Editors for this issue: Alexander Reilly and Alanna McCarthyCONTENTS ARTICLESBRIEFSCOLUMNS
ABSTRACTS ARTICLESAssisted theft: Compulsory land acquisition for private benefit in Australia
by ANDREANA REALEThis article discusses the increasing occurrence in Australia and the USA of compulsory acquisition of private property — not for public use, but for the use and benefit of private individuals and corporations. The author centres her discussion on the recent High Court decision in Griffiths v Minister for Lands, Planning and Environment which involved native title, comparing it to the US Supreme Court decision of Kelo v City of New London. The author examines the background of these cases as well as developments in both jurisdictions since the cases were decided, concluding that such private-to-private acquisitions generally favour the rich and powerful at the expense of more marginalised sectors of society, such as holders of native title.  | Add to cart |  |
Lack of political will or academic inertia? The need for non-legal responses to the issue of Indigenous art and copyright
by Marie Hadley This article describes the failure of Australia’s indigenous art and copyright commentary to move beyond the groundbreaking work of academics in the late 1980s and 90s. In particular, the author examines the claim that the lack of culturally appropriate protection of works is attributable to an inopportune political climate, and concludes that a lack of political will is no excuse for academic inertia. She argues that it is necessary to look outside of the traditional legal responses to this issue to alternatives like copyleft so that the commentary may be revitalised and once again actively seek culturally appropriate protection of indigenous works. | Add to cart | |
Making Indigenous Australians ‘disappear’: Problems arising from our birth registration systems
by Paula Gerber This article explores problems that are being encountered by some Indigenous Australian in realising their right to birth registration and obtaining a copy of their birth certificate. It analyses these obstacles in light of international and domestic human rights laws, in particular the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic). The author concludes that Australia’s laws and policies regarding birth registration are disproportionately disadvantaging Indigenous Australians, with the lack of birth certificates, a real and substantive barrier to their enjoyment of the rights and privileges of Australian citizenship. | Add to cart | |
Sexism and racism, why not ableism? Calling for a cultural shift in the approach to disability discrimination
by Paul HarpurSex and racial discrimination are labeled sexism and racism respectively. This article analyses why disability discrimination does not have such a powerful label and recommends the increased use of the term ‘ableism’ to fill this void. Building on theory, the article uses legal and cultural examples to articulate the argument. | Add to cart | |
Jack & Jill or Jack & Bill: The case for same-sex adoption
by Adiva Sifris and Paula GerberThis article examines the discriminatory legislation which prohibits same-sex couples from adopting children in many jurisdictions. New South Wales is used as a case study to highlight inconsistencies between the treatment of heterosexual prospective parents and same-sex parents. This is contrasted with the legal recognition of same-sex parents pursuant to recent amendments to the Federal Family Law Act 1975 and various State Acts. | Add to cart | |
Domestic violence and marriage-like relationships: Social Security law at the crossroads
by Patricia Easteal and Derek Emerson-ElliottThe effects of living in domestic violence upon victims’ ability to make choices have been documented in various legal areas. Evidence showing how victims’ decision-making may become constrained, thus affecting their capacity to leave the violent relationship, has been found as relevant in a number of homicide cases. But expert evidence about domestic violence has had only patchy acceptance in case law outside of homicide. In social security law it had been virtually ignored, with the consequence that many victims of domestic violence have suffered a double blow. Not only have they had to endure a master-slave relationship, but their relationship has been deemed ‘marriage-like’, often with serious consequences for their eligibility for social security benefits. This article explores ways that evidence of domestic violence can be used to help battered women in these circumstances. We look at what it is like to be a battered woman and how the relevant provisions of the Social Security Act 1991 (Cth) have been interpreted in recent case law. | Add to cart | |
Voices in the political wilderness: Women in the Sydney Anglican Diocese
by Mitchell LandriganThe Sydney Anglican Diocese neither ordains women as parish Rectors nor consecrates women as Bishops. While appointment to these religious positions allows male clergy to lead a Church parish or other Church community, senior clergy may be voices in political discourse – for example, on topics such as abortion, euthanasia, and marriage of same-sex couples. By preventing women from rising to positions from which they may contribute to such political debates, the Sydney Anglican Diocese’s bans on ordaining women as Rectors or consecrating them as Bishops may constrain women’s political speech. This article considers whether NSW antidiscrimination legislation which supports the Church subordination policies may infringe the implied freedom of political discourse which the High Court has held exists under the Commonwealth Constitution. | Add to cart | |
Industry Ombudsman schemes twenty years on: World benchmark or industry captured?
by Bill Dee, Simon Smith and John Wood July 2009 was the twentieth anniversary of the start of the first industry Ombudsman service in Australia. Since then, these private justice schemes have proliferated, having been embraced by government as a low cost way to provide consumers with access to dispute resolution outside the state/federal legal systems. But what is the quality of such schemes, how are they funded and supervised, are they impartial and have they improved the quality of decision making within industry sectors? By reference to the Financial Ombudsman Service (‘FOS’) and the Telecommunications Industry Ombudsman (‘TIO’), this article explores these issues. | Add to cart | |
Greening Australian workplaces: Workers and the environment
by Victoria Lambropoulos Workers have in the past have been seen as a hindrance to environmental reform. This has been primarily because of the fear of job loss. The job versus the environment dichotomy that has placed workers and trade unions against environmentalists is unhelpful and believed by many as outdated. Internationally, trade unions have worked together with the United Nations and other international bodies to ensure that the rights of workers have not been ignored in the climate change debate. Significantly workers are now seen as part of the answer. Workers are not a hindrance to environmental reform. Rather they are an important part of finding solutions to climate change and wider environmental sustainability measures in our community. The United Nations Environmental Programme report titled ‘Labour and the Environment; A Natural Synergy’ examines how workers and their representative trade unions can make a significant contribution towards promoting action on climate change and wider environmental sustainability measures in the workplace. The report outlines three broad recommendations which countries can implement to foster a growing ‘synergy’ between the interests of labour and protection of the environment. The advantage of the report is that it discusses the recommendations in the context of existing laws and general regulatory structures common to many countries including Australia. The first two recommendations draw upon labour laws whilst the third is in the area of company law. The first recommendation is the use of enterprise bargaining to incorporate clauses which protect and promote the environment in enterprise agreements commonly called ‘green friendly’ clauses. The second recommendation is the use of occupational health and safety laws as a vehicle for the promotion of environmental standards in the workplace. The third recommendation is the active engagement of corporate social responsibility principles by companies. This article discusses the recommendations in the context of Australian law. | Add to cart | |
In search of justice: Why Australians should be prosecuted for war crimes committed in Iraq
by Tim Wright This article assesses whether there is a legal and factual basis for the International Criminal Court to investigate and prosecute Australian leaders and soldiers for war crimes committed in Iraq. It looks primarily at the participation of Australian armed forces in indiscriminate cluster bomb strikes and the second assault on Fallujah in 2004. While the evidence supporting action by the permanent court is strong, there appears to be little political will to put any western nationals on trial. | Add to cart | |
BriefsTo the exclusion of all ‘others’?
by Magdalena McGuire The campaign to end marriage discrimination in Australia has received new impetus thanks to the current national human rights inquiry, with same-sex marriage one of the most pertinent — and politically charged — issues under consideration. This article argues that Australia must adopt an inclusive approach to marriage that respects the human rights of all Australians — regardless of their sexual orientation or identity. | Add to cart | |
ColumnsAsia-Pacific: The Commission of Truth and Friendship and justice for East Timor
by Robin Perry It is now ten years since the referendum which led to Timorese statehood. Since that time there have been four formal initiatives established to deliver justice for the many crimes against humanity committed in 1999, and in the preceding 24 years of Indonesian occupation. The fourth and last of these initiatives was the Commission of Truth and Friendship, which was created in 2005 largely as a political measure to stymie any moves to establish a robust international tribunal capable of providing the redress which all the other initiatives had so tellingly failed to deliver. Although the Commission’s final report, released in 2008, was comprehensive and credible, and prompted an unprecedented acknowledgement of responsibility from the Indonesian President, the hearings which were the focal point of its work at times amounted to little more than a political sideshow and they added very little, if anything, to what had already been revealed by the other transitional justice institutions. In short, justice for East Timor remains as elusive as ever. | Add to cart | |
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