2016 - Vol 41(3) - Visualising Law


Risks and rights

Consumers and credit

Detention and detection

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Protecting Human Rights 
In Detention: Rights, monitoring and OPCAT

Bronwyn Naylor

Protecting-Human-Rights-In-Detention-skneebone-smThe recent ABC Four Corners report on juvenile detention in the Northern Territory demonstrated yet again the scope for abuse when people are held in detention. The detainees in that case were particularly vulnerable — young, and Aboriginal — and the abuse had been captured on film in graphic detail, with an apparent nonchalance on the part of the guards that was breathtaking, facts that made the abuse all the more shocking. 

There was a rush of public outrage in the media. The program went to air on the evening of Monday 25 July 2016; by the next morning the Prime Minister, Malcolm Turnbull had announced that there would be a Royal Commission into the events. Shortly afterwards the relevant Minister had been sacked from the corrections portfolio.

(2016) 41(3) AltLJ 151


‘Finding Diamonds In The Rough And Helping Them Shine’: Prospects for penal reform in the UK

David Brown

brown-finding-diamonds-in-the-rough-smIn February 2016, then British Prime Minister (‘PM’), David Cameron, announced ‘the biggest shake-up’ of prisons since the Victorian era, noting that ‘the failure of our system today is scandalous’.1 This unusual intervention for a Prime Minister followed similar reformist speeches and policy changes by then Justice Minister Michael Gove, raising the prospect that a right-wing Conservative government might, as an Observer editorial put it: ‘reform and reframe the rightwing narrative around crime and punishment’.2 These developments were welcomed by prominent commentators such as Martin Kettle3 and Will Hutton,4 and by penal reform groups like The Howard League for Penal Reform,5 this year celebrating its 150th anniversary. 

Such a prospect is of interest to Australian readers, both in and of itself and for what it might suggest about the conditions and possibilities for penal reform more generally.6 For while in Australia’s federal structure penal reform is not generally seen as a national issue, at a state level the prospect of either conservative Coalition or Labor parties reducing imprisonment rates and engaging in penal reform, as happened briefly in NSW under then Attorney General Greg Smith, is of major importance. This article is an outsider’s assessment of the current UK debate.

(2016) 41(3) AltLJ 155


Special Intelligence Operations And Freedom Of The Press

Keiran Hardy and George Williams

The federal coalition government under Prime Ministers Tony Abbott and Malcolm Turnbull has been active in having Parliament enact a range of new anti-terrorism laws. These laws have been introduced in response to the problem of ‘foreign fighters’ returning from the conflicts in Iraq and Syria, as well as the threat of homegrown terrorism by individuals who are inspired by the actions of Islamic State.

Measures enacted by the federal Parliament to combat these threats include a new power to revoke the citizenship of dual nationals who are involved with terrorism and an offence of entering any area declared by the federal government to be a no-go zone.1 Laws making amendments in a wide range of other areas have also been framed as a response to this increased threat of terrorism, including stronger offences for intelligence whistleblowing and a mandatory metadata retention regime.

A number of these measures have been controversial, including due to their impact upon freedom of speech and freedom of the press. A new offence of advocating terrorism, for example, provides for up to five years jail for any person who promotes or encourages the doing of a terrorist act or terrorism offence.2 Imprisonment can result merely from a person’s speech, and the person need not intend any other person to commit a terrorism act or terrorism offence.3

(2016) 41(3) AltLJ 160


Going To A ‘Double D’: The 2016 federal election and the Constitution

Oscar Roos and Kelly Green

dissolution-skeebone-smThis year’s federal election was a special treat for those interested in Australian constitutional law and politics: it was our first double dissolution (or ‘Double D’) election for 29 years, and only the seventh in Australia’s political history. This article sets out the key Constitutional issues surrounding the 2016 election and its aftermath.

What is a double dissolution election?

A double dissolution election occurs when both Houses of the Commonwealth Parliament, the Senate and the House of Representatives, are dissolved prior to the election (hence: double dissolution), so that Australian electors get to elect both the entire House of Representatives and the entire Senate.

This differs from a normal federal election, when only the House of Representatives is dissolved. Consequently, at a normal federal election, Australian voters elect the entire House of Representatives but only half of the 12 senators representing each state, as well as the two senators representing the Australian Capital Territory and the two senators representing the Northern Territory.

(2016) 41(3) AltLJ 165


Unfair But Not Illegal

Gerard Brody and Katherine Temple

unfair-but-not-illegal-skneebone-smAre Australia’s consumer protection laws allowing predatory businesses to flourish?

Predatory businesses that systematically take advantage of vulnerable consumers are far too common. While most commerce in Australia is conducted fairly and in a way that benefits consumers, there are still many businesses that take advantage of the poorest and most vulnerable in our community.

There are a range of possible legislative responses to predatory business behaviour. Governments can introduce ‘bright line’ rules that regulate specific business practices, such as payday loans or door-to-door sales. However, general protections that are ‘standards-based’ are important as well — the most relevant being the prohibitions against misleading and deceptive, and unconscionable conduct, in various consumer laws.1 Standards-based rules help to fill the gaps left by bright line rules, which often struggle to keep pace with emerging predatory business models.2

These core consumer protections have enabled effective enforcement action against some very sharp business practices. However, some unfair business models continue to flourish. This article examines some of the common unfair business models in today’s marketplace and the role of our existing consumer laws. In particular, the article considers the core prohibition designed to protect vulnerable consumers — the prohibition against unconscionable conduct. The article argues that this prohibition, based on equitable principles around conscience and morality, is outdated in today’s modern services-driven economy. A new prohibition on unfair trading, drawing on similar laws in the European Union (‘EU’) and the United States (‘US’), may be more effective at tackling these business models.

(2016) 41(3) AltLJ 169


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