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Asia-Pacific: Active inaction: How the international community is failing Burma

Carol Ransley

Drawing attention to the economic and human rights crisis in Burma the author points to inaction by the UN as an opportunity lost to help the Burmese people.

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Column

A response to Louis Nowra

Larissa Behrendt and Nicole Watson

In 2007 Louis Nowra published works depicting contemporary Aboriginal communities as sites of horrific violence against Aboriginal women and children. Nowra was celebrated by elements of the press and the right-wing think tank, the Bennelong Society, for his courage to expose abuse. However, his work was subject to little scrutiny, in particular, his failure to report alleged confessions by perpetrators of child sexual abuse to the police. In this critique, the authors respond to Nowra.

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Article

Restorative Justice process in case law

John M McDonald

Recently in the NSW Land and Environment Court parties in a criminal matter involving environmental offences and the destruction of Aboriginal artefacts participated in a restorative justice process. This brought the parties together, achieved a significant and ongoing improvement in relationships and influenced the eventual outcome of the case.

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Article

Recognising same-sex parents: Bringing legitimacy to the law

John Tobin

Children living in same-sex parented families have an entitlement under international law that their parents be recognised. The time has come to make a genuine commitment to children and their rights, irrespective of the sexual orientation of their parents. Anything less must be seen to leave the status of the law, rather than the status of such families, in a state of illegitimacy.

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Article

From neutral to drive: Australian anti-discrimination law and identity

Andrew Thackrah

This article examines the way that Australian anti-discrimination law understands and structures individual and collective identities. It argues that in a number of ways this body of law fails to reflect the complexity of collective identities and the reality of how discrimination is experienced. In particular, it highlights the blindness of Australian anti-discrimination law to 'intersectional' discrimination, the potential for the law to essentialise collective attributes, and the limits of 'neutral' rights based statutes. A number of suggestions are advanced as to how existing anti-discrimination laws may be improved. More broadly it is suggested that 'third generation' proposals to develop a wider ranging body of legislation that aims to achieve specific outcomes (such as equality or social inclusion), without defining identity focused protected grounds, have the advantage of bringing about substantive rather than procedural outcomes. Such proposals also avoid the practical and political difficulties involved with legislating in relation to collective attributes.

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Article

Emergency welfare reforms: A mirror to the past?

Jo Sutton

Examining the welfare reforms enacted by the former Federal Government as part of the 'Northern Territory emergency response', this article highlights the differing elements of the income management regime forindigenous NT communities compared with measures intended elsewhere.

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Article

Axioms of aggression: Counter terrorism and counter-productivity in Australia

Waleed Aly

Since the 11 September terrorist attacks in 2001, counter-terrorism has loomed large over the Australian political stage, characterised by a methodological belligerence in which events are highly politicised and suspects are confronted with considerable aggression. This article argues that such axiomatic aggression is destined to be counter-productive.

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Article

Traditional notions of the Attorney-General: Time for some justice

Fiona Hanlon

This article questions traditions about the office of Attorney-General and argues that the title be replaced with one that better reflects its nature as a political office.

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Article

Interpreting Aboriginal Justice in the Territory

Caroline Heske

Aboriginal interpreters who work in the criminal justice system perform a demanding, thankless, and even dangerous job. They are essential to obtaining justice for Aboriginal victims and defendants alike, and their scarcity fundamentally impedes efforts to improve justice outcomes for Aboriginal Australians. Focusing particularly on the NT, this article identifies the ways in which law, legal culture, and lack of funding intersect to undervalue Aboriginal interpreters in the criminal justice system.

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Article

Citizens' juries pave the way to the law courts

Lyn Carson and Ron Lubensky

Citizens' juries are increasingly being used by the political executive to engage a cross section of citizens in decision-making about public policy. Whilst there are many differences in procedure and application between citizens' and trial juries, the deliberatin carried out in both is valued by the public sphere as democracy in action. With the experience of trial jury service shrouded in secrecy in Australia and elsewhere, the more open experience of citizens' juries can pave the way to a better understanding of deliberation and less reticence towards participation.

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Article

Sport and the Law: "C'est pour toi, Williams

Graeme Orr

Sonny Bill Williams was sued for defecting from The Bulldogs Rugby League club to Toulon Rugby Union club, mid-contract, for a higher salary. Employment law came down hard on Williams; but Williams' contract was bought out. The moral of this cause celebre is the a-moral, that money trumps all.

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Column

Asia Pacific: Mabo - Whistle blowing the State government on native title in Malaysia

Jeswynn Yogaratnam

This article looks into the issues surrounding the concept of land ownership by the indigenous people in Malaysia. The policies of Commonwealth and state governments in Australia which were once influenced and constrained by cases like Mabo No 2 now act to sideline Aboriginal customary interests in land. This is in contrast to the position in Malaysia, in which the courts have continued to develop the law of Indigenous land rights extrapolating from Mabo No 2. The article outlines the development of the law in the controversial case of Sagong bin Tasi which is pending appeal in the Malaysian Federal Court. The scope and application of ‘sui generis’ Indigenous rights will be tested in this case.

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Column

Victoria's Abortion Law Reform Act

Rachel Ball

Victoria’s landmark Abortion Law Reform allows women to obtain an abortion at any time during the first 24 weeks of pregnancy, and later with the agreement of two doctors. The Act gives rise to two issues of contention: the availability of abortion services and the legal obligations of medical practitioners who hold a conscientious objection to abortion.

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Brief

Privacy invasion under the guise of changes

Noam Shifrin

This article criticises the recent changes to the way in which property auctions are to be conducted in South Australia. Specifically the author takes issue with the collection and retention of information concerning bids and compares and contrasts the South Australian approach with other state jurisdictions.

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Brief

Above the law

Gabrielle Appleby

In June 2008, the Full Court of the Federal Court handed down a decision with potentially alarming consequences for the State tribunal system. In a 2:3 majority decision, the Court held that the Commonwealth was not subjected to the jurisdiction of the Tasmanian Anti-Discrimination Tribunal. One judge agreed with the constitutional arguments put forward by the Commonwealth that it could never be subjected to State judicial power in a tribunal not correctly characterised as a ‘court’ for the purposes of ss 71 and 77(iii) of the Constitution. This could potentially mean that any matter vested as federal jurisdiction by the Constitution is removed from the ambit of state jurisdiction. Therefore such jurisdiction can only be vested in bodies correctly characterised as ‘courts’ pursuant to the Constitution. This comment explores these constitutional arguments and the potential ramifications for the State tribunal system.

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Brief

Design and children's courts

Penny Crofts, Subhaga Amarasekara, Phillip Briffa, Rebecca Makari, Meryl Remedios

The physical environment of a court, both within the courtroom itself and the courthouse as a whole, can greatly shape a young person’s ability to understand and participate in proceedings. This article presents some of the findings of our primary research undertaken to gain insight into how the design of children’s courts encourages or undermines participation. This research highlights the need to articulate design principles to ensure that existing children’s courts are improved and that future courts facilitate participation.

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Article

Counter-terrorism laws: how neutral laws create fear and anxiety in Australia's Muslim communities

Andrew Lynch and Nicola McGarrity

Australia’s counter-terrorism laws are expressed in ethnically and religious neutral terms. Yet there is a perception amongst Australia’s Muslim communities that they are targeted by these laws and by those who apply them. This perception is problematic because the creation of a diverse, yet harmonious and inclusive, society is critical to the prevention of terrorism in Australia. This article seeks to explain the source of this perception by examining the nature and scope of the terrorism offences in the Criminal Code Act 1995 (Cth), as well as the manner in which these offences have been applied by the Commonwealth authorities. It then makes recommendations as to how best to allay the fears of Australia’s Muslim communities that the operation of the counter-terrorism laws is politically motivated, ranging from reform of the laws themselves to community education to the establishment of an office of Independent Reviewer of Terrorism Laws.

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Article

The ballot behind bars after Roach: why disenfranchise prisoners?

Cornelia Koch and Lisa Hill

This article explores and critiques the rationales for disenfranchising prisoners advanced by politicians and relied on by the majority of the High Court in the recent case of Roach v Electoral Commissioner. It also refers to relevant overseas cases. It is argued that none of the arguments for removal of the right to vote from prison inmates are persuasive. While Australian constitutional history makes it probably inevitable that some bans on prisoner voting are constitutionally valid, the onus is on the Australian Parliament to demonstrate leadership and give all prisoners the right to vote.

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Article

Accommodating Shariah law in Australia's legal system: can we? should we?

Ann Black

Early in 2008, the Archbishop of Canterbury asked the legal fraternity in Britain to consider how accommodating the law of the land can, and should be, to religious minorities possessing their own legal and moral codes. This article poses the same question in regard to Australia and responds by exploring existing strategies used by Muslim Australians to navigate through two sets of laws, together with the case for and against official recognition of Shariah law in this country.

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Article

Red light on sex work in Western Australia

Thomas Crofts and Tracey Summerfield

After several failed attempts the Labor government in WA was finally able to enact the Prostitution Amendment Act 2008 which would introduce a minimalist licensing system for sex work. Against a backdrop of emotive rhetoric, the incoming Liberal-National government, in its ‘Plan for the First 100 Days of Government’, has promised to repeal the Act. This article argues the merits of a simplified licensing system when compared to criminalisation or more complex licensing models and urges Liberal-National members to engage in an informed consideration of the regulation of the industry.

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Article
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