Journal articles on the topic 'Divorce Law and legislation South Australia'

The fight against tax evasion in South Africa is an ongoing battle. The tools available to law enforcement boil down to legislation and the enforcement thereof. The purpose of the study that was done for this article was to compare available legislation of the United States of America, United Kingdom, Australia and South Africa to determine if South Africa’s legislation can be improved. This was done by studying the relevant literature and legislation of all four countries. The findings, that there is some clauses that can be added to improve South Africa’s legislation, were confirmed by analyzing the legislation available. In theory, the results have proven that although South Africa’s legislation can compete with that of the United States of America, United Kingdom and Australia, there is some improvement that can be considered. This is of value to the individuals and professionals who deal with the offence of tax evasion on a daily basis, ensuring that the reviewed legislation will deter perpetrators or that the charges brought against them in the court of law will ensure harsher punishment.

Although the new family law legislation, the Family Law (Shared Parental Responsibility) Amendment Act of 2006, seeks to implement the notion of ongoing and collaborative parenting of children following parental partnership breakdown, separation and divorce, institutional obstacles still prevent the realisation of this policy. The question then arises: can such a model of separation and divorce be achieved? This question is examined through a discussion of a series of studies undertaken by a Monash University research team investigating parents' involvement in their children's schooling following parental separation and divorce. The research, building on a number of small studies carried out in Western Australia, looked at parents' and teachers' views of schools' ability to relate to separated and divorced parents and the wider difficulty of schools managing this family form.

The year 1990 saw the enactment of adoption information legislation in Queensland (May 1990) and New South Wales (October 1990), the last of the Australian states to grant rights of access to information. Queensland, sometimes referred to as ‘the deep north’, is customarily seen as the most conservative of the states, so there was considerable surprise that such legislation should have passed through the Queensland Parliament unimpeded, with acclaim from all parties. Margaret McDonald reports.

It has been a quiet year like last year for the passing of federal industrial legislation (due to a number of factors, including the political turmoil of the federal coalition government and their lack of an overall labour law reform agenda). This article examines key federal industrial legislative developments including the Modern Slavery Act 2018 (Cth). The article identifies that the federal Act contains much weaker compliance measures than the counterpart New South Wales legislation also passed in 2018 – the Modern Slavery Act 2018 (NSW). Also, although the Coalition government has attempted to continue to prosecute its case for further union governance measures, this agenda has been less successful than in previous years, with key government Bills not yet passed by the Parliament. The stagnation in the federal Parliament continues to motivate certain State Parliaments to address worker exploitation, and the article goes on to examine key State industrial legislation passed in 2018 including the Victorian labour hire licensing statute. In light of the continuing dominant position of the federal Labor opposition in opinion polls and an impending federal election in 2019, the article concludes by briefly considering the federal Labor opposition's agenda for industrial legislation.

After three years of trying, the Coalition Government finally succeeded in obtaining passage of several key workplace reform statutes in 2016. This followed the outcome of the federal election held on 2 July, delivering the Government a differently composed Senate and a new opportunity to secure support for its legislative program. This review article explains key aspects of the industrial legislation passed by federal Parliament in 2016, including statutes abolishing the specialist road transport industry tribunal, re-establishing the Howard-era regulator for the construction industry, and setting up a new agency to enforce enhanced governance and accountability standards for registered unions and employer organisations. Legislative amendments aimed at resolving the long-running bargaining dispute in Victoria’s Country Fire Authority are also considered, along with the Government’s muted response to the 2015 Productivity Commission review of the workplace relations framework. The article then examines developments at state level, including a major rewrite of Queensland’s industrial legislation, structural changes in New South Wales, and proposed changes to long service leave and the labour hire sector in Victoria. It concludes by noting the irony that just as the federal Government has tasted some success after a long legislative ‘dry spell’, its labour law reform agenda appears limited and piecemeal.

South Australia's practical measures to give effect to the spirit and letter of the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power have meant changes to legislation and to legal procedures. This extract from a previously given Paper on these changes concentrates on the principles of Anglo-Australian law adopted by Courts in Australia in sentencing offenders, and in particular deals with the relevance of the victim in sentencing.

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.

Tax legislation traditionally distinguishes between returns on investment paid on equity and debt instruments. In the main, returns on debt instruments (interest payments) are deductible for the paying company, while distributions on equity instruments (dividends) are not. This difference in taxation can be exploited using hybrid instruments and often leads to a debt bias in investment patterns. South Africa, Australia and Canada have specific rules designed to prevent the circumvention of tax liability when company distributions are made in respect of hybrid instruments. In principle, Australia and Canada apply a more robust approach to prevent tax avoidance and also tend to include a wider range of transactions, as well as an unlimited time period in their regulation of the taxation of distributions on hybrid instruments. In addition to the anti-avoidance function, a strong incentive is created for taxpayers in Australia and Canada to invest in equity instruments as opposed to debt. This article suggests that South Africa should align certain principles in its specific rules regulating hybrid instruments with those in Australia and Canada to ensure optimal functionality of the South African tax legislation. The strengthening of domestic tax law will protect the South African tax base against base erosion and profit shifting through the use of hybrid instruments.

In recent decades, Australian states and territories have introduced a raft of legislation aimed at stripping those involved in criminal activity of their ill-gotten gains. However, in doing so, this far-reaching legislation has the potential to undermine legal principles and protections. We recently completed a study into proceeds of crime legislation in Western Australia, New South Wales and Queensland. From our findings it is clear that Western Australia’s legislation is the most far-reaching and potentially the most inequitable. In this article, we provide a critique of Western Australia's legislation informed by our research, and identify pressing areas for reform.

In the years following the introduction of legislation in Australian states mandating the wearing of helmets, there was a decline in the number of deaths. Debate has occurred, however, as to why this occurred. The Traffic Accident Reporting System database, which records data for all police-reported crashes in South Australia, was searched for all cases of deaths occurring in the state in bicycle riders aged ≤14 years from January 1982 to December 2001. The numbers of deaths were then compared over the 10-year periods before (1982–1991) and after (1992–2001) the introduction of helmet legislation, and also on a yearly basis from 1982 to 2001. Comparing the numbers of deaths in the two periods before and after helmet legislation in 1991 showed a marked decrease in cases from 36 to 12. However, in examining the numbers of deaths per year in greater detail, it appears that these were already steadily reducing from nine cases per year in 1982 (2.9/100,000) to two cases in 1991 (0.67/100,000) to a virtual plateau after 1991 (ranging from 0 to 2 cases annually). It seems that the introduction of compulsory bicycle helmet wearing in South Australia came at a time when the numbers of child cyclist deaths had been steadily declining over the preceding decade. While helmet wearing clearly protects children who are still riding bicycles, the reasons for the reduction in numbers of deaths appears more complex than legislative change and likely involves a subtle interaction with other behavioural and societal factors and preferences.

This article investigates the formation of a political consensus between conservative ulama, Muslim reformers, nationalist politicians and women's organisations, which led to the enactment of the Dissolution of Muslim Marriages Act in 1939. The Act was a radical piece of social legislation that gave South Asian Muslim women greater rights for divorce than those enjoyed by other women in India and Britain. Instead of placing women's rights and Islamic law as opposed to each other, the legislation employed a heuristic that guaranteed women's rights by applying Islamic law, allowing Muslim politicians, ulama and women's groups to find common ground on an Islamic modernity. By interrogating the legislative process and the rhetorical positions employed to achieve this consensus, the paper hopes to map how the women's question was being negotiated anew in the space created in the legislatures. The legislative debate over family law redefined the boundaries of the public and the private, and forced nationalists to reconsider the ‘women's question’. The transformation of Islamic law through secular legislation also gave greater licence to the courts in their interpretation, and widened the schism between traditional practitioners of fiqh and modern lawyers.

Female genital cutting (FGC) or, more controversially, female genital mutilation, has motivated the implementation of legislation in many English-speaking countries, the product of emotive images and arguments that obscure the realities of the practices of FGC and the complexity of the role of the practitioner. In Australia, state and territory legislation was followed, in 2015, with a conviction in New South Wales highlighting the problem with laws that speak to fantasies of ‘mutilation’. This article analyses the positioning of Islamic women as victims of their culture, represented as performing their roles as vehicles for demonic possession, unable to authorize agency or law. Through a perverse framing of ‘mutilation’, and in the case through the interpretation of the term ‘mutilation’, practices of FGC as law performed by women are obscured, avoiding the challenge of a real multiculturalism that recognises lawful practices of migrant cultures in democratic countries.

Experiences with three approaches intended to achieve increasing levels of regional and collaborative engagement – Ministerial water advisory committees, Catchment Water Management Boards and Natural Resources Management Boards – are examined over the period from the 1970s to early 2014. Attention focuses on two tensions: (1) whether to have a system-wide or regional focus and (2) whether to pursue extensive consultation and seek consensus, or have government agencies limit consultation and take decisions in a timely manner, knowing that winners and losers will emerge. Supporting legislation, policies, plans and programmes were reviewed, and interviews were completed with 88 individuals. Support generally exists for regional and collaborative approaches, but with recognition of a need to balance strengths and limitations for whatever choice is made.

In 1989 New South Wales became the first State in Australia to legislate against racial vilification. The introduction of this legislation, and discussion of similar provisions in other jurisdictions, rekindled debates about the legitimacy of legal limits on hate speech. However, little is known about the practical operation of antivilification laws. This report presents the results of a survey of more than 160 racial vilification complaints handled by the New South Wales Anti-Discrimination Board from 1993 to 1995. The profile of the legislation in practice presented here provides a valuable empirical foundation for critical assessment of anti-vilification provisions and of the conciliation based procedure which is currently employed in handling complaints.

AbstractThe last decade or so has seen a fundamental shift in Aboriginal cultural heritage law in Australia. A number of subnational jurisdictions in Australia have undergone major reforms to their Aboriginal heritage legislation. Other subnational jurisdictions are currently in the reform process or have promised reform in coming years. We use the latest (and, at the time of writing, ongoing) process to reform Aboriginal heritage legislation in the state of New South Wales (NSW) to explore some of the legal issues and themes emanating from the Australian experience. The NSW example is a useful case study for thinking about how minority heritage regulation can not only serve broader social movements but also undercut some of its own possibilities. We argue that even law that is ostensibly in place to promote the control of communities over their own heritage can cause difficult balancing acts that may default to a dependency path and effectively detract from its own projected goals.

This article focusses on a very specific problem statement, namely how shareholder society relationships are viewed in Australia and South Africa. Friendly societies are special "legal creatures" enjoying legal personality from the date and time of their registration (not as companies). In South Africa friendly societies have been in existence for more than 160 years, with the latest legislation being promulgated in 1956. As an unregistered company, the friendly society forms part of the South African business enterprise landscape and has both members and shareholders. The legal relationships between members and shareholders and the payment of a dividend are unclear in the Friendly Society Act, 1956, and are generally regulated by the constitution or memorandum of incorporation of the friendly society. In Australia friendly societies developed approximately 200 years ago. In 1999 friendly society legislation was repealed by the Financial Sector Reform Act, 1999, in terms of which friendly societies had to convert to companies either as companies limited by guarantee or public companies as regulated by the Corporations Act, 2001. Prior to 1999, friendly societies were largely regulated by the Queensland Friendly Society Act, 1997 as unregistered companies. The Code regulated the relationships between members and shareholders and the payment of dividends. In this article we also focus on Australian friendly societies after 1999 and how they compare with South African friendly societies with regard to the member/shareholder relationships and the payment of dividends.

New South Wales recently has adopted significant amendments to its firearms control laws. In so doing it has evinced certain fundamental policy choices. These relate to matters including gun registration and the licensing of gun owners; controls on ammunition; the appropriate locus of discretion in firearms control matters; the appropriate controls for especially dangerous types of firearms; the situation of primary producers; reciprocity in firearms licensing within Australia; and the collection of historically significant firearms. This article identifies the policy preferences implicit in the 1985 New South Wales law. It then proceeds to critique these policy decisions with reference to patterns of law (present and emerging) in the country's other jurisdictions, and the relevant secondary literature in the field. While concluding that the newly amended New South Wales legislation remains “functional and purposive”, on the whole, the article ends with a problematic for the future. VII. And be it further enacted, That every person who shall be found with any fire-arms, or other instruments of a violent nature, in his possession, and shall not prove to the satisfaction of the Justices of the Peace as aforesaid, that the same was or were not intended to be illegally used, as hereinbefore is provided, shall be deemed to be guilty of a high misdemeanour, …A

In 1987, a Labor government in South Australia made widespread changes to laws concerning possession and use of small amounts of cannabis. At the time of the introduction of the new legislation, because of not inconsiderable media and other attention being paid to law enforcement data on the controversial “on-the-spot” scheme, the government gave an undertaking that the new approach would be monitored and results published Despite problems with the lack of long-term survey data on patterns and trends of drug consumption in Australia, and the fact that only limited research resources were available, the Office of Crime Statistics undertook a study of the critical first nine months of the new procedures. Monitoring the new system provided Parliament and the public with the opportunity to assess operation of the new procedures and to gauge whether there had been consequences not anticipated when the legislative changes were made. Full results of the study are in Cannabis: The Expiation Notice Approach released in South Australia in September 1989 (Office of Crime Statistics 1989). This article reproduces parts of the report and provides an update on an attempt in 1990 by the South Australian Opposition party to repeal the scheme.

AbstractIn 1948 the New South Wales government instituted an inquiry into the claims of John Braund – a 78-year-old self-described ‘quack’ – that his secret treatment had cured 317 cancer sufferers. The ‘Braund controversy’, as it became known, was one of Australia’s most prominent cases of medical fraud. This paper examines that controversy and its effects on cancer philanthropy, medical research, and especially on legislation regulating treatment providers up to the present. With the Braund controversy in mind, the New South Wales (NSW) parliament struggled to develop legislation that would protect patients and punish quacks but also allow for serendipitous, unorthodox discoveries. Recent decades saw new elements added to this calculus – allowing a wide-ranging health marketplace, and allowing patients to choose their therapies. This paper argues that the particular body of law legislatures used in regulating cancer treatment and how regulations were framed reflected the changing context of healthcare and illustrates the calculus legislatures have undertaken in regulating the health marketplace, variously factoring in public safety, serendipitous discovery, the authority of orthodox medicine, patient choice, and economic opportunity.

The concept of corporate rescue lays emphasis on corporate sustainability than liquidation. This trend in corporate legislation which featured in the United Kingdom Insolvency Act of 1986, Australian Corporations Act 2001, Indian Sick Industrial Companies (Special Provisions) Act of 1985 (as replaced by Companies Act, 2013 and supplanted by the Insolvency and Bankruptcy Code, 2016) has been adopted in the South African Companies Act of 2008. The goal(s) of corporate rescue in some of these jurisdictions are not clearly defined. The paper examines, through a comparative analysis, the relevant statutory provisions in the United Kingdom, India, Australia and South Africa and the attendant judicial interpretations of those provisions with a view to discovering the goal(s) of corporate rescue in those jurisdictions. It is argued that while under the United Kingdom and Australian statutory provisions, the administrator could pursue alternative goals of either rescuing the company or achieving better results for the creditors; the South African and Indian statutory provisions do not provide such alternatives. The seeming ancillary purpose of crafting a fair deal for the stakeholders under the South African Companies Act’s provision is not sustainable if the company as an entity cannot be rescued.

The enactment of the Statute of Westminster in 1931 represents one of the most significant events in the history of the British Empire. The very name of this historic piece of legislation, with its medieval antecedents, epitomizes a sense of enduring grandeur and dignity. The Statute of Westminster recognized significant advances in the evolution of the self-governing Dominions into fully sovereign states. The term “Dominion” was initially adopted in relation to Canada, but was extended in 1907 to refer to all self-governing colonies of white settlement that had been evolving in the direction of greater autonomy since the middle of the nineteenth century. By the early 1930s, the Dominions included Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State.

AbstractThis article examines the extent to which a recent law reform initiative in New South Wales (NSW), Australia—the draft Aboriginal Cultural Heritage Bill 2018 (NSW)—advances the general principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The examination reveals some improvements on the current legal framework and some concerning proposals that distance the NSW government from the UNDRIP principles. Key concerns include a proposed transfer of administrative responsibility to Aboriginal bodies with no corresponding guarantee of funding; the continued vesting of key decision-making powers in government; inept provisions for the protection of secret knowledge; and lower penalties for harming cultural heritage than for related offences in existing environmental and planning legislation. Given the bill’s weaknesses, the article explores pragmatic alternatives to better advance the UNDRIP principles.

E-technology has fast become an acceptable and convenient method of communication and a prerequisite of business transactions globally. South Africa is no exception to the trend. While technological progress has facilitated rapid change in the way humans communicate and transact, South African law has not kept abreast of the swift transformation and growth in this sector. This lacuna is especially evident in the South African law of civil procedure, which regulates the civil process in South African courts. Although subject to regular amendment, it appears prima facie not to embrace advances in e-technology and their effect – or potential effect – on the legal process.Moreover, the existing corpus of legislation governing civil process appears to have disregarded the provisions of the Electronic Communications and Transactions Act (ECTA) to the extent that it already provides mechanisms for the use of e-technology. In South Africa, the law of civil procedure is regulated by statutes such as the Rules Board for Courts of Law Act, the Superior Courts Act, the Magistrates’ Courts Act, the Sheriffs Act, the National Credit Act, the Small Claims Court Act, and the Divorce Act, which inter alia regulate court process and ensure the fair administration of justice. The submission made here explores this indicated gap within selected legislation pertinent to civil procedure and postulates the effect of e-technology in the context of the abovementioned legislation.As an example, section 35 of the Superior Courts Act indicates that parties and witnesses must make a physical appearance in the court of issue. This provision, however, does not expressly allow for the use of video conferencing, which would enable witnesses to give evidence via e-technology, and thus allow parties to investigate and re-examine witnesses situated in any geographical location outside of court. Further, section 74Q of the Magistrates’ Courts Act makes it mandatory for garnishee orders to be served personally or by registered mail. This provision is not in line with developments in e-technology. Email, Facebook, or other digital means of service could facilitate the service of garnishee orders issued by magistrates’ courts more effectively and remove delays posed by slow postal delivery, and also inhibit the prohibitive cost of personal service. With this contribution, select statutory provisions are compared to ECTA provisions and specific e-technology laws so as to determine the extent of the gap in the implementation of e-technology within the sphere of civil process. The authors then provide insights into how the current civil law statutes could be amended in line with selected e-technology legislation discussed here.

Electricity theft is one of the challenges with which South African government-owned power-distribution company Eskom is grappling. Eskom has lost billions of rands in annual revenue owing to electricity theft. Different strategies are in place to combat electricity theft. However, in South Africa, electricity theft is not a statutory offence. This contrasts with the approach adopted in countries such as China, Canada, India, Australia and New Zealand, where legislation provides for such an offence. Although electricity theft is not a statutory offence, prosecutors would like electricity thieves to be punished. In this context, there are conflicting High Court decisions on whether electricity theft is a common-law offence or indeed an offence at all. The purposes of this article are: to highlight the problem of electricity theft in South Africa and the conflicting jurisprudence from the High Court on whether electricity theft is an offence; to recommend that Parliament amend legislation to criminalise electricity theft specifically; and also to empower Eskom to institute prosecutions against those who are alleged to have stolen electricity.

Purpose – The purpose of this paper is to examine green building legislation requirements and practices in the construction project execution stage within the context of the South African construction industry. The rationale for this examination rests with the perception that the implementation of green practices (per se) has been recognised as being “behind” the legislation enacted to control the design and construction of green buildings. Design/methodology/approach – The research process consisted of a literature review to identify existing green building legislation and practices applicable to the project execution phase. This was supported by a sequential mixed-method research approach, which involved a survey of contracting companies based in the Western Cape Province of South Africa. Purposive sampling was used to undertake focused interviews with management staff and site operatives. Findings – Research findings established a number of issues, not least: a gap between green building practices and legislation requirements; a high degree of unawareness of green building legislation/practices by construction company stakeholders; selective implementation of health and safety legislative requirements; that management staff had a more “positive” attitude to green building practices than site-based staff who tended to be less motivated and open to such practices. Research limitations/implications – Results from this study are considered generalisable with the sample frame only. Research inference and projections should therefore only be made within this set, and not to the wider population of South African contractors (as this study was limited to the Western Cape Province). Practical implications – Implications from this research are applicable to construction company stakeholders within the population set. Practical considerations include the need to acknowledge a formal commitment to developing a sustainable built environment – especially cognisant of the gap between practices on site and green building legislation requirements. Moreover, this lack of awareness in respect of green building practices and legislation requirements impinges upon several wider areas, not least: construction company stakeholders’ positioning, health and safety practices; managerial and operational staff perceptions, and stakeholders’ willingness and motivation to proactively address these gaps. Social implications – Government bodies and allied professionals in charge of construction industry development are encouraged to consider the implementation of green building legislation requirements on construction sites. This reflection should encourage engagement through formative legislative provision and transparent awareness campaigns. Originality/value – This work is original insofar as it directly addresses the alignment of legislation to current practices within the context of the South African construction industry. However, similar exercises have been undertaken on green building legislation in other countries such as USA, UK and Australia.

Objectives: The assessment and management of a patient who refuses medical treatment requires clinical skill, and consideration of the relevant law and the patient’s decision-making capacity. Psychiatrists are often asked to advise in these situations. We aimed to develop an algorithm describing the relevant legal pathways to assist clinicians, especially psychiatrists, working in New South Wales (NSW), Australia. Methods: We reviewed the academic literature on treatment refusal, relevant legislation, judicial rulings and NSW Health policy directives and guidelines. We consulted with clinicians and representatives of relevant tribunals. Results: We developed an algorithm for managing patients who refuse medical treatment in NSW. The algorithm emphases the evaluation of decision-making capacity and tracks separate pathways depending upon a person’s status under the Mental Health Act 2007 (NSW). Conclusions: The algorithm provides a clear decision tree for clinicians responding to a patient refusing medical treatment in NSW.

The advent of changing adoption legislation, policy and practice is impacting on all people touched by the adoption experience. Open adoption is now considered to be best practice. In South Australia adoption legislation was changed in 1988. All adoption records were made available retrospectively to adopted people and birth parents unless a five-year veto was placed by either the birth parent or adopted person requesting no contact with the ‘seeker’. As a consequence to these changes, the role of adoptive parents has changed considerably. This change has not been adequately planned for and adoptive parents have few supports in redefining their role in the adoption experience. Susan Mann presents a practitioner's view of the experiences of adoptive parents with recommendations about how to create a more positive and productive dialogue among all parties affected by varying adoption practices. Confidentiality is maintained throughout the paper by the use of pseudonyms.

Mining is essential in the economic development of any country endowed with mineral resources. In Kenya, for instance, one block of coal in the Mui Basin has enough coal to bring in KES. 3.4 trillion into the economy. However, disasters such as the Monongah disaster in a coal mine in the United States have resulted in the loss of lives of numerous workers. It is therefore important to ensure the enactment of legislation safeguarding these workers. This article seeks to assess the extent to which the Occupation Safety and Health Act safeguards these concerns in Kenya. It also undertakes a brief comparative study of the best practices employed in Australia and South Africa in safeguarding the safety and health of workers in coal mines. Finally, the article makes recommendations on how Kenya can follow suit and adopt various aspects of the legislations from these jurisdictions.

<p>Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is<br />unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however,<br />important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed – a federal bill of rights? In the course of this analysis the author makes suggestions for<br />reform; specifically how a federal bill of rights may address the paucity of constitutional protection.</p>

This article focuses on an Australian piece of legislation and interesting case law, as well as how the Federal Court of Australia has applied Australia’s Corporations Act 2001, to characterise a person as a de facto director – that is, as a professed director whose appointment as such was defective. In this regard, the decisions of that Court will, as envisaged in the Constitution of the Republic of South Africa 1996, constitute persuasive authority. The Australian decision to be discussed in this article is significant in that the South African Companies Act 71 of 2008 does not contain substantively similar provisions to those of Australia’s Corporations Act 2001. For example, section 66(7) of the Companies Act 2008, contains the phrase “entitled to serve” as a director. This article explains the legal implications relevant to that expression, including whether it imposes a statutory condition precedent. This article also considers the validity of decisions taken by a person who is not “entitled to serve” as a director.

The petroleum industry in Australia is at the centre of a web of complex laws. In addition to the legislation under which petroleum exploration and production tenements are granted there is a multiplicity of statutes and regulations, Commonwealth and State, which have a direct bearing on the conduct of those involved in exploring for or exploiting Australia's petroleum reserves. For example, the level of participation by foreigners is governed by the Commonwealth Foreign Investment Guidelines and the Foreign Takeovers Act 1975; the Commonwealth has control over the export of petroleum under the Customs (Prohibited Exports) Regulations and domestic markets are subject to the operation of the Crude Oil Allocation Scheme. The Commonwealth continues to have the right to regulate the transfer of funds to and from Australia under the Banking (Foreign Exchange) Regulations. Certain States such as South Australia and New South Wales have their own foreign investment guidelines.Not only this, there are revenue laws which govern very much the way in which petroleum projects are organised, interests transferred and otherwise dealt with and finance made available, such as State stamp duty legislation, Commonwealth income tax laws, and Commonwealth legislation imposing registration fees on dealings in exploration permits and production licences. A new tax, Resource Rent Tax, is to be introduced.Then there are laws which have an indirect bearing on petroleum activities such as the Companies Code which, in addition to governing the administration and organisation of companies, controls the way funds can be raised.The statutory and regulatory framework is only part of the picture. The rights and obligations of participants in petroleum projects as between themselves are almost always set out in a joint venture or joint operating agreement, the combination between the participants being known as an unincorporated joint venture. This form of business organisation is not a partnership; it is not the creature of legislation. Indeed it has been rarely referred to in Acts of Parliament. Problems arising under the joint venture agreement will be considered against the backdrop of the general law which unfortunately has seldom been called upon to resolve disputes between participants in joint ventures. An illustration of one of these rare instances is Brian Pty Ltd v United Dominions Corporation Ltd (1983), where the New South Wales Court of Appeal considered the fiduciary relationship of joint venturers.Despite this legislative and regulatory' backdrop and the uncertainties as to the true effect of joint venture agreements, the industry up until quite recently has survived with little litigation. This is no longer the case. Recent and pending litigation shows that there is no reluctance on the part of participants to take their disputes to court, often at great expense and with unfortunate results for previously close relationships. It must now be said that money spent to achieve proper and clear agreement on organisational and legal matters at the earliest stage of a project is money just as well spent as that on drilling and other operational activities.

The previous Commonwealth Minister for the Environment, Mr Garrett, recently rejected a request to allow the importation of live bumblebees (Bombus terrestris L.) to mainland Australia. New South Wales and Victoria had already listed the introduction of bumblebees as, respectively, a key threatening process and a potentially threatening process. The Commonwealth, however, had previously declined an application to list the introduction of bumblebees as a key threatening process, although its Threatened Species Scientific Committee urged ‘that extreme caution be shown in considering any proposal to introduce this species to the mainland.’ The potential threat from bumblebees would appear to beg the questions posed by the precautionary principle. Would the presence of bumblebees to mainland Australia pose a threat of serious or irreversible environmental damage? Should a lack of full scientific certainty be used as a reason for postponing measures to prevent environmental degradation? This paper considers the role of the precautionary principle in regulatory approaches to the bumblebee. It seeks to establish the application of the precautionary principle to this particular potential environmental threat, including its relationship to the principle of conservation of biological diversity. It concludes that, despite widespread adoption of the precautionary principle in policy, legislation and case law in Australia, its impact on regulating bumblebees has not been consistent.

Objective: This paper investigates compulsory treatment under guardianship legislation for 15 anorexia nervosa patients admitted to four eating disorders units in New South Wales (NSW), Australia, between 1991 and 1994. Method: A retrospective follow-up was conducted. This involved an analysis of sociodemographic, clinical, eating and weight history, and Guardianship Order details obtained from medical records. This small sample was compared to a larger sample of anorexia nervosa patients admitted voluntarily to a specialised eating disorder unit in NSW. Further follow-up included a structured interview using the Morgan-Russell Assessment Outcome Schedule at least 1 year after admission for compulsory treatment. Results: For those treated involuntarily, a larger number came from metropolitan Sydney and a larger percentage were unemployed, were purgers and required specialist medical consultations. A significantly higher proportion came from higher socioeconomic groups, and the duration of stay in hospital while patients were under guardianship was significantly greater. A high degree of comorbidity was noted. There were similarities between those treated involuntarily and those treated voluntarily for the source of referral, marital status and Body Mass Index on admission and discharge. Only three patients accepted a follow-up interview using the Morgan-Russell Outcome Schedule. Two of them had made a good recovery. Conclusions: It was noted that the guardianship sample comprised a more severely ill group than anorexic patients treated voluntarily. The nature of guardianship legislation compared to mental health law was discussed and advice offered to clinicians contemplating and implementing compulsory treatment.

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and ‘husband and wife’, the wider term ‘re-partnering’ is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v 1Ingrilli, the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the ‘standard’ adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent.

This article critically considers the application of and necessity for the right to strike, especially regarding employees that are employed in an essential service. The South African position is examined and compared to other countries around the world, but the focus is mainly on the United Kingdom.The article shows that South Africa's current labour legislation (especially regarding essential services) is in theory good, but that it is applied and enforced poorly in spite of the provisions contained in the Labour Relations Act and the Constitution of the Republic of South Africa 1996. This became evident in the 2007 public workers' strike in which many essential services employees took part.The United Kingdom, Australia, New Zealand, Canada, India, France and Kenya all have different ways of dealing with strikes and essential services. Some of these countries' approaches are similar to South Africa's, but in each there is some difference that could be useful in the South African situation. Through these comparisons it becomes clear that the right to strike is important in many countries around the world, but that each country's essential services (or services that can be classified as essential) are equally important. Every country places at the very least some limitation on the right of essential services employees to strike.In conclusion this article states that the South African Labour Law is not perfect and can be improved by means of comparison. This improvement is of vital importance to the lives, health and personal safety of every individual in the country.

DEEDS REGISTRATION AND TITLE REGISTRATION: MODEL SOLUTIONS CONCERNING LAND REGISTRIES IN THE COMMON LAW SYSTEMSummary The aim of this article is to present the two main land registration models in the common law countries, i.e. deeds recordation and title registration, taking into account the broader historical perspective indicating their origins, evolution and developments, as well as the current state of legal regulations in the field of registration of interest in land. The system of deeds recordation is characterized on the basis of regulations adopted in the vast majority of the US states, whereas the title registration model is presented against the background of the Torrens system, the origins of which date back to 19th-century Australian legislation. From Australia this particular land registration system spread to other continents. A comparison is carried out of the two systems, taking into account their advantages and disadvantages, and the reasons for the global success of the title registration model are indicated. On the grounds of the regulations adopted in Scotland and the Republic of South Africa the author makes also an attempt to characterize the mixed systems, which are generally based on the deeds recordation model but emploi some solutions typical for the title registration system. Concluding the article, the author tries to indicate the particular characteristics of title registration model which could be a source of inspiration for the potential optimization of the Polish land registry system.

For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration, which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children's issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.

Purpose This paper aims to not only disentangle the recently altered law and policy on coastal management in New South Wales (NSW), Australia, but also raise opportunities for fresh ideas to develop when dealing with both existing and future coastal damage. The focus is on the role of local government which is not only closer to concerned citizens but also faces costal damage on its own doorstep. Design/methodology/approach The paper explores the topic from the beginnings of relevant statutory law to the current situation, supported by a case study. It is transdisciplinary in nature, encompassing land use and coastal legislation. Findings The narrative encourages further attention to the key issues at the local level. This is underpinned by the need for planners to move beyond zoning and other restrictive mechanisms to more strategic approaches. All levels of government must recognise that regulatory planning on its own is insufficient. This leads to the need for champions to consider opportunities beyond the ordinary. Originality/value While this paper will add to a growing literature on coastal damage and action at the local level, its emphasis on the benefits and limitations of the changing statutory system will assist not only policy makers but professional officers at the local forefront.

This paper seeks to critically analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property. This analysis is conducted with the obligations imposed under sections 4 and 46 of the 2008 Act in mind. The purpose is not to question the inclusion of this duty in the 2008 Act. It is simply to question whether the common law interpretation of the duty still suffices in the face of section 76(3) of the 2008 Act, which seems to suggest that a different standard of judgment must be used. The argument that is made here is that the use of common law principles in interpreting proper purpose is well and good when the actions of directors are challenged based on the common law, but, where this duty has been incorporated into statutory law the interpretation of the duty in the context of the wording of the statute should be paramount. In addition, when interpreting any provision of the Act, consideration of the objects of the statute becomes inevitable. The interpretation of the duty cannot, in the face of the changes brought about by the statute, remain stagnant as a result of reliance on common law standards of judgment. The wording of the provision in question and the purpose of the statute cannot and must not be ignored; they must be given effect. A comparative approach will be adopted, using legislation and case law from Australia and Canada. The selection of these particular jurisdictions is based solely on the fact that like South Africa, their legal heritage is based on English common law, and a comparison of the three jurisdictions therefore makes sense.

Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman “lends” her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords “surrogacy” and “surrogate motherhood”, to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of “fertility tourism”, i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.

Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman “lends” her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords “surrogacy” and “surrogate motherhood”, to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of “fertility tourism”, i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.

The Corona Virus Disease (COVID-19) pandemic that has plagued the world has changed the mindset, how to behave and how to act, not only in social interaction but also has influenced the law enforcement system. Development in Information Technology (IT) has found a teleconference system as a means of conducting virtual courts as a reaction to social or physical distancing movements which is one way to prevent the spread of COVID-19. Although in practice the use of a virtual court in a trial is considered capable of preventing the spread of viruses, the use of a virtual court must keep be based on applicable laws and regulations. This paper is a normative legal research with legislation approach, case approach, comparative legal approach, and conceptual approach to legal material collected through literature study and then analyzed using grammatical, systematic, and extensive interpretation methods. Based on the results of the study, several countries such as the United Kingdom, China, Australia (New South Wales) and America (New York) and Indonesia (although limited to the examination of witnesses) have applied virtual courts in the justice system. Implementation of the trial using the virtual court method by teleconference did not violate the provisions of the trial set out in the Criminal Procedure Code (KUHAP). According to the Draft Law KUHAP has accommodated the trial using the virtual court method as an embodiment of legal principles in the judiciary that is carried out quickly, simply, and at a low cost. The use of virtual court is not the first or primary choice in examining criminal cases in Indonesia, in abnormal emergency conditions due to the COVID-19 pandemic as it is today, an examination by the virtual court method is a solution so that the criminal justice system continues to run without reducing the efforts to prevent the spread of the virus. Trials using virtual court facilities continue to accommodate the human rights of victims, witnesses and defendants through their virtual presence so that a fair trial continues in the courtroom.

The delivery of quality care at the end of life should be seamless across all health care settings and independent from variables such as institutional largeness, charismatic leadership, funding sources and blind luck … People have come to fear the prospect of a technologically protracted death or abandonment with untreated emotional and physical stress. (Field and Castle cited in Fins et al., p. 1–2). 1 Australians are entitled to plan in advance the medical treatments they would allow in the event of incapacity using advance directives (ADs). A critical role of ADs is protecting people from unwanted inappropriate cardiopulmonary resuscitation (CPR) at the end stage of life. Generally, ADs are enacted in the context of medical evaluation. However, first responders to a potential cardiac arrest are often non-medical, and in the absence of medical instruction, default CPR applies. That is, unless there is a clear AD CPR refusal on hand and policy supports compliance. Such policy occurs in jurisdictions where statute ADs qualifying or actioning scope is prescriptive enough for organisations to expect all health professionals to appropriately observe them. ADs under common law or similar in nature statute ADs are open to broader clinical translation because the operational criteria are set by the patient. According policy examples require initial medical evaluation to determine their application. Advance care planning (ACP) programs can help bring AD legislation to effect (J. Cashmore, speech at the launch of the Respecting Patient Choices Program at The Queen Elizabeth Hospital, Adelaide, SA, 2004). However, the efficacy of AD CPR refusal depends on the synergy of prevailing AD legislation and ensuing policy. When delivery fails, then democratic AD law is bypassed by paradigms such as the Physician Orders for Life-Sustaining Treatment (POLST) community form, as flagged in Australian Resuscitation Council guidelines. 2 Amidst Australian AD review and statute reform this paper offers a perspective on the attributes of a working AD model, drawing on the Respecting Patient Choices Program (RPCP) experience at The Queen Elizabeth Hospital (TQEH) under SA law. The SA Consent to Medical Treatment and Palliative Care Act 1995 and its ‘Anticipatory Direction’ has been foundational to policy enabling non-medical first responders to honour ADs when the patient is at the end stage of life with no real prospect of recovery. 3 The ‘Anticipatory Direction’ provision stands also to direct appointed surrogate decision-makers. It attunes with health discipline ethics codes; does not require a pre-existing medical condition and can be completed independently in the community. Conceivably, the model offers a national AD option, able to deliver AD CPR refusals, as an adjunct to existing common law and statute provisions. This paper only represents the views of the author and it does not constitute legal advice. What is known about the topic?Differences in advance directive (AD) frameworks across Australian states and territories and between legislated and common law can be confusing. 4 Therefore, health professionals need policy clarifying their expected response. Although it is assumed that ADs, including CPR refusals at the end of life will be respected, unless statute legislation is conducive to policy authorising that non-medical first responders to an emergency can observe clear AD CPR refusals, the provision may be ineffectual. Inappropriate, unwanted CPR can render a person indefinitely in a condition they may have previously deemed intolerable. Such intervention also causes distress to staff and families and ties up resources in high demand settings. What does this paper add?That effectual AD law needs to not only enshrine the rights of individuals but that the provision also needs to be deliverable. To be deliverable, statute AD formulation or operational criteria need to be appropriately scoped so that organisations, through policy, are prepared to legally support nurses and ambulance officers in making a medically unsupervised decision to observe clear CPR refusals. This is a critical provision, given ADs in common law (or similar statute) can apply broadly and, in policy examples, require medical authorisation to enact in order to ensure the person’s operational terms are clinically indicated. Moreover, compliance from health professionals (by act or omission) with in-situ ADs in an unavoidable emergency cannot be assumed unless the scope harmonises with ethics codes. This paper identifies a working model of AD delivery in SA under the Consent to Medical Treatment and Palliative Care Act 1995 through the Respecting Patient Choices Program. What are the implications for practitioners?A clear, robust AD framework is vital for the appropriate care and peace of mind of those approaching their end of life. A nationally recognised AD option is suggested to avail people, particularly the elderly, of their legal right to grant or refuse consent to CPR at the end of life. ADs should not exclude those without medical conditions from making advance refusals, but in order to ensure appropriate delivery in an emergency response, they need to be scoped so as that they will not be prematurely enacted yet clinically and ethically safe for all health professionals to operationalise. Failure to achieve this may give rise to systems bypassing legislation, such as the American (Physician Orders for Life-Sustaining Treatment) POLST example. It is suggested that the current SA Anticipatory Direction under the Consent to Medical treatment and Palliative Care Act 1995 provides a model of legislation producing a framework able to deliver such AD expectations, evidenced by supportive acute and community organisational policies. Definitions.Advance care planning (ACP) is a process whereby a person (ideally ‘in consultation with health care providers, family members and important others’ 5 ), decides on and ‘makes known choices regarding possible future medical treatment and palliative care, in the event that they lose the ability to speak for themselves’ (Office of the Public Advocate, South Australia, see www.opa.sa.gov.au). Advance directives (ADs) in this paper refers to legal documents or informal documents under common law containing individuals’ instructions consent to or refusing future medical treatment in certain circumstances when criteria in the law are met. A legal advance directive may also appoint a surrogate decision-maker.

This issue of PER consists of 11 articles and one case note dealing with a wide range of topics in the global legal landscape. Monray Botha analyses the responsibility of South African companies towards their employees for achieving social justice in the corporate world. Fawzia Cassim examines how identity thieves use the personal information of individuals to commit identity fraud and theft, and looks at legislative solutions introduced in South Africa, the United States of America, the United Kingdom and India to combat identity theft crimes. Howard Chitimira discusses the regulation of market manipulation in Australia with the purpose of assessing if lessons can be learnt from it for South Africa. Leentjie de Jong deals with parenting coordination, a new alternative dispute resolution process to alleviate the negative effects of high-conflict co-parenting cases on the South African court system and the children of divorce. Yvonne Donders investigates the cultural dimensions of the right to health endorsed by several treaty provisions and treaty monitoring bodies and comes to the conclusion that states can implement the right to the enjoyment of the highest attainable standard of health in a culturally sensitive and responsible way by consulting cultural communities and individuals. Joel Modiri reflects on the development of a radical democratic political theory that shifts analytical and conceptual registers in which the relationship between law and poverty is conventionally addressed and argues for the creation of a radical alternative that defatalizes the present. Stephen Peté's unconventional historical examination of the Barberton Prison Complex during the 1980s is published in two parts. The first part deals with the deaths of three prisoners and the injury of many others during a day of violence at the Barberton prison farm on 29 December 1982 and the second part examines a string of violent incidents which occurred within the Barberton Prison Complex during the course of 1983, leading to nine inmate deaths. Robbie Robinson raises the question of whether or not the constitutionally entrenched right to make decisions concerning reproduction may be limited, as the continued existence of the State may ultimately be jeopardised if the size of the population is not limited to the available levels of subsistence. Olufemi Soyejudiscusses the incapacity of low-income countries to realise the Millennium Development Goals and seeks to make a case for the adoption of a development-driven approach to law as a linchpin for the post-2015 development agenda. Carmel van Niekerk considers the constitutionality of section 294 of the Children's Act 38 of 2005, which permits commissioning parents to engage in surrogacy arrangements only in instances where they are able to provide a genetic link to their future offspring. In the only case note, Salona Lutchman evaluates the implications ofSS v Litako 2014 SACR 431 (SCA): A Clarification on Extra Curial Statements and Hearsay.

Introduction For some time now there has been a strong critical framework that identifies a significant shift in the politics of homosexuality in the Anglo-oriented West over the last fifteen to twenty years. In this article I draw on this framework to describe the current moment in the Australian cultural politics of homosexuality. I focus on the issue of same-sex marriage as a key indicator of the currently emerging era. I then turn to two Australian texts about marriage that were produced in “the period before” this time, with the aim of recovering what has been partially lost from current formations of GLBT politics and from available memories of the past. Critical Histories Lisa Duggan’s term “the new homonormativity” is the frame that has gained widest currency among writers who point to the incorporation of certain versions of homosexuality into the neo-liberal (U.S.) mainstream. She identifies a sexual politics that “does not contest dominant heteronormative assumptions and institutions, but upholds and sustains them, while promising the possibility of a demobilized gay constituency and a privatized, depoliticized gay culture anchored in domesticity and consumption” (50). More recently, writing of the period inaugurated by the so-called “war on terror” and following Duggan, Jasbir Puar has introduced the term “homonationalism” to refer to “a collusion between homosexuality and American nationalism that is generated both by national rhetorics of patriotic inclusion and by gay and queer subjects themselves” (39). Damien Riggs adds the claims of Indigenous peoples in ongoing colonial contexts to the ground from which contemporary GLBT political claims can be critiqued. He concludes that while “queer people” will need to continue to struggle for rights, it is likely that cultural intelligibility “as a subject of the nation” will be extended only to those “who are established through the language of the nation (i.e., one that is founded upon the denial of colonial violence)” (97). Most writers who follow these kinds of critical analyses refer to the discursive place of homosexual couples and families, specifically marriage. For Duggan it was the increasing focus on “full gay access to marriage and military service” that defined homonormativity (50). Puar allows for a diversity of meanings of same-sex marriage, but claims that for many it is “a demand for reinstatement of white privileges and rights—rights of property and inheritance in particular” (29; see also Riggs 66–70). Of course not all authors locate the political focus on same-sex marriage and its effects as a conservative affair. British scholar Jeffrey Weeks stresses what “we” have gained and celebrates the rise of the discourse of human rights in relation to sexuality. “The very ordinariness of recognized same-sex unions in a culture which until recently cast homosexuality into secret corners and dark whispers is surely the most extraordinary achievement of all” (198), he writes. Australian historian Graham Willett takes a similar approach in his assessment of recent Australian history. Noting the near achievement of “the legal equality agenda for gay people” (“Homos” 187), he notes that “the gay and lesbian movement went on reshaping Australian values and culture and society through the Howard years” (193). In his account it did this in spite of, and untainted by, the dominance of Howard's values and programs. The Howard period was “littered with episodes of insult and discrimination … [as the] government tried to stem the tide of gay, lesbian and transgender rights that had been flowing so strongly since 1969”, Willett writes (188). My own analysis of the Howard years acknowledges the significant progress made in law reform relating to same-sex couples and lesbian and gay parents but draws attention to its mutual constitution with the dominance of the white, patriarchal, neo-liberal and neo-conservative ideologies which dominated social and political life (2013 forthcoming). I argue that the costs of reform, fought for predominantly by white and middle class lesbians and gay men deploying homonormative discourses, included the creation of new identities—single lesbians and gays whose identity did not fit mainstream notions, non-monogamous couples and bad mothers—which were positioned on the illegitimate side of the newly enfranchised. Further the success of the reforms marginalised critical perspectives that are, for many, necessary tools for survival in socially conservative neoliberal times. Same-Sex Marriage in Australia The focus on same-sex marriage in the Australian context was initiated in April 2004 by then Prime Minister Howard. An election was looming and two same-sex couples were seeking recognition of their Canadian marriages through the courts. With little warning, Howard announced that he would amend the Federal Marriage Act to specify that marriage could only take place between a man and a woman. His amendment also prevented the recognition of same-sex marriages undertaken overseas. Legislation was rushed through the parliament in August of that year. In response, Australian Marriage Equality was formed in 2004 and remains at the centre of the GLBT movement. Since that time political rallies in support of marriage equality have been held regularly and the issue has become the key vehicle through which gay politics is understood. Australians across the board increasingly support same-sex marriage (over 60% in 2012) and a growing majority of gay and lesbian people would marry if they could (54% in 2010) (AME). Carol Johnson et al. note that while there are some critiques, most GLBT people see marriage “as a major equality issue” (Johnson, Maddison and Partridge 37). The degree to which Howard’s move changed the terrain of GLBT politics cannot be underestimated. The idea and practice of (non-legal) homosexual marriage in Australia is not new. And some individuals, publicly and privately, were calling for legal marriage for same-sex couples before 2004 (e.g. Baird, “Kerryn and Jackie”). But before 2004 legal marriage did not inspire great interest among GLBT people nor have great support among them. Only weeks before Howard’s announcement, Victorian legal academic and co-convenor of the Victorian Gay & Lesbian Rights Lobby Miranda Stewart concluded an article about same-sex relationship law reform in Victoria with a call to “begin the debate about gay marriage” (80, emphasis added). She noted that the growing number of Australian couples married overseas would influence thinking about marriage in Australia. She also asked “do we really want to be part of that ‘old edifice’ of marriage?” (80). Late in 2003 the co-convenors of the NSW Gay and Lesbian Rights Lobby declared that “many members of our community are not interested in marriage” and argued that there were more pressing, and more practical, issues for the Lobby to be focused on (Cerise and McGrory 5). In 2001 Jenni Millbank and Wayne Morgan, two leading legal academics and activists in the arena of same-sex relationship politics in Australia, wrote that “The notion of ‘same-sex marriage’ is quite alien to Australia” (Millbank and Morgan, 295). They pointed to the then legal recognition of heterosexual de facto relationships as the specific context in Australia, which meant that marriage was not viewed as "paradigmatic" (296). In 1998 a community consultation conducted by the Equal Opportunity Commission in Victoria found that “legalising marriage for same-sex couples did not enjoy broad based support from either the community at large or the gay and lesbian community” (Stewart 76). Alongside this general lack of interest in marriage, from the early-mid 1990s gay and lesbian rights groups in each state and territory began to think about, if not campaign for, law reform to give same-sex couples the same entitlements as heterosexual de facto couples. The eventual campaigns differed from state to state, and included moments of high profile public activity, but were in the main low key affairs that met with broadly sympathetic responses from state and territory ALP governments (Millbank). The previous reforms in every state that accorded heterosexual de facto couples near equality with married couples meant that gay and lesbian couples in Australia could gain most of the privileges available to heterosexual couples without having to encroach on the sacred territory (and federal domain) of marriage. In 2004 when Howard announced his marriage bill only South Australia had not reformed its law. Notwithstanding these reforms, there were matters relating to lesbian and gay parenting that remained in need of reform in nearly every jurisdiction. Further, Howard’s aggressive move in 2004 had been preceded by his dogged refusal to consider any federal legislation to remove discrimination. But in 2008 the new Rudd government enacted legislation to remove all discrimination against same-sex couples in federal law, with marriage and (ironically) the lack of anti-discrimination legislation on the grounds of sexuality the exceptions, and at the time of writing most states have made or will soon implement the reforms that give full lesbian and gay parenting rights. In his comprehensive account of gay politics from the 1950s onwards, published in 2000, Graham Willett does not mention marriage at all, and deals with the moves to recognise same-sex relationships in one sixteen line paragraph (Living 249). Willett’s book concludes with the decriminalisation of sex between men across every state of Australia. It was written just as the demand for relationship reform was becoming the central issue of GLBT politics. In this sense, the book marks the end of one era of homosexual politics and the beginning of the next which, after 2004, became organised around the desire for marriage. This understanding of the recent gay past has become common sense. In a recent article in the Adelaide gay paper blaze a young male journalist wrote of the time since the early 1970s that “the gay rights movement has shifted from the issue of decriminalising homosexuality nationwide to now lobbying for full equal rights for gay people” (Dunkin 3). While this (reductive and male-focused) characterisation is not the only one possible, I simply note that this view of past and future progress has wide currency. The shift of attention in this period to the demand for marriage is an intensification and narrowing of political focus in a period of almost universal turn by state and federal governments to neoliberalism and an uneven turn to neo-conservatism, directions which have detrimental effects on the lives of many people already marginalised by discourses of sexuality, race, class, gender, migration status, (dis)ability and so on. While the shift to the focus on marriage from 2004 might be understood as the logical final step in gaining equal status for gay and lesbian relationships (albeit one with little enthusiasm from the GLBT political communities before 2004), the initiation of this shift by Prime Minister Howard, with little preparatory debate in the LGBT political communities, meant that the issue emerged onto the Australian political agenda in terms defined by the (neo)conservative side of politics. Further, it is an example of identity politics which, as Lisa Duggan has observed in the US case, is “increasingly divorced from any critique of global capitalism” and settles for “a stripped-down equality, paradoxically imagined as compatible with persistent overall inequality” (xx). Brides before Marriage In the last part of this article I turn to two texts produced early in 1994—an activist document and an ephemeral performance during the Sydney Gay and Lesbian Mardi Gras parade. If we point only to the end of the era of (de)criminalisation, then the year 1997, when the last state, Tasmania, decriminalised male homosex, marks the shift from one era of the regulation of homosexuality to another. But 1994 bore the seeds of the new era too. Of course attempts to identify a single year as the border between one era and the next are rhetorical devices. But some significant events in 1994 make it a year of note. The Australian films Priscilla: Queen of the Desert and The Sum of Us were both released in 1994, marking particular Australian contributions to the growing presence of gay and lesbian characters in Western popular culture (e.g. Hamer and Budge). 1994 was the UN International Year of the Family (IYF) and the Sydney Gay and Lesbian Mardi Gras chose the theme “We are Family” and published endorsement from both Prime Minister Keating and the federal opposition leader John Hewson in their program. In 1994 the ACT became the first Australian jurisdiction to pass legislation that recognised the rights and entitlements of same-sex couples, albeit in a very limited and preliminary form (Millbank 29). The NSW Gay and Lesbian Rights Lobby's (GLRL) 1994 discussion paper, The Bride Wore Pink, can be pinpointed as the formal start to community-based activism for the legal recognition of same-sex relationships. It was a revision of an earlier version that had been the basis for discussion among (largely inner Sydney) gay and lesbian communities where there had been lively debate and dissent (Zetlein, Lesbian Bodies 48–57). The 1994 version recommended that the NSW government amend the existing definition of de facto in various pieces of legislation to include lesbian and gay relationships and close non-cohabiting interdependent relationships as well. This was judged to be politically feasible. In 1999 NSW became the first state to implement wide ranging reforms of this nature although these were narrower than called for by the GLRL, “including lesser number of Acts amended and narrower application and definition of the non-couple category” (Millbank 10). My concern here is not with the politics that preceded or followed the 1994 version of The Bride, but with the document itself. Notwithstanding its status for some as a document of limited political vision, The Bride bore clear traces of the feminist and liberationist thinking, the experiences of the AIDS crisis in Sydney, and the disagreements about relationships within lesbian and gay communities that characterised the milieu from which it emerged. Marriage was clearly rejected, for reasons of political impossibility but also in light of a list of criticisms of its implication in patriarchal hierarchies of relationship value (31–2). Feminist analysis of relationships was apparent throughout the consideration of pros and cons of different legislative options. Conflict and differences of opinion were evident. So was humour. The proliferation of lesbian and gay commitment ceremonies was listed as both a pro and a con of marriage. On the one hand "just think about the prezzies” (31); on the other, “what will you wear” (32). As well as recommending change to the definition of de facto, The Bride recommended the allocation of state funds to consider “the appropriateness or otherwise of bestowing entitlements on the basis of relationships,” “the focusing on monogamy, exclusivity and blood relations” and the need for broader definitions of “relationships” in state legislation (3). In a gesture towards a political agenda beyond narrowly defined lesbian and gay interests, The Bride also recommended that “the lesbian and gay community join together with other groups to lobby for the removal of the cohabitation rule in the Social Security Act 1991” (federal legislation) (34). This measure would mean that the payment of benefits and pensions would not be judged in the basis of a person’s relationship status. While these radical recommendations may not have been energetically pursued by the GLRL, their presence in The Bride records their currency at the time. The other text I wish to excavate from 1994 is the “flotilla of lesbian brides” in the 1994 Sydney Gay and Lesbian Mardi Gras. These lesbians later appeared in the April 1994 issue of Sydney lesbian magazine Lesbians on the Loose, and they have a public afterlife in a photo by Sydney photographer C Moore Hardy held in the City of Sydney archives (City of Sydney). The group of between a dozen and twenty lesbians (it is hard to tell from the photos) was dressed in waist-to-ankle tulle skirts, white bras and white top hats. Many wore black boots. Unshaven underarm hair is clearly visible. Many wore long necklaces around their necks and the magazine photo makes clear that one bride has a black whip tucked into the band of her skirt. In an article about lesbians and legal recognition of their relationships published in 1995, Sarah Zetlein referred to the brides as “chicks in white satin” (“Chicks”). This chick was a figure that refused the binary distinction between being inside and outside the law, which Zetlein argued characterised thinking about the then emerging possibilities of the legal recognition of lesbian (and gay) relationships. Zetlein wrote that “the chick in white satin”: Represents a politics which moves beyond the concerns of one’s own identity and demands for inclusion to exclusion to a radical reconceptualisation of social relations. She de(con)structs and (re) constructs. … The chick in white satin’s resistance often lies in her exposure and manipulation of her regulation. It is not so much a matter of saying ‘no’ to marriage outright, or arguing only for a ‘piecemeal’ approach to legal relationship regulation, or lobbying for de facto inclusion as was recommended by The Bride Wore Pink, but perverting the understanding of what these legally-sanctioned sexual, social and economic relationships mean, hence undermining their shaky straight foundations.(“Chicks” 56–57) Looking back to 1994 from a time nearly twenty years later when (straight) lesbian brides are celebrated by GLBT culture, incorporated into the mainstream and constitute a market al.ready anticipated by “the wedding industrial complex” (Ingraham), the “flotilla of lesbian brides” can be read as a prescient queer negotiation of their time. It would be a mistake to read the brides only in terms of a nascent interest in legally endorsed same-sex marriage. In my own limited experience, some lesbians have always had a thing for dressing up in wedding garb—as brides or bridesmaids. The lesbian brides marching group gave expression to this desire in queer ways. The brides were not paired into couples. Zetlein writes that “the chick in white satin … [has] a veritable posse of her girlfriends with her (and they are all the brides)” (“Chicks” 63, original emphasis). Their costumes were recognisably bridal but also recognisably parodic and subverting; white but hardly innocent; the tulle and bras were feminine but the top hats were accessories conventionally worn by the groom and his men; the underarm hair a sign of feminist body politics. The whip signalled the lesbian underground sexual culture that flourished in Sydney in the early 1990s (O’Sullivan). The black boots were both lesbian street fashion and sensible shoes for marching! Conclusion It would be incorrect to say that GLBT politics and lesbian and gay couples who desire legal marriage in post-2004 Australia bear no trace of the history of ambivalence, critique and parody of marriage and weddings that have come before. The multiple voices in the 2011 collection of “Australian perspectives on same-sex marriage” (Marsh) put the lie to this claim. But in a climate where our radical pasts are repeatedly forgotten and lesbian and gay couples increasingly desire legal marriage, the political argument is hell-bent on inclusion in the mainstream. There seems to be little interest in a dance around the margins of inclusion/exclusion. I add my voice to the concern with the near exclusive focus on marriage and the terms on which it is sought. It is not a liberationist politics to which I have returned in recalling The Bride Wore Pink and the lesbian brides of the 1994 Gay and Lesbian Mardi Gras, but rather an attention to the differences in the diverse collective histories of non-heterosexual politics. The examples I elaborate are hardly cases of radical difference. But even these instances might remind us that “we” have never been on a single road to equality: there may be incommensurable differences between “us” as much as commonalities. They also remind that desires for inclusion and recognition by the state should be leavened with a strong dose of laughter as well as with critical political analysis. References Australian Marriage Equality (AME). “Public Opinion Nationally.” 22 Oct. 2012. ‹http://www.australianmarriageequality.com/wp/who-supports-equality/a-majority-of-australians-support-marriage-equality/›. Baird, Barbara. “The Politics of Homosexuality in Howard's Australia.” Acts of Love and Lust: Sexuality in Australia from 1945-2010. Eds. Lisa Featherstone, Rebecca Jennings and Robert Reynolds. Newcastle: Cambridge Scholars Press, 2013 (forthcoming). —. “‘Kerryn and Jackie’: Thinking Historically about Lesbian Marriages.” Australian Historical Studies 126 (2005): 253–271. Butler, Judith. “Is Kinship Always Already Heterosexual?” Differences 13.1 (2002): 14–44. Cerise, Somali, and Rob McGrory. “Why Marriage Is Not a Priority.” Sydney Star Observer 28 Aug. 2003: 5. City of Sydney Archives [061\061352] (C. Moore Hardy Collection). ‹http://www.dictionaryofsydney.org//image/40440?zoom_highlight=c+moore+hardy›. Duggan Lisa. The Twilight of Equality?: Neoliberalism, Cultural politics, and the Attack on Democracy. Boston: Beacon Press, 2003. Dunkin, Alex. “Hunter to Speak at Dr Duncan Memorial.” blaze 290 (August 2012): 3. Hamer, Diane, and Belinda Budege, Eds. The Good Bad And The Gorgeous: Popular Culture's Romance With Lesbianism. London: Pandora, 1994. Ingraham, Chrys. White Weddings: Romancing Heterosexuality in Popular Culture, 2nd ed. New York: Routledge, 2008. Johnson, Carol, and Sarah Maddison, and Emma Partridge. “Australia: Parties, Federalism and Rights Agendas.” The Lesbian and Gay Movement and the State. Ed. Manon Tremblay, David Paternotte and Carol Johnson. Surrey: Ashgate, 2011. 27–42. Lesbian and Gay Legal Rights Service. The Bride Wore Pink, 2nd ed. Sydney: GLRL, 1994. Marsh, Victor, ed. Speak Now: Australian Perspectives on Same-Sex Marriage. Melbourne: Clouds of Mgaellan, 2011. Millbank Jenni, “Recognition of Lesbian and Gay Families in Australian Law—Part one: Couples.” Federal Law Review 34 (2006): 1–44Millbank, Jenni, and Wayne Morgan. “Let Them Eat Cake and Ice Cream: Wanting Something ‘More’ from the Relationship Recognition Menu.” Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law. Ed. Robert Wintermute and Mads Andenaes. Portland: Hart Publishing, 2001. 295–316. O'Sullivan Kimberley. “Dangerous Desire: Lesbianism as Sex or Politics.” Ed. Jill Julius Matthews. Sex in Public: Australian Sexual Cultures Sydney: Allen and Unwin, 1997. 120–23. Puar, Jasbir K. Terrorist Assemblages: Homonationalism in Queer Times. Durham: Duke UP, 2007 Stewart, Miranda, “It’s a Queer Thing: Campaigning for Equality and Social Justice for Lesbians and Gay Men”. Alternative Law Journal 29.2 (April 2004): 75–80. Walker, Kristen. “The Same-Sex Marriage Debate in Australia.” The International Journal of Human Rights 11.1–2 (2007): 109–130. Weeks, Jeffrey. The World We Have Won: The Remaking of Erotic and Intimate Life. Abindgdon: Routledge, 2007. Willett, Graham. Living Out Loud: A History of Gay and Lesbian Activism in Australia. Sydney: Allen & Unwin, 2000. Willett, Graham. “Howard and the Homos.” Social Movement Studies 9.2 (2010): 187–199. Zetlein, Sarah. Lesbian Bodies Before the Law: Intimate Relations and Regulatory Fictions. Honours Thesis, University of Adelaide, 1994. —. “Lesbian Bodies before the Law: Chicks in White Satin.” Australian Feminist Law Journal 5 (1995): 48–63.

There are various models for determining and allocating child support obligations post-divorce and many different principles upon which such a policy can be based. In most legal systems the parents retain the duty to support their needy children after divorce as it is primarily their obligation to ensure the adequate financial welfare of their children. This principle is applicable in both the South African and Canadian legal systems. In South Africa, in terms of both the common law and legislation, both parents must maintain their children “according to their respective means”. The awarding of a specific amount of maintenance is, however, a complex process calculated by the courts on a case-by-case basis mainly by considering two issues: the needs of the children and the parents’ ability to maintain their children within the circumstances and means of each of the parents. Although both aspects are important in a maintenance enquiry, the focus of this note is on the interpretation of the calculation of the contribution of each of the parents, especially the non-custodial parent. The interpretation of the concept “means” obviously has important consequences for the parties: the broader the interpretation of the “means” of a parent, the higher the proportion of the contribution of that parent would be towards the support of the children. This is especially important in South Africa where a substantial proportion of those who are obligated to pay maintenance is impecunious. The Canadian law rested on similar principles until 1997 when the federal government promulgated the Federal Child Support Guidelines as an amendment to the Divorce Act. The impact of these Guidelines on the calculation of the parental share of post-divorce child support has been far-reaching. The aim of this note is firstly to examine the meaning of the term “means” within the South African legal system as set out in the common law, the various statutes and as these have been interpreted by the majority of courts over the past century. The second aim is to give a brief overview of the Canadian Guidelines and to compare their current system with the South African scenario. The rationale for choosing this jurisdiction is (i) the fact that in both jurisdictions the courts have the ultimate say over the amount of support paid; and (ii) as the Canadian position before their 1997 amendments was similar to the current South Africa system, it was envisaged that by exploring their reasons for change and evaluating their current system, some useful insights might be gained in solving some problems experienced in the South African maintenance system. The note will conclude with some suggestions for reform in South Africa in light of the Canadian experience.

Since the introduction of the Human Rights Act 1998 in the United Kingdom, a significant expansion in the use of drug detection dogs, the most common tool of olfactory surveillance, has taken place with relatively little debate, without specific legislative authority and in the absence of a code of practice. In contrast, the use of the dogs in New South Wales, Australia and in the United States has been the subject of Supreme Court decisions, and in New South Wales, of parliamentary legislation and an independent review by the New South Wales Ombudsman. This paper will argue that the difficult legal issues raised by olfactory surveillance are similar to those raised by other forms of 'new surveillance' in the criminal justice system and that the failure of the legal system to deal with these issues in the case of olfactory surveillance could amount to a dangerous precedent for the regulation of other surveillance technologies.

This article comments on Peta Spyrou’s article in this volume entitled ‘Civil Liability for Negligence: An Analysis of Cyberbullying Policies in South Australian Schools’. It considers whether the two established legal regimes of tort law and the criminal law can offer a satisfactory response to the problem of cyberbullying by school children and then moves on to outline some innovative legislation introduced recently by the governments of Australia and New Zealand. It suggests that the law of torts is not currently equipped to deal directly with many of the problems caused by cyberbullying and argues that using the weight of the criminal law is not always an appropriate response to wrongs committed by school children. It concludes that the recent legislative initiatives offer a more efficient, effective and restorative response.