Vol 36(4) 2011 - Unmasking the Law

Editors for this issue: Laurie Berg, Lesley Townsley and Rebecca Scott Bray

  • Offend, harass and affront
  • Beyond legal education
  • The rights of the biosphere

Pages 222 to 294

Free speech, racial intolerance and the right to offend: Bolt before the court

Sarah Joseph

In Eatock v Bolt, Andrew Bolt and The Herald & Weekly Times were found to have breached s 18C of the Racial Discrimination Act by publishing two articles which disparaged lighter-skinned aboriginal people. The case unleashed a torrent of debate regarding its impacts on free speech. However, freedom of speech is not absolute, and other rights were also at stake in the case, notably the right to be free from racial discrimination.

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Article

Sexual harassment on trial: The DJs Case

Patricia Easteal, Skye Saunders, Keziah Judd and Bruce Arnold

The ‘trial’ by media and lawyers in the 2010 dispute between Kristy Fraser-Kirk, leading retailer David Jones and former CEO Mark McInnes ended in an out of court settlement. The case was significant in many ways. The complainant took the unusual step of pleading her claim under the Trade Practices Act 1974 (Cth), Fair Trading Act 1987 (NSW) and the common law of contract, in addition to the sexual harassment provisions of the Sex Discrimination Act 1984 (Cth). Fraser-Kirk and her lawyers also actively engaged with the media, prompting David Jones to respond in kind. In this article, we contrast how this particular trial by media and lawyers compares to the typical processes and outcomes for those whose complaints are not spotlighted in newspapers or the news. We critique the use of publicity in that dispute, showing that the plaintiff’s $37m claim grabbed media attention and fostered an out of court settlement that is inconsistent with traditional damages for workplace injury and awards regarding sexual discrimination. We find too that the size of the claim seemed to be highlighted more by the media than Fraser-Kirk’s resemblance to the ideal complainant identified in previous research (young, subordinate position, fresh complaint). Although it is a case worthy of analysis as exemplifying a trend in adversarial dispute resolution, we conclude that these tactics may not be useful or work for everyone.

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Article

Crime victims and sentencing: Reflections on Borthwick

Tracey Booth

Integrating victims and their victim impact statements in sentencing proceedings is a contemporary challenge for the court. It is argued that the requirement of fairness means that the sentencing court should consider and respond to the interests and concerns of both the defendant and the victim.

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Article

Labor’s ‘new directions in detention’ three years on: Plus ça change

Tania Penovic

The defeat of the Howard government brought with it the promise of a more humane approach to processing asylum seekers. In July 2008, a set of policy values were introduced which were to fundamentally change immigration detention in Australia. This article will examine the direction taken by the Rudd and Gillard governments and the extent to which their trajectory has marked a shift from the regime administered by their predecessors.

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Article

Education about human rights: Strengths and weaknesses of the UN Declaration on Human Rights Education and Training

Paula Gerber

On 23 March 2011, the United Nations Human Rights Council adopted the Declaration on Human Rights Education and Training. This landmark declaration signifies a growing commitment by the UN to the promotion of human rights education as a means of increasing respect for human rights and combating human rights violations. This article provides one of the first in-depth analyses of this important new instrument, and identifies both its strengths and weaknesses.

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Article

Engaging law students to promote psychological health

James Duffy, Rachael Field and Melinda Shirley

Recent empirical evidence suggests that concern for the psychological health of law students is well justified. Traditionally, the legal curriculum has focussed on the provision of substantive legal doctrinal knowledge. This approach has not always engaged students positively with their learning of law. This article considers some strategies that can be adopted by Law Faculties to better engage students with their legal education in order to promote their psychological health. These strategies are: ensuring that active learning occurs in lectures, demonstrating concern for students and their learning and skilful management of student expectations and the learning environment. Further, some self-help strategies that students can adopt for themselves are discussed. Combined, these strategies will enable students to engage more positively with their legal education.

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Article

The Emperor’s new Legal Education Theory

Dan Jerker B. Svantesson

This article argues that good law teaching does not require a solid understanding of education theory. Instead, successful legal education requires four things — knowledge of the subject matter, creativity, interpersonal skills and showmanship — none of them benefitting significantly from any degree of deeper theorising. These observations are followed by some speculations as to the reasons why so many legal academics devote their limited research time to topics falling within legal education theory. Finally, dangers stemming from a misguided focus on legal education theory are highlighted.

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Article

Australian Muslims and citizenship: Sharia law and the democratic nation-state

Hossein Esmaeili

Sharia is part of the religion of Islam and includes legal rules and principles as well as rituals. Some Australian Muslims may feel obliged to follow certain principles of sharia and also to adhere to their obligations as citizens of Australia. This article raises and discusses certain issues relating to the practice of sharia within a modern nation state, such as Australia, and whether this may be inconsistent with requirements of Australian citizenship.

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Article

Enlarging our vision of rights: The most significant human rights event in recent times?

Brian Walters

Global warming is a pressing human rights issue arising from a wrong relationship between our civilization and the Earth. The experience of Guatemala illustrates how respect for human rights and respect for the environment are inseparable. Australia’s human rights record, initially leading the world, has fallen behind. Our human rights discourse has not touched the potent issue of global warming. The enlightenment gave us much of our human rights legacy, but that movement also disconnected us from the Earth. Our legal relationship with land illustrates this. We can learn from indigenous attitudes to the Earth. The developed world has a catastrophic environmental record, with the powerless paying price. We cannot protect human rights without recognising the rights of the biosphere which cradles humanity. International jurisprudence shows early signs of developing this recognition.

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Comment

Toonen, 20 years on: Does the ICCPR have any purchase in Australian law?

Bill Swannie

20 years ago, Nicholas Toonen alleged a violation of the ICCPR by lodging a complaint with the UN Human Rights Committee about Tasmania’s laws penalising sexual conduct between men. It became a landmark case in Australian law.

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Brief

Consumer Guarantees and traders’ responsibilities

Jeannie Paterson

This brief outlines the important new regime in the Australian Consumer Law that provides mandatory standards of quality — ‘consumer guarantees’ — in the supply of goods and services to consumers. These guarantees cannot be excluded and take precedence over any voluntary guarantees or extended warranties provided by traders.

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Brief

Unfinished business: Victoria’s new Equal Opportunity Act

Dominique Allen

Victoria’s new equal opportunity legislation came into force in August 2011 but last minute amendments by the recently elected Liberal government removed some of the Act’s most innovative measures, which were designed to tackle entrenched discrimination. This brief describes how the Equal Opportunity Act 2010 (Vic) addresses many of the problems associated with previous equal opportunity laws and covers the new mechanisms contained in the Act, including how the recent amendments have minimised their effectiveness.

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Brief

Asia-Pacific: China’s Messy Urbanisation

Leng Lee

China's urbanisation is one aspect of an economic miracle which has received much deserved attention. However, to understand the limits and difficulties of continued urbanization, the household registration system (the 'hukou') requires more attention. The hukou acts as an internal passport in many ways, and its existence has significant implications for a number of aspects of Chinese society. This article outlines the hukou’s history, significance, and attempts at recent reforms

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Column
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