaluated within the context of being either a non-indigenous tradition (e.g., represented as European-like diagrams or sketches to detail areas and boundaries of the claim sites in question) or by an indigenous expressive context (e.g., the evidence of the claim is presented using traditionally inspired indigenous symbols relating to the claimant’s lands. These latter images are adaptations of the secret sacred symbols used in ceremonies and painting, but expressed in a form that complies with traditional protocols protecting secret, sacred knowledge). The following text details how such visual presentations in the aforementioned cases were used and accepted as legitimate legal instruments, on which Australian courts based their legal determinations of the native land title.
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Little, Simon, Anna Stewart, and Nicole Ryan. "Restorative Justice Conferencing: Not a Panacea for the Overrepresentation of Australia’s Indigenous Youth in the Criminal Justice System." International Journal of Offender Therapy and Comparative Criminology 62, no. 13 (March 19, 2018): 4067–90. http://dx.doi.org/10.1177/0306624x18764524.
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Restorative justice conferencing is a police diversionary strategy used extensively in Australian jurisdictions to channel young offenders away from formal court processing. Advocates view conferencing as culturally appropriate and a means to reduce the overrepresentation of Indigenous young people because it is rooted in Indigenous justice traditions. However, whether conferencing is effective at reducing recidivism by Indigenous young people compared with non-Indigenous young people remains unknown. We examine this using a longitudinal cohort of youth offenders from Australia. Propensity score matching was used to match Indigenous and non-Indigenous young people at their first conference and examined reoffending outcomes to explore its efficacy at reducing recidivism ( n = 394). Results indicate that, despite statistically controlling for factors related to reoffending, recidivism levels postconference were significantly higher for Indigenous young people. These results suggest that conferencing is unlikely to address the problem of Indigenous overrepresentation within Australia’s youth justice system.
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Gray, Peter R. A. "Do the Walls Have Ears? Indigenous Title and Courts in Australia." International Journal of Legal Information 28, no. 2 (2000): 185–212. http://dx.doi.org/10.1017/s0731126500009070.
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Australia has always been a place of legal pluralism. Before the British colonists brought with them the common law and the statute law of England, there were indigenous systems of law. Indeed, there were very many of them. They did not cease to exist just because English law was imported. Sadly, for over 200 years, their existence was not officially recognised by the Anglo-Australian legal system. In 1992, in Mabo v State of Queensland [No.2], the High Court of Australia did more than “invent” native title. It made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure and, possibly, with respect to other aspects of life and death as well. Native title is what indigenous law says it is, no more and no less, except to the extent that non-indigenous law operates to “extinguish” or “impair” native title. The first inquiry in any application for a determination of native title must be as to the continuing existence of an indigenous legal system and the manner in which that legal system deals with entitlements in relation to the relevant land. If such a system survives and gives entitlement to people, it must then be asked whether non-Aboriginal law has “extinguished” or “impaired” those entitlements. In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in indigenous law, despite any “extinguishment” or “impairment.”
27
Roux, Theunis. "Reinterpreting ‘the Mason Court Revolution’: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia." Federal Law Review 43, no. 1 (March 2015): 1–25. http://dx.doi.org/10.22145/flr.43.1.1.
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There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized ‘Mason Court revolution’ – the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes – why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.
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Jones, Timothy H. "Freedom of Political Communication in Australia." International and Comparative Law Quarterly 45, no. 2 (April 1996): 392–401. http://dx.doi.org/10.1017/s0020589300059042.
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In three important decisions,1 handed down on the same day in October 1994, the Australian High Court continued its exploration of the implied constitutional guarantee of freedom of political communication. Two years previously, in the judgments in Nationwide News Pty Ltd v. Wills2 and Australian Capital Television Pty Ltd v. The Commonwealth,3 a majority of the High Court had distilled an implication of freedom of political communication from the provisions and structure of the Australian Constitution.4 This was not an implication of freedom of expression generally, since it was derived from the concept of representative government which the majority considered to be enshrined in the Constitution: “not all speech can claim the protection of the constitutional implication of freedom … identified in order to ensure the efficacious working of representative democracy and government”.5 The extent of this implied constitutional guarantee was left rather unclear, since a number of different views were expressed. As Justice Toohey has now explained,6 there were two possibilities. The first was a more limited “implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government”. The second was a rather more expansive “freedom to communicate in relation to public affairs and political matters generally”. In the recent trilogy of cases a majority of the High Court was prepared to endorse the second of these alternatives.7 In Cunliffe v. The Commonwealth Chief Justice Mason concluded that it would be too restrictive to limit the implied freedom to “communications for the purposes of the political processes in a representative democracy”.8
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Arcioni, Elisa. "The Voice to Parliament proposal and ‘the people’ of the Constitution." Alternative Law Journal 46, no. 3 (April 27, 2021): 225–27. http://dx.doi.org/10.1177/1037969x211010827.
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The concept of ‘the people' in the Australian Constitution is at the heart of our system of representative government. The Voice proposal in the Uluru Statement from the Heart is consistent with the way in which ‘the people’ have been understood by the High Court – both their identity and their political roles under the Constitution. This consistency is one of the many reasons to support constitutional enshrinement of the Voice.
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Wundersitz, Joy. "The Net-Widening Effect of AID Panels and Screening Panels in the South Australian Juvenile Justice System." Australian & New Zealand Journal of Criminology 25, no. 2 (July 1992): 115–34. http://dx.doi.org/10.1177/000486589202500202.
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Motivated by growing doubts about the juvenile court's ability to deal effectively with young offenders, countries such as the United States and Australia have established informal treatment programs ostensibly designed to divert youths from formal court prosecution. Such programs, however, have been criticised on the grounds that, rather than fulfilling a diversionary function, they have widened the net of social control. By focusing on the two-tiered Panel system currently in operation in South Australia, this article presents inferential evidence that net-widening did occur after the introduction firstly, of Aid Panels in 1972 and secondly, of Screening Panels in 1979. However, in both instances, this net-widening was restricted to a relatively short time period, after which the numbers of youths selected for processing by the juvenile justice system stabilised.
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Brookman, Ruth P., and Karl K. K. Wiener. "Predicting Punitive Attitudes: Racial-Animus towards New Immigrant and Aboriginal Minority Groups as a Mediating Agent upon Public Crime Concerns." World Journal of Social Science Research 4, no. 2 (June 2, 2017): 140. http://dx.doi.org/10.22158/wjssr.v4n2p140.
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<p class="APABody"><em>In English-speaking Western society’s punitive attitudes towards the sentencing of criminal offenders is a well-established phenomenon. Two theoretical models; the Crime-distrust model and Racial-animus model are demonstrated predictors of punitive attitudes. However, little is known about how racial prejudice impacts the association between the public’s crime concerns and their demand for harsher sentencing outcomes. The present study utilises online survey data obtained from a convenience sample of 566 Australian residents to examine the Racial-animus model as a mediating agent upon the Crime-distrust model and its relationship with punitive attitudes. A significant indirect effect of racial animus is demonstrated upon the perception of increasing crime rates and public confidence in the court system and punitive attitudes, regardless of whether animus is towards new-immigrants or Indigenous Australians. A significant indirect relationship between fear of crime and the demand for harsher sentencing is only demonstrated through negative perceptions of new immigrants. Results lend support for a mediation model whereby the indirect effect of fear of crime is significant when mediated by negative sentiment towards new-immigrants but not towards Indigenous Australians. Future research using a representative sample of the Australian population is indicated to increase the confidence with which findings are interpreted.</em></p><p class="APABody"><span><br /></span></p>
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EADES, DIANA. "I don't think it's an answer to the question: Silencing Aboriginal witnesses in court." Language in Society 29, no. 2 (April 2000): 161–95. http://dx.doi.org/10.1017/s0047404500002013.
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This study investigates the evidence of Australian Aboriginal witnesses in a New South Wales country courthouse, focusing on how and why witnesses are silenced in examination-in-chief, both by their own lawyer and by the judge. The analysis questions the assumption in previous sociolinguistic research that the syntactic form of questions is inherently related to the way in which power is exercised in court. Further, the article highlights how witness silencing in these cases appears to occur particularly in situations where legal professionals are seriously ignorant about fundamental aspects of the everyday cultural values and practices of Aboriginal people. Sociolinguistic microanalysis gives a glimpse of one aspect of the process by which the powerlessness and domination of Aboriginal people is perpetuated through the legal system.
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Loughland, Amelia. "Taking Process-Based Theory Seriously: Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution?" Federal Law Review 48, no. 3 (June 1, 2020): 324–49. http://dx.doi.org/10.1177/0067205x20927813.
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The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.
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Browne, P., S. Morgan, J. Bahnisch, and S. Robertson. "Discovering patterns of play in netball with network motifs and association rules." International Journal of Computer Science in Sport 18, no. 1 (July 1, 2019): 64–79. http://dx.doi.org/10.2478/ijcss-2019-0004.
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Abstract In netball, analysis of the movement of players and the ball across different court locations can provide information about trends otherwise hidden. This study aimed to develop a method to discover latent passing patterns in women’s netball. Data for both pass location and playing position were collected from centre passes during selected games in the 2016 Trans-Tasman Netball Championship season and 2017 Australian National Netball League. A motif analysis was used to characterise passing-sequence observations. This revealed that the most frequent, sequential passing style from a centre pass was the “ABCD” motif in an alphabetical system, or in a positional system “Centre–Goal Attack–Wing Attack–Goal Shooter” and rarely was the ball passed back to the player it was received from. An association rule mining was used to identify frequent ball movement sequences from a centre pass play. The most confident rule flowed down the right-hand side of the court, however seven of the ten most confident rules demonstrated a preference for ball movement down the left-hand side of the court. These results can offer objective insight into passing sequences, and potentially inform team strategy and tactics. This method can also be generalised to other invasion sports.
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Torre, Andrew, and Darryl Whitford Coulthard. "Shadow pricing utilitarian justice: some tentative estimates." International Journal of Social Economics 48, no. 8 (April 29, 2021): 1089–104. http://dx.doi.org/10.1108/ijse-07-2020-0463.
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PurposeThe purpose of this paper is to recognise and provide an approach to estimate the value of an institution that produces a public good to the wealth of a nation. Specifically, the authors value utilitarian justice.Design/methodology/approachThe paper employs the classical economic theories of crime and shadow pricing to estimate the total economic value and shadow prices or social productivity of police and higher court deterrence. These measures are estimated using the definitions provided by Dasgupta and by re-engineering key deterrence elasticity estimates gleaned from Australian econometric studies.FindingsThe empirical findings suggest a relatively high social value for police and higher court deterrence. Notwithstanding, addressing socio-economic disadvantage is likely to prevent more subsequent offences than directing more resources to the operation of the criminal justice system.Research limitations/implicationsThe key limitations involve the sensitivity of the estimates to error. Further work is required on all the estimates in the model and in particular the social costs of the serious offences. The next step is to estimate the opportunity cost of supplying police and court deterrence. The cost estimate can then be combined with the estimates of social benefits to estimate a benefit-cost ratio. The model in broad terms demonstrates a way forward to estimating the economic value of and the social productivity of the criminal justice system. The provision of retributive justice is also ignored in this contribution. This requires a separate analysis.Social implicationsThe social implications are that there appears a way to both justify and evaluate the criminal justice system and this methodology may be applied to the operation of other public services.Originality/valueThe originality of this paper lies in suggesting a method to solve the valuation problem for the jointly produced public goods of the higher courts and police.
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Williams, Peter John, and Angelique Mary Williams. "Sustainability and planning law in Australia: achievements and challenges." International Journal of Law in the Built Environment 8, no. 3 (October 10, 2016): 226–42. http://dx.doi.org/10.1108/ijlbe-06-2016-0008.
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Purpose Since 1992, all levels of government in Australia have pursued a policy of ecologically sustainable development (ESD). Crafted in response to the World Commission on Environment and Development 1987 report Our Common Future (the Brundtland Report), the principles contained in the Australian Government’s National Strategy for Ecologically Sustainable Development have been progressively implemented at the national, state and local levels of government. The purpose of this paper is not only to track the implementation of these principles, through both policy and law in Australia, but also to highlight recent challenges to the concept of ESD using the state of New South Wales (NSW) as a case study. Design/methodology/approach Beginning with a description of the Australian concept of ESD, this paper first examines the implementation of ESD through both policy and legislation at the national level. The state of NSW is then selected for more detailed assessment, with examples of key State government legislation and court decisions considered. Equal emphasis is placed on both the achievements in ESD policy development and implementation through legislation, statutory planning procedures and litigation, as well as the challenges that have confronted the pursuit of ESD in NSW. Findings Since its introduction in 1992, the concept of ESD has matured into a key guiding principle for development and environmental decision-making in Australia. However, in recent years, ESD has been the target of significant challenge by some areas of government. Noteworthy among these challenges has been a failed attempt by the NSW Government to introduce new planning legislation which sought to replace ESD with the arguably weaker concept of “sustainable development”. Apparent from this episode is strong community and institutional support for robust sustainability provisions “manifested through ESD” within that State’s statutory planning system. Originality/value This paper provides an overview of the implementation of ESD in Australia within both a broader international context of sustainable development and specific instances of domestic interpretation and application. It extends this analysis by examining recent public policy attempts to reposition sustainability in the context of statutory planning system reform in NSW.
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Winger, Richard. "How Ballot Access Laws Affect the U.S. Party System." American Review of Politics 16 (January 1, 1996): 321–50. http://dx.doi.org/10.15763/issn.2374-7781.1995.16.0.321-350.
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Political scientists have long been aware of the relationship between American political parties and the law. That relationship began prior to the turn of the century when states introduced the government-printed Australian ballot, an innovation which required states to determine the standards for parties to gain access to that ballot. Those early laws set the stage for the later Progressive-inspired laws imposing on officially recognized parties a variety of regulations, most notably the requirement that the parties nominate their candidates through the process of primary elections. In recent years political scientists have supplemented this traditional focus on the historical impact of state laws on party development with a new focus: the impact on parties of decisions rendered by the judiciary, especially by the United States Supreme Court. It is this later development which inspired the Political Organizations and Parties Section of the American Political Science Association to sponsor a workshop on "Parties and the Law" at the 1995 Annual Meeting of the Association. Three of the papers presented at that workshop are included in this issue of The American Review of Politics.
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Chitty, Kate M., Jennifer L. Schumann, Andrea Schaffer, Rose Cairns, Nicole J. Gonzaga, Jacques E. Raubenheimer, Gregory Carter, Andrew Page, Sallie-Anne Pearson, and Nicholas A. Buckley. "Australian Suicide Prevention using Health-Linked Data (ASHLi): Protocol for a population-based case series study." BMJ Open 10, no. 5 (May 2020): e038181. http://dx.doi.org/10.1136/bmjopen-2020-038181.
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IntroductionIn Australia, suicide is the leading cause of death for people aged 15–44 years. Health professionals deliver most of our key suicide prevention strategies via health services, but other efficacious population-level strategies include means restriction and public awareness campaigns. Currently, we have no population-level data allowing us to determine which individuals, in what parts of Australia, are likely to use our most promising interventions delivered by health services. The aims of this study are to describe: (1) health service utilisation rates in the year prior to death by suicide, and how this varies by individual case characteristics; (2) prescribed medicines use in the year prior to death by suicide, medicines used in suicide by poisoning and how this varies by individual case characteristics.Methods and analysisThis is a population-based case series study of all suicide cases in Australia identified through the National Coronial Information System (NCIS) from 2013 to 2019. Cases will be linked to administrative claims data detailing health service use and medicines dispensed in the year before death. We will also obtain findings from the coronial enquiry, including toxicology. Descriptive statistics will be produced to characterise health service and prescribed medicine use and how utilisation varies by age, sex, method of death and socioeconomic status. We will explore the geographical variability of health service and medicine use, highlighting regions in Australia associated with more limited access.Ethics and disseminationThis project involves the use of sensitive and confidential data. Data will be linked using a third-party privacy-preserving protocol meaning that investigators will not have access to identifiable information once the data have been linked. Statistical analyses will be carried out in a secure environment. This study has been approved by the following ethics committees: (1) the Justice Department Human Research Ethics Committee (REF: CF/17/23250), (2) the Western Australian Coroners Court (REF: EC 14/18 M0400), (3) the Australian Institute of Health and Welfare (REF: EO2017/4/366) and (4) NSW Population & Health Services Research Ethics Committee (REF: 2017/HRE1204). Findings will be published in peer-reviewed journals, presented at conferences and communicated to regulatory authorities, clinicians and policy-makers.
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Sergo, Anton G., and Ekaterina I. Romanenkova. "World Intellectual Property Organisation's experience in domain dispute resolution." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 43 (2022): 151–63. http://dx.doi.org/10.17223/22253513/43/13.
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The current pace of development of information technology is such that no country's legal system can objectively keep up with its adequate regulation. As a consequence, the Internet community is looking for its own, equally reliable and effective, but fast and modern systems of fair resolution of conflicts that arise between the rightholders of various classic means of individualisation (usually trademarks) and domain names. In today's hightech world, the role and importance of domain names cannot be underestimated. They control destinies, prepare revolutions, crush cults and shape national politics. Their ability to easily personalize any information resource in cyberspace is highly valued by specialists in a variety of fields. Their number in the world (over 320 million) and in our country (5 million) exceeds many times the number of any other means of individualization, but the domain name as an object of law has not been sufficiently defined in the Russian legislation to this day. Despite this, domains have long been sold and bought and there have been numerous and costly court battles over them. The Russian-speaking reader is familiar with the judicial processes for resolving such disputes. However, out-of-court means of resolving such cases, little known to our readers, are in demand in foreign practice. They are used in the domain area not only to address the claims of holders of traditional means of individualization to domain owners, but also in disputes between domain name registrars in the transfer of the domain between them on the application of third parties, if the domain registration does not meet the requirements of the domain zone, the requirements to suspend the registration of domain names in new domain zones, etc. The need to develop alternative dispute resolution systems was driven by conflicting court practices and the search for a way to resolve domain disputes in a fast, not very expensive and efficient procedure, given that such disputes were often extraterritorial in nature. The latter is easier to explain with an example. For example, one of the largest domestic construction companies faced a situation where a domain similar to its name in a foreign zone was registered through an Australian registrar for a resident of Great Britain, and the content site provided by ill-wishers from the Moscow region. In such circumstances, going to court in Russia or the UK was ineffective because the execution of the decision was to be secured from the domain registrar. At the same time, there were no grounds to sue the registrar (in Australia) because it did not violate anyone's rights. This situation is typical when registering a domain in an "international" or foreign domain zone, as the registrar's country of origin is usually irrelevant to the user, as opposed to the price. Of course, recourse to the traditional justice system is possible in such a situation, but not everyone can afford the time and money required to resolve it. Contribution of the authors: the authors contributed equally to this article. The authors declare no conflicts of interests.
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Campbell, Alan. "I Wish the Views Were Clearer: Children's Wishes and Views in Australian Family Law." Children Australia 38, no. 4 (December 2013): 184–91. http://dx.doi.org/10.1017/cha.2013.28.
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In 2006, legislative changes were made to the Australian Family Law Act 1975. These changes included a revision of the matters that must be considered when determining children's best interests following parental separation, at Section 60CC. This section lists two ‘primary considerations’, which relate to the child's having a ‘meaningful relationship’ with both parents and ensuring that children are safe in their interactions with their parents and others in their lives. The first of the ‘Additional considerations’ under Section 60CC concerns ‘any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views’. This consideration differs from that in the pre-2006 Act, which referred to a child's ‘wishes’ rather than her/his ‘views’. There is evidence, however, that those working in the family law system may not yet have made the shift towards understanding what these changes may entail.In this article I explore the differences between the concepts of ‘wishes’ and ‘views’ as they relate to children in family law matters. I argue that these concepts are qualitatively different, and that children's ‘views’ are far more encompassing than their ‘wishes’. Moving to a far broader understanding of children and their ability to understand issues that directly affect their lives may lead to the development of more comprehensive decisions about their futures.
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Liberman, Adam. "One small step for ‘artificial intelligence’ and a giant leap for the Australian patent system? The Federal Court decision in Thaler v Commissioner of Patents." Journal of Intellectual Property Law & Practice 17, no. 2 (February 1, 2022): 164–78. http://dx.doi.org/10.1093/jiplp/jpab181.
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Handler, Michael, and Robert Burrell. "Reconciling use-based and Registration-Based Rights within the Trade Mark System: What the Problems with Section 58A of the Trade Marks Act Tell Us." Federal Law Review 42, no. 1 (March 2014): 1–30. http://dx.doi.org/10.22145/flr.42.1.4.
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Reconciling registration and use as mechanisms by which rights can be acquired in a trade mark is inherently difficult. The federal Australian registered trade mark system is built around a hybrid of a registration-based and a use-based model of protection. While it is perfectly possible to defend such a dual model, the two means of acquiring trade mark rights rest on very different logics. In the event of a conflict between a registered mark and a mark that has been used for some time the question of which should take precedence is not necessarily capable of being determined a priori. The relationship between registration and use is mediated by a number of provisions of the Trade Marks Act 1995 (Cth). In this article we focus on one such provision, s 58A, a relatively recent addition to the legal landscape. Through a close analysis of s 58A, focusing on court decisions and decisions of the Trade Marks Office that have applied this provision, we demonstrate that s 58A has the potential to operate in an entirely unsatisfactory manner. We then use problems with s 58A as a vehicle to explore the relationship between use-based and registration-based rights generally, suggesting a new conceptual framework that might serve to guide future discussion of how the relationship between registration and use ought to be mediated.
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Kalpouzos, Ioannis. "International Criminal Law and the Violence against Migrants." German Law Journal 21, no. 3 (April 2020): 571–97. http://dx.doi.org/10.1017/glj.2020.24.
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AbstractShould we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.
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Gessel-Kalinowska vel Kalisz, Beata. "POSTRZEGANIE ZWYCZAJÓW ODNOSZĄCYCH SIĘ DO OBOWIĄZKU ZACHOWANIA POUFNOŚCI W ARBITRAŻU. ANALIZA WYNIKÓW ANKIETY PRZEPROWADZONEJ PRZEZ SĄD ARBITRAŻOWY LEWIATAN WŚRÓD POLSKICH PRAKTYKÓW ARBITRAŻOWYCH." Zeszyty Prawnicze 13, no. 3 (December 12, 2016): 89. http://dx.doi.org/10.21697/zp.2013.13.3.04.
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THE PERCEPTION OF THE PRACTICE OF CONFIDENTIALITY IN ARBITRATION. AN ANALYSIS OF THE RESULTS OF A SURVEY CARRIED OUT BY THE LEWIATAN COURT OF ARBITRATION AMONG POLISH ARBITRATION PRACTITIONERS Summary As with numerous other systems of law, such as Norwegian, Swedish or Australian law, the Polish legal system does not have a clear and uniform norm of law governing confidentiality and privacy in arbitration. Public opinion frequently refers to the role of custom as the source of the obligation to preserve confidentiality, although usually it does so without a detailed analysis of the subject and object of this obligation. This fact provided the inspiration for a survey carried out among Polish arbitration practitioners. The results of the survey present an interesting picture of what is subjectively perceived by arbitration practitioners as forming part of the confidentiality canons in arbitration proceedings. In principle, they reflect the worldwide trends, i.e. as far as the object of the confidentiality obligation is concerned – in camera sessions and the confidentiality of awards, and as regards its subject – the confidentiality obligation imposed on arbitrators and arbitration institutions. In addition, the customary practice of keeping confidential any information obtained in the course of proceedings is perceived as the right conduct as far as the object of the obligation is concerned. One of the very controversial issues is the matter of parties’ responsibilities, which leads to further questions as to individual arbitrators’ membership of the social (professional) group known as “arbitration practitioners”.
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Gao, Jia. "Politics of a Different Kind: Chinese in Immigration Litigation in the Post White Australia Era." Cosmopolitan Civil Societies: An Interdisciplinary Journal 3, no. 1 (April 4, 2011): 103–20. http://dx.doi.org/10.5130/ccs.v3i1.1786.
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The first mass Chinese immigration to Australia occurred in the 19th century, with approximately 100,000 Chinese arriving between the 1840s and 1901 (Fitzgerald 2007; Ho 2007), during which questions were raised both in relation to the Chinese rights of migration and settlement in Australia, and the validity of the government's actions against the Chinese. The latter question was in fact considered in the colonial courts (Cronin 1993; Lake and Reynolds 2008). Since then, the Chinese in Australia have never shied away from taking various legal actions, although they are normally seen as people who keep to themselves. Australia abandoned its 'White Australia' policy in 1974, and lately Australia has placed more emphasis on skilled and business migration. As a result, many believe that Chinese migrants have come to Australia under its normal skilled, business or family migration programs, which ignores the fact that a high proportion of them have obtained their chance to stay in Australia directly or indirectly through a series of legal battles. This paper contributes to the discussion of the Chinese in Australian political life by looking at how the Chinese have fought in the Courts in the post-White Australia era in past decades, and the key features of their unique experiences. This is a different type of political activism, characterising the lives of many Australian Chinese, their engagement with the Australian political system, and becoming part of the background of their identity, transnationality, socio-political attitudes and behaviour and many other traits.
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Kruger, Stephen. "Supreme Courts as Courts of General Original Jurisdiction." International Journal of Legal Information 39, no. 1 (2011): 51–61. http://dx.doi.org/10.1017/s0731126500006065.
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AbstractIn a common-law jurisdiction, “Supreme Court” is not always the name of a court of final appeal. There are 41 Supreme Courts and Supreme Courts of Judicature with general original jurisdiction. They cover 60 political units. In addition to general original jurisdiction, some of those courts have general appellate jurisdiction. There is a number of political units in which a second appellate consideration is possible.This article provides information about Supreme Courts and Supreme Courts of Judicature with general original jurisdiction. It includes a list with the names of the political units served by Supreme Courts or by Supreme Courts of Judicature with general original jurisdiction; a statement whether a Supreme Court or a Supreme Court of Judicature of a political unit has both general original jurisdiction and general appellate jurisdiction, or only general original jurisdiction; and further information.The goal of this article is to inform librarians, lawyers, solicitors, and barristers about the many court systems in the common-law world, in which the court of general original jurisdiction is named “Supreme Court” or “Supreme Court of Judicature.” Those courts are found in diverse political units, including Australian states and territories, Belize, Brunei, Canadian provinces and territories, Gibraltar, and Samoa. The oldest among them is the Supreme Court of New York, founded more than 300 years ago.
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James, David V. "Court Diversion in Perspective." Australian & New Zealand Journal of Psychiatry 40, no. 6-7 (June 2006): 529–38. http://dx.doi.org/10.1080/j.1440-1614.2006.01835.x.
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Court diversion schemes have been running for a decade in New Zealand and are increasing in number in Australia. This paper aims to give an international and historical context to these developments, by reference to psychiatric initiatives at courts in the US and in England and Wales. From a review of the specialist literature, an account is given of three forms of psychiatric intervention in courts over the last 90 years: court psychiatric clinics and mental health courts in the US, and court diversion schemes in England and Wales. High levels of psychiatric morbidity among prisoners, coupled with a continuing increase in prisoner numbers, demonstrate the need for systems for dealing with mentally ill people who come before the courts. Court diversion in England and Wales developed as part of a system where the mentally ill who are found guilty are sent to hospital in lieu of any other sentence. Its focus is on a form of psychiatric triage, and its ethos is the health of the patient. Court psychiatric clinics in the US grew up as an alternative to assessment in prison. Their focus has been on full psychiatric evaluation in an insanity and incompetence jurisdiction. The ethos has been that of serving the court. Mental health courts are heavily influenced by ideas of therapeutic jurisprudence, and their emphasis has been on a judge holding minor offenders in community care through the threat of judicial sanction. Experience in England and Wales has shown that court diversion can be a powerful and effective intervention. In order for it to function properly, those running court schemes need direct admission rights to psychiatric beds, both open and locked. Court diversion schemes are best as part of a spectrum of services to police stations, courts and prisons, which involved both general and forensic psychiatrists.
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Strong, S. I. "International Commercial Courts in the United States and Australia: Possible, Probable, Preferable?" AJIL Unbound 115 (2021): 28–33. http://dx.doi.org/10.1017/aju.2020.77.
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As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a somewhat uneven relationship with international engagements while the other (Australia) is maintaining or increasing its connections to the rest of the world. Although this discrepancy could be used to explain the relative status of the debate about international commercial courts, which is much more advanced in Australia than in the United States, it is also possible that the distinctions between the United States and Australia are motivated by other factors. While neither country appears poised to create an international commercial court at the moment, the current analysis helps identify the types of factors that policy-makers can and should consider when contemplating reforms of this nature.
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Aroney, Nicholas. "Subsidiarity: European Lessons for Australia's Federal Balance." Federal Law Review 39, no. 2 (June 2011): 213–34. http://dx.doi.org/10.22145/flr.39.2.1.
Full textAbstract:
The principle of subsidiarity was adopted as part of the law of the European Union as a response to perceptions of excessive centralisation and bureaucratisation within the European system of government. If subsidiarity is a solution to these problems in Europe, it might be asked: could it also be a solution to similar problems that arise in other federal systems, such as those of the United States and Australia? However, posing the question in this way is misleading because it is not at all clear that subsidiarity has been a solution in Europe, and in any case it cannot be assumed that a solution in one context will necessarily operate effectively in another. This article closely examines the nature and operation of the principle of subsidiarity in Europe and asks what lessons might be learned from it. To do this, the article begins by identifying the carefully defined operation of the principle in EU law and then closely examining the application of the principle, firstly as a political decision-making procedure that involves the Member State parliaments in the European policy-making process, and secondly as a juridical principle enforceable by the European Court of Justice. The possible adoption of the principle in other federations is then discussed, but limitations on its effectiveness in Europe, as well as the different institutional and political circumstances of the Australian federal system, are shown to undermine its likely usefulness, unless other more fundamental issues about the way in which the federal system is understood, organised and operated are addressed. The final part of the article suggests that these more fundamental issues are best understood and addressed in the light of a broader, more substantial, ‘social’ conception of subsidiarity: a conception not unrelated to the Roman Catholic social theory from which the idea of subsidiarity originally derived. A more substantial, social conception of subsidiarity, it is argued, can help us to understand why the application of the principle in Europe has had only limited effect and also why its application in other federal systems is unlikely to remedy problems of centralisation and bureaucratisation. This is because the European version of subsidiarity is focussed on the question of how the functionalist objectives of the EU can most appropriately be achieved, with only tangential consideration being given to the proper functions, purposes and responsibilities of the constituent Member States themselves. Focussing simply on the scope and reach of the competences of the central organs of government is not enough. Nor is it sufficient, as in Australia, to focus only upon the immunities that the constituent states ought to enjoy as self-governing political communities. Rather, the key task is to identify the proper functions and purposes ( munera) of the various political (and social) communities and associations that make up the wider political community of which they are an integral part. The proper immunities that a particular community should enjoy cannot be identified apart from and identification of the appropriate munus of that community. Although an admittedly difficult and highly controversial task, unless the issue of the munera is addressed, ‘subsidiarity’ as a principle is not going to have much effect, for its fundamental lesson about the nature and integrity of the munus of each community — social and political — will not have been learned.
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Kenyon, Katherine H., Arjun Paramasivam, Jiachin Tu, Albert Zhang, and Alister W. Graham. "Citations to Australian Astronomy: 5- and 10-Year Benchmarks." Publications of the Astronomical Society of Australia 29, no. 2 (2012): 132–40. http://dx.doi.org/10.1071/as12011.
Full textAbstract:
AbstractExpanding upon Pimbblet's 2011 analysis of career h-indices for members of the Astronomical Society of Australia, we provide additional citation metrics which are geared to quantifying the current performance of all professional astronomers in Australia. We have trawled the staff web-pages of Australian Universities, Observatories and Research Organisations hosting professional astronomers, and identified 384 PhD-qualified, research-active, astronomers in the nation. 132 of these are not members of the Astronomical Society of Australia. Using the SAO/NASA Astrophysics Data System, we provide the three following common metrics based on publications in the first decade of the 21st century (2001–2010): h-index, author-normalised citation count and lead-author citation count. We additionally present a somewhat more inclusive analysis, applicable for many early-career researchers, that is based on publications from 2006–2010. Histograms and percentiles, plus top-performer lists, are presented for each category. Finally, building on Hirsch's empirical equation, we find that the (10-year) h-index and (10-year) total citation count T can be approximated by the relation h (0.5 + √T)/√5 for h ≳ 5.