Vol 40(2) 2015 - Questions of Fairness

Editor for this issue: Kellie Toole

  • Good faith, bad faith
  • Youth+Laws
  • Addressing violence

Pages 75 to 148

Political finance law in Queensland: One Step Forward, Two Steps Back

Graeme Orr

Money fuels political campaigns, but carries corruption and inequality risks.  In the past parliamentary cycle, the law on political finance in Queensland swung giddyingly, from a highly regulated to a deregulated regime: and is set to swing back again.   This article examines the partisan context and principled reasons for this, setting the debate in a broader national and normative perspective.

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War games, sex and Uncle Sam’s umbrella

Stephen Gray

Will Australian courts try US Marines who commit crimes on Australian soil?

Since 2012, the increased United State military presence in northern Australia has caused concern amongst some Australians.  Some concerns have centred around jurisdictional issues, in particular the perceived potential for US marines who commit crimes in Australia to be tried by a US service tribunal rather than an Australian court.  This article examines these concerns in light of a recent rape trial involving a US marines, arguing that the current arrangements should be amended or reviewed.

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Words can never hurt me? Sticks, stones and section 18C

Amanda Porter
Capitalising on the tragic events in France as a vehicle to reignite calls for the abolition of section 18C has masked some important truths about free speech laws in Australia. This article examines the veracity of statements made in the mainstream media in relation to hate speech protections both in France and Australia. Price: $9.90
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The adventures of good faith

Jessica Viven-Wilksch

Can legal history and international developments provide guidelines for Australia?

This article examines the development of the concept of good faith as a dynamic and flexible notion that has travelled in time, space and law. Using comparative law to bring a renewed perspective on the understanding of good faith in contract law, the article highlights some recent overseas developments and discusses the implications for Australia and its current law reforms.

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Article

Extending unfair contract term provisions for standard form contracts to small businesses

Patrick van Esch

Exploring the extension of the unfair contract term provisions for standard form contracts to small businesses identified several emergent key themes that require further investigation. These include: (1) the Commonwealth Government’s involvement to date, (2) jurisprudence, (3) current Australian legislation and (4) the law in other jurisdictions. Findings from the investigation identify and elucidate a number of gaps in the existing Australian legislation and provide three significant recommendations that could act as the foundations for potential law reform.

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Article

‘The door creaked shut’: The new breach of bail offence for youth in Queensland

Rosalea Nobile and Terry Hutchinson

As part of the 2014 amendments to the Youth Justice Act 1992 (Qld), the previous Queensland government introduced a new breach of bail offence and a reverse onus provision in relation to the new offence. Also included in the raft of amendments was a provision removing the internationally accepted principle that, in relation to young offenders, detention should be used as ‘a last resort’. This article argues that these changes are likely to increase the entrenchment of young people within the criminal justice system.

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Shining a light into the shadows: The hidden health needs of juveniles in detention

Kasey Tyler
This article examines the suggestion that young people with neurodisabilities are overrepresented in the juvenile justice system. The concept of neurodisability is examined, as is the potential relationship between the symptoms of neurodisabilities and recognised risk factors for criminal behaviour. The potential application of this research to those already in the juvenile detention system is examined with reference to Victoria’s response within the Parkville Juvenile Detention Centre. Price: $9.90
Article

Continuing subversion of the Children’s Court

Judith Bessant and Rob Watts

A review of Victoria’s new child protection laws 2014

This article describes and assesses the Children, Youth & Families Amendment (Permanent Care and Other Matters) Act 2014 passed into law in the last months of Victoria’s Napthine government just prior to its defeat in the 2014 state election. The article argues there are good reasons for concern about both the process and substance of the legislation. It is argued that this was an unusual legislative process marked by a relative absence of the lengthy process of consultation that normally precedes the introduction of important new legislation.  The secrecy and intimidation characterising this process also did nothing to build public confidence let alone ensure good policy-making.  It is also argued that while there were some important changes which kept faith with some recommendations made by the Protecting Victoria’s Vulnerable Children Inquiry established by the Baillieu government in 2011, the legislation made some quite problematic changes.

The article offers a detailed assessment of the amendments including some of the major changes made to the various child protection orders.  It is argued that these are problematic because they subvert a range of relevant legal and human rights criteria. Moreover, the changes have enhanced the authority of Victoria’s Department of Human Services at the expense of appropriate and needful judicial review.

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Article

Questioning the right to be forgotten

Michael Douglas

The Internet has an almost unlimited capacity to remember, which has been described as the problem of ‘digital eternity’. Digital eternity presents a challenge for the protection of the right to privacy. This article questions Europe’s controversial response to that challenge in the so-called ‘right to be forgotten’. Since May 2014, search engine providers like Google have been required to remove thousands of links to personal data upon request. The article identifies the practical and ethical difficulties that come with observance of the right to be forgotten.

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Article

Defining domestic violence in protection order legislation

Melissa Gibb and Patricia Easteal

A pilot observational study in the ACT

The ACT Domestic Violence and Protection Orders Act 2008 has been identified as the domestic violence civil legislation in Australia that provides the least protection for victims of family violence since it neither mentions specific types of domestic violence within its definition nor provides examples. However our observation of 18 victims accessing assistance from the Legal Aid ACT Domestic Violence and Protection Orders Unit revealed that, despite the shortcomings in the definition, it is being widely interpreted by judicial officers at this time. Despite asking questions that focus on physical violence, judicial officers appear to be interpreting the definition broadly enough to reflect the applicants’ experiences. However, given that our findings do not include contested final hearings and a belief that indeterminate legislation is most vulnerable to practitioners’ values and biases, we recommend that the ACT legislation be amended to be more in line with other jurisdictions.

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Article

Late night lockout laws

Mark Giancaspro

Evaluating responses to alcohol-fuelled violence

This article considers whether South Australia’s new Late Night Trading Code of Practice, introduced in October 2013, is more of a help or a hindrance in the fight against alcohol-related violence in and around late night licensed venues throughout the State. It provides some background to the Code’s introduction before discussing the subsequent reaction from publicans, patrons and the general public. The article then considers the competing arguments for and against the Code’s measures and assesses its efficacy in achieving its goal of reducing alcohol-related violence. The article concludes that the available evidence neither supports nor negates the view that the Code is serving this purpose but that it is theoretically useful in this endeavour, notwithstanding the many difficulties it presents for late night licensed venues and their patrons.

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Article

Facilitation payments: Facilitating poverty?

Grant Follett

The main international legal instruments regulating foreign bribery make exemptions for facilitation payments (or ‘petty corruption’). This exemption is mirrored in Australia’s domestic legislation. This article examines the justification for this, in light of the link between corruption and poverty. It concludes that exempting facilitation payments is justifiable if the link between corruption and poverty is thought of under an economic model, but less justifiable under a governance model

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Article

E-learning opportunities and challenges for legal education in rural Victoria

Mary Dracup and Richard Coverdale
Remote, rural and regional Victorians have a vast unmet need for community education on legal issues. At the same time, legal professionals working in these areas also often have a greater need than their urban counterparts for a variety of continuing professional development opportunities. Low-cost, low-bandwidth, reliable technologies are increasingly available to bring rich and flexible options for both community and professional legal education into remote locations. However, e-learning should not be seen as a simple ‘technical fix’: thoughtful needs-analysis, learning design, choice of technologies and attention to protocols to ensure remote attendees are full participants in virtual learning spaces are key factors in the success of technology-based education. To overlook these matters risks ill-conceived programs, learner frustration and poor use of resources. The recently published Linking Law guidelines provide information, analysis and practical tips to help legal organisations take better advantage of the technologies now available to enhance their educational activities. Price: $9.90
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