Vol 41(4) 2016 - Harm In The Home

Editors for this issue: The Editorial Committee

  • Addressing domestic violence
  • Detention dilemmas
  • Media signals

Pages 223 to 296

Strengthening The Web Of Accountability: Criminal courts and family violence offenders

Pauline Spencer

Family violence is a significant problem in Australian society.  Given the number of offenders that come before criminal courts for family violence related offending, criminal courts have a key role to play in the ‘web of accountability’ required to keep victims safe.  In this article Magistrate Pauline Spencer draws on the current state of knowledge regarding effective family violence interventions and her own experience on the bench to explore how criminal courts can use a combination of case management, judicial supervision and treatment and support programs to strengthen the web of accountability and maximise victim safety.

Price: $9.90
Article

Has He Been Violent Before? Domestic Violence Disclosure Schemes

Jane Wangmann

Domestic Violence Disclosure Schemes enable potential victims of domestic violence to find out whether their partner has a history of perpetrating domestic violence. These schemes are proving popular; they operate in the UK and New Zealand, and there is a pilot in NSW. This article questions the effectiveness of such schemes by highlighting the limited picture of domestic violence offending provided by convictions, notions of ‘choice’ in the context of domestic violence, and the absence of outcome evaluations.

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Article

The First Case Addressing Female Genital Mutilation In Australia: Where is the harm?

Juliet Brough Rogers

In 2015 the Criminal Court of NSW heard the first Australian case of two young girls who were alleged to have been subject to ‘female genital mutilation’. The jury convicted the parents, the midwife and an imam for the Dawoodi Bohra Community. Despite statements provided by several medical experts that said there was no evidence that anything had occurred toward the girls, despite there being no dispute that the parents were loving and that the girls were well cared for, and, perhaps most surprisingly, despite J Johnson, in his judgment, stating that what had occurred could not be classified as a ‘mutilation’ under NSW legislation. What happened to allow this conviction was, as I discuss in this article, an overreaching into the imagination of the title of the legislation ‘female genital mutilation’ to harness both the imagination of any activity associated with the name female genital mutilation. As I argue in this case, and often in respect to the practices, it is the name and the images it enlists, that allows for curiosity, questioning, and in this case, justice, to be suspended.

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Article

Protecting Children From Harm In Juvenile Detention

Jodie O’Leary

Recently, the treatment that some child detainees were subjected to in Northern Territory and Queensland youth detention centres was exposed. Also exposed was that this conduct had been occurring for some time. This article explores the potential reasons for the regulatory failure. This Part explains the international position on behaviours evident in the Northern Territory and Queensland, such as the use of force, restraints and isolation. It compares the legislative positions of Queensland, the Northern Territory and Victoria. While it finds that generally the legislation complies with the letter of the international law, some of the provisions undermine its spirit. 

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Article

Minority Rights Advocacy For Incarcerated Indigenous Australians

Emma Henderson and Nicole Shackleton

Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’) protects the right of persons belonging to ethnic and linguistic minorities to enjoy their own culture and language, in community with other members of their group. The decision to transfer Indigenous Australians away from their traditional lands and Community for the purposes of incarceration is a potential violation of this fundamental human right. Twenty five years after the Royal Commission Report into Aboriginal Deaths in Custody recommended that Indigenous prisoners should not be transferred away from their families unless it is absolutely unavoidable, Indigenous Australians are still incarcerated in ways which breach Article 27. In this article, we will discuss the parameters of Article 27 in the context of Indigenous rights advocacy in Australia.  

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Article

Executive Detention: Still no effective review for detainees

Shaun McCarthy, Amy Maguire and Amy Elton

Over the past two decades, the incidence of executive detention under Australia’s mandatory immigration detention regime has escalated dramatically. Detainees – not sentenced to periods of imprisonment by a court of law – do not have a generally accessible right to challenge their detention on the basis that they are lawfully in Australia. Furthermore, detainees do not have a right to challenge the findings of an adverse ASIO security assessment before a court or tribunal. This article proposes statutory change to enable merits review of executive detention by the Administrative Appeals Tribunal’s Migration and Refugee Division. Efficient and accessible merits review would ensure that these significant determinations are reviewed in a rigorous and accountable way to avoid another wrongful detention of the type experienced by Cornelia Rau. 

Price: $9.90
Article

The Sanctity Of Asylum: The legality of church sanctuary in Australia

Maria O’Sullivan

This article will examine the legality of the offer of sanctuary by Australian churches to asylum seekers at risk of deportation to Nauru. Although such sanctuary has been utilised throughout ancient times, it faces a number of legal difficulties within a modern legal context. This article will discuss those legal issues, including the framing of sanctuary as an act of disobedience and whether any analogy can be made to the act of diplomatic asylum.

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Article

‘Death Cults’, Murdering A Police Officer, And The First World War

Stephen Gray

This article looks at similarities in the Australian government’s response to perceived terrorist threats, in 2016 and one hundred years ago.  It focusses on official reactions to the murder of a police officer by members of the radical anti-war organisation, the Industrial Workers of the World, in the NSW town of Tottenham in 1916.  Such incidents, it argues, were used to justify repressive measures which the government had already developed, and for which it sought public support.

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Article

One Strike, Three Strikes: Crime and anti-social behaviour in NSW public housing

Chris Martin

This article examines the ‘one strike’ and ‘three strikes’ schemes for terminating social housing tenancies recently introduced in New South Wales residential tenancies law. The schemes operate by restricting the NSW Civil and Administrative Tribunal from considering certain matters and, in certain circumstances, requiring the Tribunal to make termination orders. The schemes are complex, and a review of the case law indicates that justice would be better done by allowing the Tribunal to treat each case on its merits.

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Article

Is House Sharing Grounds For Eviction? A Victorian Perspective

Bill Swannie

The Supreme Court of Victoria recently held that a residential tenant could be evicted for offering the rented premises on the home-sharing service AirBnB. This decision is arguably inconsistent with established principles of tenancy law, and could potentially affect thousands of tenants. This article analyses the court’s decision in light of other recent decisions of the same Court, which take a stricter approach to interpreting eviction powers.

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Article

‘NEVER TWEET?’: Social media and unfair dismissal

Justin Pen

This article examines the intersection of social media and unfair dismissal. It outlines the law surrounding unfair dismissal and out-of-work activities, surveys the decided cases within which social media misconduct has been the chief motivation for dismissal, and discusses the implications of corporate control over employees’ private lives and the phenomenon of social media-driven sackings. I examine cases that have come before the courts and workplace tribunals, as well as those that have not. From my research, I argue that the tide is turning against employees, who seek to bifurcate their private lives from their professional ones.

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Article

The Sentencing Of Harriet Wran: Tabloid press induced extra curial punishment as mitigation

David Brown

This Comment examines media induced extra curial (non-judicial) punishment as mitigation, arising out of the sentencing of Harriet Wran. The articles comprising what Justice Harrison described as a ‘sustained and unpleasant campaign’ by The Daily Telegraph and The Sunday Telegraph are examined, the newspapers’ response considered and the ‘campaign’ put in a wider context of tabloid media tactics.  While the doctrinal basis of extra-curial punishment as mitigation has been criticised as undeveloped and ‘under researched’, it is argued that this reflects struggles with punishment’s wide social reach. Lawyers might usefully attempt to extend the category of extra-curial punishment as mitigation.

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Comment

Legal Challenge To The Smoking Ban At Thomas Embling Hospital: The application of the Victorian Charter

Anita Mackay

Smoking bans where people are detained potentially infringe rights protected by the Victorian Charter of Human Rights. The Supreme Court of Victoria has considered the Charter implications for the first time in response to a challenge to the smoking ban introduced at the Thomas Embling Hospital on 1 July 2015. The Court found that the ban was introduced in a rights-respecting manner. This brief gives an overview of the decision and discusses some of the broader implications.

Price: $4.40
Brief

Silence in the Dock: Has The Queen v Baden-Clay affected the right to silence in criminal trials?

Brendan Walker-Munro

This Brief discusses the effect of the recent judgment of the High Court in Baden-Clay and its purported effects on the right to silence in criminal trials. The author examines some previous cases on this fundamental legal and human right, and concludes that the Baden-Clay case has not fundamentally changed Australian law on the right to silence.

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Brief
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