Journal articles on the topic 'Jurisprudence – Australia'
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1
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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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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Whyte, Shaheen. "Whither Minority Jurisprudence?" Australian Journal of Islamic Studies 2, no. 3 (October 18, 2017): 55–75. http://dx.doi.org/10.55831/ajis.v2i3.59.
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This study explores the notion of fiqh al-aqalliyat (minority jurisprudence) in Western societies with a focus on Australian Muslims. It argues that, despite enabling Western Muslims to formulate a contextspecific jurisprudence to their newly adopted homelands, fiqh alaqalliyat remains fiercely debated in Islamic studies. Critics of minority fiqh reveal several contention points relating to its lack of applicability in certain social and political contexts; exploitation of legal maxims relating to easing hardship for Muslims; and its overly integrationist mentality. Proponents of minority fiqh, on the other hand, argue these very facets are circumstantial and designed to help Muslims appropriate Islamic teachings to new and unfamiliar settings. This study therefore looks at the socio-political and situational circumstances of the minority population in question, whether it is a well-established migrant community in the West or one that holds a less favourable minority status elsewhere. It assesses these contexts in light of the scholarly and juristic arguments at hand, before moving into how minority fiqh issues are deliberated and contested in Australia.
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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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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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David, Fiona, and Jake Blight. "Understanding Australia’s Human Rights Obligations in Relation to Transsexuals: Privacy and Marriage in the Australian Context." Deakin Law Review 9, no. 2 (November 1, 2004): 310–25. http://dx.doi.org/10.21153/dlr2004vol9no2art246.
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This article examines recent European jurisprudence on the rights of transsexuals to privacy and marriage. The authors argue that Australia’ s obligations under the ICCPR should be understood in light of this jurisprudence. On this basis, Australia is obliged to ensure that its authorities: (a) legally recognise the changed gender of post-operative transsexuals; and (b) permit the marriage of post-operative trans- sexuals to persons of the opposite gender to their re-assigned gender. The authors note the continuing uncertainty around the extension of these rights to transsexuals who have not had ‘surgery’ but argue in favour of extending ICCPR rights in this way. The authors also consider the legal situation regarding privacy and marriage for transsexuals in Australia. Like the international jurisprudence, Australian laws have not dealt with the situation of transsexuals who have not had surgery. The authors argue that legal distinctions based on the surgical model are more about providing certainty than they are about ensuring the rights and dignity of the people affected. Given Australia’s human rights obligations, it would be more appropriate for consideration to be given to the full range of social and cultural factors that affect whether a person is considered to be a man or a woman.
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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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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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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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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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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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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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Peel, Jacqueline, Hari Osofsky, and Anita Foerster. "A “Next Generation” of Climate Change Litigation?: an Australian Perspective." Oñati Socio-legal Series 9, no. 9(3) (August 1, 2019): 275–307. http://dx.doi.org/10.35295/osls.iisl/0000-0000-0000-1060.
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Since conclusion of the Paris Agreement and the high-profile Urgenda case, potential new avenues for strategic climate litigation have received considerable attention in many countries, including Australia. Australia already has a substantial climate jurisprudence, primarily involving administrative challenges under environmental laws. This paper aims to examine the prospects for a “next generation” of cases focused on holding governments and corporations to account for the climate change implications of their actions. We draw on analysis of existing legal precedent and emerging cases to explore four key aspects: drivers for next generation lawsuits, potential legal avenues, and likely enablers and barriers. The paper uses the Australian experience as a case study but draws also on litigation trends globally. We find that the most fruitful strategy for future climate change litigation is likely to be one that advances lower risk cases building from the base of existing litigation, while simultaneously attempting novel approaches. Desde los Acuerdos de París y el caso Urgenda, varios países han prestado mayor atención a los litigios estratégicos sobre el clima. Australia ya tiene una notable jurisprudencia sobre el clima, especialmente en cuanto a los desafíos que para la administración suponen las leyes ambientales. Este artículo analiza las posibilidades de una “nueva generación” de casos basados en pedir responsabilidades gubernamentales y empresariales. Partimos de antecedentes jurídicos y de casos emergentes para explorar cuatro cuestiones claves: los motores para demandas judiciales, posibles vías legales, y capacitadores y obstáculos probables. Se usa la experiencia de Australia como estudio de caso, pero también se traen a colación tendencias judiciales globales. Hallamos que la estrategia más provechosa es propulsar casos de menor riesgo desde la base de los litigios existentes, a la vez que ensayar nuevos abordajes.
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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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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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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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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/10.1177/0067205x1404200302.
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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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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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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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Thampapillai, Dilan. "The Novel as Social Satire: 60 Years Later, The Wind Done Gone and the Limitations of Fair Use." Deakin Law Review 17, no. 2 (February 1, 2013): 425. http://dx.doi.org/10.21153/dlr2012vol17no2art86.
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The absence of the doctrine of fair use from Australian copyright law has been a bone of contention in Australia after the Australia-United States Free Trade Agreement (FTA). As the Australian government reformed the Copyright Act 1968 (Cth) in the aftermath of the FTA it eschewed the option of adopting fair use. Instead, Australia chose to incorporate a version of fair use into its existing fair dealing framework. Accordingly, the Copyright Amendment Act 2006 (Cth) inserted ss 41A and 103AA into the Copyright Act. These provisions provide that a fair dealing with a copyright protected work does not constitute an infringement if it is done for the purposes of parody or satire. These provisions codify part of the ratio of the United States Supreme Court in the seminal case of Campbell v Acuff Rose Music. However, the parameters of these new provisions are unexplored and the sparse nature of fair dealing jurisprudence means that the true meaning of the provisions is unclear. Moreover, two cases from the United States, SunTrust Bank v Houghton Mifflin and Salinger v Colting, underline just how important it is to have legal rules that protect literary ‘re-writes’. Both cases involved authors using an original novel to ‘write back’ to the original author and the broader culture. ‘Writing back’ or the ‘re-write’ has a firm basis in literature. It adds something invaluable to our culture. The key question is whether our legal landscape can allow it to flourish. This paper examines the interaction between fair use and literary re-writes.
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Keyzer, Patrick. "Freedom of speech issues in Peach v Toohey and a hypothetical variant of that case." Pacific Journalism Review : Te Koakoa 10, no. 1 (April 1, 2004): 139–52. http://dx.doi.org/10.24135/pjr.v10i1.784.
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The purpose of this article is to consider the tensions within Australian free speech jurisprudence based on a hypothetical variant of the facts of the decision of the Supreme Court of the Northen Territory in Peach v Toohey. In particular, this article briefly explores the competing legal interests that operate when journalists seek access to restricted areas, in this case aborginal land, in the course of an investigation. After considering the case and the issues it raises the author develops a hypothetical that draws out some of the deeper tensions in this area of the law. The article concludes with proposals for new apporoaches to the test developed by the High Court of Australia in Lange v Australian Broadcasting Corporation for the balancing of freedom to discuss political and governmental affairs—including the public right to know — against other legitimate objectives such as the maintence of property rights and the privacy interests that can be associated with propety rights.
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Ali, Jan A. "Studying Islam and Its Adherents in Australian Universities." Jurnal Pendidikan Islam 7, no. 2 (December 31, 2021): 137–48. http://dx.doi.org/10.15575/jpi.v7i2.15773.
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Islamic Studies is a relatively new, yet growing phenomenon in Australian universities. With an increased focus on Islam and Muslim in the age of War on Terror and with Australian Muslim population fast increasing, Islamic Studies is an important intellectual tool to better understand, Islam and Muslims and many challenges facing them. This paper is an investigation of the recent trends and developments in Islamic Studies as an academic discipline in Australian universities. This is an important intellectual task because Islamic Studies continues to play a significant role in Australian academia. The data were collected from literature review and are analysed descriptively. The findings of the study show that the intellectual tools developed in Islamic Studies can be deployed to build relationship between fragmented Muslim communities and between Muslims and non-Muslims particularly in multicultural Australia. Islamic Studies draws on a variety of fields making it a crossdiscipline. As such, it offer a rich and analytic investigation of world’s second largest religion and its multiple expressions. Australian universities offer Islamic studies ranging from undergraduate to postgraduate program. The topic studied include Islamic philosophy, jurisprudence, education, history, and Arabic.
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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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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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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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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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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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Cassidy, Julie. "The Stolen Generations - Canada and Australia: the Legacy of Assimilation." Deakin Law Review 11, no. 1 (January 1, 2006): 131. http://dx.doi.org/10.21153/dlr2006vol11no1art230.
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<p>This article provides a comparative overview of issues pertaining to the stolen generation in Canada and Australia. It includes a historical overview of the removal and detaining of aboriginal children in Canada and Australia. As a consequence of the revelations of this past practice, litigation has been undertaken by members of the stolen generations in both Canada and Australia.<br />The article includes a summary of the key cases in Canada and Australia. Unlike in Australia, some Canadian aboriginal claimants have successfully brought actions for compensation against the federal Canadian government for the damages stemming from their experiences in the aboriginal residential schools. In the course of this discussion, the various causes of actions relied upon by the<br />plaintiffs are examined. While the plaintiffs in these leading Canadian cases were ultimately successful under at least one of their heads of claim, the approaches in these cases in regard to the Crown’s liability for breaching fiduciary duties, the duty of care, and non-delegable duties is inconsistent. Thus even in regard to the Canadian jurisprudence key legal issues pertaining to the Crown’s liability for the aboriginal residential school experience continues to<br />be unresolved.</p>
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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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Adolphe, Ashley, Celine van Golde, and Alex Blaszczynski. "Examining the potential for therapeutic jurisprudence in cases of gambling-related criminal offending in Australia." Current Issues in Criminal Justice 31, no. 2 (April 3, 2019): 236–54. http://dx.doi.org/10.1080/10345329.2019.1603071.
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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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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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Dorsett, Shaunnagh, and Shaun McVeigh. "An essay on jurisdiction, jurisprudence, and authority: the High Court of Australia in Yorta Yorta (2001)." Northern Ireland Legal Quarterly 56, no. 1 (August 7, 2020): 1–20. http://dx.doi.org/10.53386/nilq.v56i1.786.
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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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Zvieriev, Ie O. "Teoh’s case on legitimate expectations in interpretation of international treaties. Lessons for Ukraine." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 287–92. http://dx.doi.org/10.33663/2524-017x-2021-12-48.
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The article provides a detailed overview of a famous Teoh’s case decided by High Court of Australia in 1995, focusing mainly on the issue of legal interpretation of legitimate expectations arising from ratified international treaties not implemented into the domestic legal system. The abovementioned case has been considered a novel approach of the court acting in dualist state. This approach was, however not upheld in further jurisprudence of the Australian High Court namely due to quite harsh response of administrative bodies and subsequent legislation which has further been adopted to specifically address this issue by Australian parliament. This does not, however deny the case’s significance in terms of scholarly attention to interpretation issues it has raised. Ukraine can view this case as an example as it does have its own problems with the status and interpretation of international treaties in domestic legal system. Unlike common law countries adhering to dualist approach to international law reception, Ukrainian Constitution recognizes ratified international treaties to be part of domestic legislation automatically, however it is silent on the status of these treaties in Ukrainian domestic legislation which at times causes certain problems with their interpretation and implementation. The article makes a try to solve the abovementioned issues by referring future interpreters to an alternative approach of international treaties’ interpretation to Article 8 of the Constitution of Ukraine dealing with the rule of law principle. It is the author’s position stipulated in the article that applying Article 8 in terms of the interpretation of international treaties in Ukrainian domestic law enriches the argumentation and shall be viewed as primary source of application to the issue. Keywords: international treaties, interpretation, legitimate expectations, priority of international treaties, Australia, migration law, children’s rights.
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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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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.
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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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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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Douek, Evelyn. "All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia." Federal Law Review 47, no. 4 (September 12, 2019): 551–82. http://dx.doi.org/10.1177/0067205x19875010.
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In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘ compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option.
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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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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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Esselment, Anna. "Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada." Canadian Journal of Political Science 40, no. 1 (March 2007): 247–49. http://dx.doi.org/10.1017/s0008423907070242.
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Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada, Gerald Baier, Vancouver and Toronto: UBC Press, 2006, pp. 207.Is everything old new again? Gerald Baier's insightful book brings back into the mainstream a long neglected examination of federalism from the perspective of judicial review. His analysis of the courts' impact on the development of federalism involves a detailed study of division of powers jurisprudence in the United States, Australia, and Canada. In each of these countries, Baier argues, the decisions of the highest courts continue to affect the shape of federalism, but his central claim turns on how these decisions are made. For Baier, judicial doctrine plays a significant role in influencing the reasoning of the courts and must be considered an independent variable worthy of study in its own right. Many scholars have debated the significance of doctrine on judicial decision making. However, Baier takes issue with scholars who, on the one hand, have characterized doctrine as a tool of objectivity and certainty, and those, on the other hand, who view doctrine as entirely political in nature (27). For Baier, doctrine is neither of these but it is “distinctly legal in character” and it is this legal reasoning that shapes outcomes (27).
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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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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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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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Akel, William. "Privacy and the global media in the information age." Pacific Journalism Review : Te Koakoa 13, no. 1 (April 1, 2007): 40–57. http://dx.doi.org/10.24135/pjr.v13i1.883.
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The protection of privacy is being increasingly recognised worldwide by the courts, and media regulators, as a result of what is seen as a more powerful and intrusive media, and the effect of the internet. A right to privacy may even apply in a public place. This article examines the impact this has on the media in the information age? New Zealand now has a tort of interference with privacy. The criminal courts are also considering privacy values in issues ranging from suppression orders to release of court information to the public. The Broadcasting Standards Authority has revised its privacy principles. Codes of conduct with regard to the print media also acknowledge privacy. But the protection of privacy has its genesis in the 1890s and not in the digital age. A seminal article by Warren and Brandeis, ‘The Right to Privacy’ (1890), was a reaction to what was at that time seen as an over-powerful media. United States jurisprudence evolved to the Prosser and Keeton formulation in the 1960s. New Zealand jurisprudence has relied on this formulation to advance privacy rights. The English courts have taken a similar approach in the much publicised Douglas v Hello! and Naomi Campbell cases. The European courts, as a reaction to an overactive paparazzi, have pushed the bounds of privacy in the Peck and Princess Caroline cases. The High Court of Australia considered privacy in Lenah Game Meats Pty Ltd. Finally, the International Covenants and protection of privacy.
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Rane, Halim. "“Cogent Religious Instruction”: A Response to the Phenomenon of Radical Islamist Terrorism in Australia." Religions 10, no. 4 (April 3, 2019): 246. http://dx.doi.org/10.3390/rel10040246.
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Over the past 15 years, 47 Muslim Australians have been convicted for terrorism offences. Australian courts have determined that these acts were motivated by the offenders’ “Islamic” religious beliefs and that interpretations of Quranic verses concerning jihad, in relation to shariah, caliphate, will of God and religious duty contributed to the commission of these crimes. This paper argues that these ideas, derived from certain classical-era Islamic jurisprudence and modern Islamist thought, contradict other classical-era interpretations and, arguably, the original teachings of Islam in the time of the Prophet Muhammad. In response to the call for “cogent religious instruction” to combat the phenomenon of radical Islamist terrorism, this paper outlines a deradicalization program that addresses late 20th- and early 21st-century time-period effects: (1) ideological politicization associated with Islamist jihadism; (2) religious extremism associated with Salafism; and (3) radicalization associated with grievances arising from Western military interventions in Muslim-majority countries. The paper offers a counter narrative, based on a contextualized reading of the Quran and recent research on the authentication of the Covenants of the Prophet Muhammad. It further contends that cogent religious instruction must enhance critical-thinking skills and provide evidence-based knowledge in order to undermine radical Islamist extremism and promote peaceful coexistence.