Vol 36(1) 2011 - Making the Law Work for Justice

Editors for this issue: Melissa Castan with Alice Drury and Penelope Swales

Pages 1 to 76

Bright lines and open prisons? The effect of a statutory human rights instrument on control order regimes

Keiran Hardy

This article compares Australian and UK case law in order to examine the effect that a statutory human rights instrument can have on the judicial interpretation of anti-terror legislation. The author argues that there has been a striking divergence between the UK and Australian courts when interpreting the right to individual liberty under control order regimes, although both jurisdictions have declined to challenge the questionable breadth or purpose of the legislation itself. This gives support to arguments that judicial decisions relying on human rights instruments are generally unlikely to have a substantive post-enactment effect on rights-infringing anti-terror legislation. However, recent proposed changes to the UK control order regime suggest that judicial decisions employing human rights standards can have an important influence on subsequent legislative change by feeding indirectly into the political dialogue of a more active human rights culture.

Price: $8.80
Article

Preventive detention and the control of sex crime: Receding visions of justice in Australian case law

Mark Brown

Recent years in Australia have seen a massive expansion in involuntary detention, including notably the post-sentence detention of sex offenders. This article examines recent Australian case law on involuntary detention in light of notions of justice and right. These developments are compared with European Court of Human Rights jurisprudence on involuntary detention. The results of this comparative study indicate that Australia is moving increasingly out of step with both international and European efforts to maintain protections against unjust, arbitrary and punitive detention when it is cloaked in the new rhetoric of administrative and protective intent.

Price: $8.80
Article

Can and should burqas be banned? The legality and desirability of bans of the full veil in Europe and Australia

Anne Hewitt and Cornelia Koch

The first part of this article discusses the legislative moves in France and Belgium to ban the wearing of the burqa and niqab in public and considers the likely outcome of legal challenges to the enacted or proposed laws. Australian proposals to ban the full face veil are then examined. We conclude that protections equal to those available to Muslim women in Europe, which are enshrined in constitutional charters of rights and the European Convention on Human Rights, are not available in the Australian context and, accordingly, any Australian ban would be less susceptible to judicial criticism. However, Australian law makers should not succumb to calls for bans on religious head dress if they would disproportionately infringe Muslim women’s rights to manifest their religion, to personal autonomy and to personal integrity.

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Article

Recognition of the Human Right to Water: Has the tide turned?

Paula Gerber and Bruce Chen

There has been a long struggle to attain legal recognition of the human right to water. This has, to a large degree, stemmed from the fact that there is no express reference to such a right within seminal international human rights instruments, particularly the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. This article examines the chequered history of the right to water in international law, culminating with the recent adoption of the UN Declaration on the Human Right to Water and Sanitation. It concludes that the tide has now turned for the right to water. The debate about whether such a right exists is over; now the focus must be on what is the precise normative content of such a right and how can States best give effect to this right.

Price: $8.80
Article

Climate Litigation: Lessons learned and future opportunities

Felicity Millner and Kirsty Ruddock

There has been a significant expansion in climate litigation internationally in the past five to six years. The reasons for this include the lack of comprehensive policy response to the emission of greenhouse gases, even in the face of increasingly dire predictions about the extent and seriousness of the impacts of human induced climate change from scientists. This article discusses how climate change issues have arisen in cases in a number of jurisdictions and areas of practice, with a focus on the key climate cases that have occurred in Australia to date. It also analyses the role litigation has played in developing the law and influencing decision making that relates to climate change.

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Article

A Call for Judicial Activism: Rapid technological developments and slow legal developments

Dan Jerker B. Svantesson

This article argues that judges do make law, and judges should make law. It also shows that such judicial activism is particularly necessary to address the legal issues that surround the rapidly developing information technologies. The recent case of Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd, in which the New South Wales Supreme Court held that downloadable software does not amount to goods, is used as an illustration of the problems that arise where judges shy away from law-making. The judgment is significant in its own right as it means that at least some buyers of downloadable software are not given the same protection as are those buying software attached to a physical medium such as a CD or a DVD. However, even more importantly, the Gammasonics case is symptomatic of how the rapidly developing information technology creates a demand for greater judicial activism.

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Article

Governing 'On Country': Using institutions to close the gap in Indigenous disadvantage

Jay Tilley

Despite the popular belief that Aboriginal self-determination was 'tried and failed', this article examines the absence of legislation and policy development for genuine self-determination to occur in Australia. Drawing on other colonial jurisdictions, this article presents some possibilities as to how legislation for community-owned governing institutions might work to close the many gaps in Indigenous disadvantage.

Price: $8.80
Article

Shock tactics threaten Police authority: the use and misuse of Tasers in Australia

Kylie Bourne

The use of Taser stun guns by general duties police officers in Australia is not legitimate as they are often used in ways that can be classified as ‘excessive force’ under existing police guidelines. Tasers have been distributed to police officers despite a lack of public discussion and debate about introducing the weapon into the armoury of general duties officers. There is empirical evidence that Tasers are proximate to many deaths and injuries and that the normalisation of Taser use will have the effect of lowering the threshold at which police resort to violence to resolve a confrontation. The use of Tasers is not legitimate because the use of the weapons will not conform to established limits on the use of force by police and will lead to a de facto lowering of the threshold for use of violent force. This may, in turn, have a detrimental effect on public consent to policing.

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Article

Health and wellbeing in the first year: The Law School experience

Anthony Lester, Lloyd England and Natalia Antolak-Saper

It is well documented that being a legal practitioner may present a risk to a person’s mental health and wellbeing. Research, conducted predominantly in the US, also suggests that engaging in legal education can pose a risk to a person in terms of depression. Similar results have been found in several Australian studies conducted in the last four years. Nevertheless, information on the mental well-being of law students in the Australian context continues to be lacking. For such reasons, a study was conducted at the Faculty of Law, Monash University during 2009. As part of the study, over 350 first year students were surveyed at the beginning of Semester One, and the end of Semester Two, of their first year of legal studies. Over the year, the study found significant increases in depression, stress and symptoms of ill physical health. It should be noted that although the rates of depression increased, they were lower when compared to similar conducted studies. Monash Law School’s commitment to providing early intervention and support programs may provide some explanation. However, the findings are a reminder that persistent effort is required to improve the quality of the law school experience. Future investigations should consider year levels other than just the first year, and some focus should be had on understanding specific risk elements of the law school experience.

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Article

Introducing the new, national Australian Consumer Law

Jeannie Paterson
An overview of the new national legislation that is changing the face, and some of the content, of consumer protection throughout Australia. Price: $4.40
Brief

Universal Periodic Review of the US

Rachel Ball
In her 'Letter from Geneva', the author provides a glimpse of the behind-the-scenes machinations at the UN. Price: $4.40
Brief

Sport and the Law: Confessions of a celebrity 'drug addict

Laura Ann Wilson

This article considers whether media coverage of the downfall of footballers such as Ben Cousins and Brendan Fevola serves to glamorise illicit drug use, educate the public or change entrenched social attitudes towards marginalised drug users.

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Column

Asia Pacific: Lessons from the Clean Development Mechanism

Tessa Toumbourou

Reducing Emissions from Deforestation and Forest Degradation (‘REDD’) has much to learn from the issues surrounding the Clean Development Mechanism (‘CDM’), which has had limited success in achieving its Kyoto Protocol mandate of providing sustainable development to a project host country. Both are policy instruments that leverage the international carbon market to provide developed countries emissions offsets, and have been criticised for failing local communities in countries where projects are located.

Price: $4.40
Column

Asia Pacific: Ahmadiyah in Indonesia: A history of religious tolerance under threat?

Melissa Crouch
Indonesia has a long history of religious tolerance. Ahmadiyah, a minority religious community that identifies with Islam, has existed peacefully in Indonesia for over 80 years. The Ahmadiyah community, however, is increasingly under threat of attack by radical Islamic groups, and there are ongoing demands from conservative Islamic groups that the state implement further legal restrictions on Ahmadis. An analysis of the recent decision of the Constitutional Court on what is known as Indonesia’s ‘Blasphemy Law’ will show the ongoing potential risk of Ahmadis being convicted for blasphemy, in addition to the threats and violent attacks. Price: $4.40
Column
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