Journal articles on the topic 'Insanity (Law) Jurisprudence Australia'
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1
Finnane, Mark. "‘Irresistible impulse’: historicizing a judicial innovation in Australian insanity jurisprudence." History of Psychiatry 23, no. 4 (November 19, 2012): 454–68. http://dx.doi.org/10.1177/0957154x12450128.
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In twentieth-century Australian criminal law a distinctive departure from the M’Naghten Rules developed as a critique of the discourse of reasoning and verdicts applying in the relevant English trials from the 1880s. The English verdict of ‘guilty but insane’ was criticized by the leading jurists as contradictory. In a sequence of influential judgments, the jurist Owen Dixon articulated an approach to the insanity defence that made room for a medico-legal discourse which broadened the possible referents of what it meant to ‘know’ the legality of an act, and also acknowledged the complex behavioural factors that might determine an act of homicide. This paper explores the shaping and significance of this departure and its comparative judicial, medical and social contexts. A concluding discussion considers whether the more flexible interpretation of the insanity defence implied by the direction of Dixon’s decisions made as much of a difference to frequency of use of the defence as the contemporaneous decline and eventual abolition of capital punishment.
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Laufer, William S. "The jurisprudence of the insanity defense." Journal of Legal Medicine 16, no. 3 (September 1995): 453–59. http://dx.doi.org/10.1080/01947649509510988.
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Hawk, Gary. "Book Review: The Jurisprudence of the Insanity Defense." Criminal Justice Review 21, no. 2 (September 1996): 276–77. http://dx.doi.org/10.1177/073401689602100217.
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Menninger, Karl A. "Book Review: The Jurisprudence of the Insanity Defense." Journal of Psychiatry & Law 25, no. 3 (September 1997): 413–17. http://dx.doi.org/10.1177/009318539702500309.
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Edney, Richard. "Indigenous punishment in Australia: a jurisprudence of pain ?" International Journal of the Sociology of Law 30, no. 3 (September 2002): 219–34. http://dx.doi.org/10.1016/s0194-6595(02)00026-6.
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Croft, Clyde. "Recent Developments in Arbitration in Australia." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 599–616. http://dx.doi.org/10.54648/joia2011046.
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Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
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Bastani, Amir, and Colin Gavaghan. "Challenges to "a Most Dangerous Doctrine" or a "Fantastic Theory" of Volitional Insanity." Victoria University of Wellington Law Review 47, no. 4 (December 1, 2016): 545. http://dx.doi.org/10.26686/vuwlr.v47i4.4788.
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In theory, an insanity defence can take two forms: the cognitive form (C-insanity) and the volitional form (V-insanity). The defence of C-insanity recognises that a disordered state of mind can make the ability to understand the nature of an action impossible. On the other hand, V-insanity is recognised in some common law jurisdictions, such as all jurisdictions in Australia except for Victoria and New South Wales, and is a full defence. It recognises that a disordered state of mind can make the exercise of self-control impossible. However, that disordered state of mind does not necessarily affect the understanding of the nature of the act impossible.
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Boyle, Liam. "The Significant Role of the Australia Acts in Australian Public Law." Federal Law Review 47, no. 3 (July 3, 2019): 358–89. http://dx.doi.org/10.1177/0067205x19856501.
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The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.
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Barnett, Hilaire. "The province of jurisprudence determined-again!" Legal Studies 15, no. 1 (March 1995): 88–127. http://dx.doi.org/10.1111/j.1748-121x.1995.tb00054.x.
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This report presents the findings of the survey conducted in 1993/94, this survey being an updated version of one conducted in 1983/94. The present study has been expanded to cover Australian and Canadian (Common Law) universities, and as in previous surveys has been conducted primarily through the medium of a detailed questionnaire.In each of the jurisdictions surveyed there exist parallel concerns about legal education and, of more direct interest here, the role of Jurisprudence and Legal Theory within the law curriculum. By drawing on data received from Australia, Canada and the United Kingdom and the literature on legal education, this article aims to provide a comparative study of the extent to which Jurisprudence features in the academic training of the next generation of lawyers, a large proportion of whom will enter a profession characterised by a shared common law tradition.
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Kiefel, Susan, and Gonzalo Villalta Puig. "The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union." Global Journal of Comparative Law 3, no. 1 (May 29, 2014): 34–49. http://dx.doi.org/10.1163/2211906x-00301002.
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Together with matters of multilateral and bilateral regulation, domestic regulation affects the law and policy of economic relations between the European Union (eu) and Australia. This article discusses the constitutional determinants of the Australian single market and the significance to its development of the free trade jurisprudence of the Court of Justice of the European Union. When Australia was federated, free trade between the States and the removal of barriers at the borders were at the forefront of constitutional objectives. They find expression in Section 92 of the Australian Constitution. It took some time for the jurisprudence to develop by reference to principles of competition. Recent decisions of the High Court of Australia highlight the need to prove that a law or measure may have anti-competitive effects within a market to hold it invalid. Application of this (unacknowledged) test of proportionality invites comparison with eu law and opens to question the usefulness of protectionism as a criterion of constitutional invalidity for trade without borders in the ‘new economy’.
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Kelly, Danial. "Natural Resources Law in Australia: Principles and Practices." Jambe Law Journal 1, no. 2 (July 12, 2019): 155–76. http://dx.doi.org/10.22437/jlj.1.2.155-176.
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What is the jurisprudential approach taken to Natural Resources Law in Australia? The ultimate source of law in Australia is Commonwealth of Australia Constitution Act however the Constitution does not specifically include an environment or natural resources power and the Commonwealth government can only make laws under the heads of power provided by the Constitution. This paper considers how natural resources law has developed as environmental protection law, especially the Environment Protection and Biodiversity Conservation Act. Also discussed is the approach taken by the Northern Territory of Australia in relation to natural resources law. The discussion unearths the developing jurisprudence in Australian natural resources law that seems to increasingly favour environmental protection over human development.
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Tully, Stephen. "Sex, Slavery and the High Court of Australia: The Contribution of R v. Tang to International Jurisprudence." International Criminal Law Review 10, no. 3 (2010): 403–23. http://dx.doi.org/10.1163/157181210x507886.
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AbstractThe judgment of the High Court of Australia in R v. Tang is a significant contribution to jurisprudence on the definition of slavery under international law. This case considered whether the intention of the perpetrator was a necessary element for the prosecution of that offence under Australian law. The High Court also preserved the conceptual integrity of slavery, evaluated the decisions in Kunarac and Siliadin, identified the powers attaching to the right of ownership as that expression appears in the 1926 and 1956 Slavery Conventions and employed a human rights orientation to contemporary manifestations of slavery. Although considerable practical challenges remain for enforcing the prohibition against slavery in Australia, R v. Tang marks a significant precedent likely to influence future international jurisprudence on the topic.
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Wexler, David B., Michael L. Perlin, Michel Vols, Pauline Spencer, and Nigel Stobbs. "Editorial: Current Issues in Therapeutic Jurisprudence." QUT Law Review 16, no. 3 (December 13, 2016): 1. http://dx.doi.org/10.5204/qutlr.v16i3.692.
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<p><em><span style="font-family: Times New Roman;">On behalf of the guest editors of this special issue, leading scholars and practitioners in the therapeutic jurisprudence (‘TJ’) field in Australia, Europe, and the US, we congratulate QUT and the authors for a valuable contribution to the increasingly influential presence of TJ on the international stage.</span></em></p><p><em><span style="font-family: Times New Roman;">TJ had its genesis in the early 1990s as a new interdisciplinary approach to mental health law in the US, but has expanded remarkably in scope, reach and influence since then. TJ sees law as a social force which inevitably gives rise to unintended consequences, which may be either beneficial or harmful (what we have come to identify as therapeutic or anti-therapeutic consequences). These consequences flow from the operation of substantive rules, legal procedures, or from the behaviour of legal actors (such as lawyers and judges). It is in this sense that we conceive of the role of the law as a ‘therapeutic agent’. TJ researchers and practitioners typically make use of social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it affects, and then explore ways in which anti-therapeutic consequences can be reduced, and therapeutic consequences enhanced, without breaching due process requirements. The jurisdiction with which TJ was most often associated in its earlier days tended to the that of the drug courts (in which the drug court team assists drug addicted offenders to break out of their cycle of offending by facilitating and supervising treatment programs as part of the court process itself) and the other so-called problem solving courts (more commonly referred to as ‘solution focussed courts’ in Australia).</span></em></p>
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Yegorov, V., and T. Yegorovа. "ISSUES OF CONTEMPORARY STATE OF FORENSIC PSYCHIATRIC AND PSYCHOLOGICAL EXAMINATIONS." Theory and Practice of Forensic Science and Criminalistics 19, no. 1 (June 2, 2019): 427–44. http://dx.doi.org/10.32353/khrife.1.2019.34.
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The problem of determining the limits of competence of a forensic psychiatrist expert and a psychologist expert, the principles of interaction of law, forensic psychiatry and psychology in modern domestic expert practice remain relevant to the present day. The current legislation of Ukraine regulates expert compliance with the limits of competence. In jurisprudence and psychiatry, the issue of the definition of the concept of “insanity” is currently debatable, since the so-called “formula of insanity” contains medical (biological) and psychological (legal) criteria.
This article purpose The purpose of this paper: presenting of the author's systemic model of ascertaining insanity, which delimits the competences of lawyers and an expert psychiatrist; A written description of the psychiatric criteria (diagnostic, criticality and anamnestic) of determining the mental state of a person in a legally relevant period of time is given; The definition of the concept of “insanity” is formulated.
No less urgent is the problem of further improvement and bringing into compliance of certain paragraphs the Procedure for conducting a forensic psychiatric examination of the current legislation of Ukraine and departmental regulatory acts governing the organization of forensic expert activity in state specialized expert institutions. Separate provisions of the Procedure for conducting a forensic psychiatric examination, which can create significant difficulties in the work of a forensic psychiatrist, are analyzed, and appropriate proposals are made to change the content of problematic provisions in the specified regulatory document.
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Abbasi, Mahmood, and Nazli Mahmoodian. "Jurisprudence-Legal Consideration of Single-Status Childbearing." International Journal of Medical Toxicology and Forensic Medicine 10, no. 3 (October 13, 2020): 32553. http://dx.doi.org/10.32598/ijmtfm.v10i3.32553.
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Background: Among the achievements of modern fertility technologies available to contemporary humans, we could mention the freezing technique to fertility preservation, and subsequently, unmarried childbearing. The only way for having children was having sexual intercourse with the opposite gender in the past years; however, with the advent of this technology, even without such a relationship, it is possible to have a child. This process could be termed unmarried childbearing or single-status fertilities. This is one of the resent subjects in medical fertility; however, there is no research in this field, in Iran.
Methods: This was an applied and theoretical research in the theology field; thus, no research material was implemented. The main method of this research was the bookcase approach.
Result: In countries such as the USA, UK, and Australia, where there are more coherent laws about employing modern fertility techniques, this issue is addressed and specific laws exist in this regard. However, despite widespread use of this technique in Iran, we have no law in this respect except for the Fetal Donation Act of 2003, which only covers the general issues. In other words, the social fertility mandate has remained silent given permission, prohibition, and its conditions and effects on the child lineage in Iran's laws.
Freezing gametes is practiced in our country for a wide range. Besides, single-status fertility is occurring worldwide. Accordingly, this seems to be among the problems facing our society, and may also be illegally conducted in some cases, in Iran. In Islamic law, the permissible instances of reproductive rights include births through marriage, not otherwise, as well as births employing reproductive aids in terms of meeting the Islamic law. On the other hand, some individuals believe that this case can be regarded as some kind of inoculation with the involvement of a donor agency, and some jurists have voted to allow it. Therefore, these jurists explicitly accepted the use of donor gamete in the form of marital relations. The legislature of the Islamic Republic of Iran also emphasizes on donation to lawful couples in the law of donation approach. Therefore, using donated gametes for childbearing is excluded in singles. Additionally, Judaism and all branches of Christianity, except for the liberal protestant denomination prohibit unmarried childbearing.
While the approach to the issue differs from one country to another, the USA Supreme Court has recognized and protected free relationships, family formation, and decisions on births, as freedom rights. The UK law has subjected the provision of services to single women to the welfare of children resulting from the process. However, in France, the provision of infertility treatment services to single individuals is prohibited. According to Australia law, any single or heterosexual individual without receiving medically-assessed services, i.e., referred to as ‘‘clinically infertile’’ cannot use this technology for having children.
Conclusion: In some countries, like the USA, bearing a child at a single status is legal; however, in some other regions, like the UK and Australia, it is permitted under special conditions. In some countries, like France, this action is prohibited. There is no law about this matter in Iran. The 167 article of the constitution addresses considering the Islamic verses and narrations on preserving the destination of the generation or acquiring the benefits and disposing of the corruption. In conclusion, the only way to have a child and to realize the principle of reproduction is permitted in the framework of religious marriage; thus, bearing a child at a single status is illegal and prohibited, in Iran.
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Perlin, Michael L. "“Too stubborn to ever be governed by enforced insanity”: Some therapeutic jurisprudence dilemmas in the representation of criminal defendants in incompetency and insanity cases." International Journal of Law and Psychiatry 33, no. 5-6 (November 2010): 475–81. http://dx.doi.org/10.1016/j.ijlp.2010.09.017.
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Gray, Anthony. "Mandatory Sentencing Around the World and the Need for Reform." New Criminal Law Review 20, no. 3 (2017): 391–432. http://dx.doi.org/10.1525/nclr.2017.20.3.391.
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This article considers the increased use of mandatory sentencing provisions in a range of jurisdictions, including Canada, Australia, the United States, and United Kingdom/Europe. It finds that, whereas some courts have struck out mandatory sentencing laws, often mandatory minimum penalties have been validated. This jurisprudence is considered through a range of themes, including notions of arbitrariness, the doctrine of proportionality, the relevance of objectives of the criminal justice system, and broader questions regarding the separation of powers.
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McAdam, Jane, and Fiona Chong. "Complementary Protection in Australia two Years on: An Emerging Human Rights Jurisprudence." Federal Law Review 42, no. 3 (September 2014): 441–83. http://dx.doi.org/10.22145/flr.42.3.2.
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Since 24 March 2012, asylum seekers whose claims are processed in Australia have been able to claim protection on broader grounds than those contained in the Refugee Convention. This is known as ‘complementary protection’. Complementary protection provides protection to those who face a real risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment if removed from Australia. This article provides an in-depth analysis of complementary protection in its first two years of operation in Australia. It examines: (a) the kinds of factual scenarios giving rise to complementary protection; (b) case law developments in relation to the content of, and exceptions to, the complementary protection criteria; and (c) the extent to which Australia's approach reflects international practice.
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Keyzer, Patrick. "How section 90 of the Constitution makes cannabis law reform less likely in Australia." Alternative Law Journal 45, no. 4 (August 12, 2020): 247–53. http://dx.doi.org/10.1177/1037969x20948288.
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Cannabis law reform is unlikely in Australia because section 90 of the Constitution gives the exclusive power to tax goods to the Commonwealth, yet it is the states and territories that have the power to decriminalise use. What incentive does a state have to decriminalise cannabis if they cannot tax it? This article summarises the High Court’s s 90 jurisprudence. It also briefly explores the question of whether the states or territories could impose a levy on cannabis as a ‘fee for services rendered’ in the event that a user accesses state health services for cannabis-related health conditions.
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Rashbrooke, Gwenaele. "The International Tribunal for the Law of the Sea: A Forum for the Development of Principles of International Environmental Law?" International Journal of Marine and Coastal Law 19, no. 4 (2004): 515–36. http://dx.doi.org/10.1163/1571808053310107.
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AbstractThis article examines the role of the ITLOS established by the 1982 Law of the Sea Convention. It considers the extent to which principles of international environmental law are reflected in the 1982 Convention. It then reviews the relevant jurisprudence of the tribunal including the Southern Blue-fin Tuna case between Japan and Australia and New Zealand, the MOX case between Ireland and the UK, and the Land Reclamation case between Malaysia and Singapore to determine the extent that the ITLOS case-law has indeed contributed to the development of certain key principles of international environmental law, including Stockholm Principle 21/Rio Principle 2, the principle of preventative action, cooperation and precaution.
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Kwok, Kelvin Hiu Fai. "Object and intention under Article 101 TFEU: Lessons from Australia, New Zealand and analytical jurisprudence." Common Law World Review 48, no. 3 (September 2019): 114–41. http://dx.doi.org/10.1177/1473779519862801.
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What does it mean for an agreement to have an anticompetitive ‘object’ under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an ‘object’ case by reference to the agreement parties’ subjective intention, and if so, how? What exactly is the relationship between an agreement’s object and the parties’ subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin’s theory of legal interpretation as the analytical basis, this article argues for a ‘mixed’ conception of the ‘object’ concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the ‘object’ analysis of agreements.
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Beswick, Samuel. "Strike-out Appeals, Unjust Enrichment, and Discoverability: Insights from Kenya." Common Law World Review 51, no. 1-2 (May 18, 2022): 12–23. http://dx.doi.org/10.1177/14737795211070838.
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This note analyses a judgment of the Kenyan Court of Appeal that implicates issues that have been on the move in private law jurisprudence around the common law world. These issues are: (1) the interlocutory/final ruling distinction that appellate courts in Australia, Canada, Ghana, India, New Zealand, and elsewhere continue to grapple with; (2) when courts can reframe pleadings for breach of contract as claims in unjust enrichment, an issue recently considered by the Privy Council (2020); (3) the essentiality of ‘mistake’ for the purposes of benefitting from an extended limitation period – the subject of continued contention among unjust enrichment scholars; and (4) when mistakes are reasonably discoverable for limitation purposes, which has been the subject of major litigation before the United Kingdom Supreme Court (2020) and the Supreme Court of Canada (2021). The resolution of these issues in Alba Petroleum Ltd v Total Marketing Kenya Ltd could have been usefully informed by – and can inform – comparative common law jurisprudence.
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Roberts, Jemimah. "Constitutional ‘borrowing’ and freedom of expression: Can Australia learn from the US First Amendment?" Alternative Law Journal 44, no. 1 (January 10, 2019): 56–62. http://dx.doi.org/10.1177/1037969x18805223.
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This article explores the potential role of US free speech doctrine as a source of learning for the High Court in developing its own jurisprudence in a broadly analogous area – the Australian (implied) freedom of political communication. The author argues in favour of a critical and self-reflective approach to this question, where the comparative utility of foreign doctrine is assessed by reference to its use in advancing Australian-specific constitutional commitments and inquiries. The article concludes with a brief worked account of how this might be applied to ‘structural' versus ‘autonomy' driven US doctrine.
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Henderson, Emma, Nicole Shackleton, and Stephanie Falconer. "Reformative and rehabilitative programs for prisoners with cognitive impairments: Australia’s international obligations." Alternative Law Journal 42, no. 2 (June 2017): 102–6. http://dx.doi.org/10.1177/1037969x17710615.
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While there has been much recent controversy relating to the abusive treatment of young prisoners and the failure of the State to properly facilitate the rehabilitation and reformation of young detainees, little attention has been paid to similar failures in relation to prisoners with cognitive impairments. In this article, we argue that Article 10.3 of the International Covenant on Civil and Political Rights and Article 26 of the Convention on the Rights of Persons with Disabilities require Australia to ensure that the conditions of detention of all prisoners are primarily reformative and rehabilitative. Analysing relevant jurisprudence, we argue that Australia is systematically failing to meet its human rights obligations to prisoners found ‘not guilty’ by reason of mental impairment.
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Bevacqua, John. "Unresolved Controversies in Suing for Negligence of Tax Officials: Canadian and Australasian Insights and a Primer for Policy Makers' Consideration." Canadian Tax Journal/Revue fiscale canadienne 68, no. 2 (July 2020): 439–76. http://dx.doi.org/10.32721/ctj.2020.68.2.bevacqua.
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There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.
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Devendra, Isuru. "Inherent Jurisdiction and Implied Power to Stay Proceedings in Aid of Arbitration: A Nice Question." Journal of International Arbitration 32, Issue 5 (October 1, 2015): 493–509. http://dx.doi.org/10.54648/joia2015023.
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In recent years Australia has seen an exponential growth in the use of arbitration. This has necessitated greater involvement by courts in facilitating arbitral proceedings. In this context, one of the issues most frequently encountered by the courts is whether to stay court proceedings in aid of arbitration. This article considers the basis of a court’s power to grant such an order. In doing so, the article explores both the statutory and the inherent jurisdiction of a court, including recent jurisprudence that highlights the uncertainty in the field. The article suggests interpreting domestic arbitration legislation in a manner that is consistent with Australia’s pro-arbitration policy and advocates reconsideration of early High Court authority as to the inherent powers of courts in this area.
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Dellavedova, Brooke. "The role and impact of environmental class actions in Australia." Asia Pacific Journal of Environmental Law 24, no. 1 (September 24, 2021): 6–40. http://dx.doi.org/10.4337/apjel.2021.01.01.
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Class actions provide a mechanism for grouping together like claims; and, in doing so, can enhance access to justice and the integrity of our democratic processes. Environmental class actions have an important role to play in environmental governance including by providing compensation and remediation, shaping norms of conduct and promoting accountability. There are, however, various limitations on the usefulness of class actions in achieving environmental objectives. In particular, the class actions regime is procedural rather than substantive (it does not overcome limitations on the availability or utility of causes of action for addressing environmental harm); it attracts the operation of additional rules and jurisprudence which may make some actions more difficult or not well suited to being brought as class actions; and class actions tend to be expensive and risky. Accordingly (and notwithstanding a recent flurry) we are unlikely to see the opening of the dreaded floodgates. Rather, environmental governance will most likely continue to be supported by the appropriate and considered commencement and conduct of meritorious actions.
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Mulcahy, Sean. "Dissents and Dispositions." Exchanges: The Interdisciplinary Research Journal 5, no. 2 (June 7, 2018): 132–40. http://dx.doi.org/10.31273/eirj.v5i2.247.
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This article provides critical reflections on the Conference of the Law, Literature and Humanities Association of Australasia, held on 12-14 December 2017 at La Trobe University and the University of Melbourne, Australia. The conference theme of dissents and dispositions ‘invited consideration of the arrangements and rearrangements of the conduct of law and life; of the dispositions of law and jurisprudence, and how these relate to dissents, resistance and transformation.’ Speakers discussed law, literature, public art, visuality, media, gender and sexuality. The various papers collectively raised questions of how the law is, through art and other mediums, arranged and subsequently – sometimes violently and sometimes politely – rearranged, constantly in a process of developing, evolving, never finishing, and always applying its words and touch to new circumstances.
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Brakel, Samuel Jan, and James L. Cavanaugh. "Crime, Psychiatry and the Insanity Defence: A Report on Some Recent Reforms in the United States." Australian & New Zealand Journal of Psychiatry 30, no. 1 (February 1996): 134–41. http://dx.doi.org/10.3109/00048679609076083.
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There have been substantial developments in mental health law in the United States over the last 10–15 years. One focal point has been the insanity defence, discussed here. The operational consequences of the legal changes remain to be assessed empirically, but informed speculation is possible. Both a description of the reforms and the assessment of their potential effect are relevant to members of the psychiatric profession in Australia, whether they be forensic specialists or traditional practitioners or researchers. Selective consideration of the American experience, as opposed to contemplating wholesale transposition, is the appropriate posture for Australian policymakers.
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Parkinson, Patrick. "Constitutional Law and the Limits of Discretion in Family Property Law." Federal Law Review 44, no. 1 (March 2016): 49–75. http://dx.doi.org/10.1177/0067205x1604400103.
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The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown. Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making. The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.
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Bagaric, Mirko. "The Disunity of Employment Law and Sentencing." Journal of Criminal Law 68, no. 4 (August 2004): 329–55. http://dx.doi.org/10.1350/jcla.68.4.329.36521.
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This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world. ‘As a matter of principle my view is that once a person has paid their debt to society, as the old expression goes, and done their time, then they should be able to live a normal life.’ Prime Minister, John Howard, commenting on the eligibility of jailed former One Nation leader Pauline Hanson to stand for Parliament at the expiration of her three-year jail term for electoral fraud1 ‘A person's employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.’
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Ní Fhloinn, Deirdre. "Liability in negligence for building defects in Ireland, England and Australia." International Journal of Law in the Built Environment 9, no. 3 (October 9, 2017): 178–92. http://dx.doi.org/10.1108/ijlbe-06-2017-0019.
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Purpose The purpose of this paper is to consider decisions of the courts of three jurisdictions: Ireland; England and Wales; and Australia, in relation to recovery of economic loss in negligence for building defects and to identify the extent to which the legal environment of each jurisdiction has informed the approach of the courts to the issue. Design/methodology/approach The approach taken for this purpose is to review the extent of legislative intervention in each jurisdiction to provide measures of protection for home buyers, and whether that intervention has limited the scope of what may be recovered in negligence for defects. Findings The findings of the research indicate that the retreat from recovery for defects, led by the courts of England and Wales through a series of cases in the 1980s and 1990s, may be regarded in part as a product of their environment, and that legislative intervention in the area of remedies acted as a limitation on the scope of the duties that the courts were prepared to impose. Originality/value Although the issue of recovery for building defects in negligence has been covered extensively in the literature and jurisprudence, the cross-referencing of the common law position with the legislative context in the jurisdictions considered provides insights into the approaches of courts and why the position of the courts of England and Wales may not transpose comfortably to other jurisdictions.
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Dastyari, Azadeh, and Daniel Ghezelbash. "Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures." International Journal of Refugee Law 32, no. 1 (February 29, 2020): 1–27. http://dx.doi.org/10.1093/ijrl/eez046.
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Abstract Austria and Italy have recently proposed that processing the protection claims of asylum seekers attempting to cross the Mediterranean should take place aboard government vessels at sea. Shipboard processing of asylum claims is not a novel idea. The policy has been used for many years by the governments of the United States and Australia. This article examines the relevant international law, as well as State practice and domestic jurisprudence in the United States and Australia, to explore whether shipboard processing complies with international refugee and human rights law. It concludes that, while it may be theoretically possible for shipboard processing to comply with international law, there are significant practical impediments to carrying out shipboard processing in a manner that is compliant with the international obligations of States. Current practices in the United States and Australia fall short of what is required. Nor is there any indication that the Austrian/Italian proposal would contain the required safeguards. It is argued that this is by design. The appeal of shipboard processing for governments is that it allows them to dispense with the safeguards that asylum seekers would be entitled to if processed on land. Best practice is for all persons interdicted or rescued at sea to be transferred to a location on land where they have access to effective status determination procedures and are protected from refoulement and unlawful detention.
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Marshall, Kim. "Disability Discrimination and Higher Education in England and Wales and Australia Compared." International Journal of Discrimination and the Law 6, no. 4 (June 2005): 289–324. http://dx.doi.org/10.1177/135822910500600403.
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In its original form the provisions of the UK Disability Discrimination Act 1995 (DDA) contained little of practical help to students with disabilities. This situation was rectified when the Special Educational Needs and Disabilities Act (SENDA) was passed in 2001 becoming the new Part 4 of the DDA. From 2002 legal duties not to discriminate against students with disabilities came into effect. In the Commonwealth of Australia a very different attitude towards disability discrimination has been demonstrated by having legislation to combat disability discrimination in place since 1992, which included specific provisions on education from the outset. The purpose of this article is to examine the approach taken in both jurisdictions towards the use of the anti-discrimination statutes and consider the effectiveness of the legislation in preventing discrimination on the ground of disability in higher education. The paper will examine points of similarity and divergence in the respective systems regarding the application of anti-disability discrimination laws to higher education as well as look to the longer established jurisprudence of the Australian courts for potential guidance that may be helpful to the nascent Part 4 of the DDA and the types of issues that may arise.
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Zhou, Weihuan, and Delei Peng. "Australia—Anti-Dumping Measures on A4 Copy Paper." American Journal of International Law 115, no. 1 (January 2021): 94–101. http://dx.doi.org/10.1017/ajil.2020.93.
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The World Trade Organization (WTO) Panel Report in Australia – Anti-Dumping Measures on A4 Copy Paper (Australia – A4 Copy Paper) marks a significant development of the multilateral rules on anti-dumping. Under certain circumstances, WTO agreements permit members to impose anti-dumping measures to counteract the injurious effect of dumping on domestic industries, typically through import duties. The Report is the first to examine in detail when an anti-dumping authority may determine that a “particular market situation” exists in the country of exportation under Article 2.2 of the WTO Anti-Dumping Agreement, potentially justifying the imposition of elevated remedial duties. The Report also develops the jurisprudence on how such remedies may be calculated, expounding the use of benchmark costs for the calculation of a constructed normal value (CNV) under Article 2.2.1.1. These doctrinal questions are central to the longstanding debate over how far the Anti-Dumping Agreement allows anti-dumping measures against state intervention and market distortions. On both fronts, the Australia – A4 Copy Paper panel created flexibilities for WTO members to respond to government-induced distortions. In doing so, the Report deviates considerably from the course set by the Appellate Body in the landmark EU – Biodiesel decision, which seemed to confine anti-dumping measures to responding to private action. At the same time, the panel left open several important issues relating to the adoption of CNVs and the use of benchmarks for their calculation, leaving wide latitude for investigating authorities to inflate dumping margins in practice.
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Townsend, Joel, and Hollie Kerwin. "Erasing the Vision Splendid? Unpacking the Formative Responses of the Federal Courts to the Fast Track Processing Regime and the ‘Limited Review’ of the Immigration Assessment Authority." Federal Law Review 49, no. 2 (March 2, 2021): 185–209. http://dx.doi.org/10.1177/0067205x21993158.
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The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Processing Regime for certain asylum seekers has posed new and important questions for Australian administrative law, especially in respect of the place, scope and effect of merits review. This article considers the early and formative jurisprudence of the federal courts in relation to ‘Fast Track decisions’ made by the IAA. It concludes that the Fast Track process represents a novel development in Australian public law: a partial review process which is not sufficient to correct the errors of the decision-maker at first instance but which appeared for a time capable of immunising elements of the decision from appeal or direct judicial review. It is, in its intention and current operation, more than a ‘targeted tinkering’ with the mechanics of merits review and of migration law in Australia. It deserves attention as it commences its journey through superior courts and as the regime settles into the Australian administrative law landscape.
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Storey, Matthew. "The Australian Indigenous Business Exemption as a ‘Special Measure’: Questions of Effectiveness." Deakin Law Review 21, no. 1 (February 23, 2018): 1. http://dx.doi.org/10.21153/dlr2016vol21no1art716.
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This article considers the issue of the requirements of establishing the Australian Commonwealth government’s Indigenous preferential procurement program, the ‘indigenous business exemption’ as a special measure under Article 1.4 of the International Convention on the Elimination of All Forms of Racial Discrimination. It does this by, considering jurisprudence regarding special measures and other affirmative action programs from Australia and other jurisdictions, concluding that it is necessary to establish some evidential base to justify the establishment (in Australian law) and ongoing operation of such measures (in international law). The article then examines the effectiveness of procurement policies aimed at achieving secondary social objectives in addition to the primary procurement of government goods and services.
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Manin, Iaroslav. "Legal regime of subsoil use in Australia." Административное и муниципальное право, no. 2 (February 2021): 54–68. http://dx.doi.org/10.7256/2454-0595.2021.2.34270.
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The subject of this research is the Australian federal and regional normative legal acts that regulate subsoil use. The object is public relations in the sphere of land turnover, subsurface and natural resource management in the Commonwealth of Australia. The author describes the system and structure of normative legal regulation, as well as subsoil use in Australia. The work contains a list of sources of the Australian natural resources law; analysis of their content is carried out. Special attention is given to the legal regime of exploitation of subsoil resources of the continental shelf of the Commonwealth of Australia, licensing of subsoil use, the role of British monarchy in exercising the right of ownership of land by its subjects, and the authority for subsoil management. The scientific novelty of this article consists in the disclosure of legal regime of subsoil use in the Commonwealth of Australia in the context of amendments to Australian natural resources legislation, constitutional and administrative reforms. This work reflects the economic interest of the Russian Federation and domestic organizations of the fuel and energy complex in the Oceania Region, which defines its relevance. The presented materials can be used within the framework of comparative jurisprudence, lawmaking, for educational and other purposes. The author concludes on the preservation of public legal regime of subsoil use in Australia, namely with regards to turnover of licenses and shares therein.
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Gussen, Benjamen Franklen. "Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia." Deakin Law Review 24 (August 30, 2019): 213–30. http://dx.doi.org/10.21153/dlr2019vol24no1art875.
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This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism.
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Moss, Aaron. "Tiptoeing through the Tripwires: Recent Developments in Jurisdictional Error." Federal Law Review 44, no. 3 (September 2016): 467–503. http://dx.doi.org/10.1177/0067205x1604400306.
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Australian administrative law's continuing emphasis on the concept of jurisdictional error is increasingly unique amongst common law jurisdictions. This paper argues that recent developments in Australian jurisprudence have provided little guidance for administrative decision-makers, who are left ‘tiptoeing through the tripwires’ of judicial review. Combining a detailed analysis of primary decisions, academic publications and historical scholarship, this paper suggests that this lack of guidance is the result of a widespread judicial reluctance to engage with either the guidance or educative roles of judicial review. As this paper demonstrates, failure to do so encourages uncertainty, unpredictability and a general lack of clarity which inhibits judicial review's ability to guide decision-makers and contribute to the maintenance of effective governance, administrative justice, and the rule of law in Australia. Particular attention is given to the decisions of Minister for Immigration and Citizenship v Li, Plaintiff M61/2010E v Commonwealth, and NBMZ v Minister for Immigration and Border Protection, which together encapsulate many of the most problematic aspects of recent jurisprudence. To avoid these consequences, this paper calls on senior judges and commentators to articulate a clearer framework which will be applied to guide the future development of the doctrine of jurisdictional error.
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Gooshki, Hossein Shamsi, Seyyed Hassan Abedian Kalkhoran, Seyyed Mohammad Mahdi Ahmadi, Abolfazl Khoshi, and Hassan Goodarzi. "Vegetative State from the Perspective of Islamic Law." Journal of Ecophysiology and Occupational Health 19, no. 3&4 (December 26, 2019): 102. http://dx.doi.org/10.18311/jeoh/2019/23817.
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<p>The death of the cerebral cortex is a particular type of brain death that occurs after the destruction of the cerebral cortex (the hemispheres of the brain). It is said that the individual has gone through a vegetative state. This cortex is responsible for controlling voluntary activities of the body. This condition is caused by a coma (anesthesia), and sometimes the individual remains in this state for several years. Although the person looks awake, his/her eyes are open and has some involuntary movements, there is no signs of mental and cognitive function. Moreover, the individual is physically in a state of dementia. Coma is a state in which a person cannot be awakened and does not respond to any stimulation including pain. Generally it lasts few days to a few weeks, after which some patients gradually recover, but some permanently lose all brain function (brain death), while others evolve to a vegetative state (VS). Patients in VS are unconscious and unaware of their surroundings, but they continue to have a sleep-wake cycle and can have periods of consciousness. They are able to breathe spontaneously, retain their gag, cough, sucking, and swallowing reflexes. They often look fairly “normal” to families and friends who hope and pray for their full recovery. Laws and regulations in Islamic countries originate from popular jurisprudence. Therefore, by arguing that the well-known principles of Islam are necessarily legitimate, the phenomenon of vegetative state has been recognized. Jurisprudents have conflicting opinions on brain deaths and these perspectives cannot be considered as a widespread legal basis at the level of macro policy for administrative, medical and judicial affairs. In criminal law, maniac has no criminal responsibility because the punishment is not in line with the purpose of punishment. Consequently, restrictions will be imposed on the patients. Therefore, it can be concluded that a person with vegetative state is compatible with the insanity.</p>
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Tait, Gordon, and Belinda Carpenter. "The continuing implications of the ‘crime’ of suicide: a brief history of the present." International Journal of Law in Context 12, no. 2 (June 2016): 210–24. http://dx.doi.org/10.1017/s1744552316000021.
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AbstractThe long history of suicide as a criminal offence still has a significant contemporary effect on how it is perceived, conceptualised and adjudged. This is particularly the case within countries where suicide is largely determined within a coronial system, such as Australia, the UK and the US. This paper details the outcomes of a study involving semi-structured interviews with coroners both in England and Australia, as well as observations at inquests. It focuses around the widely held contention that the suicide rates produced within these coronial systems are underestimations of anywhere between 15 to 50 per cent. The results of these interviews suggest that there are three main reasons for this systemic underestimation. The first reflects the legacy of suicide as a criminal offence, resulting in the highest standard of proof for findings of suicide in the UK, and a continuing stigma attached to families of the deceased. The second is the considerable pressure brought to bear upon coroners by the family of the deceased, who, because of that stigma, commonly agitate for any finding other than that of suicide. The third involves the rise of ‘therapeutic jurisprudence’, wherein coroners take on the responsibility of the emotional well-being of the grieving families, which in turn affects the likelihood of reaching a finding of suicide. The conclusions drawn by the paper are also twofold: first – with respect to the stigma of suicide – it will take a lot more than simple decriminalisation to change deeply held social perceptions within the community. Second, given that suicide prevention programmes and policies are based on such deeply questionable statistics, targeted changes to coronial legislation and practice would appear to be required.
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Kirby, Michael. "Robin Cooke, Human Rights and the Pacific Dimension." Victoria University of Wellington Law Review 39, no. 1 (June 2, 2008): 119. http://dx.doi.org/10.26686/vuwlr.v39i1.5456.
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Lord Cooke's life as lawyer and judge was astonishing in its achievements. The author traces his counter-cultural embrace of notions of human rights both in case decisions and in scholarly articles. He describes Lord Cooke's approach to judging – a mixture of orthodoxy and radical new ideas. He describes his contribution to the emergence of a distinctive New Zealand jurisprudence, curiously asserted in advance of the termination of Privy Council appeals and before similar "liberation" in Australia. The author concludes with a reminder of Lord Cooke's prediction of a "common law of the world". He suggests that building an effective regional human rights mechanism for the Pacific would be a timely and practical contribution to that ideal.
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Korah, Valentine. "Access to Essential Facilities under the Commerce Act in the Light of Experience in Australia, the European Union and the United States." Victoria University of Wellington Law Review 31, no. 2 (May 1, 2000): 231. http://dx.doi.org/10.26686/vuwlr.v31i2.5955.
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Drawing on recent developments in Australian, United Kingdom and United States jurisprudence, Professor Korah casts doubt on the approach recently taken by New Zealand courts in one of the most controversial areas of competition law: the access to its facilities that a corporation in a dominant position must give to its would-be competitors. She argues that before imposing such obligations courts ought to be more sophisticated in assessing the economic effects of such obligations and especially the need to preserve an incentive to make the considerable investment required to create such facilities. Professor Korah was the 1999 Chapman Tripp Fellow. This article is an edited version of a paper presented at the offices of Chapman Tripp during the tenure of the Fellowship.
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Aliyeva, Zamina. "The Law Aspects in Health Management: A Bibliometric Analysis of Issues on the Injury, Damage and Harm in Criminal Law." Marketing and Management of Innovations, no. 3 (2020): 293–305. http://dx.doi.org/10.21272/mmi.2020.3-21.
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The paper presents the analysis of the approaches to define the areas of research on the injury, damage and harm to human health in criminal law. The obtained results proved that crimes, connected to drugs abuse, their legislation become an essential part of the issues. At the same, developing of government control, medical standards, improving quality of medical education balancing the «medical mistake – injury to human’s health – jurisprudence consequences» triangle in the tendency of the injury, damage and harm in criminal laware becoming very important to the healthcare system due to increasing requirements of regulators, customers and shareholders. The paper aimed to analyse the tendency in the literature on the injury, damage and harm in criminal law, which published in books, journals, conference proceedings etc. to identify future research directions. The methodological tools are VOSviewer, Scopus and Web of Science (WoS) software. This study covers 1072 papers from Scopus and WoS database. The time for analysis were 1970-2020. The Scopus and WoS analyse showed that in 2012-2019 the numbers of papers on the injury, damage and harm in criminal law issues began to increase. However, the topics changed from general issues to the problem of decriminalisation of drug trafficking, and the corresponding paradigm shift in the punishment of some crimes, increasing interest in punishing corporations for violating environmental regulations. In 2017 the number of documents dedicated to injury, damage and harm in criminal law was increased by 667% compared to 2012. The main subject areas of analyses of the injury, damage and harm in criminal law were the next: Law, Public environmental, occupational health, Criminology penology, Substance abuse, Psychiatry, Medicine. The biggest amount of investigations of the injury, damage and harm in criminal law was published by the scientists from the USA, United Kingdom, Australia and Canada. In 2019 such journals with high impact factor as International Journal of Drug Policy, International Journal of Law and Psychiatry, The Lancet etc. published the number of issues, which analysed of the injury, damage and harm to human health in criminal law. Such results proved that theme on the injury, damage and harm to human health in criminal law is actually in the ongoing trends of the modern jurisprudence and regulation. The findings from VOSviewer defined 6 clusters of the papers which analysed the injury, damage and harm to human health in criminal law from the different points of views. The first biggest cluster (with the biggest number of connections) merged the keywords as follows: criminal justice, law enforcement, public health, health care policy, harm reduction, drug legislation, drug and narcotic control, substance abuse, homelessness etc. The second significant cluster integrated the keywords as follows: criminal behaviour, crime victim, adolescent, violence, mental health, mental disease, prisoner, young people, rape, police etc. The third biggest cluster concentrated on criminal aspects of jurisprudence, criminal law, human right, legal liability, social control, government regulation etc. The obtained results allow concluding that balancing the triangles «medical mistakes – criminal – education» and «drugs – criminal – justice» and «abortion – criminal – women/children» form an important part of the injury, damage and harm in criminal law issues. Keywords injury, damage, harm, human health, criminal law, management, governance.
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Bachmann, Sascha-Dominik, and Matthew Burt. "Control Orders Post 9-11 and Human Rights in the United Kingdom, Australia and Canada: A Kafkaesque Dilemma?" Deakin Law Review 15, no. 2 (December 1, 2010): 131. http://dx.doi.org/10.21153/dlr2010vol15no2art122.
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This article aims to assess the impact that the European Convention of Human Rights, incorporated into British law through the Human Rights Act 1998, has had on the control order regime in the United Kingdom. It will discuss recent British jurisprudence on the topical question of whether there can be a true balance between the civil liberties of an individual and the need to protect state and society from a continuing terrorist threat. The article compares the UK’s present control order system of summer 2010 with similar legislation, which the Commonwealth jurisdictions of Australia and Canada have enacted to protect their nations from the threat of terrorism. It will conclude with a discussion of possible reforms as well as other security measures which have been identified as alternatives to control orders and which form the basis of present UK governmental initiatives to limit the scope and impact of anti terrorism legislation.
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Appleby, Gabrielle J., and John M. Williams. "A New Coat of Paint: Law and Order and the Refurbishment of Kable." Federal Law Review 40, no. 1 (March 2012): 1–30. http://dx.doi.org/10.22145/flr.40.1.1.
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The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' anti-organised crime measures (International Finance Trust Co v New South Wales Crime Commission, South Australia v Totani, and Wainohu v New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.
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Rathmell, Aaron. "The Relation Between Function and Form in the Main Federal Industrial Tribunals." Journal of Industrial Relations 53, no. 5 (November 2011): 596–615. http://dx.doi.org/10.1177/0022185611419610.
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This article examines the relation between function and form in the main Australian federal industrial tribunals, drawing on process jurisprudence, in particular the work of Lon Fuller. It suggests that the structures and procedures of the tribunals can be set against Fuller's idealized features of adjudication, in order to draw out their most important and innovative features. Of particular interest are the distinctive ways that the tribunals have mediated the participation of the industrial parties and tackled complicated problems such as wage-setting. The aim is to focus attention on procedural design and encourage research into the tribunals’ contributions to the rule of law in the industrial context. This should also lead to a better understanding of the continuities, discontinuities and dilemmas represented in the new umpire, Fair Work Australia.
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Bennett, Maxwell. "Criminal Law as it Pertains to ‘Mentally Incompetent Defendants’: A McNaughton Rule in the Light of Cognitive Neuroscience." Australian & New Zealand Journal of Psychiatry 43, no. 4 (January 1, 2009): 289–99. http://dx.doi.org/10.1080/00048670902721137.
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The McNaughton rules for determining whether a person can be successfully defended on the grounds of mental incompetence were determined by a committee of the House of Lords in 1843. They arose as a consequence of the trial of Daniel McNaughton for the killing of Prime Minister Sir Robert Peel's secretary. In retrospect it is clear that McNaughton suffered from schizophrenia. The successful defence of McNaughton on the grounds of mental incompetence by his advocate Sir Alexander Cockburn involved a profound shift in the criteria for such a defence, and was largely based on the then recently published ‘scientific’ thesis of the great US psychiatrist Isaac Ray, entitled ‘A treatise on the medical jurisprudence of insanity’. Subsequent discussion of this defence in the House of Lords led to the McNaughton rules, still the basis of the defence of mental incompetence in the courts of much of the English-speaking world. This essay argues that the rules need to be reconsidered in the light of the discoveries of cognitive neuroscience made during the 160 years since Ray's treatise. It is shown, for instance, how the conflation of ‘the power of self-control’ with ‘irresistible impulse’ by Cockburn is not supported by cognitive neuroscience because these are separate capacities requiring normal activity in distinct brain structures for their expression. In this way cognitive neuroscience assists in distinguishing between different capacities. It is further shown that failure of appropriate restraint in the expression of a capacity can be related to failure of synapses in particular parts of the brain. This raises the question as to what level of synaptic loss will the legislature and the courts rule as sufficient for a subject to be no longer held responsible for their lack of restraint.
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Шкабин, Геннадий, and Gennadiy Shkabin. "CRIMINALLY-LEGAL MAINTENANCE OF OPERATIONAL-INVESTIGATIVE ACTIVITY IN AUSTRALIA AND THE UNITED STATES: THE EXPERIENCE FOR THE RUSSIAN LEGISLATOR." Journal of Foreign Legislation and Comparative Law 3, no. 3 (July 10, 2017): 80–85. http://dx.doi.org/10.12737/article_593fc343c04c73.33901692.
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For a relatively long time there is consideration of criminal law maintenance for secrecy activity of law enforcement agencies in order to combat crime in the legislation, judicial practice and jurisprudence of some foreign countries. In many states this process has undergone numerous changes. The article presents the experience of legal regulation of causing harm during performance of activities, which is called operational-investigative in Russia. The provisions of legal acts and court decisions of Australia and the United States as the countries with the most developed regulatory and scientific basis for solving these problems are analyzed. It is noted that in both countries the root cause of the formation of the regulatory framework dedicated to harm causing during covert operations were specific criminal cases. The legislation of Australia, which establishes the procedure for controlled operations causing harm to the objects of criminal law protection, is considered. The conditions of the legitimacy of the controlled behavior are described. Attention is paid to the border admissibility of acts as well as the release of the Australian legislator since 2010, the so-called auxiliary crime during a controlled operation. Legal maintenance for acts of secret FBI employees in USA, conditions of their lawful conduct and the limits of harm causing are described. The author comes to a conclusion that the representatives of US law enforcement-enforcement agencies have extremely broad powers during operational implementation. Based on the review conclusions, including and recommendations for the improvement of the Russian legislation are drawn.