Pub Date : 2023-01-24DOI: 10.1177/1037969X221149124
Sarah Moulds, M. Knight
Conventional approaches to legislating to protect individual rights in Australia have utilised the language and discourse of international human rights law, attracting both support and criticism from key political actors and commentators. In South Australia, where no human rights legislation exists, past efforts to generate sustained public and political support for the enactment of international human rights principles into legislation have been unsuccessful. This is despite ongoing instances of human rights breaches occurring within the South Australian community. The reasons are varied and warrant careful consideration in order to identify and evaluate future options for improving the legal protection of human rights. One potential option is to reframe the discourse associated with human rights legislation. This could involve moving away from a legalistic approach that draws from international human rights law concepts and instead embrace the language of human security to refocus public and political attention on the need to secure dignity, equality and safety for the community. This article explores whether the language of human security, and the strategies identified by the United Nations Development Programme towards achieving human security, could create new opportunities for legislative reform in South Australia. It also considers the potential shortcomings of this approach, having regard to successful attempts to enact human rights legislation in other Australian states and territories.
{"title":"Legislating for human security: Could South Australia lead the way again?","authors":"Sarah Moulds, M. Knight","doi":"10.1177/1037969X221149124","DOIUrl":"https://doi.org/10.1177/1037969X221149124","url":null,"abstract":"Conventional approaches to legislating to protect individual rights in Australia have utilised the language and discourse of international human rights law, attracting both support and criticism from key political actors and commentators. In South Australia, where no human rights legislation exists, past efforts to generate sustained public and political support for the enactment of international human rights principles into legislation have been unsuccessful. This is despite ongoing instances of human rights breaches occurring within the South Australian community. The reasons are varied and warrant careful consideration in order to identify and evaluate future options for improving the legal protection of human rights. One potential option is to reframe the discourse associated with human rights legislation. This could involve moving away from a legalistic approach that draws from international human rights law concepts and instead embrace the language of human security to refocus public and political attention on the need to secure dignity, equality and safety for the community. This article explores whether the language of human security, and the strategies identified by the United Nations Development Programme towards achieving human security, could create new opportunities for legislative reform in South Australia. It also considers the potential shortcomings of this approach, having regard to successful attempts to enact human rights legislation in other Australian states and territories.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"38 - 46"},"PeriodicalIF":0.7,"publicationDate":"2023-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47372484","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 : 2023-01-23DOI: 10.1177/1037969X221147745
Elizabeth Englezos
This article considers New South Wales Police's Suspect Target Management Plan (STMP) and its disparate impact on young and Indigenous offenders. The article re-casts analyses provided by the Youth Justice Coalition and the Law Enforcement Conduct Committee to demonstrate the impact of the STMP-II on five individual case studies. While algorithms are becoming increasingly common, this article highlights the risk when algorithms, our increased reliance on data and automation bias combine. As in the case of the STMP-II, the tendency to follow algorithmic outputs without review or critique is especially problematic when algorithms are used to inform decisions affecting individual freedoms and liberty.
{"title":"Policing by algorithm: NSW Police’s Suspect Target Management Plan","authors":"Elizabeth Englezos","doi":"10.1177/1037969X221147745","DOIUrl":"https://doi.org/10.1177/1037969X221147745","url":null,"abstract":"This article considers New South Wales Police's Suspect Target Management Plan (STMP) and its disparate impact on young and Indigenous offenders. The article re-casts analyses provided by the Youth Justice Coalition and the Law Enforcement Conduct Committee to demonstrate the impact of the STMP-II on five individual case studies. While algorithms are becoming increasingly common, this article highlights the risk when algorithms, our increased reliance on data and automation bias combine. As in the case of the STMP-II, the tendency to follow algorithmic outputs without review or critique is especially problematic when algorithms are used to inform decisions affecting individual freedoms and liberty.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"17 - 24"},"PeriodicalIF":0.7,"publicationDate":"2023-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48359049","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 : 2023-01-20DOI: 10.1177/1037969X221150135
Simon Katterl
Despite a series of education programs and initiatives, mental health stigma persists across the community. This is due, in part, to the law’s silence on whether mental health stigma should be considered vilification. This article analyses current Australian anti-discrimination and anti-vilification protections, finding that the latter needs enhancing to include protections against mental health vilification.
{"title":"Words that hurt: Why mental health stigma is often vilification, and requires legal protection","authors":"Simon Katterl","doi":"10.1177/1037969X221150135","DOIUrl":"https://doi.org/10.1177/1037969X221150135","url":null,"abstract":"Despite a series of education programs and initiatives, mental health stigma persists across the community. This is due, in part, to the law’s silence on whether mental health stigma should be considered vilification. This article analyses current Australian anti-discrimination and anti-vilification protections, finding that the latter needs enhancing to include protections against mental health vilification.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"47 - 54"},"PeriodicalIF":0.7,"publicationDate":"2023-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47227810","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 : 2023-01-08DOI: 10.1177/1037969X221150842
Stephen Tomsen, Tyrone Kirchengast
Much interest about the failure of New South Wales criminal justice in relation to anti-gay/anti-homosexual violence has centred on recent developments regarding the 1988 death of Scott Johnson, including the unexpected arrest and charging of an accused killer, Scott White. This article considers White’s 2022 conviction after a failed attempt to reverse a guilty plea, since successfully appealed, and judicial reflection on the nature of ‘hate’ as criminal motive under the Crimes (Sentencing Procedure) Act 1999 (NSW). The authors argue that while the likely new trial of White may alleviate community concern, the procedural history of the case indicates the emergence of troubling judicial discourse as to anti-homosexual violence, with mixed implications for the public understanding of victimisation in this and similar cases.
{"title":"The Scott Johnson Case: Prosecuting anti-homosexual violence in New South Wales","authors":"Stephen Tomsen, Tyrone Kirchengast","doi":"10.1177/1037969X221150842","DOIUrl":"https://doi.org/10.1177/1037969X221150842","url":null,"abstract":"Much interest about the failure of New South Wales criminal justice in relation to anti-gay/anti-homosexual violence has centred on recent developments regarding the 1988 death of Scott Johnson, including the unexpected arrest and charging of an accused killer, Scott White. This article considers White’s 2022 conviction after a failed attempt to reverse a guilty plea, since successfully appealed, and judicial reflection on the nature of ‘hate’ as criminal motive under the Crimes (Sentencing Procedure) Act 1999 (NSW). The authors argue that while the likely new trial of White may alleviate community concern, the procedural history of the case indicates the emergence of troubling judicial discourse as to anti-homosexual violence, with mixed implications for the public understanding of victimisation in this and similar cases.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"55 - 60"},"PeriodicalIF":0.7,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46592743","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 : 2022-11-24DOI: 10.1177/1037969X221141096
Elizabeth Harris
This article examines whether the Resale Royalty Right for Visual Artists Act 2009 (Cth) provides adequate protections for artists working with non-fungible tokens (NFTs). Focussing on Indigenous Australian artists and the context within which they work, the article assesses whether smart contracts embedded in NFTs provide more secure access to royalties for visual artists, as compared with the Act. The article then considers how the Act can be reformed to provide more comprehensive protections that meet the needs of Indigenous Australian artists working with NFTs.
{"title":"Mint, sell, repeat: Non-fungible tokens and resale royalties for Indigenous artists","authors":"Elizabeth Harris","doi":"10.1177/1037969X221141096","DOIUrl":"https://doi.org/10.1177/1037969X221141096","url":null,"abstract":"This article examines whether the Resale Royalty Right for Visual Artists Act 2009 (Cth) provides adequate protections for artists working with non-fungible tokens (NFTs). Focussing on Indigenous Australian artists and the context within which they work, the article assesses whether smart contracts embedded in NFTs provide more secure access to royalties for visual artists, as compared with the Act. The article then considers how the Act can be reformed to provide more comprehensive protections that meet the needs of Indigenous Australian artists working with NFTs.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"11 - 16"},"PeriodicalIF":0.7,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43941804","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 : 2022-11-21DOI: 10.1177/1037969X221136180
M. Kaye
This article explores how the economic impacts of violence can continue long after a relationship has ended and how the family law system is a generally unhelpful tool for financial recovery from abuse. Hurdles in the legal system such as the unavailability of legal aid and the absence of affordable legal representation, lack of legislative reforms in relation to property division in cases of violence, and difficulties in enforcing orders, compound experiences of violence and entrench poverty. Reforms to improve the family law property system for victims of violence are suggested.
{"title":"Family violence and family law property division: How can the system be improved?","authors":"M. Kaye","doi":"10.1177/1037969X221136180","DOIUrl":"https://doi.org/10.1177/1037969X221136180","url":null,"abstract":"This article explores how the economic impacts of violence can continue long after a relationship has ended and how the family law system is a generally unhelpful tool for financial recovery from abuse. Hurdles in the legal system such as the unavailability of legal aid and the absence of affordable legal representation, lack of legislative reforms in relation to property division in cases of violence, and difficulties in enforcing orders, compound experiences of violence and entrench poverty. Reforms to improve the family law property system for victims of violence are suggested.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"31 - 37"},"PeriodicalIF":0.7,"publicationDate":"2022-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46447747","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 : 2022-11-12DOI: 10.1177/1037969X221137756
Bal Kama
This article discusses the recent repeal of the death penalty in Papua New Guinea and examines some potential implications for considerations to decriminalise same-sex sexual activity and sex work in the country. It considers that, while the repeal of the death penalty was a significant milestone for human rights domestically and internationally, the dominance of Christian morals evident in propelling the repeal deepens the challenge for law reform on issues of moral bearing, most notably the decriminalisation of same-sex sexual activity and sex work. The article further analyses the political conditions to conclude that for those considering law reform, there may be better prospects through the Supreme Court by way of a constitutional validity challenge than through the Parliament.
{"title":"Same-sex sexual activity and sex work offences in Papua New Guinea: Implications from the repeal of the death penalty","authors":"Bal Kama","doi":"10.1177/1037969X221137756","DOIUrl":"https://doi.org/10.1177/1037969X221137756","url":null,"abstract":"This article discusses the recent repeal of the death penalty in Papua New Guinea and examines some potential implications for considerations to decriminalise same-sex sexual activity and sex work in the country. It considers that, while the repeal of the death penalty was a significant milestone for human rights domestically and internationally, the dominance of Christian morals evident in propelling the repeal deepens the challenge for law reform on issues of moral bearing, most notably the decriminalisation of same-sex sexual activity and sex work. The article further analyses the political conditions to conclude that for those considering law reform, there may be better prospects through the Supreme Court by way of a constitutional validity challenge than through the Parliament.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"61 - 66"},"PeriodicalIF":0.7,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44887869","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 : 2022-11-11DOI: 10.1177/1037969X221138603
Dominique Moritz, Mac Tuomi
The presumption of doli incapax is a legal safeguard for children who contravene the criminal law. Four distinct thresholds emerge from the application of doli incapax across the Australian jurisdictions: actual knowledge that the offending conduct was ‘seriously wrong’; actual knowledge that the offending conduct was ‘wrong’; capacity to know that the offending conduct should not occur; and capacity to know that the offending conduct was ‘seriously wrong’. This article explores differences in the four doli incapax thresholds and suggests a uniform approach to the presumption is required to correct the jurisdictional inconsistency.
{"title":"Four thresholds of doli incapax in Australia: Inconsistency or uniformity for children’s criminal responsibility?","authors":"Dominique Moritz, Mac Tuomi","doi":"10.1177/1037969X221138603","DOIUrl":"https://doi.org/10.1177/1037969X221138603","url":null,"abstract":"The presumption of doli incapax is a legal safeguard for children who contravene the criminal law. Four distinct thresholds emerge from the application of doli incapax across the Australian jurisdictions: actual knowledge that the offending conduct was ‘seriously wrong’; actual knowledge that the offending conduct was ‘wrong’; capacity to know that the offending conduct should not occur; and capacity to know that the offending conduct was ‘seriously wrong’. This article explores differences in the four doli incapax thresholds and suggests a uniform approach to the presumption is required to correct the jurisdictional inconsistency.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"25 - 30"},"PeriodicalIF":0.7,"publicationDate":"2022-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42192787","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 : 2022-11-08DOI: 10.1177/1037969x221135202
Anthony M. North
There are significant problems with how the justice system responds to sexual violence. This essay discusses some of the Victorian Law Reform Commission’s recent reform recommendations, focusing on affirmative consent. It considers the history of consent reform, beginning with the introduction some 30 years ago of a communicative consent model. It explains why further reform is needed and what affirmative consent is designed to achieve.
{"title":"Legislating consent in sexual relations: How significant is the move to affirmative consent?","authors":"Anthony M. North","doi":"10.1177/1037969x221135202","DOIUrl":"https://doi.org/10.1177/1037969x221135202","url":null,"abstract":"There are significant problems with how the justice system responds to sexual violence. This essay discusses some of the Victorian Law Reform Commission’s recent reform recommendations, focusing on affirmative consent. It considers the history of consent reform, beginning with the introduction some 30 years ago of a communicative consent model. It explains why further reform is needed and what affirmative consent is designed to achieve.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"5 - 10"},"PeriodicalIF":0.7,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49349584","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 : 2022-10-19DOI: 10.1177/1037969x221136429
Beachside reverie
While seemingly evocative of time and place, the image invoked by artist Christopher McVinish’s ‘Fish n chips’ could be anywhere, at any time. East coast, west coast, ’50s or noughties – but, above all, it’s a reminder of a quintessential Australian experience. Succumb to the tang of seaweed in the air, gritty sand against rubber thongs, seagulls screeching, and crashing, lapping waves encroaching. Remember the slow burn of hot, fat, salty chips on fingers and lips as the beachside fish ‘n’ chip kiosk converted familiar sights and sounds into something both tangible and delicious. Sadly, the recent impetus to make a sea-change has meant many such fish shops have been lost, superseded by faceless, soulless apartment blocks built to house nostalgic Australians and their dreams of a beachside idyll. In describing his work, McVinish explains that, although the actual setting is fictitious, ‘it embodies a period of time when life was less hectic and issues such as climate change were yet to make headlines around the world.’ ‘The couple on the bench look seaward, safe in the belief that their world will continue on unchanged,’ he adds. ‘I have drawn on the past as well as the present in my quest to find meaning in the commonplace,’ says McVinish. ‘I intend... to provoke a narrative in the imagination of the viewer and in doing so enable the viewer to exist temporarily in someone else’s world – as if suddenly transported to a place where other lives exist and time has been suspended.’ The Brisbane-born artist’s work is represented in Australian public and university collections and held in numerous private collections both in Australia and internationally. He has held more than 30 Australian solo exhibitions and participated in numerous other exhibitions nationwide, as well as in Singapore, Florida and California.
艺术家克里斯托弗·麦克维尼什（Christopher McVinish）的《炸鱼薯条》（Fish n chips）所描绘的图像似乎唤起了人们对时间和地点的回忆，但它可能在任何地方、任何时间。东海岸，西海岸，50年代或90年代——但最重要的是，这提醒了人们一种典型的澳大利亚经历。空气中弥漫着海藻的味道，砂砾紧贴着橡胶皮带，海鸥尖叫着，拍打着海浪。还记得当海滨的炸鱼薯条摊把熟悉的景象和声音变成有形而美味的东西时，热的、肥的、咸的薯条在手指和嘴唇上慢慢燃烧的情景吗。可悲的是，最近做出巨大改变的动力意味着许多这样的鱼店已经消失，取而代之的是为容纳怀旧的澳大利亚人和他们的海滨田园梦而建造的无脸、无灵魂的公寓楼。在描述自己的作品时，McVinish解释说，尽管实际场景是虚构的，但“它体现了一段时间，当时生活不那么繁忙，气候变化等问题还没有成为世界各地的头条新闻。”他补充道：“坐在长椅上的这对夫妇看起来很安全，因为他们相信他们的世界将继续保持不变。”McVinish说：“我既借鉴了过去，也借鉴了现在，试图在平凡中找到意义。”我打算。。。在观众的想象中激发叙事，使观众能够暂时存在于他人的世界中——就好像突然被带到了一个其他生命存在、时间被暂停的地方。”这位出生于布里斯班的艺术家的作品被澳大利亚公共和大学收藏，并在澳大利亚和国际上被许多私人收藏。他在澳大利亚举办了30多个个个展，并在全国以及新加坡、佛罗里达州和加利福尼亚州参加了许多其他展览。
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