Vol 39(3) 2014 - Law In Open And Closed Environments

  • Wild wild law
  • Accessing justice
  • Regulating refugees
Pages 149 to 208

Convenience voting: The end of election day?

Graeme Orr

When and where we vote is a central element of the ritual of electoral democracy. Following a trend in other western democracies, there has been a significant shift towards ‘convenience’ voting in Australia.

This article explores the history, rationale and law around postal and pre-poll voting (the dominant forms of convenience voting) and cautions against this trend deconstructing the communal experience of election day.

Price: $8.80

‘Structuring’ judicial sentencing discretion: Consistency, guidance or pandering to the punitive?

Nigel Stobbs, Lisa Kleinau and Shelley Kolstad
The erosion of the statutory sentencing discretion of judges across Australian jurisdictions appears to be on-going.  Attempts to justify these changes are usually expressed as necessary government responses to community demands for clearer 'guidance' to sentencing judges.  But the introduction of increasingly punitive (and often mandatory) penalties continues to lead to sentences which are arbitrary, ineffective and in breach of international law and civil rights protocols. Price: $8.80

Prisoners and their access to the internet in the pursuit of education

Lisa Harrison
Access to education is a fundamental human right enshrined in international law. The advent of e-learning has in many ways greatly enhanced access to education, bringing lessons, resources and educational networks to people who cannot attend classes in person. However, prison authorities have failed to keep pace with advances in technology with the effect, in many cases, of locking prisoners out of educational opportunities available to the rest of the population over the internet. As will be argued, prisons cannot reasonably maintain the blanket ban on access to e-learning as a matter of security. Price: $8.80

‘To watch, to never look away’: The public’s responsibility for Australia’s offshore processing of asylum seekers

Alexander Reilly, Gabrielle Appleby and Rebecca LaForgia
In this article we argue that the Australian public has a duty to ‘watch’ the decisions of their representatives in government between electoral cycles. This duty is a necessary component of representative democracy and is entrenched in the Australian Constitution. To fulfil this duty, people require the provision of information by government institutions adequate to assess and take responsibility for policy in its full complexity. We argue that the secrecy and withholding of information in the government’s ‘Operation Sovereign Borders’ is designed to relieve the Australian people of their responsibility for the implementation and outcomes of Australian refugee policy. As such, it is an illegitimate act of political closure. Price: $8.80

Immigrant women and family violence: Will the new exceptions help or hinder victims?

Lauren Gray, Patricia Easteal and Lorana Bartels
Migrant women may be at greater risk of experiencing family violence. Yet, they may also encounter particular difficulties in leaving the violent home. This paper identifies one particular difficulty: the process and evidentiary issues that some migrant women have experienced in using the family violence exception provisions under the Migration Regulations 1994 (Cth).  This provision has been amended a number of times to better meet the needs of victims of family violence seeking to escape the violent home and obtain a permanent visa. The most recent amendments took place in 2012. We examine changes to the evidentiary grounds and process, and consider potential ongoing problems. Price: $8.80

The Australian Wild Law Judgment project

Nicole Rogers and Michelle Maloney
The authors describe the parameters, limitations and transformative possibilities of an exciting new research initiative, the Australian Wild Law Judgment project. Inspired by various feminist judgment projects, this project poses an intellectual challenge to the hegemony of anthropocentrism in the common law by requiring participants to re-write key common law decisions from a wild law perspective. Price: $8.80

Idealism and struggle: Co-opting legal rights for environmental protection

Peter D Burdon
This essay considers two powerful claims about environmental human rights. Those claims are that the force of legal rights resides not in their concrete articulation, but in their idealism. Second, that legal rights are ‘empty signifiers’ and that their effectiveness depends on struggle and political contestation. I seek to reconcile these two claims and suggest that the idealism of environmental human rights could inspire social movements to adopt the concept for both environmental protection and other, more radical justice projects. Price: $8.80

The Whanganui River as a legal person

Abigail Hutchison
This article discusses the legal personhood status of the Whanganui River in New Zealand.  It discusses how the legal status of the river challenges our conceptions of what should be property and what should have rights. It explores the change of the river from a ‘thing’ to a legal person by discussing the impact of the Maori worldview and by comparing the river’s status with the status of corporations. Price: $8.80

A call to arms: Norrie

John Eldridge and Rebecca McEwen
While accepting that the decision in NSW Registrar of Births, Death and Marriages v Norrie [2014] HCA 11 is groundbreaking, the authors argue that there is risk that the victory will be a pyrrhic one if it not a catalyst for legislators to have closer regard to the interests of those who are sex or gender diverse. The article considers the ongoing legal disadvantages faced by those who are sex or gender diverse. It concludes that these disadvantages should not be understated and assesses the way the decision reinforces the existence of a legal and social framework which demarcated identity on both a legal and social level by reference only to female and male. Price: $4.40

Quickly Changing Hats: Lawyers and Client Capacity

Linda Haller
This Brief describes a possible increasing expectation by the courts that lawyers take more active responsibility to initiate court proceedings to clarify a client’s capacity – done by changing their hat from a client’s lawyer to an officer of the court. The work describes this shifting sentiment and considers the potential dangers to client autonomy and confidentiality if taken too literally by inexperienced lawyers. Price: $4.40

The Perils Of Defending Human Rights

Hina Jilani
While the work of human rights defenders is difficult — at times subject to killings, arbitrary detention, disappearance, torture and vilification campaigns to discredit them and their work — women human rights defenders are additionally vulnerable to social exclusion and repudiation because they challenge social and cultural mores.

The author, Hina Jilani, is a pioneering lawyer and pro-democracy campaigner; a leading activist in Pakistan's women's movement and international champion of human rights. She spoke at both the Melbourne Human Rights Dinner (13 June) and the Sydney Human Rights Dinner (20 June). This edited transcript is based on the Melbourne address. Price: $4.40
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