2016 - Vol 41(2) - Public Law, Protecting Rights

AltLJ Issue 41(2) Cover

Domestic relations

Resolving conflicts

Legal practises

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A human rights act for Queensland?

George Williams and Daniel Reynolds

human-rights-queensland-cartoon-150Lessons from recent Australian experience

Australia is a latecomer to the idea of having anything akin to a bill of rights. When drafting the national Constitution in the final decade of the 19th century, the framers chose not to include broad-ranging guarantees of human rights. They did so on the ground that protection could be provided by other means, in particular the system of parliamentary democracy. This view has since been challenged, and in the 1970s and early 1980s legislation was introduced into federal parliament for a national human rights act. These bills were not passed, but other initiatives have since sought change. In 1988, Australians voted No in a referendum to constitutionally entrench a number of specific rights, while 2009 saw a wide-ranging national human rights consultation. It reported that the public overwhelmingly supported reform, but its recommendations for a national human rights act were not adopted. As a result, Australia remains the only democracy without some form of national bill of rights.

(2016) 41(2) AltLJ 81


The removal of convicted noncitizens from Australia

Ian Coyle and Patrick Keyzer

concidering-cartoon-150Is there only a 'minimal and remote' chance of getting it right?

On 22 December 2014 the Minister for Immigration and Border Protection (the Minister) issued Direction 65 to supplement section 501 of the Migration Act 1958 (Cth). This regime enables the Minister or a delegate to cancel a visa held by a noncitizen convicted of an offence on the basis that they have failed a 'character test'. Ordinarily a person will fail the character test if they have a 'substantial criminal record', defined as a criminal conviction attracting a sentence (or, in practice, adding up to cumulative sentences) of 12 months or more.

(2016) 41(2) AltLJ 88


Reforming the office of speaker

Bede Harris

Above-it-all-speaker-150The speakership of the House of Representatives has never enjoyed independence — in the sense of the freedom to act impartially without fear of removal — in the same way as does the Speaker of the House of Commons in the United Kingdom. However, the recent tenure of Bronwyn Bishop was particularly damaging for the office, and highlighted the extent to which the speakership is subservient to the governing party in the House. This article argues that the office should be reformed in order to ensure that the speakership fulfils its role as an independent arbiter of the workings of the House, and considers what constitutional amendments would be necessary to achieve this.

(2016) 41(2) AltLJ 91


Love 'em, keep 'em, leave 'em

Michelle Fernando and Oliva Rundle

relationships-cartoon-150(Non) application of de facto relationship laws to clandestine intimate relationships

In Jonah v White1 the Full Court of the Family Court confirmed a trial judge's finding that a woman who had been in an exclusive (on her part) relationship with a man for 17 years, on whom she was financially dependent, was not in a de facto relationship. She was therefore not able to proceed with any application for property settlement or maintenance under the de facto relationship provisions of the Family Law Act 1975 (Cth) ('the FLA'). We make no comment on the strengths or weaknesses of Jonah's financial claim, because our focus is upon the denial of her opportunity to proceed on that substantive matter.

(2016) 41(2) AltLJ 95


Criminalising controlling and coercive behaviour

Marilyn McMahon and Paul McGorrery

monster-woman-150The next step in the prosecution of family violence?

Traditionally, the criminal law has proscribed activity that results in physical injury to another. By extension, threats of physical harm may also attract criminal liability. For instance, common law assault can occur where there is a threat of imminent violence, even if no physical contact actually occurs. Similarly, the statutory offences of threatening to kill or cause serious injury do not require actual physical injury to the victim. In recent decades, however, there has been a shift towards criminalising the infliction of non-physical harm.

(2016) 41(2) AltLJ 98


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