Legal Studies Columns

Published regularly, this column provides a class exercise based on an article published in the Alternative Law Journal. The exercises are prepared by legal studies teachers for secondary legal studies students. Select the Legal Studies column category below to purchase an exercise and its related article in one pdf for AU$9.90 (incl GST).

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2014 Vol 39(2): Inside Jill Meagher’s Handbag

Legal studies exercise based on the article "Inside Jill Meagher’s Handbag
Looking at open justice" by Katherine Biber: (2014) 39(2) Alternative Law Journal pp 73-77.

Katherine Biber’s article Inside Jill Meagher’s Handbag explores the principle of ‘open justice’ in the context of
evidence and exhibits tendered in criminal proceedings. Biber considers the processes that allow the media
and others to access evidence and exhibits in different jurisdictions. She argues that the law in this area should be consistent and clear.

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2014 Vol 39(1): Queensland, the Moonlight State?

Legal studies exercise based on the article "Queensland, the Moonlight State?" by Kate Galloway and Allan Ardill: (2014) 39(1) Alternative Law Journal pp 3-8.

Kate Galloway and Allan Ardill’s article ‘Queensland: A Return to the Moonlight State?’ considers the latest laws from Queensland that are getting ‘tough on bikies’. The authors outline the evolution of the ‘rule of law’ and argue for its continued importance. They consider the legal and other consequences of criminalising association and expanding police powers. This exercise encourages thinking about these issues and other ways that governments can address organised crime.

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2013 Vol 38(4): Public interest litigation

Legal studies exercise based on the article "Public Interest Litigation: Making the case in Australia" by Andrea Durbach, Luke McNamara, Simon Rice and Mark Rix: (2013) 38(4) Alternative Law Journal pp 219-223.

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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2013 Vol 38(3): Australian courts and social media

Legal studies exercise based on the article "Australian courts and social media" by Alysia Blackham and George Williams: (2013) 38(3) Alternative Law Journal pp 170-175.

Social media is now pervasive in many sectors of Australian society. However, Australia’s courts are generally taking a cautious approach to using this technology to enhance and complement their processes. This article examines the extent to which Australian courts are using social media. It considers the opportunities and challenges posed by such media for courts, and it assesses the extent to which they could make greater use of the technology. Price: $9.90

2013 Vol 38(2): Cyber bullying in Australian schools

Legal studies exercise based on the article "Cyber bullying in Australian schools" by Amy Dwyer and Patricia Easteal: (2013) 38(2) Alternative Law Journal pp 92-95.

Cyber bullying among school-age children is becoming an increasing problem in Australia. As yet there have been no negligence suits against a school. We speculate on possible outcomes by looking at school bullying cases, workplace bullying and harassment common law. In these ways, we theorise about the application of the principles of negligence and liability, with cyber bullying unique features. These include many of the acts of cyber bullying taking place off school premises; a ‘playing field’ difficult to supervise; low reporting rates and corresponding difficulties in awareness; and ‘damage’ that may prove difficult to ground in negligence. We conclude by making some recommendations for schools, including implementing more anti-bullying policies and programs with effective monitoring and implementation.

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2013 Vol 38(1): Responsible Government, Federalism And The School Chaplaincy Case

Legal studies exercise based on the article "Responsible Government, Federalism And The School Chaplaincy Case" by Graeme Orr And William Isdale: (2013) 38(1) Alternative Law Journal pp 3-7.

This article analyses the power of the Commonwealth to fund activities in broader society, in the wake of the High Court's recent decision in the School Chaplaincy case of Williams v Commonwealth, and the earlier decision in Pape v Commissioner of Taxation. Although the Court rejected the substantive argument about the separation of church and state, the decision provides significant reflections on the Commonwealth executive's expenditure power. The rhetoric in Williams about federal-state power, and responsible government through parliamentary oversight of expenditure, appears to signal a shift in the Court’s previous positions. But, on its own, will do little in shifting the balance on either issue.

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2012 Vol 37(4): ‘Fair Shake Of The Sauce Bottle’

Legal studies exercise based on the article "‘FAIR SHAKE OF THE SAUCE BOTTLE’ Fairer ASIO security assessments of refugees" by Ben Saul: (2012) 37(4) Alternative Law Journal pp 221-227.

The security assessment of refugees by the Australian Security Intelligence Organisation (‘ASIO’) has frequently involved the virtual elimination of procedural fairness and resulted in indefinite detention. Around 54 refugees who arrived since 2009 remained detained by late 2012 after receiving adverse security assessments. Most of them did not receive reasons or evidence, or a summary of reasons or evidence. At most, some were notified of limited matters during interviews by ASIO, but some were not interviewed at all. Binding merits review is entirely unavailable, and the effectiveness of judicial review is severely limited by the difficulty of commencing proceedings in the absence of evidence, by the statutory and common law diminution of procedural fairness, and by the availability of public interest immunity to prevent disclosure of relevant evidence. The High Court decision of M47 in October 2012 did not affect the possibility of marginal procedural fairness or indefinite detention. The creation in October 2012 of an Independent Reviewer of ASIO assessments somewhat improves the fairness of the process but it remains deficient in key respects, not least because the reviewer possesses only powers of recommendation and the new procedure remains insufficiently fair. This article proposes more comprehensive reforms to provide a genuinely fair hearing while protecting security, addressing issues of notice, reasons, degree of disclosure, merits review, a special advocate procedure, periodic review and alternative security measures to detention. It also advances a more ambitious proposal to transfer the power to issue security assessments from ASIO to the courts.

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2012 Vol 37(3): Removing racism from Australia’s Constitutional DNA

Legal studies exercise based on the article "Removing racism from Australia’s Constitutional DNA " by George Williams: (2012) 37(3) Alternative Law Journal pp 151-155.

This article examines the use of ‘race’ in the Australian Constitution and explores how the concept has played a role from its drafting through to the present day, to determine the changes needed to appropriately recognise Aboriginal peoples in that document.

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2012 Vol 37(2): Landowners’ vs Miners’ Property Interests

Legal studies exercise based on the article "Landowners’ vs Miners’ Property Interests" by Kate Galloway: (2012) 37(2) Alternative Law Journal pp 77-81.

This article considers competing interests in land of freehold landowners and miners of coal seam gas.  It provides an overview of common law understanding of property in land, and suggests that this framework is unsuitable for resolving directly competing interests.  In addition, it argues that a philosophy of property that embraces a more holistic understanding of land and its stewardship is a more sustainable way to prioritise proprietary interests.

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2012 Vol 37(1): Bloody Censorship

Legal studies exercise based on the article "Bloody Censorship" by Anthony Gray: (2012) 37(1) Alternative Law Journal pp 37-40.

Recent moves by Parliament to increase penalties for the use of 'obscene' language raise questions about the extent to which individuals have freedom of expression rights in Australia. I argue here that such laws might be challenged on the basis of the implied freedom of political communication developed by the Australian Courts. I look to the experience in other countries such as the United States where courts have upheld an individual's freedom of expression over attempts to regulate what a person can say, and the extent to which freedom of expression is protected in international instruments.

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2011 Vol 36(4): Education about human rights

Legal studies exercise based on the article "Education about human rights" by Paula Gerber: (2011) 36(4) Alternative Law Journal pp 245-249.

On 23 March 2011, the United Nations Human Rights Council adopted the Declaration on Human Rights Education and Training. This landmark declaration signifies a growing commitment by the UN to the promotion of human rights education as a means of increasing respect for human rights and combating human rights violations. This article provides one of the first in-depth analyses of this important new instrument, and identifies both its strengths and weaknesses.

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2011 Vol 36(3): It’s but a flesh wound

Legal studies exercise based on the article "It's but a flesh wound" by Theodore Bennett: (2011) 36(3) Alternative Law Journal pp 158-162.

The recent increase in the number of patients requesting healthy limb amputations has triggered legal speculation about the criminality of carrying out such a procedure. How this type of procedure would be treated at law, however, depends on how it is conceptualised more generally. This article critically analyses the conceptualisation of healthy limb amputation in terms of harm, consent and benefit. It argues that contextualising this procedure within a range of other body altering procedures makes it less inexplicable and bizarre than it initially seems, and may work to make it lawful.

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2011 Vol 36(2): When police complaint mechanisms fail: The use of civil litigation

Legal studies exercise based on the article "When police complaint mechanisms fail: The use of civil litigation" by Tamar Hopkins: (2011) 36(2) Alternative Law Journal pp 99-103.

Australia’s mechanisms to investigate police do not meet international human rights standards. Substandard complaint investigations disguise the serious and widespread problem of police misconduct and leave police immune from sanction. Currently, a more effective means of achieving positive results for victims of police misconduct is through using an alternative ‘complaint’ mechanism — civil litigation. The success of civil litigation can be explained by the centrality of victims to the process as well as the independence and quality of the decision-making. For a number of reasons, civil ligation is not as widely used in Australia as in the UK and US. In the absence of effective complaint mechanisms to increase police accountability in Australia, civil litigation must be made more accessible to ordinary people.

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2011 Vol 36(1): Rapid technological developments and slow legal developments - A call for judicial activism

Legal studies exercise based on the article "Rapid technological developments and slow legal developments – A call for judicial activism" by Dan Jerker B. Svantesson: (2011) 36(1) Alternative Law Journal pp 33-35.

This article argues that judges do make law, and judges should make law. It also shows that such judicial activism is particularly necessary to address the legal issues that surround the rapidly developing information technologies. The recent case of Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd, in which the New South Wales Supreme Court held that downloadable software does not amount to goods, is used as an illustration of the problems that arise where judges shy away from law-making. The judgment is significant in its own right as it means that at least some buyers of downloadable software are not given the same protection as are those buying software attached to a physical medium such as a CD or a DVD. However, even more importantly, the Gammasonics case is symptomatic of how the rapidly developing information technology creates a demand for greater judicial activism.

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2010 Vol 35(4): The Honeymoon Killer

Legal studies exercise based on the article "The Honeymoon Killer: Plea bargaining and intimate femicide'' by Asher Flynn and Kate Fitz-Gibbon: (2010) 35(4) Alternative Law Journal pp 203-207.

In 2003, Christina Thomas died scuba diving while on her honeymoon on Queensland's Great Barrier Reef. After more than five years of delays, her husband accepted a plea bargain, pleading guilty to manslaughter on the basis of criminal negligence. This article questions if the need to respond to court inefficiences and under-resourcing are seen as creating pressures which can result in a desire for increased efficiency prioritised above other justice concerns.

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2010 Vol 35(3): Walking in her shoes - Battered women who kill

Legal studies exercise based on the article 'Walking in her shoes: Battered women who kill in Victoria, Western Australia and Queensland' by Anthony Hopkins and Patricia Easteal: (2010) 35(3) Alternative Law Journal pp 132-137.

In the light of the common law doctrine of self-defence in Australia, this article considers legislative reforms in Victoria, Western Australia and Queensland to determine the extent to which they require judges and jurors to walk in the shoes of battered women in pursuit of an evaluation of reasonableness. It will be argued that, with the exception of Queensland, which has emphasised the necessity to judge reasonableness from the perspective of the battered woman only in so far as this may enable a verdict of murder to be reduced to manslaughter, the reforms have clarified or extended the common law position.

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2010 Vol 35(2): L-Plates, logbooks and losing out: Regulating for safety - or creating new criminals?

Legal studies exercise based on the article "L-Plates, logbooks and losing out: Regulating for safety - or creating new criminals?'' by Bronwyn Naylor: (2010) 35(2) Alternative Law Journal pp 94-98.

Many Australian states now require substantial hours of supervised driving before a learner can take a licence test. The new requirements are important for safety, but unintended consequences include criminalising and excluding young people already disadvantaged by economic, geographic and cultural factors.

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2010 Vol 35(1): Reworking Australia's referendum machinery

Legal studies exercise based on the article "Reworking Australia's referendum machinery'' by Paul Kildea and George Williams: (2010) 35(1) Alternative Law Journal pp 22-26.

This article This article outlines the shortcomings of the current referendum legislation, including a failure to aid voter understanding and a shortage of opportunities for meaningful public engagement, and puts forward several suggestions for reform.

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2009 Vol 34(4): Causes of Inaction: Barriers to accessing legal aid

Legal studies exercise based on the article "Causes of inaction: Barriers to accessing legal aid services'' by Tracey de Simone and Rosemary Hunter: (2009) 34(4) Alternative Law Journal pp 265-269.

This article explores the ways that social welfare organisations can unconsciously exclude their clients.

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2009 Vol 34(3): Assisted theft: Compulsory land acquisition for private benefit in Australia and the US

Legal studies exercise based on the article "Assisted theft: Compulsory land acquisition for private benefit in Australia and the US'' by Andreana Reale: (2009) 35(2) Alternative Law Journal pp 147-151.

This article questions if freehold title is as vulnerable as native title under the Northern Territory.

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