Vol 38(4) 2013 - Expanding Legal Horizons

Editors for this issue: Melissa Castan and the Victorian Committee

  • Principles of legality
  • Limited rights in limited spaces
  • Whistleblowers, media and the law

Pages 205 to 286

The common law principle of legality

Dan Meagher

The aim of this article is to outline the nature and scope of the principle of legality in contemporary Australian law. The analysis undertaken demonstrates that the principle has hardened into a particularly strong clear statement rule that is applied when legislation engages fundamental common law rights and freedoms. If parliament wishes to limit or abrogate a common law right or freedom in its legislation then it must express that intention with unmistakable clarity. That is the requirement — and strength — of the principle of legality. But there are methodological issues that must be addressed if the principle is to develop in a manner that is institutionally appropriate and constitutionally prudent.

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Article

Withholding government funding: A breach of freedom of political communication

Anthony Gray

State governments are increasingly moving to make funding to community organisations like community legal centres conditional on the centre not engaging in advocacy or lobbying activity. In this article, the author asks whether there are constitutional grounds to argue against such restrictions.

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Article

Public Interest Litigation: Making the case in Australia

Andrea Durbach, Luke McNamara, Simon Rice and Mark Rix

Litigation is widely and appropriately recognised as an important component of the public interest advocacy ‘toolkit’. Yet, little attention has been paid in Australian research and scholarship to an important question: under what circumstances is public interest litigation (‘PIL’) an effective way to bring about progressive social change? Informed by a review of the international literature on PIL, the authors of this article argue for the importance of drawing on Australia’s rich history with PIL to develop a solid empirical evidence base which can inform future decisions about the strategic employment of PIL in campaigns to address the concerns and needs of disadvantaged and marginalised sections of Australian society.

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Article

The ‘best interests’ of asylum-seeker children: Who’s guarding the guardian?

Maria O’Sullivan

This article analyses the guardianship role undertaken by the Minister for Immigration over unaccompanied asylum-seeker children and the inclusion of such minors in third-country transfer agreements. The author discusses the recent High Court decision on the so-called ‘Malaysian Solution’, in Plaintiff M70/106, and comparative practice on the protection of unaccompanied minors. In particular she examines avenues for improvement in this area, and finds that both the present guardianship provisions on asylum-seeker children and the inclusion of such children in transfer agreements require reform.

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Article

Scared straight: Boot camps for Queensland

Terry Hutchinson and Kelly Richards

This article examines recent legislative changes introducing boot camps in Queensland. It analyses the issues prompting the amendments such as the perception that parts of Queensland were in the grip of a ‘soaring juvenile crime rate’, the conservative government’s ‘tough stance’ policy towards youth offending, and the transfer of youth justice ‘solutions’ such as ‘boot camps’ among jurisdictions. The article assesses the evidence base for boot camp orders as an option in sentencing young offenders and concludes by raising serious concerns about the risks associated with the changes.

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Article

Jurisdiction in liminal space: Privacy, borders and technologies

Carolyn Woodley

The rhetoric of border security has normalised intrusive and dangerous screening in airports around the world. In 2012, Australian Customs and Border Protection commenced a trial of body scanning technology. BSCAN 16HD-DV scanners produce images of a person’s internal cavities similar to a medical X-ray image, are legally categorised as ‘non-medical’ and are operated by Customs and Border Protection personnel. The scanners expose people to ionising radiation. This discussion of current scanning procedures in an era of unprecedented transnationalisation considers the role of surveillance at borders. Too many technologies of mobility control afford ever multiplying opportunities for privacy to be violated.

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Article

The power of confession: Mandatory reporting, confession and the Evidence Act

Joe Harman

With the announcement of the federal Royal Commission into institutional abuse, and several state inquiries dealing with allegations of abuse within church (and other) organisations, it is timely to review the legal protections offered to that disclosed by penitent perpetrators during confession and to consider the extent (if any) to which legal protections are appropriate and/or remain relevant.

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Article

Workers, a neglected voice in environmental decisions

Victoria Lambropoulos

The European Aarhus Convention is the only public law convention devoted to public participation in environmental matters. The Convention has application broadly to Australia as many of the Convention’s provisions are reflected in Australian environmental law. The Convention has an ambitious aim being, to engage civil society in effective public participation at all levels of environmental decision-making. Trade unions and workers as members of civil society are granted rights under the Aarhus Convention to participate in environmental decisions. However in spite of this, the trade union movement has largely ignored the Convention. This article examines the potential rights which the Convention grants to trade unions and workers and explores the broader debate regarding the involvement of unions in environmental matters.

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Article

Whistleblowers and the media: Friends or ‘frenemies’?

Melissa de Zwart

The internet has enabled the collection and dissemination of vast amounts of data and created new avenues for whistleblowers, such as Chelsea Manning and Edward Snowden, to publish that data. This has created a troubled relationship between media organisations, journalists and new publishing platforms such as WikiLeaks. This article will consider the consequences for the Australian media of the Manning verdict of ‘wanton’ publication’, and how whistleblowers, journalists and sources are protected by Australian law.

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Article

Tort, cinema and violent crime: An Australian perspective

Ben Hayward

This article analyses the tragic cinema shooting of 20 July 2012 in Aurora, Colorado — at a midnight screening of The Dark Knight Rises — through the prism of Australian tort law. It concludes that should such an incident occur in Australia, the current state of the law would not support an action in negligence based on occupiers’ liability against the cinema — and that this is probably the most desirable outcome from a policy perspective.

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Article

Improving accessibility to research findings in law: Uniform Summary Statements

Dan Svantesson

This article argues that the unprecedented volume of research findings available to us today places us at risk of ‘infobesity’. To address this concern, the article proposes the introduction of what we can call Uniform Summary Statements, giving potential readers the possibility to evaluate the content of articles they are considering reading.

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Article

Fault-lines in bar culture: Women barristers’ negotiations with collegiality, care and success

Maree Keating and Natalie Zirngast

In fifteen years, barristers’ perceptions of Bar culture have barely changed. The literature suggests this status quo is only deepened when women position themselves as ‘genderless’ professionals under pressure to conform to masculinist norms. However recent Victoria University research reveals distinct tensions around collegiality, care and success in women’s narratives about work/life balance at the Bar. The authors argue that these represent ‘fault lines’ along which transformations may be forged.

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Article

South Australia and the defence of provocation

Kellie Toole

South Australia has finally followed every other jurisdiction in Australia in reviewing the partial defence of provocation. An original proposal from Greens MLC, Tammy Franks, to limit the application of the defence did not go far enough, and she is now seeking opinion on its complete abolition. It is time the law reflected that there are no circumstances where the intentional or reckless killing of another person should be excused on the basis that the offender lost control and killed in a rage.

Price: $4.40
Brief

Planning with the public? Participation in the reform of the NSW planning system

Amelia Thorpe

With proposals for reform of the NSW planning system generating unprecedented interest, this brief discusses one of their most lauded — and controversial — aspects, those relating to community participation. Far from being groundbreaking, as the government has claimed, it argues that the proposals offer little innovation and little hope of delivering on the promised shift from combative to collaborative planning.

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Brief
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