Pub Date : 2012-10-01DOI: 10.21153/DLR2012VOL17NO1ART70
Terry C. Hutchinson, N. Duncan
The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.
{"title":"Defining and describing what we do: Doctrinal legal research","authors":"Terry C. Hutchinson, N. Duncan","doi":"10.21153/DLR2012VOL17NO1ART70","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART70","url":null,"abstract":"The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649014","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 : 2012-07-30DOI: 10.21153/DLR2012VOL17NO1ART74
Bridget A. Harris
Review(s) of: Crime and Justice: A guide to criminology (4th ed), by Marinella Marmo, Willem de Lint and Darren Palmer (eds), Lawbook Co, 2012, 716 pages, ISBN 978-0-455-22860-0.
Marinella Marmo、Willem de Lint和Darren Palmer撰写的《犯罪与司法：犯罪学指南》（第4版）评论，Lawbook Co，2012年，716页，ISBN 978-0-455-22860-0。
{"title":"'Crime and Justice: A Guide to Criminology (4th ed)' by Marinella Marmi, Willem de Lint and Darren Palmer (eds)","authors":"Bridget A. Harris","doi":"10.21153/DLR2012VOL17NO1ART74","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART74","url":null,"abstract":"Review(s) of: Crime and Justice: A guide to criminology (4th ed), by Marinella Marmo, Willem de Lint and Darren Palmer (eds), Lawbook Co, 2012, 716 pages, ISBN 978-0-455-22860-0.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649150","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 : 2012-07-01DOI: 10.21153/DLR2012VOL17NO1ART71
Nicholas Petrie
Politicians, journalists and academics have exhausted many hours over the last decade debating the question of whether Australia should have a statutory cause of action for invasion of personal privacy. In the midst of this ongoing debate, a simple question has often been overlooked: what remedies should be available to a person whose privacy been breached? In posing and answering that question, it is argued that a wide range of remedies for intrusions of personal privacy should be available to the courts. Perhaps most controversially, the author asserts that exemplary damages, which aim to punish defendants and deter future breaches of the law, should be available for the most heinous breaches of personal privacy.
{"title":"Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy","authors":"Nicholas Petrie","doi":"10.21153/DLR2012VOL17NO1ART71","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART71","url":null,"abstract":"Politicians, journalists and academics have exhausted many hours over the last decade debating the question of whether Australia should have a statutory cause of action for invasion of personal privacy. In the midst of this ongoing debate, a simple question has often been overlooked: what remedies should be available to a person whose privacy been breached? In posing and answering that question, it is argued that a wide range of remedies for intrusions of personal privacy should be available to the courts. Perhaps most controversially, the author asserts that exemplary damages, which aim to punish defendants and deter future breaches of the law, should be available for the most heinous breaches of personal privacy.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648713","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 : 2011-12-01DOI: 10.21153/DLR2011VOL16NO2ART105
A. Gray
This article considers constitutional arguments that would arise if a government at either federal or state level decided to ban dress often identified as having religious connotations. This is not a far-fetched scenario, with at least one current Member of Parliament calling for such a ban, and bans operating in some overseas jurisdictions. It concludes that there would be serious constitutional doubt about such a law.
{"title":"Section 116 of the Australian Constitution and dress restrictions","authors":"A. Gray","doi":"10.21153/DLR2011VOL16NO2ART105","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART105","url":null,"abstract":"This article considers constitutional arguments that would arise if a government at either federal or state level decided to ban dress often identified as having religious connotations. This is not a far-fetched scenario, with at least one current Member of Parliament calling for such a ban, and bans operating in some overseas jurisdictions. It concludes that there would be serious constitutional doubt about such a law.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648382","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 : 2011-12-01DOI: 10.21153/DLR2011VOL16NO2ART108
Luke Beck
The need to combat terrorism has resulted in a need for changes to the legal process to take account of the realities of national security. One important change has been the introduction of legislation to govern the disclosure of national security-sensitive information to participants in legal proceedings. This, of course, raises a number of issues including concerns about ensuring fairness to the participants. This article considers whether the National Security Information (Criminal and Civil Proceedings) Act 2004 is consistent with the right to a fair trial found in the International Covenant on Civil and Political Rights to which Australia is a party. The conclusion is that the legislation is consistent with that right.
{"title":"Fair Enough? The National Security Information (Criminal and Civil Proceedings) Act 2004","authors":"Luke Beck","doi":"10.21153/DLR2011VOL16NO2ART108","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART108","url":null,"abstract":"The need to combat terrorism has resulted in a need for changes to the legal process to take account of the realities of national security. One important change has been the introduction of legislation to govern the disclosure of national security-sensitive information to participants in legal proceedings. This, of course, raises a number of issues including concerns about ensuring fairness to the participants. This article considers whether the National Security Information (Criminal and Civil Proceedings) Act 2004 is consistent with the right to a fair trial found in the International Covenant on Civil and Political Rights to which Australia is a party. The conclusion is that the legislation is consistent with that right.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648734","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 : 2011-12-01DOI: 10.21153/DLR2011VOL16NO2ART110
B. McEniery
It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods — namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.
{"title":"Physicality in Australian patent law","authors":"B. McEniery","doi":"10.21153/DLR2011VOL16NO2ART110","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART110","url":null,"abstract":"It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods — namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648897","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 : 2011-12-01DOI: 10.21153/DLR2011VOL16NO2ART109
T. Mundy
There has been a sustained focus over the past two decades on the status and position of women lawyers in the Australian legal profession. However, limited attention has been given to the particular experiences and retention of women lawyers in rural, regional and remote (RRR) legal practice. Feminist scholarship has highlighted the gendered way in which rural social space shapes understanding of identity and experience, suggesting the need to explore the ways in which the ‘othering’ of women in ‘rural’ space might bear on their legal practice experience. This article seeks to explore the intersection of gender and rurality in the context of RRR practice and the relevance of this intersection to the legal practice experience. It highlights some particular issues for women in RRR practice, considers ways in which gender is constructed in rural space and, through the case study examples of two female rural/regional lawyers, offers some experiential insights into the intersections of law, gender and ‘rurality’.
{"title":"Insights into Gender, 'Rurality' and the Legal Practice Experience","authors":"T. Mundy","doi":"10.21153/DLR2011VOL16NO2ART109","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART109","url":null,"abstract":"There has been a sustained focus over the past two decades on the status and position of women lawyers in the Australian legal profession. However, limited attention has been given to the particular experiences and retention of women lawyers in rural, regional and remote (RRR) legal practice. Feminist scholarship has highlighted the gendered way in which rural social space shapes understanding of identity and experience, suggesting the need to explore the ways in which the ‘othering’ of women in ‘rural’ space might bear on their legal practice experience. This article seeks to explore the intersection of gender and rurality in the context of RRR practice and the relevance of this intersection to the legal practice experience. It highlights some particular issues for women in RRR practice, considers ways in which gender is constructed in rural space and, through the case study examples of two female rural/regional lawyers, offers some experiential insights into the intersections of law, gender and ‘rurality’.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648857","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 : 2011-12-01DOI: 10.21153/DLR2011VOL16NO2ART113
B. Hayward
{"title":"'Commercial Arbitration in Australia' by Doug Jones","authors":"B. Hayward","doi":"10.21153/DLR2011VOL16NO2ART113","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART113","url":null,"abstract":"","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649045","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 : 2011-12-01DOI: 10.21153/dlr2011vol16no2art104
J. Bleich
{"title":"2011 Deakin Law Oration: The Legal Basis for US Military Action in the International Realm","authors":"J. Bleich","doi":"10.21153/dlr2011vol16no2art104","DOIUrl":"https://doi.org/10.21153/dlr2011vol16no2art104","url":null,"abstract":"","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648258","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 : 2011-12-01DOI: 10.21153/DLR2011VOL16NO2ART107
A. Flynn
The polarisation between consistency, controls and the unscrutinised discretionary powers held by criminal justice agencies is a complex issue that transcends jurisdictions. In the Australian State of Victoria, this conflict is particularly evident in the prosecutor’s decision-making powers in the plea bargaining process, because these powers are not subject to scrutiny and the decisions made under them are not transparent. Furthermore, plea bargaining itself is a non-formalised and unscrutinised method of case resolution. While the use of discretion is an important component of prosecutorial work, it is the potentially individualised and idiosyncratic nature of unscrutinised discretionary decisions that results in plea bargaining and prosecutorial decision-making in Victoria giving rise to perceptions of inappropriateness and misconduct. Drawing upon the voices of Victorian and United Kingdom legal professionals, this article critically analyses the controls placed on United Kingdom prosecutors by the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise 2009 (UK), and considers whether similar guidelines could be implemented in Victoria to redress problems surrounding the idiosyncratic nature of prosecutorial decision-making in plea bargaining. By offering a unique insight into the perspectives of those involved in plea bargaining, this article explores the benefits of implementing a transparent and scrutinised control on prosecutorial discretion in plea bargaining, and considers whether this would in turn offer greater safeguards, consistency and transparency of prosecutorial decision-making in Victoria.
{"title":"'Fortunately We in Victoria Are Not in That UK Situation': Australian and United Kingdom Perspectives on Plea Bargaining Reform","authors":"A. Flynn","doi":"10.21153/DLR2011VOL16NO2ART107","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART107","url":null,"abstract":"The polarisation between consistency, controls and the unscrutinised discretionary powers held by criminal justice agencies is a complex issue that transcends jurisdictions. In the Australian State of Victoria, this conflict is particularly evident in the prosecutor’s decision-making powers in the plea bargaining process, because these powers are not subject to scrutiny and the decisions made under them are not transparent. Furthermore, plea bargaining itself is a non-formalised and unscrutinised method of case resolution. While the use of discretion is an important component of prosecutorial work, it is the potentially individualised and idiosyncratic nature of unscrutinised discretionary decisions that results in plea bargaining and prosecutorial decision-making in Victoria giving rise to perceptions of inappropriateness and misconduct. Drawing upon the voices of Victorian and United Kingdom legal professionals, this article critically analyses the controls placed on United Kingdom prosecutors by the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise 2009 (UK), and considers whether similar guidelines could be implemented in Victoria to redress problems surrounding the idiosyncratic nature of prosecutorial decision-making in plea bargaining. By offering a unique insight into the perspectives of those involved in plea bargaining, this article explores the benefits of implementing a transparent and scrutinised control on prosecutorial discretion in plea bargaining, and considers whether this would in turn offer greater safeguards, consistency and transparency of prosecutorial decision-making in Victoria.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648663","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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