Vol 41(1) 2016 - Legal Directions

Editors for this issue: Allan Ardill, Jessica Armao, Kate Galloway and Kelli Lemass

  • Political perspectives
  • Identity and evidence
  • Death rights

Pages 1 to 78

An indigenous person’s home is their castle: It’s official

Stephen Keim
The Queensland Court of Appeal’s decision that the arrest of a Palm Island resident was unlawful explains the state of mind required by the arresting officer for an arrest to be lawful, applies the principles which determine when trial judges’ conclusions that evidence is unreliable may be overturned and assists with the calculation of damages for torts such as assault and false imprisonment. The decision is a timely insistence that restrictions on the powers of agents of the state are not technicalities but go to the heart of our fundamental rights. Price: $4.40

Banning protests outside abortion clinics: Constitutional or not?

Mitchell Landrigan
This article examines whether, by banning protests about abortions outside abortion clinics, recently enacted Australian state and territory laws might infringe the implied freedom of political discourse. Victoria's protest legislation, as well as the comparable laws in Tasmania and the ACT, are reviewed. The constitutionality of the state and territory laws is examined by reference to the principles in the High Court jurisprudence on the implied freedom of political discourse. Price: $9.90

The Trailblazing Women and the Law project

Kim Rubenstein
This article alerts readers of the Alternative Law Journal to an ongoing oral history project on Trailblazing Women and the Law. It begins with a brief introduction to the project and the interviews and then highlights some initial insights. These include important observations of trailblazing women lawyers within a diversity, networking and women rights framework, using their legal skills as active citizens. The article concludes with a discussion of an online exhibition featuring the biographical details of over 300 women nominated as trailblazers to further amplify the significant active citizenship of women lawyers in Australia over a significant period of time. Price: $9.90

Worlds apart: The appointment of former politicians as judges

Douglas McDonald
This article examines the history of appointments of serving and former politicians as judges in Australia. Potential causes for the decline of such appointments include changes within the legal profession (with lawyers unable or unwilling to make the financial sacrifices involved in full-time political service); changes within politics (a more intensive and vitriolic profession than in preceding decades); and changes in public views and perceptions of politics, including increased controversy surrounding perceived ‘patronage’ appointments. This article argues that judges’ previous experience in politics may be a valuable source of insight into policy formation and the functioning and interaction of different branches of government. Price: $9.90

Cultural considerations in will-making in Australia: A case study of Islamic or Sharia-compliant wills

Jill Wilson, Linda Rosenman, Ben White, Cheryl Tilse and Rachel Feeney
This article explores the influence of cultural and religious beliefs and laws on how individuals make decisions about asset distribution through wills, drawing on a case study of Islamic will makers.  Findings highlight diversity in beliefs and practices within Australian Islamic communities.  When drafting a will people from culturally diverse backgrounds need to accommodate their religious and cultural values and local law.  Implications of research findings for legal policy and practice in Australia are discussed. Price: $9.90

Autopsies, scans and cultural exceptionalism

Bruce Baer Arnold and Wendy Bonython
Must we undergo invasive autopsies, contrary to cultural sensitivities? The recent UK High Court judgment in Rotsztein v HM Senior Coroner highlights that autopsies are no longer restricted to the traditional invasive post mortem internal examination. Rotsztein shows that law and forensic practice can be respectful of grieving families. This article discusses Rotsztein as a precedent for use of non-invasive technologies in Australian coronial inquiries. Price: $9.90

Reforming Australia’s age determination procedures: Giving asylum seekers the benefit of the doubt

Monique Hurley and Elizabeth Beaumont
While proving a person’s age is a simple task for many, this is not the case for asylum seekers who may possess little or no documentation that identifies their age. Determining an asylum seeker’s age, in the absence of original identity documents, is a difficult task that can have significant implications for the way in which the asylum seeker is treated. This article reviews the Department of Immigration and Border Protection’s age determination procedures for children in immigration detention and sets out the case for making the process more transparent and fair. Price: $9.90

Are we equal yet?

Natalie Wade
This article provides an evaluation, guided by international human rights obligations, of the Commonwealth and South Australian approaches to the delivery of equality before the law and access to justice for witnesses with communication disabilities. It concludes that when stacked up against the Convention on the Rights of Persons with Disabilities, South Australia out-performs the Commonwealth to treat witnesses with communication disabilities as equal before the law. Price: $9.90

Cross border data transfers after the CJEU’s safe harbour decision: A tale of Gordian knots

Dan Svantesson
The Court of Justice of the European Union’s recent decision to invalidate the ‘safe harbour’ agreement which has catered for the transfer of personal data from Europe to the US has gained considerable attention. This article will provide a brief discussion of the case, and its potential implications for Australia. It will also examine the decision – and the underlying conflict between privacy and law enforcement – with particular emphasis on the concepts of sovereignty and the so-called rule of law. Price: $9.90

New rules and recordkeeping: Redress for victims of child abuse

Moira Paterson and Melissa Castan
This article examines new reforms to Victoria's Civil Procedure Act 2010 in relation to its discovery and disclosure requirements. It considers them in the context of laws that regulate documentary evidence and recordkeeping, and the relationship to the claims for redress for victims of institutional child abuse. Price: $9.90

The foreign fighter legislation of 2014: Implications for both defendant and the court

Lexie Henderson-Lancett
The Foreign Fighter Act 2014 criminalises Australians participating in terrorism offences in extraterritorial jurisdictions forcing a greater reliance on intelligence as evidence. But intelligence is governed by the secrecy requirements in the NSI Act and challenges court processes. With the removal of the hearsay rules this government legislative armoury threatens traditional safeguards. The author argues these legislative changes may fetter judicial discretion and diminishes the right to a fair trial. Price: $9.90

The ‘I belong in the LLB’ program: Animation and promoting law student well-being

James Duffy, Rachael Field, Kylie Pappalardo, Anna Huggins and Will James
This article argues that the growing body of empirical evidence on law students’ high levels of psychological distress creates an imperative for curricular and extra-curricular strategies to address this issue.  We highlight recent initiatives at QUT Law School designed to support law student well-being that are informed by insights from positive psychology.  In particular, we explain our use of animation, which is an engaging medium to promote students’ appreciation of the importance of psychological well-being in law school and beyond. Price: $9.90

Electronic telecommunications data as evidence

Gabriella Shailer
The new South Australian statutory scheme for the treatment of electronic data as evidence, includes an assumption that electronic data is ‘as it appears’. However the legal reasoning that informs the treatment of data does not adequately accommodate data outputs associated with ordinary engagement with technology. By way of example, the conviction for child pornography offences of South Australian parliamentarian Bernard Finnigan illustrates the arguably unreasonable limitations on challenging data that will occur under the new scheme. Price: $4.40

Employment contracts and political speech: A philosophical perspective

Katharine Brown
It has never been easier to lose your job by speaking (or typing) opinions in your personal capacity. The prevalence of social media and the ease with which employers can monitor employees’ behaviour online is presenting a range of new challenges for the law. Set against this changing employment landscape, this Brief puts forth a philosophical perspective, which is intended to inform the legal debate. In particular, it draws on the work of Carole Pateman and contends that an understanding of her work provides insight into the depth of the issues at stake. Price: $4.40

Mining, law and war: Bougainville’s legislative gamble

Eliza Ginnivan
After a 26 year absence, large-scale mining is set to return to the Autonomous Region of Bougainville for the first time since the Panguna Mine gold and copper mine triggered a decade-long civil war.  While the Bougainville Mining Act 2015 (‘Mining Act’) represents a legal break from Papua New Guinea's control over Bougainville's natural resources, policy-wise it continues PNG's reliance on the extractive industries model which, in the main, has failed to deliver trickle-down benefits to advance human development. This article examines the Mining Act's offences, provisions about customary ownership and the power of veto, and queries whether alternatives to the extractive development model may better serve the interests of the Bougainville people. Price: $4.40
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