Vol 40(4) 2015 - Laws and Liberties

Editors for this issue: Ben Bartl, Melissa Castan and Stephen Gray

  • Crime and punishment
  • Precarious pathways
  • Sentient beings

Pages 223 to 296

Marriage and Equality: What’s love got to do with it?

Kate Galloway

Contemporary debate about marriage equality tends to be polarised: either supporting ’traditional’ marriage or equal recognition of loving relationships. The law’s involvement in the institution of marriage has however, traditionally been preoccupied with property. Now that property is largely dealt with through channels other than marriage, this article suggests that it is time for the law’s approach to marriage to evolve to meet the more contemporary social need of equality.

 

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Article

ASIO’s ‘official history’ sheds light on spy agency’s lawlessness

Michael Head

The Spy Catchers, the first instalment of the government-funded ‘official history’ of the Australian Security Intelligence Organisation, published late last year, is part of a multi-volume project intended to sanctify ASIO’s role as the central domestic intelligence agency of Australia’s political, corporate and military-security establishment. Nevertheless, the book partially reveals the lawlessness with which ASIO was established and operated for decades, and no doubt still does.

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Article

Freedom from political communication: The rhetoric behind anti-protest laws

Aidan Ricketts

Political protest in Australia remains vulnerable to ongoing and cumulative legislative restriction over time. The absence of clear positive civil and political rights in the Australian Constitution means there is a lack of agreed benchmarks and a prevailing ambiguity about the importance of political liberties.  It is unrealistic to talk about a right to protest in Australia beyond a contested moral or political claim, and as a result there is a perennial risk of governments and other powerful institutions constructing new rhetorical arguments to justify the ongoing contraction of political liberty. In recent years several significant legislative initiatives by Australian state governments have had the effect of reducing the scope for effective non-violent forms of protest whilst also advancing a discourse that privileges a right of businesses to enjoy substantial immunity from the inconvenience that being a target of protest activity may involve. This article explores three recent examples of anti-protest laws in Victoria, Western Australia and Tasmania respectively and reflects upon the potential impacts of these legislative initiatives and the nature of the discourse that is being advanced to support such new laws.

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Article

Tightening eligibility for bail for persons on supervision orders in Victoria

Marilyn McMahon and Cindy Davids

The Victorian government has introduced an Act, among other things, will restrict the eligibility for bail of persons on supervision orders. The reforms were triggered by the case of Sean Price, an offender who engaged in a serious crime spree while a registered sex offender, subject to a supervision order and on bail. Although the shocking nature of Price’s crimes might seem to justify the change, the reform distorts the process of bail, derogates from basic legal principles and disregards the fact that persons on supervision orders are already subject to a form of preventive detention that is supposed to provide a potent framework for their risk management.

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Article

The Bowraville Murders: Were they a coincidence?

Lesley Townsley

NSW Double Jeopardy Bill seeks to clarify when evidence is ‘adduced’ by providing a further definition of when evidence is ‘fresh’ in s 102 of the Crimes (Appeal and Review) Act 2001 (NSW). The Bill was introduced after an inquiry into the Bowraville murders. This article is not critiquing the proposed changes to the double jeopardy laws. Instead, this article looks if coincidence evidence previously inadmissible in the Bowraville murders is capable of admission under s 98 of the Evidence Act 1995 (NSW) as amended. It concludes that evidence is capable of admission if it has a sufficient evidentiary foundation.

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Article

Racial Profiling and the Road Safety Act 1986 (Vic): DPP v Kaba and s 59(1)(a)

Tamar Hopkins

In 2014 the Supreme Court of Victoria decided, in DPP v Kaba, that random vehicle intercepts by police are legal. This quashed a Magistrates’ Court finding one year earlier that a routine intercept of a car, driven by an African youth with a young African passenger, was without power. This article suggests that racial profiling is inevitable when random vehicle stops are legal. Consequently, consideration of appeal or legislative reform is warranted. Errors in the logic of the Kaba decision and its failure to call evidence on key assumptions about the lack of harm involved in police stops and police training make it vulnerable to challenge. 

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Article

Regulating precarious work in Australia: A preliminary assessment

Michael Rawling

Today millions of Australian workers are engaged in precarious work.  As yet there has not been an adequate federal government response but a recent report commissioned by the Australian Council of Trade Unions (ACTU) indicates that the ACTU sees precarious work as a central issue. This article considers policy options to adequately regulate precarious work recently discussed by the ACTU and an ACTU commissioned report. The article argues that an innovative and coherent set of measures to address the root causes of precarious work and those with the potential to be popular with Australian workers should be pursued.

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Article

Diversionary Pathways for Indigenous Youth with FASD in Western Australia: Decolonising Alternatives

Harry Blagg, Tamara Tulich and Zoe Bush

This article reports on a study examining diversionary alternatives for Indigenous young people with Foetal Alcohol Spectrum Disorders (‘FASD’) in the West Kimberley. The authors argue for the creation of culturally secure, community owned, ‘on-country’ diversionary alternatives, a Mobile ‘Needs Focussed’ Court and law reform to increase the responsiveness of the justice system to Indigenous young people with FASD.

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Preserving tomorrow’s urban trees with financial incentives: The choice of a new (tree) generation

John Watson

The existing suite of urban tree preservation laws across Australia requires further reform. The sole reliance on prescribed criteria to identify trees worthy of preservation is a blunt instrument which fails to provide for the next generation of mature urban trees. Australia’s long term urban trees stocks would be better served by encouraging suburban landowners to preserve and nurture the growth of younger ‘undersized’ trees on their own property. This article discusses the use of financial incentives from a South Australian perspective to encourage landowners to enter into conservation agreements as a means of protecting undersized urban trees.

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Article

Legal Status of Animals: The world rethinks its position

Geeta Shyam

Animals in Australia are legally classified as property. In light of changing scientific, philosophical and cultural views, however, the property status of animals has been questioned in recent times. In fact some countries have started rethinking, and even moving away from, the property categorisation of animals. This article examines such developments in the international community to draw lessons for Australia, where the discussion remains in the infancy stages.

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Article

Chinese cultural competency and Australian law students: Reflections on the design of short term mobility programs

Felicity Deane, Evan Hamman and Pei Liping

There is an emerging need for Australia’s law graduates to better understand the unique challenges and opportunities in our largest trading partner, China. Similarly, as China opens up to the world, its graduates are increasingly well-poised to make an indelible mark on Chinese-Australian relations, particularly in the areas of finance, property, trade and commerce. Chinese and Australian law schools must urgently develop a deeper awareness of each other’s language, culture and political systems in their graduates. The purpose of this article is to highlight the importance of Chinese cultural competency to Australian legal education and reflect on projects that enable students to attain a level of cultural competency over a short period. We do this by considering a recent ‘short term mobility project’ in Wuhan, China. We suggest that such programs can be successful but should include three key aspects: first, an introductory course on the relevant culture; second, a student reciprocation scheme; and third, assessment that requires students reflect not only on the exposed culture but also more deeply on their own cultural lens. 

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Article

Scientology, the test case religion

Renae Barker

Religion can be a very difficult word to define. When it becomes necessary to define religion for legal purposes controversy is bound to arise. This article examines the legal definition of religion in both Australia and the United Kingdom.  It notes that the Church of Scientology has become the ‘test case’ in both jurisdictions and explores three reasons why Scientology has filled this role: its newness, it litigious nature and adverse State action against Scientology.

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Article

Abortion law reform needed

Heather Douglas and Caroline de Costa

Abortion is an important health issue for Australian women. Each year an estimated 100 000 women have an abortion.  In Australia there are eight different sets of abortion laws across state and territory jurisdictions resulting in  great discrepancies in the legal provision of abortion services and hence women’s access to abortion. This brief outlines the problems and limits of current laws and recommends reform.

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Brief
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