Vol 35(1) 2010 - New Laws - Same Old Problems

Words will never hurt? Media stigmatisation of people with mental illnesses in the criminal justice context

Danielle Andrewartha

Despite the prevalence of mental illness, there remains significant stigma attached to it, which is promulgated by the media and its depictions of individuals with mental illnesses as violent and dangerous. This article explores the nature of mental illness stigma and its relationship to the large numbers of individuals with mental illnesses being 'treated' by the criminal justice system rather than within the mental health system, and raises mechanisms for correcting this imbalance by challenging mental illness stigma.

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Article

Developing law and ethics: The Convention on the Rights of Persons with Disabilities

Penny Weller

This article considers the impact of Convention on the Rights of Persons with Disabilities with particular reference to effect of Article 17 (the right to be free from interference with ones physical and mental integrity), the problem of the uncertain side effects of medical treatment, the question of capacity and the principle of supported decision making. The article argues that the Convention redefines the ethical and legal standards that guide the care of treatment to people with mental illness.

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Article

Some human rights are worth more than others: The Northern Territory Intervention and the Alice Springs Town Camps

Alison Vivian

Australia’s legally binding obligations at international law to respect, protect and reinvigorate Aboriginal and Torres Strait Islander culture are unambiguously stated in a variety of international instruments which should be central to all government policy and programs related to Indigenous people. Further, Australian and North American evidence that cultural legitimacy is a necessary prerequisite to the achievement of socioeconomic outcomes for Indigenous peoples reinforces the utility of such an approach. Instead, recent Australian Government policy — exemplified in the continuation of the Northern Territory Intervention and the removal of Aboriginal authority over Alice Springs Town Camps — seemingly disregards potential harm to cultural integrity, the consequences of which may undermine the very objectives that such policy is designed to achieve.

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Article

Drink spiking and rock throwing: The creation and construction of criminal offences in the current era

Arlie Loughnan

Over the last decades, the creation of new criminal offences has become a popular legislative pastime in Australian and elsewhere. Examples of offences recently created in NSW include drink and food spiking, criminal association, assault in the context of a large-scale public disorder and rock throwing. When viewed independently, these diverse offences might be regarded as simply better or worse examples of uncoordinated political responses to high-profile offending. But, taken together, the new offences exhibit particular features which, in aggregate, represent a distinctive mode of offence creation and construction that has risen to a position of prominence in the current era. This has consequences for the criminal law as a body of rules which are profound and worrying, including the exacerbation of the ad hoc and rather incoherent character of the criminal law corpus and a reduction in the status and communicative power of criminal law.

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Article

Reworking australia's referendum machinery

Paul Kildea and George Williams

In late 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs conducted an inquiry into the effectiveness of Australia’s federal referendum machinery legislation. This article outlines the shortcomings of the current legislation, including a failure to aid voter understanding and a shortage of opportunities for meaningful public engagement, and puts forward several suggestions for reform. It argues that any changes to current arrangements should aim to meet four goals: fairness and efficiency; deliberation; popular participation; and, public education.

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Article

Japanese lessons: What can otaku teach us about copyright and gothic girls?

Melissa deZwart

This article uses the example of animation to discuss the role of creativity and cultural appropriation within copyright law. It discusses the widespread distribution of dojinshi (amateur manga) and considers why dojinshi markets are allowed to flourish in Japan. Contrasting this with the recent debate over the originality of the Emily the Strange character and Rosamund from the Nate the Great childrens' books, the article considers whether there are any lessons to be learned in Western copyright culture regarding tolerance for creative reuses of material.

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Article

Property seized under warrants: The liability of prosecutorial authorities

Adrian Hoel

Property is commonly seized under warrants as an ordinary incident of the investigative process in criminal matters. Seizure, even regarding relatively minor criminal offences, may span months or even years particularly where the matter is appealed. There may be significant economic and other effects on parties including those substantially unconnected to criminal activity but who have an interest in the seized property. There is only narrow scope for the prosecutorial authorities to be found liable in tort both in the seizing and in the storage of property. In many instances, particularly those in which the validity of the seizure of the property is directly impugned, legal claims will be difficult to make out. Even where a criminal prosecution is unsuccessful or a warrant is found to be defective, absent any an improper intention in bringing a prosecution or negligence in storing it, prosecuting authorities will generally not be held to have acted in such a way as to incur tortious liability. Nonetheless, there are some actions that may be available in certain factual scenarios.

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Article

Adopting a positive action approach to sex discrimination

Sarah Stephens

The Australian Government is currently in the process of reviewing the two primary pieces of legislation which regulate gender discrimination at a federal level – the Sex Discrimination Act 1984 and the Equal Opportunity for Women in the Workplace Act 1999. This presents an ideal opportunity to consider removing the ambiguities created by the interaction between s 7D of the SDA and the merit principle enunciated in the EOWWA. This could be achieved by replacing s 7D with a clearly articulated positive action regime, based on the EU’s model, as is currently being implemented in the UK.

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Brief

'Gunns 20' reaches a final settlement

Penelope Swales

The now notorious ‘Gunns 20’ case has finally reached settlement. Widely regarded as a SLAPP suit (‘Strategic Lawsuit Against Public Participation’) it has been the longest and most costly case of its kind in Australia. The case represents a rise in the use of civil litigation to discourage community activism against the activities of corporations, and has raised serious questions about the lack of protection from such misuse of litigation under Australian law.

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Brief

Asia-Pacific: Haitians must determine the future of Haiti

Rebecca Monson and Daniel Fitzpatrick

Torrents of aid are presently pouring into Haiti, yet Haitians themselves are not in a position to negotiate the terms of that aid. There is a growing concern that relief and reconstruction efforts will repeat Haiti's long history of colonialism and oppression of the African population by Western interests. With a former US president now heading up relief efforts, it is even more important to ask: who will determine Haiti's future, and whose interests will relief and reconstruction serve?

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Column

Asia-Pacific: The UPR process: an opportunity for Fiji

Jessica Evans

Fiji's human rights record will be considered by the UN Human Rights Council through the Universal Periodic Review (UPR) process in early 2010. The UPR process presents an opportunity for UN member states to tackle Fiji's military governmentメs poor human rights record. It also provides the international community with an opportunity to show the government that the world is monitoring its human rights abuses and that these abuses cannot be justified. Should they take it, the process would also present an opportunity for the Fiji military government to reflect on its conduct over the last three years within a human rights framework.

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Column

Sport and the Law: Pistorius: reaching his capabilities

Antonio Buti

This article chronicles the legal battle by paralympian Oscar Pistorius to compete in the 'able-bodied' Olympics. Issues relating to sports ethics and disability rights are examined.

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Column
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