Vol 40(1) 2015 - Old Land, New Laws

Editors for this issue: Allan Ardill and Kate Galloway

  • Constructing sex, gender & equality
  • Interrogating education
  • Regulating crime
Pages 1 to 74

Same sex marriage and the Australian states

George Williams
In the absence of federal reform, recognition of same-sex marriages has been pursued in Australia's states and territories. The first to bring this about was the Australian Capital Territory. However, the High Court found that the ACT law was of no effect due to inconsistency with the federal Marriage Act. This article examines whether, in light of this High Court decision, there is still scope for the states to continue to debate and enact laws of this kind. Price: $9.90

Making room at the inn: Protecting the expression of sexual identity in anti-discrimination law

David Glasgow
This article analyses a recent decision of the Victorian Court of Appeal involving religious owners of a resort who refused an accommodation booking by an LGBT youth organisation. Using the case as an anchor, the author focuses on the widespread pressure placed on same-sex attracted people to cover their sexual identities and blend into the mainstream. He argues that instead of forcing us to mute our identities, anti-discrimination law should support authentic self-expression. Price: $9.90

Finding a fair reflection on the High Court of Australia

Harry Hobbs
Of the 51 Justices appointed to the High Court of Australia, only four have been women. Although all eminently qualified, there is something fundamentally wrong with this statistic. The principle of fair reflection is neither at odds with the fundamental principle of judicial impartiality, nor controversial when it comes to federal balance on the Court. It is time that the untrammelled discretion of the Attorney General is confined to require a 40% composition of either gender on the Court. Price: $9.90

Females in custody in the ACT: Gendered issues and solutions

Patricia Easteal, Lorana Bartels, Emma Fitch and Helen Watchirs
Studies have identified that since women comprise only a small proportion of the prison population as a whole this correlates with a higher potential for inadequate gender-specific service provision. We are interested in seeing if, despite the Australian Capital Territory (ACT) being the first Australian jurisdiction to design and operate a prison under human rights legislation, the small number of women prisoners poses particular challenges for meeting their specific needs in the Alexander Maconochie Centre (AMC). After examining gendered issues identified across Australia, we review the findings of three recent reviews and identify the successes, problems and pitfalls with programs and policies set within a human rights framework. We note some improvement in meeting women inmates’ needs over the past five years and include recommendations to facilitate more positive changes. Price: $9.90

Do deaf people have the right to serve as jurors in Australia?

Jemina Napier and Alastair McEwin
This article describes the barriers faced by deaf sign language users in performing their civic duty as jurors. The authors discuss the precedent of deaf jury service in the United States and the history of the issues preventing deaf people from serving in Australia. In particular they examine the linguistic and sociological research conducted to date, with a view to informing the legal practitioners and law reform experts throughout Australia, with a view to ensuring that all stakeholders are able to be informed of the issue and contribute to the debate. Price: $9.90

Indigenous dispossession in the 21st century: The Northern Frontier

Kate Galloway
For decades, state and Commonwealth governments have dabbled in policy to develop the economic potential of mainland Northern Australia. This project has recently taken on new life with the release of a report into economic opportunities in the North, and a white paper is expected this year. Far from an uninhabited wilderness however, a significant proportion of land in Northern Australia is subject to Aboriginal rights and interests. This article critically examines recent developments in Queensland Aboriginal tenure regulation and Western Australian proposals affecting Aboriginal people against the background of the move to develop the North. It suggests that these developments erode or remove legal frameworks supporting the connection of Aboriginal people with their land and pave the way for economic development at the expense of Aboriginal land rights. Price: $9.90

Advertising to children in schools: The case of ‘book’ clubs

Simone Pettigrew and Shelley Davies
This article examines children’s exposure to advertising for book clubs in the context of state laws that aim to preserve the integrity of schools as educational environments for children. The authors outline current book club marketing practices and contrast them to the intent of relevant laws. Regulatory and policy recommendations are proposed to address the inadequacies of existing systems that allow children to be targeted as consumers while on school premises. Price: $9.90

The blossoming of Public Benevolent Institutions: From ‘direct’ providers to global networks

Ian Murray and Fiona Martin
The recent Full Federal Court decision of Commissioner of Taxation v Hunger Project Australia reverses decades of ATO practice requiring that public benevolent institutions directly provide relief. This article explores the key effects for the not-for-profit sector. In particular, it examines the types of organisations that may now qualify as public benevolent institutions, the potential for further broadening over time and as the use of networks of organisations increases and, finally, whether the expected revenue loss might cause the government to revisit the Not-for-profit Sector Tax Concession Working Group Final Report. Price: $9.90

Returning to presumptions and the erosion of fundamental rights: The Bail Amendment Act 2014 (NSW)

Lesley Townsley
The Bail Act 2013 (NSW) commenced on 20 May 2014 and this article addresses the recently proposed amendments to this Act. It is argued that the government’s reaction to a minority of public opinion and amending the Act to erode the rights of an accused person is a repetition of similar historical factors that led to some of the amendments to the Bail Act 1978. This evolution of punitive bail policy is evidenced in the Bail Amendment Bill 2014 (NSW) which, amongst other things, effectively reintroduces a scheme of presumptions against bail. Price: $9.90

Engaging SEX: Promoting the Statutory Interpretation EXperience in legal education

James Duffy, Des Butler and Elizabeth Dickson
Given the ever increasing importance of legislation to the resolution of legal disputes, there is a concomitant need for law students to be well trained in the anatomy, identification, interpretation and application of laws made by or under parliament.  This article discusses a blended learning project called Indigo’s Folly, implemented at the Queensland University of Technology Law School in 2014.  Indigo’s Folly was created to increase law student competency with respect to statutory interpretation.  Just as importantly, it was designed to make the teaching of statutory interpretation more interesting – to “bring the sexy” to the student statutory interpretation experience.  Quantitative and qualitative empirical data will be presented as evidence to show that statutory interpretation can be taught in a way that law students find engaging. Price: $9.90

Good faith, bad faith, and the ugliness of inflexible good faith clauses

Isabel Roper
Good faith clauses seek to regulate behaviour and encourage genuine participation in the mediation process. Mediation has grown tremendously in popularity since its inception in the 1980s and good faith clauses now feature in a number of statutory schemes such as the Civil Procedure Rules 2006 (ACT). Despite this, problems arise from a rigid and formal application of mediation to differing contexts. However, consideration of the conceptual shift in debates on mediator neutrality (its possibility and normative utility) provides an insight into productive use of postmodern interpretations of mediation. Postmodern legal thought could also assist mediators in adopting a flexible understanding of good faith allowing them to use statutory mechanisms and techniques of persuasion in redressing power imbalances, encouraging the constructive participation of all parties, and bolstering substantive justice. Price: $8.80

Gone Missing: Improving the law’s response to missing persons in Queensland

Anna Gunning-Stevenson, Sera Ser and Valentine Dubois
This article identifies issues with the law relating to managing the estate of missing persons in Queensland. It describes the current law and outlines problems with it in instances where a presumption of death can and cannot be obtained. This article also undertakes a brief comparative analysis of existing legal avenues in the ACT, Victoria and NSW as well as relevant legislation enacted in England and Wales and puts forward recommendations that would improve the current Queensland approach. Price: $8.80

Is there an App for that?

Dale Spender
This Comment provides an historical account of feminism and takes stock of its legacy. Women, for centuries, have fought for political rights and educational opportunities and, by the second wave of feminism, thought they had it all. But a closer look at contemporary society and what it offers women in terms of education, work and economic opportunity, questions just how far women have come since the first wave. Price: $8.80
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