Vol 41(2) 2016 - Public Law, Protecting Rights

Editor for this issue: Kellie Toole

  • Domestic relations
  • Resolving conflicts
  • Legal practices

Pages 79 to 146

A human rights act for Queensland? Lessons from recent Australian experience

George Williams and Daniel Reynolds

The Queensland Parliament has launched an inquiry into whether the state should enact a human rights act and, if so, in what form. If Queensland does pass such a law, it will become the third jurisdiction in Australia to do so, following on from the ACT in 2004 and Victoria in 2006. Queensland can learn from the many years of experience of those regimes, which show that a well-functioning human rights act needs a stand-alone cause of action, comprehensive and timely parliamentary scrutiny, and intelligible duties of judicial interpretation. If Queensland embraces these lessons in enacting a human rights act, it will advance to the vanguard of human rights protection in Australia.

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Article

The removal of convicted noncitizens from Australia: Is there only a 'minimal and remote' chance of getting it right?

Ian Coyle and Patrick Keyzer

A recently leaked Cabinet document indicates that the Minister for Immigration and Border Protection is contemplating a wider role for the use of risk assessment protocols in the consideration of visa applications. This gives cause for concern if the federal government’s current approach to the removal of convicted noncitizens is considered. In a number of cases the Federal Court has expressed grave concerns about the Minister’s approach in these cases, likening the decision-making in some cases as akin to ‘using a sledgehammer to crack a nut’. In this article it is argued that if risk assessments are to be undertaken by the Minister for Immigration and Border Protection, then they need to be undertaken with a proper understanding of the limitations that attend contemporary forensic risk assessment techniques, and some problems with the language adopted in the operative provisions.

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Article

Reforming the Office of Speaker

Bede Harris

This article contrasts the independence of the speaker of the UK Parliament with the position of the Speaker of the House of Representatives, and argues that the office should be reformed so as to require election by a two-thirds majority of the House and the severance of the Speaker’s ties to his or her party. Although this would require constitutional amendment, public disenchantment with political institutions, disquiet arising from the partisanship of the office of Speaker and long-standing dissatisfaction with the behaviour of parliamentarians suggest that such a reform would find support among voters.

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Article

Love ’em, keep ’em, leave ’em: (Non) application of de facto relationship laws to clandestine intimate relationships

Michelle Fernando and Olivia Rundle

This article critically examines a decision of the Full Court of the Family Court that a woman who had been in a committed 17-year relationship with a married man, on whom she was financially dependent, was not in a ‘de facto relationship’ for the purposes of the Family Law Act 1975 (Cth). The authors examine the implications of the decision for those whose relationships are secret.

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Article

Criminalising controlling and coercive behaviour: The next step in the prosecution of domestic violence?

Marilyn McMahon and Paul McGorrery

A new offence of controlling or coercive behaviour in intimate or family relationships has recently come into force in England. The parliament of Scotland is contemplating introducing a related offence. The offence is distinctive because it criminalises conduct – controlling and coercive behaviour – which has specified negative behavioural and psychological consequences without necessarily requiring that a victim sustain physical injury or fear death or serious harm. This significant extension of the criminal law supplements anti-stalking legislation and has been justified on the basis that it addresses a core feature of abusive relationships, is essential to protect the human rights of victims of domestic abuse, and has community support. In the context of the ongoing debate about how best to tackle the problem of domestic abuse in Australia, this development provides an innovative – albeit still untested – model and should be closely examined.

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Article

Examining a temporary migrant worker’s ability to make a complaint of sexual harassment

Joanna Howe

This article presents a powerful account of one migrant woman's lived experiences as a working holiday visa holder in the Australian labour market who experienced sexual harassment in the hospitality industry and received both an apology and monetary amount as part of a settlement outcome from a conciliation conference. Little is known about women who pursue sexual harassment claims as usually details of settlements are not disclosed and do not form part of a body of legal precedent. Even less is known about migrant women accessing a legal remedy for sexual harassment as typically temporary migrant workers are unlikely to access legal remedies given the length of time involved and this is particularly true in the instance of sexual harassment given both the gender power imbalance and the worker's precarious labour market status as a temporary migrant worker. Here insights are offered into her experiences, expectations and outcomes, as the article depicts a fragmented migrant trajectory. The narrative enhances understanding of the intersection of migration, temporary status, gender and work in a context where her behaviour in doggedly pursuing a legal remedy for the sexual harassment goes against the norm. It also offers a reflection upon the implications of these themes upon the broader regulatory framework affecting the performance of work in the Australian economy by temporary migrant workers and their ability to access legal remedies.

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Article

(Alternative) dispute resolution and workplace bullying: Some pros and cons from the coalface

Allison J Ballard and Patricia Easteal

In theory, alternative dispute resolution (which is sometimes referred to simply as ‘dispute resolution’) has many potential benefits and positive outcomes, including a high rate of dispute settlement. However, in disputes arising from workplace bullying and harassment, the typically uneven playing field between the protagonists may not allow for the open communication and assertiveness necessary for an effective process. We surveyed a small sample of people who had participated in (alternative) dispute resolution to resolve workplace bullying complaints to identify what variables, if any, affect perception of the efficacy of this type of resolution. Does settlement of a dispute outside a formal court or tribunal hearing necessarily equate with feelings of satisfaction or justice? We found that for some participants the answer to this question was a resounding no. Lacking a sense of vindication or voice, these workers remained insecure and concerned about their future and their employment situation. It appears though that legal representation during the (alternative) dispute resolution of workplace bullying can help offset, to some extent, the relative lack of power felt by targets who feel pressured to ‘settle’, and apprehend bias in respect of the independent third party conducting the dispute resolution process.

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Article

Judges, juries and prejudicial publicity: Lessons from empirical legal scholarship

Rebecca McEwen and John Eldridge

The criminal justice system has long held the view that judges are more capable than jurors of disregarding inadmissible prejudicial material. One consequence of this is the differential treatment of judges and jurors in respect of actual or potential exposure, via conventional or social media, to publicity which is prejudicial to a defendant. This article examines psycho-legal research findings which undermine the assumption upon which this differential treatment of judge and jury is based. It then identifies a number of questions which merit further attention in light of these findings.

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Article

Expanding justice access in Australia: The provision of limited scope legal services by the private profession?

Margaret Castles

This article advocates the introduction of structural and practical support for unbundling of legal services in Australia. The traditional 'whole of case' model of legal representation is no longer affordable for majority of litigants, who are left to self-represent. Other common law jurisdictions, the US, Canada and the UK have responded to changing market demands by facilitating the safe and effective adoption of unbundled legal services. It is time for Australia to follow suit.

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Article

Australia’s law graduate glut

Michael Douglas and Nicholas van Hattem

Australia has too many law graduates and not enough jobs in law. Law graduates are finding employment outside of the profession, but we lack data on whether law graduates do not practise by choice, or by necessity. This article addresses this 'law graduate glut', its causes, and what should be done about it. The article identifies options for increasing the supply of positions for law graduates and reducing the supply of law graduates.

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Article

Student pro bono and its role in contemporary Australian law schools

Monica Taylor and Clare Cappa

This article describes the persistently low levels of institutional law school support for pro bono programs in Australia. The authors examine the key differences between clinical legal education and student pro bono. In doing so, the authors draw on a case study from the University of Queensland Pro Bono Centre to demonstrate the key benefits of Australian law schools embracing student pro bono programs.

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Article

Into the wild: Improving law student knowledge and understanding through experiential field trips

Paul Leadbeter

This article describes a Study Trip elective for law students designed with the twofold purpose of illustrating the practical implementation of a wide range of laws and policies in the environmental law area and increasing law student awareness of indigenous culture and heritage. It argues that experiential learning of this form improves the student experience and assists in making students more attuned to a career upon leaving law school.

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Article

'Making waves behind bars': Radio in prisons

Charlotte Bedford

This article presents radio as a powerful tool for offender rehabilitation and prison reform. The author outlines the work of the UK Prison Radio Association responsible for establishing the world's first National Prison Radio service, now broadcasting to around 70 000 prisoners via in-cell television. Current work to adapt and build-on different models within the Australian prison sector is then discussed, demonstrating the potential of radio to engage prisoners in education, improve access to services and information, and maintain the community links vital for rehabilitation.

Price: $4.40
Brief

A postcard from the ECCC

Kate Gauld

Working with the Prosecution at the UN-backed Khmer Rouge Tribunal, Kate Gauld gives an insider’s account of one extraordinary day in the life of the court. The Prosecution open their third case in eight years; both accused men, aged 83 and 88, address the public gallery; while their Defence teams walk out of court, boycotting the proceedings. Meanwhile, the contrast and beauty of life in Phnom Penh swirls all around.

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Brief
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