Pub Date : 2014-12-01DOI: 10.21153/DLR2014VOL19NO2ART343
Terry C. Hutchinson
In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.
{"title":"Making the Fun Stop: Youth Justice Reform in Queensland","authors":"Terry C. Hutchinson","doi":"10.21153/DLR2014VOL19NO2ART343","DOIUrl":"https://doi.org/10.21153/DLR2014VOL19NO2ART343","url":null,"abstract":"In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-12-01DOI: 10.21153/DLR2013VOL18NO2ART39
L. Wolff
How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.
{"title":"Litigiousness in Australia: Lessons from Comparative Law","authors":"L. Wolff","doi":"10.21153/DLR2013VOL18NO2ART39","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART39","url":null,"abstract":"How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-11-01DOI: 10.21153/DLR2004VOL9NO2ART248
K. Gurney
Of the many different variations that can occur in human sexual formation, transsexualism no doubt remains the least understood by the wider Australian community. As a consequence, the process of attaining human rights to legal status, privacy, dignity and freedom from discrimination for those who experience this unusual condition has been a slow and sometimes frustrating one. The article seeks to introduce the reader to some of the more recent developments in the international jurisprudence of transsexualism and the underlying medical evidence that has supported them. It also offers criticism of the belated attempt by the State of Victoria, with the Births, Deaths & Marriages Registration (Amendment) Act 2004, to establish certain statutory rights in this regard. While the legislation was enacted with the stated and very laudable purpose of providing for the correction of birth records on the Register of Births of those people with transsexualism who have altered their phenotypic sex by hormonal medication and surgery, the article argues it has also served to remove other equally important rights already won and proposes that a final remedy will only be found, as on previous occasions, in the courts.
{"title":"Twisting the knife: discrimination in the law","authors":"K. Gurney","doi":"10.21153/DLR2004VOL9NO2ART248","DOIUrl":"https://doi.org/10.21153/DLR2004VOL9NO2ART248","url":null,"abstract":"Of the many different variations that can occur in human sexual formation, transsexualism no doubt remains the least understood by the wider Australian community. As a consequence, the process of attaining human rights to legal status, privacy, dignity and freedom from discrimination for those who experience this unusual condition has been a slow and sometimes frustrating one. The article seeks to introduce the reader to some of the more recent developments in the international jurisprudence of transsexualism and the underlying medical evidence that has supported them. It also offers criticism of the belated attempt by the State of Victoria, with the Births, Deaths & Marriages Registration (Amendment) Act 2004, to establish certain statutory rights in this regard. While the legislation was enacted with the stated and very laudable purpose of providing for the correction of birth records on the Register of Births of those people with transsexualism who have altered their phenotypic sex by hormonal medication and surgery, the article argues it has also served to remove other equally important rights already won and proposes that a final remedy will only be found, as on previous occasions, in the courts.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67642845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Contentious Activism and Inter-Korean Relations by Danielle L Chubb","authors":"C. Bozzi","doi":"10.21153/DLR2014VOL19NO1ART213","DOIUrl":"https://doi.org/10.21153/DLR2014VOL19NO1ART213","url":null,"abstract":"Review(s) of: Contentious activism and Inter-Korean relations, by Danielle L Chubb, Columbia University Press, 2014, ISBN 9780231161367","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-08-01DOI: 10.21153/DLR2014VOL19NO1ART207
J. Plessis, J. O'Sullivan, R. Rentschler
This article examines diversity on corporate boards, focussing on gender diversity and taking both contemporary and historical perspectives. Australia forms a particular focus of this article, but, as far as mandatory quota legislation is concerned, other jurisdictions provide comparisons. The authors illustrate how Australian corporate board gender diversity is starting from a low base in contrast to some other types of boards. Arguments for and against more women on boards are analysed in order to provide a comprehensive examination of extant research. The article also examines briefly whether a business case can be made for board gender diversity within the wider framework of board diversity. The authors acknowledge that there are unanswered questions about the right gender balance on boards and whether, without mandatory quota legislation, a voluntary system can achieve best practice targets. They explore the notion of critical mass - the idea that, upon board representation reaching approximately 15 per cent, efforts to further redress the imbalance may lose momentum. Their conclusion is that, in the Australian jurisdiction, progress is being made belatedly towards increasing gender diversity on corporate boards. However, substantial challenges are envisaged if significant progress is not made imminently to increase the number of women serving on corporate boards.
{"title":"Multiple Layers of Gender Diversity on Corporate Boards: To Force or Not to Force?","authors":"J. Plessis, J. O'Sullivan, R. Rentschler","doi":"10.21153/DLR2014VOL19NO1ART207","DOIUrl":"https://doi.org/10.21153/DLR2014VOL19NO1ART207","url":null,"abstract":"This article examines diversity on corporate boards, focussing on gender diversity and taking both contemporary and historical perspectives. Australia forms a particular focus of this article, but, as far as mandatory quota legislation is concerned, other jurisdictions provide comparisons. The authors illustrate how Australian corporate board gender diversity is starting from a low base in contrast to some other types of boards. Arguments for and against more women on boards are analysed in order to provide a comprehensive examination of extant research. The article also examines briefly whether a business case can be made for board gender diversity within the wider framework of board diversity. The authors acknowledge that there are unanswered questions about the right gender balance on boards and whether, without mandatory quota legislation, a voluntary system can achieve best practice targets. They explore the notion of critical mass - the idea that, upon board representation reaching approximately 15 per cent, efforts to further redress the imbalance may lose momentum. Their conclusion is that, in the Australian jurisdiction, progress is being made belatedly towards increasing gender diversity on corporate boards. However, substantial challenges are envisaged if significant progress is not made imminently to increase the number of women serving on corporate boards.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-08-01DOI: 10.21153/dlr2014vol19no1art212
Gilles Renaud
Review(s) of: Lawyers, families, and businesses: The shaping of a bay street law firm, faskens 1863-1963, by C Ian Kyer, Irwin Law (for the Osgoode Society for Canadian Legal History), 2013, Toronto.
{"title":"Lawyers, Families, and Business: the Shaping of a Bay Street Law Firm, Faskens 1863-1963 by C Ian Kyer","authors":"Gilles Renaud","doi":"10.21153/dlr2014vol19no1art212","DOIUrl":"https://doi.org/10.21153/dlr2014vol19no1art212","url":null,"abstract":"Review(s) of: Lawyers, families, and businesses: The shaping of a bay street law firm, faskens 1863-1963, by C Ian Kyer, Irwin Law (for the Osgoode Society for Canadian Legal History), 2013, Toronto.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Alternatives to the individualistic emphasis of liberal theory focus attention on collective dimensions of social life with implications for legal and political analysis of the state, of representation, and of international law. In this context, relationships between the individual-collective dichotomy and the dichotomy of gender demand attention because of the claimed affiliations of individualism with social understandings of masculinity.
{"title":"Governance, Representation and the ‘Monstrous Regiment’: Is the Collective Feminine?","authors":"J. Morss","doi":"10.2139/SSRN.2633799","DOIUrl":"https://doi.org/10.2139/SSRN.2633799","url":null,"abstract":"Alternatives to the individualistic emphasis of liberal theory focus attention on collective dimensions of social life with implications for legal and political analysis of the state, of representation, and of international law. In this context, relationships between the individual-collective dichotomy and the dichotomy of gender demand attention because of the claimed affiliations of individualism with social understandings of masculinity.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68233079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-08-01DOI: 10.21153/DLR2014VOL19NO1ART214
Neera Bhatia
{"title":"Australian Medical Liability 2nd Edition by Bill Madden and Janine McIlwraith","authors":"Neera Bhatia","doi":"10.21153/DLR2014VOL19NO1ART214","DOIUrl":"https://doi.org/10.21153/DLR2014VOL19NO1ART214","url":null,"abstract":"","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-08-01DOI: 10.21153/DLR2014VOL19NO1ART218
Cindy Davids, M. McMahon
Until relatively recently, the common law offence of misconduct in public office has been regarded as anachronistic. The offence was perceived to have been supplanted by specific statutory offences that could more appropriately deal with criminal conduct by public officials. However, there has been a revival of the offence with successful prosecutions occurring in Australia, England and Hong Kong. Many of these contemporary cases have involved police officers. Examination of these cases reveals that the circumstances in which misconduct in public office has been identified have been diverse, including the unauthorised disclosure of confidential information, the use of false search warrants and the sexual exploitation of vulnerable persons. In many instances, police officers were charged with other criminal offences in addition to charges relating to misconduct in public office. The matters prosecuted as misconduct in public office typically involved matters that were serious and/or could not be adequately prosecuted as other criminal offences or as breaches of police regulations governing conduct. Consequently, despite the proliferation of statutory criminal offences in the 20th century it appears that there continues to be a place for the offence of misconduct in public office. It criminalises misconduct by police officers that may not be adequately dealt with by other offences and recognises the public trust dimension of wrongdoing by these officials. However, a continuing and fundamental challenge is to determine the appropriate definition and scope of the offence.
{"title":"Police Misconduct as a Breach of Public Trust: The Offence of Misconduct in Public Office","authors":"Cindy Davids, M. McMahon","doi":"10.21153/DLR2014VOL19NO1ART218","DOIUrl":"https://doi.org/10.21153/DLR2014VOL19NO1ART218","url":null,"abstract":"Until relatively recently, the common law offence of misconduct in public office has been regarded as anachronistic. The offence was perceived to have been supplanted by specific statutory offences that could more appropriately deal with criminal conduct by public officials. However, there has been a revival of the offence with successful prosecutions occurring in Australia, England and Hong Kong. Many of these contemporary cases have involved police officers. Examination of these cases reveals that the circumstances in which misconduct in public office has been identified have been diverse, including the unauthorised disclosure of confidential information, the use of false search warrants and the sexual exploitation of vulnerable persons. In many instances, police officers were charged with other criminal offences in addition to charges relating to misconduct in public office. The matters prosecuted as misconduct in public office typically involved matters that were serious and/or could not be adequately prosecuted as other criminal offences or as breaches of police regulations governing conduct. Consequently, despite the proliferation of statutory criminal offences in the 20th century it appears that there continues to be a place for the offence of misconduct in public office. It criminalises misconduct by police officers that may not be adequately dealt with by other offences and recognises the public trust dimension of wrongdoing by these officials. However, a continuing and fundamental challenge is to determine the appropriate definition and scope of the offence.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650594","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-12-01DOI: 10.21153/dlr2013vol18no2art40
K. Wheelwright
This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.
{"title":"Bearing the economic loss of industrial action: The payment of striking employees under the fair work act 2009 (cth)","authors":"K. Wheelwright","doi":"10.21153/dlr2013vol18no2art40","DOIUrl":"https://doi.org/10.21153/dlr2013vol18no2art40","url":null,"abstract":"This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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