Vol 35(4) 2010 - Can Law Protect Us?

Liberal Law's Fear of 'Culture'

Ben Golder

This article offers a critical response to a recent speech delivered by the Chief Justice of New South Wales on the topic of violence against women. The article argues that the Chief Justice, in framing the issue of gendered violence in cultural terms, unhelpfully adopts an understanding of (certain) ‘cultures’ as monolithic and unchanging and in so doing actually marginalises resistant voices both outside and within those cultures who are struggling to rearticulate and contest patriarchal norms.

Price: $8.80
Article

Stop and search without reasonable suspicion: Is Western Australia becoming a police state?

Thomas Crofts

A Bill is currently before the WA Parliament which will allow police to stop and search without the consent of the person and without reasonable suspicion that the person possesses anything related to an offence. This article explores the reasons for the proposed extension of police powers and argues that the powers are unnecessary, that the legislation contains inadequate safeguards, that it is likely to lead to the targeting of certain groups in the community and that it could undermine public confidence in the police.

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Article

The Honeymoon Killer: Plea bargaining and intimate femicide - a response to Watson

Asher Flynn and Kate Fitz-Gibbon

In October 2003, US citizen Christina Thomas died while scuba diving on Queensland’s Great Barrier Reef. Following over five years of delays, her husband David Watson accepted a plea bargain to which he pleaded guilty to manslaughter on the basis of criminal negligence. Watson was initially sentenced to four and a half years imprisonment, suspended after 12 months, however this was later increased on appeal to suspension after 18 months. Using Watson as a framework for analysis, this article examines some of the limitations of an inefficient justice system, with a particular focus on the private nature of the plea bargaining process, and the potentially favourable representations and sentencing of men who kill a female intimate partner. The authors argue that the need to respond to court inefficiency and under-resourcing in the criminal courts creates pressures that can result in a desire for increased efficiency being prioritised above other justice concerns, and this allows for existing flaws within the operation of the criminal justice system to be exacerbated, and excused.

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Article

Fact-finding, Proof and Indigenous Knowledge: Teaching Evidence in Australia

Katherine Biber

Evidence is a compulsory subject of study for law students seeking admission to legal practice. It teaches students principles of proof, fact-finding and the thresholds to admissibility for the evidence that supports truth-claims in litigation. This article explores several opportunities to introduce Indigenous perspectives into the teaching of Evidence. It explains several barriers to participation in litigation for some Indigenous people, and proposes several ways of removing the barriers. It also explores ways that law students can learn to re-consider legal notions of 'fact' and 'truth' by considering these notions from Indigenous perspectives. Finally, it sets out several recent amendments to the uniform Evidence Acts designed to accommodate Indigenous perspectives into the rules of evidence.

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Article

Religion, Politics and Asylum Seekers

Mitchell Landrigan

This article explores Kevin Rudd’s use of religion in politics on the topic of asylum seekers when he was Shadow Minister for Foreign Affairs. Specifically, the article examines how Rudd sought to use religious language to win votes. Naming Dietrich Bonhoeffer as a role model and citing the parable of the Good Samaritan in relation to asylum seekers, Rudd said Christianity must always take the side of the marginalised. As Prime Minister, he faced challenging political circumstances in relation to asylum seekers. However, it is surprising how little tough criticism Rudd endured when his government failed to live up to the high Christian standards he had laid out as Shadow Minister.

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Article

The impossible victim: Judicial treatment of trafficked migrants and their unmet expectations

Ramona Vijeyarasa

This article discusses the voluntary decision-making of potential migrants inherent in the majority of situations of trafficking and trafficking-like working conditions, through the lens of Australian jurisprudence and particularly R v Dobie, the first and thus far only conviction for human trafficking in Australia. The author responds to the tendency of courts to consider it impossible for an individual whose decision-making contributes to their eventual exploitation, to be a victim. To the contrary, the author proposes a contractual approach to the issue of trafficking and argues in favour of courts utilising evidence of victims’ negotiations with their traffickers and their expectations concerning conditions of work in destination countries as a benchmark against which to assess redress. Such an approach also values the agency of female migrants who seek economic betterment abroad. The author explores the philosophical limitations of recognising one’s agency and the difficult task of balancing an individual’s desire for a better life and the opportunities that work abroad may offer with the limits society places on the ability of individuals to give up their freedom.

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Article

Is there a 'desirable migrant'? A reflection on human rights violations at the border: The case of 'virginity testing'

Marinella Marmo and Evan Smith

This article aims to bring to a wider audience the case of 'virginity testing' carried out by British immigration officials in the 1970s, performed on women who sought to emigrate to Britain from the Indian sub-continent. This episode in British immigration history should encourage all of us to consider the gross violations of human rights that can occur at the border with the selection of migrants. It is acknowledged that the 'virginity testing' arose in specific circumstances which, we hope, would not occur again, but this case study provides us a shocking reminder to resist complacency about the severe infringements of human rights that can take place at the border, and can become internalised, accepted, supported or even imposed by the highest levels of the immigration control system.

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Article

Recognition of same-sex parenting in Australia: South Australia the final frontier?

Sonia Allan

South Australia is the only jurisdiction in Australia that does not recognise same-sex parenting. This article provides an overview of the laws in South Australia and the other state/territory and federal jurisdictions. It argues that the law places children who are parented by same-sex couples in South Australia in an unequal and unacceptable position when compared to children in all other Australian jurisdictions. Suggestions for legislative change which would bring South Australia into step with the rest of the nation are made.

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Article

Coronial law reform

Rebecca Scott Bray

Coronial law reform is continuing in Australia with similar issues echoing throughout jurisdictional reviews. In light of Western Australia’s current coronial review, this Brief traces some of the key issues in coronial reform.

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Brief

Remembering the Rule of Law

Melissa Castan

We celebrated a ‘Rule of Law’ day on 11 November, when the High Court handed down decisions in three important cases that reflected the fundamentals of fairness, natural justice and equality before the law.

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Brief

Sport and the Law: Sport and Human Rights: Closer than you think

Sarah Joseph

While some may consider sport ephemeral or too much of a national preoccupation, it is also fun – but, importantly, it has its impacts on human rights ... and vice versa.

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Column

Asia Pacific: Are Pacific Islanders eating themselves to death?

Paul McCartan

Seven of the world's ten most obese nations are in the Pacific. In part this is due to the popularity of cheap, fatty off-cuts of meat exported from Australia and New Zealand to Pacific Island states. With some medical experts now warning of 'dietary genocide', this article examines part of the complicated relationship between diet and development.

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Column
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