God’s okay, it’s Mammon that’s troublesome

This article analyses the power of the Commonwealth to fund activities in broader society, in the wake of the High Court's recent decision in the School Chaplaincy case of Williams v Commonwealth, and the earlier decision in Pape v Commissioner of Taxation. Although the Court rejected the substantive argument about the separation of church and state, the decision provides significant reflections on the Commonwealth executive's expenditure power. The rhetoric in Williams about federal-state power, and responsible government through parliamentary oversight of expenditure, appears to signal a shift in the Court’s previous positions. But, on its own, will do little in shifting the balance on either issue.

In 2009 the National Human Rights Consultation was conducted. During the Consultation religious organisations were active in promoting a wide variety of views as to human rights in Australia. One of the most prominent and vocal organisations in this respect was the Australian Christian Lobby (‘ACL’). This article compares the ACL's submission with those made by the national representative bodies of the three largest churches in Australia and shows the way in which the ACL deviated from the churches' submissions on important issues. The article questions the quality of the ACL's submission and concludes by questioning the degree to which the ACL should be considered an authoritative Christian voice on important policy issues.

Late in 2012, the Prime Minister announced a national Royal Commission into institutional responses to child sexual abuse. This article sets out the background to the Royal Commission and examines whether the Australian Constitution permits such an inquiry to be held.

In climate change litigation we find radical attempts on the part of activists to adapt existing legal doctrines to new climate change contingencies. Such attempts are often doomed to failure as a consequence of the reactive precedent-bound nature of judge-made law. However lawfulness, or a strict decontextualised application of law, can also generate successful outcomes for activists.  Furthermore, as spectacles of deconstruction, even unsuccessful lawsuits challenge fundamental assumptions and accepted meanings within the legal system and can contribute to paradigm change. In this article, the author considers the paradoxology of lawfulness and performance in the context of climate change litigation.

The over-representation of Aboriginal and Torres Strait Islander children

On 29 June 2012 Queensland’s Newman Government announced that it had established a Commission of Inquiry into the state’s child protection system. The commission has been asked to recommend, among other things, strategies to reduce the over-representation of Aboriginal and Torres Strait Islander children at all stages of the child protection system. In light of the inquiry and in consideration of relevant human rights standards, this paper argues that any strategy to reduce the over-representation of Aboriginal and Torres Strait Islander children in the child protection system should be determined by Aboriginal and Torres Strait Islander peoples.

Therapeutic jurisprudence has emerged during the last quarter of a century and now occupies a key position in criminal justice systems in Australia. This article describes the central tenets of therapeutic jurisprudence, before focusing on a key issue that may affect therapeutic jurisprudence processes: the oral competence of offenders. After summarising the research on the oral competence of offenders, it argues that offenders who lack oral competence may be disadvantaged in therapeutic jurisprudence processes, which require offenders to become active participants. Finally, this article provides an overview of the limited guidance that has been provided to judicial officers on how best to foster the engagement of offenders who lack oral competence.

This article explores the creation of gender stereotypes and treatment of difference within the law and legal profession. It considers the use of language to reinforce cultural and professional norms. An over-emphasis on gender that has the effect of diminishing women as competent lawyers is highlighted. The impact on the law of women’s voices is considered. To begin, a case study is provided in which a law journal describes the author as a ‘female’ lawyer while identifying her as a ‘rape victim’.  It was this experience that prompted the writing of this article.

Native Title 20 years on, at risk of losing its way?

Twenty years since Mabo (No 2) and the Native Title Act 1993 (Cth), the nation’s native title regime is now in place, functioning, delivering gongs (native title rights and negotiated agreements) to a select few, but is definitely beset by gremlins and, in the view of some, is in danger of losing its way.

Increasingly governments are requiring agencies they fund to report on service outcomes and effectiveness.  This includes legal assistance services which are currently the subject of a review conducted by the Allen Consulting Group on behalf of the Commonwealth Government.

This article discusses research undertaken in late 2011 by Liz Curran on behalf of Legal Aid ACT into service quality, outcomes and effectiveness. The authors conclude that applying broad, generic definitions of outcome removed from the actual work undertaken is unrealistic and potentially sets agencies up to fail. A pre-condition to realistic measurement of service outcomes must be a thorough analysis of the nature and aims of the specific service or program and an understanding of the diversity and complexity of factors that influence client behaviours and case outcomes. These factors are often beyond the control of the service provider. The research reveals the complex and technical nature of legal aid work and the danger of funders making decisions based on poorly defined outcomes and performance targets.  The authors conclude that the hallmark of a positive or ‘successful’ outcome in the context of legal aid services is not only, or even predominantly, the case outcome itself, but the quality of the service process preceding the case outcome.   Once the characteristic features of a quality service process are identified then the extent to which these characteristics are evident in day-to-day legal aid practice becomes the most appropriate way of measuring and ensuring positive service outcomes.

The place of extreme family violence in Australian criminal law

This article discusses slavery and servitude conditions in extreme family violence in the context of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012. The inclusion of family violence in the Bill is a shift away from the past where conduct in intimate relationships has sometimes been excluded from the criminal law. For some domestic violence victims, the Bill, if enacted, will mean that for the first time there will be a criminal offence that adequately captures the severity and longevity of the abuse they have suffered.

A wicked problem for justice

Alcohol Management Plans ('AMPs') are presently under review in Queensland and the Northern Territory, and the High Court is due to hand down a decision on their validity in Queensland. Against this background, this brief examines the differing views on AMPs as racist incursions into citizens' rights on the one hand, and their importance in saving communities from alcohol-fuelled violence on the other. It recognises this as a 'wicked problem' but suggests that there is a valid argument for retaining AMPs.

Kiribati’s native land law interweaves customary and colonial elements. In a country where the per capita income is very low and a majority of the population live a subsistence lifestyle, customary principles concerning native land seek to uphold its use as a means through which future generations will have their basic needs met. However, in an environment that is changing economically and climatically, pressures within this hybrid system are mounting. How best to address them is an increasingly pressing, yet deeply vexed question.