Pub Date : 2013-12-01DOI: 10.21153/DLR2013VOL18NO2ART42
Lisa Lee
In the aftermath of World War II, Australia undertook domestic trials of suspected Japanese war criminals between 1945 and 1951. This article focuses on Australia’s war crimes trial of Lieutenant-General Nishimura as held at the Los Negros court in mid-June 1950, and the subsequent petitioning period and confirmation process. The Australian war crimes courts were military courts vested with broad discretionary powers that facilitated the expeditious trials of accused. The procedure of war crimes courts differed from that of field general courts-martial in two main areas: admissible evidence and sentencing range — and this article highlights concomitant problems arising during the trial and subsequent case on review. This article examines the prosecution of the case entirely on documentary evidence; the impact of low admissibility thresholds for evidence; issues regarding the voluntariness and reliability of witness evidence; and the option of capital punishment in the Nishimura trial.
{"title":"A Case from Australia's War Crimes Trials: Lieutenant-General Nishimura, 1950","authors":"Lisa Lee","doi":"10.21153/DLR2013VOL18NO2ART42","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART42","url":null,"abstract":"In the aftermath of World War II, Australia undertook domestic trials of suspected Japanese war criminals between 1945 and 1951. This article focuses on Australia’s war crimes trial of Lieutenant-General Nishimura as held at the Los Negros court in mid-June 1950, and the subsequent petitioning period and confirmation process. The Australian war crimes courts were military courts vested with broad discretionary powers that facilitated the expeditious trials of accused. The procedure of war crimes courts differed from that of field general courts-martial in two main areas: admissible evidence and sentencing range — and this article highlights concomitant problems arising during the trial and subsequent case on review. This article examines the prosecution of the case entirely on documentary evidence; the impact of low admissibility thresholds for evidence; issues regarding the voluntariness and reliability of witness evidence; and the option of capital punishment in the Nishimura trial.","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":"67650348","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/DLR2013VOL18NO2ART49
B. Hayward
{"title":"The Danubia Files: award writing lessons from the Vis Moot / Edited by Louise Barrington, Napoleão Casado Filho and Claudio Finkelstein","authors":"B. Hayward","doi":"10.21153/DLR2013VOL18NO2ART49","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART49","url":null,"abstract":"","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":"67650356","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/DLR2013VOL18NO2ART43
Andrew Newman
Despite differing labour law systems and program structures, temporary migrant agricultural workers under the Canadian Seasonal Agricultural Worker Program and Australian Seasonal Worker Program often possess minimal security of employment rights and protections, despite potentially lengthy periods of consecutive seasonal service to the same employer. Such lesser rights and protections are partly due to the central role played by continuity of service in determining the length of reasonable notice periods and the strength of unfair dismissal protections and stand-down/recall rights. Although it is often presumed that the temporary duration of the seasonal work visa necessarily severs the legal continuity of the employment relationship, such is not the case. This article argues that security of employment rights and protections can be re-conceptualised to recognise non-continuous seasonal service within the current parameters of a fixed-term work visa. In both Canada and Australia this could be accomplished through contractual or collective agreement terms or through the amendment of labour law legislation. Such reforms would recognise a form of unpaid ‘migrant worker leave’, whereby the legal continuity of employment would be preserved despite periods of mandatory repatriation, thus allowing accrual of security of employment rights and protections.
{"title":"The Legal In/Security of Temporary Migrant Agricultural Work: Case Studies from Canada and Australia","authors":"Andrew Newman","doi":"10.21153/DLR2013VOL18NO2ART43","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART43","url":null,"abstract":"Despite differing labour law systems and program structures, temporary migrant agricultural workers under the Canadian Seasonal Agricultural Worker Program and Australian Seasonal Worker Program often possess minimal security of employment rights and protections, despite potentially lengthy periods of consecutive seasonal service to the same employer. Such lesser rights and protections are partly due to the central role played by continuity of service in determining the length of reasonable notice periods and the strength of unfair dismissal protections and stand-down/recall rights. Although it is often presumed that the temporary duration of the seasonal work visa necessarily severs the legal continuity of the employment relationship, such is not the case. This article argues that security of employment rights and protections can be re-conceptualised to recognise non-continuous seasonal service within the current parameters of a fixed-term work visa. In both Canada and Australia this could be accomplished through contractual or collective agreement terms or through the amendment of labour law legislation. Such reforms would recognise a form of unpaid ‘migrant worker leave’, whereby the legal continuity of employment would be preserved despite periods of mandatory repatriation, thus allowing accrual of security of employment rights and protections.","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":"67650464","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":"Death of a Soldier: A Mother's story by Margaret Evison","authors":"Christi Masters","doi":"10.21153/DLR2013VOL18NO2ART48","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART48","url":null,"abstract":"Review(s) of: Death of a soldier: A mother's story, by Margaret Evison, Biteback Publishing, 2012, ISBN-10: 1849544492, ISBN-13: 978-1849544498.","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":"67650161","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/DLR2013VOL18NO2ART47
K. Blore
Equality for lesbian and gay people is increasingly being treated as inevitable. This article questions this sense of inevitability by exploring three possible explanations: (1) a cynical explanation that the language of inevitability is being used as a rhetorical device, (2) a mechanical explanation that the impending equality is an effect of prior causes in time, and (3) a teleological explanation that history is progressing towards its purpose of achieving equality. The article concludes that invocations of inevitability do not stand up to theoretical scrutiny and explores what options are then open to equality activists.
{"title":"Sexuality Law Reform and the Language of Progress: What lies behind statements that equality for lesbian and gay people is inevitable","authors":"K. Blore","doi":"10.21153/DLR2013VOL18NO2ART47","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART47","url":null,"abstract":"Equality for lesbian and gay people is increasingly being treated as inevitable. This article questions this sense of inevitability by exploring three possible explanations: (1) a cynical explanation that the language of inevitability is being used as a rhetorical device, (2) a mechanical explanation that the impending equality is an effect of prior causes in time, and (3) a teleological explanation that history is progressing towards its purpose of achieving equality. The article concludes that invocations of inevitability do not stand up to theoretical scrutiny and explores what options are then open to equality activists.","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":"67650526","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/DLR2013VOL18NO2ART41
K. Douglas
Alternative or Appropriate Dispute Resolution ('ADR') is a crucial area for lawyers to understand in order to engage in present day legal practice. ADR is now common in courts and the community and is supported by legal policy at both federal and state levels. Learning about ADR can contribute to the moulding of law students' professional identity so that they are better able to engage in commonly used processes such as negotiation and mediation. This article discusses research into the teaching of ADR in legal education. It draws on a project where the teaching of ADR was researched in depth to examine the content and pedagogy of this area of the legal curriculum. The article argues that ADR is an important part of legal education as it can assist law students to develop non-adversarial, holistic approaches to legal problem-solving.
{"title":"The Evolution of Lawyers' Professional Identity: The Contribution of the ADR in Legal Education","authors":"K. Douglas","doi":"10.21153/DLR2013VOL18NO2ART41","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART41","url":null,"abstract":"Alternative or Appropriate Dispute Resolution ('ADR') is a crucial area for lawyers to understand in order to engage in present day legal practice. ADR is now common in courts and the community and is supported by legal policy at both federal and state levels. Learning about ADR can contribute to the moulding of law students' professional identity so that they are better able to engage in commonly used processes such as negotiation and mediation. This article discusses research into the teaching of ADR in legal education. It draws on a project where the teaching of ADR was researched in depth to examine the content and pedagogy of this area of the legal curriculum. The article argues that ADR is an important part of legal education as it can assist law students to develop non-adversarial, holistic approaches to legal problem-solving.","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":"67650272","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/DLR2013VOL18NO2ART51
J. Morss
{"title":"Trafficking in Persons in Australia: Myths and Realities / Andreas Schloenhardt and Jarrod Jolly","authors":"J. Morss","doi":"10.21153/DLR2013VOL18NO2ART51","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART51","url":null,"abstract":"","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":"67650508","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/DLR2013VOL18NO2ART50
C. Bozzi
Review(s) of: Environmental law in Australia 8th edition, by Gerry Bates, LexisNexis Butterworths, 2013, ISBN: 9780409332070 (pbk), ISBN: 9780409332087 (ebook).
{"title":"Environmental Law in Australia, 8th edition / Gerry Bates","authors":"C. Bozzi","doi":"10.21153/DLR2013VOL18NO2ART50","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO2ART50","url":null,"abstract":"Review(s) of: Environmental law in Australia 8th edition, by Gerry Bates, LexisNexis Butterworths, 2013, ISBN: 9780409332070 (pbk), ISBN: 9780409332087 (ebook).","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":"67650436","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 : 2013-08-01DOI: 10.21153/DLR2013VOL18NO1ART56
C. Bozzi
A combination of the economic significance of international tourism, the increased mobility of individuals, and their greater willingness and desire to manage their own movements has significant implications for insurers which currently remain under-appreciated. International visitors to Australia are more likely to die or suffer injury as the result of a motor vehicle accident than in any other way. While attention has been focused on the complex jurisdictional issues that may arise, other equally important problems such as the potential for action in double recovery have gone largely unnoticed. The need is particularly acute because, as many studies attest, the prospect of death and injury in motor vehicle accidents involving foreign licensees is only likely to increase. Injured third parties returning to home jurisdictions with national health systems will rightly draw on the resources of the state, public welfare, and sometimes private insurance to meet their health care needs. To complicate matters further, European countries typically view the state as a guarantor of individual and collective social rights, and, to varying extents, constitutionally guarantee health care and other relevant benefits such as unemployment payments. In effect, an injured third party receiving a payout for the cost of those injuries from an Australian insurer returns home as a citizen or resident of a state in which she or he draws on publicly funded health care and benefits. In Italy, for example, the needs of the injured third party are met by a devolved health care system which places the greatest burden of responsibility for the delivery and funding of services on regionally governed public enterprises, and to a lesser extent on other entities. Some of those providers have mounted actions in recovery for money spent and goods supplied for the treatment of the same injuries that are the subject of the insurance. The aim of this article is to address the theoretical basis and practical implications of actions taken against the insured injured party in the context of foreign constitutional and personal injuries law (or constitutionalised personal injuries law).
{"title":"International travel and double recovery","authors":"C. Bozzi","doi":"10.21153/DLR2013VOL18NO1ART56","DOIUrl":"https://doi.org/10.21153/DLR2013VOL18NO1ART56","url":null,"abstract":"A combination of the economic significance of international tourism, the increased mobility of individuals, and their greater willingness and desire to manage their own movements has significant implications for insurers which currently remain under-appreciated. International visitors to Australia are more likely to die or suffer injury as the result of a motor vehicle accident than in any other way. While attention has been focused on the complex jurisdictional issues that may arise, other equally important problems such as the potential for action in double recovery have gone largely unnoticed. The need is particularly acute because, as many studies attest, the prospect of death and injury in motor vehicle accidents involving foreign licensees is only likely to increase. Injured third parties returning to home jurisdictions with national health systems will rightly draw on the resources of the state, public welfare, and sometimes private insurance to meet their health care needs. To complicate matters further, European countries typically view the state as a guarantor of individual and collective social rights, and, to varying extents, constitutionally guarantee health care and other relevant benefits such as unemployment payments. In effect, an injured third party receiving a payout for the cost of those injuries from an Australian insurer returns home as a citizen or resident of a state in which she or he draws on publicly funded health care and benefits. In Italy, for example, the needs of the injured third party are met by a devolved health care system which places the greatest burden of responsibility for the delivery and funding of services on regionally governed public enterprises, and to a lesser extent on other entities. Some of those providers have mounted actions in recovery for money spent and goods supplied for the treatment of the same injuries that are the subject of the insurance. The aim of this article is to address the theoretical basis and practical implications of actions taken against the insured injured party in the context of foreign constitutional and personal injuries law (or constitutionalised personal injuries law).","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649926","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 : 2013-08-01DOI: 10.21153/dlr2013vol18no1art60
Joe Silver
While uncommon, corruption amongst Australian trade union officials is nevertheless well documented and notorious. How the law responds to corruption has become the subject of renewed debate, due to allegations against several former officials of the Health Services Union, in particular Craig Thomson and Michael Williamson. This article argues in favour of revising the provisions describing officials' duties in the federal Fair Work (Registered Organisations) Act 2009 (Cth) - the law which regulates trade unions - to more closely resemble their sister provisions in the Corporations Act 2001 (Cth). It contends that corrupt officials are best dealt with under specific 'disloyalty' offences, as opposed to generic property crimes (such as fraud or obtaining by deception). It also addresses a number of other potential weaknesses in the present legislative scheme.
{"title":"\"For the Union Makes Us... Rich?\": Preventing Trade Union Corruption in Law after the Health Services Union Saga","authors":"Joe Silver","doi":"10.21153/dlr2013vol18no1art60","DOIUrl":"https://doi.org/10.21153/dlr2013vol18no1art60","url":null,"abstract":"While uncommon, corruption amongst Australian trade union officials is nevertheless well documented and notorious. How the law responds to corruption has become the subject of renewed debate, due to allegations against several former officials of the Health Services Union, in particular Craig Thomson and Michael Williamson. This article argues in favour of revising the provisions describing officials' duties in the federal Fair Work (Registered Organisations) Act 2009 (Cth) - the law which regulates trade unions - to more closely resemble their sister provisions in the Corporations Act 2001 (Cth). It contends that corrupt officials are best dealt with under specific 'disloyalty' offences, as opposed to generic property crimes (such as fraud or obtaining by deception). It also addresses a number of other potential weaknesses in the present legislative scheme.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67650029","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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