Vol 39(4) 2014 - Resolution of Justice

Editor for this issue: Melissa Castan

  • Liberating freedoms
  • Exploring legal education
  • Protecting the vulnerable

Pages 211 to 284

Deregulation, debt and the discipline of law

Margaret Thornton

In the 25 years since the introduction of university fees, the legal education landscape has been transformed. The most recent proposal is that fees be regulated altogether. High fees place pressure on law students to secure high-paying jobs in corporate law, although competition policy and technological change have caused such jobs to contract. Rather than all schools continuing to offer a standardised curriculum directed towards traditional private practice, it is suggested that they vary their curricula to take account of the diverse destinations to which more than half of all law graduates gravitate.

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Article

Protecting freedom of speech in Australia

George Williams

Freedom of speech is accepted as being one of the most important human rights in any democracy. This is reflected in the protection of the right in bills of rights and constitutions around the world. Australia differs in that it provides no express protection for freedom of speech in legislation or its Constitution. This article explores the consequences of this, as well as what reforms might be needed to remedy this deficit.

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Article

From alternative to the new normal: Therapeutic jurisprudence in the mainstream

Pauline Spencer

Is there more that therapeutic jurisprudence can do to make our laws and legal systems more humane, just and effective?  This article explores recent developments in therapeutic jurisprudence and, using sentencing law in Victoria as an example, explores a methodology that can be applied to analyse laws and legal systems to examine the potential for increasing their therapeutic impact.

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Article

Deterrence, and the slow death of the Shop Theft Act in SA

Matthew Atkinson

Minor shop theft entails stealing merchandise of nominal value from a retail store.  In South Australia, the Magistrates Court typically deals with allegations of minor shop theft whereby an alleged offender is charged with theft and given an opportunity to plead guilty or not guilty.  This process has been viewed as unsatisfactory.  Some commentators argue that prosecuting people in court for minor shop theft is inhumane, discourages reporting of the crime, and squanders community resources.   These arguments helped provide a catalyst for the Shop Theft (Alternative Enforcement) Act 2000 (SA), which provides a diversionary procedure as an alternative to court proceedings for the crime of minor shop theft.  However, when examining South Australian police crime statistics, it appears that this legislation has never been properly utilised, and its use has declined over the past decade. The author considers whether it should be given a new lease of life or consigned to the waste paper basket.

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Article

Burqa: Human right or human wrong?

Farinaz Zamani Ashni and Paula Gerber

Muslim women are often the subject of intense media attention surrounding the wearing of the hijab, burqa and niqab. This is particularly true when there is an increased spotlight on the Islamic community because of perceived threats of terrorist attacks. A lot of the opinions expressed about women wearing these religious garments are based on misconceptions about the requirements of Shari’a law, or international human rights law, or both. This article examines how these different bodies of law view the wearing of all-covering body veils by women and whether dictating that women should, or should not, wear such garments is a breach of Islamic law and/or human rights laws.

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Article

Women victims of violence defending intervention orders

Alicia Jillard and Julia Mansour

This article examines the phenomenon of women victims of violence defending Apprehended Domestic Violence Order (ADVO) proceedings initiated against them. The authors, solicitors at Women’s Legal Services NSW, reflect upon the primary findings of a 2014 study they conducted, which demonstrated the potential for the ADVO system to be used against victims of violence as a form of legal abuse. The authors argue that both government agencies and legal service providers must acknowledge and respond to this discrete client group through appropriate policies, legislation and service provision, in order to prevent re-victimisation through the justice system.

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Article

Simply impossible: Plausibility assessment in refugee status determination

Douglas McDonald

This article discusses the methods used in refugee status determination (“RSD”) to determine whether asylum seekers’ accounts of their experiences are ‘plausible’ – that is, whether these experiences could possibly have occurred as described. Unreasonable findings of implausibility frequently result from decision-makers’ failure to question the limits of their own cultural or political frame of reference. Furthermore, decision-makers may rely to an unreasonable extent upon country information as a guide to plausibility in individual cases, without sufficient regard to the general terms in which country information is expressed and the potential unreliability of particular forms of country information (particularly government or official sources).

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Article

Pass the parcel: Australia and the vexing issue of a federal nuclear waste repository

Gerry Nagtzaam

This article critically examines the failed attempts by the federal government to build a Low-Level Radioactive Waste repository in Australia.  It scrutinizes the legislative attempts to site a facility and evaluates the reasons, focusing on environmental justice issues and flawed consultative processes, as to why it has not succeeded to date. It concentrates on the recent unsuccessful attempt to put a facility at Muckaty in the Northern Territory and the Federal Court action brought by aboriginal elders against the repository being built on their land.

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Article

The principle of legality as protection for human rights

Alison Doecke

Several aspects of the Australian criminal justice process protect human rights, namely: the presumption of innocence; the accusatorial criminal process; the right to silence; the privilege against self-incrimination; and protections derived from common law and constitutional implications. The recent use of statutory interpretation, particularly the principle of legality, has developed human rights protections despite the absence of a formalised Bill of Rights or direct cause of action for infringement of human rights.

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Article

NGOs and human rights monitoring

Anna Cody

Australian Non-Government Organisations (NGOs) engage in United Nations human rights monitoring mechanisms to progress their interests and the interests of communities for whom they advocate.  These interests can be advanced domestically through framing them as human rights issues, enabling greater advocacy in times of limited opportunity domestically, and there are benefits of working in coalitions around an issue. This paper discusses NGO involvement in reviews of Australia and analyses the process through essential elements, weighing up key considerations throughout the process.  The decisions NGOs make about these elements will differ depending on their goals in engaging in human rights

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Article

The hypocritical hype about ‘hypothesis’: Why legal research needs to shed this relic

Dan Svantesson

Researchers, not least PhD candidates, are often asked to account for their hypothesis. This article argues that the very idea of a hypothesis is a poor fit for most forms of legal research.

In this article, I (1) examine the standard position on the role of the hypothesis taken in legal research method literature; (2) demonstrate why the hypothesis concept is a poor fit for legal research; (3) present a few speculations as to why legal scholars nevertheless insist on placing the hypothesis on the proverbial pedestal; and finally (4) propose an alternative that better suits legal research in general.

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Article

Reviewing the reviewers

Anthony Gray

In this article, the author reflects on his experience as a researcher seeking to have his work published in refereed academic journals, particularly in Australia.  Whilst he has found many occasions on which reviewers have been constructive and helpful, he has also found occasions where reviews have reflected a disappointing narrowness of thinking, refusal to consider new ideas, or hostility towards international and comparative approaches.  He shares his experiences here, particularly for the benefit of newer researchers, encouraging them not to lose hope with the review process.

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Article

The making of prosecutorial decisions in Australia: The organ grinder and the monkey

Kellie Toole

During the 1980s and 1990s, primary responsibility for criminal prosecutions moved from the Attorney General to the Director of Public Prosecutions (DPP). The shift partially protects prosecutorial decisions from political influences, but it also removes the accountability mechanisms that applied to the Attorney General. The DPP now decides whether it is in the ‘public interest’ to prosecute particular offences, and yet there is little understanding of the way that decision is made or the consequences of its exercise by a statutory office that is not directly accountable to the public through the political process.

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Brief
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