Pub Date : 2023-08-30DOI: 10.1177/1037969x231199504
Bill Swannie
The International Covenant on Civil and Political Rights (ICCPR), together with its Optional Protocol, enables individuals to allege a violation of their rights by submitting a ‘communication’ to a committee of independent experts nominated to monitor compliance with the ICCPR. This procedure may result in a finding that the State Party has violated the ICCPR, and consequent changes to law and policy which can benefit individuals and groups. However, the procedure has serious flaws, including long delays in making findings, and difficulties concerning enforcement.
{"title":"Individual communications: Can they provide effective redress for human rights violations?","authors":"Bill Swannie","doi":"10.1177/1037969x231199504","DOIUrl":"https://doi.org/10.1177/1037969x231199504","url":null,"abstract":"The International Covenant on Civil and Political Rights (ICCPR), together with its Optional Protocol, enables individuals to allege a violation of their rights by submitting a ‘communication’ to a committee of independent experts nominated to monitor compliance with the ICCPR. This procedure may result in a finding that the State Party has violated the ICCPR, and consequent changes to law and policy which can benefit individuals and groups. However, the procedure has serious flaws, including long delays in making findings, and difficulties concerning enforcement.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47852002","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 : 2023-08-23DOI: 10.1177/1037969X231197852
Hamish McLachlan, Neil Williams
I do not think of myself as a cynical person, but I have lost count of the number of times I have told my students that Australian law does not adequately protect human rights. Unlike every other democratic nation in the world, Australia does not possess a national human rights Act or constitutional Bill of Rights. Nevertheless, while this may be a disappointment to me andmany other Australians, it is not the whole story. As Lucy Geddes and Hamish McLachlan, two practising human rights lawyers, ably demonstrate, the inhospitable climate of human rights protection in Australian law has not prevented important green shoots. In 50 Human Rights Cases that Changed Australia, Geddes and McLachlan identify, extract, and summarise some of the most significant human rights cases in Australia. Their outline and analysis are clear and simple to follow. The breadth of cases and areas of law covered is comprehensive, including (among others) decisions on the rights of First Nations peoples, women, children, asylum seekers, prisoners, and democracy more broadly. Although largely focused on civil and political rights, Geddes and McLachlan do include two cases on the right to a clean, healthy and sustainable environment. As the authors note, the increasing manifestation of climate change impacts means that this area of law is ripe for further attention. The book joins a growing series of student-focused titles from Federation Press, like Leading Cases in Australian Law and Leading Cases in Contract Law, which provide short and sharp summaries of key decisions with some accompanying analysis. While aimed at law students, these books offer much to legal professionals. I must admit (with some embarrassment) that several of the human rights cases that ‘changed Australia’, collected by Geddes and McLachlan, had faded from my memory (or perhaps had passed me by in the first place). It was pleasing to be reacquainted with them and reminded of the capacity of Australian law to realise positive outcomes for individuals and communities. Even so, it is striking that many of the cases considered do not engage with or consider international human rights law or, indeed, the human rights that do exist within Australian law. The barren nature of rights protection in this country has required litigants seeking a remedy to dress their claims in a different outfit, such as administrative law or the common law. The cases collected in this book reveal that this strategy can and does work. However, it is not sufficient for systemic and widespread protection.While common law principles, such as the principle of legality, play an important role in rights protection, they can only stretch so far. Clear statutory language can displace and abrogate common law rights and patch up pyrrhic administrative law victories. Several of the cases identified in the book reveal this tension. John Koowarta may have secured a groundbreaking win against the Bjelke-Petersen government in 1982, but it too
{"title":"Law & Culture","authors":"Hamish McLachlan, Neil Williams","doi":"10.1177/1037969X231197852","DOIUrl":"https://doi.org/10.1177/1037969X231197852","url":null,"abstract":"I do not think of myself as a cynical person, but I have lost count of the number of times I have told my students that Australian law does not adequately protect human rights. Unlike every other democratic nation in the world, Australia does not possess a national human rights Act or constitutional Bill of Rights. Nevertheless, while this may be a disappointment to me andmany other Australians, it is not the whole story. As Lucy Geddes and Hamish McLachlan, two practising human rights lawyers, ably demonstrate, the inhospitable climate of human rights protection in Australian law has not prevented important green shoots. In 50 Human Rights Cases that Changed Australia, Geddes and McLachlan identify, extract, and summarise some of the most significant human rights cases in Australia. Their outline and analysis are clear and simple to follow. The breadth of cases and areas of law covered is comprehensive, including (among others) decisions on the rights of First Nations peoples, women, children, asylum seekers, prisoners, and democracy more broadly. Although largely focused on civil and political rights, Geddes and McLachlan do include two cases on the right to a clean, healthy and sustainable environment. As the authors note, the increasing manifestation of climate change impacts means that this area of law is ripe for further attention. The book joins a growing series of student-focused titles from Federation Press, like Leading Cases in Australian Law and Leading Cases in Contract Law, which provide short and sharp summaries of key decisions with some accompanying analysis. While aimed at law students, these books offer much to legal professionals. I must admit (with some embarrassment) that several of the human rights cases that ‘changed Australia’, collected by Geddes and McLachlan, had faded from my memory (or perhaps had passed me by in the first place). It was pleasing to be reacquainted with them and reminded of the capacity of Australian law to realise positive outcomes for individuals and communities. Even so, it is striking that many of the cases considered do not engage with or consider international human rights law or, indeed, the human rights that do exist within Australian law. The barren nature of rights protection in this country has required litigants seeking a remedy to dress their claims in a different outfit, such as administrative law or the common law. The cases collected in this book reveal that this strategy can and does work. However, it is not sufficient for systemic and widespread protection.While common law principles, such as the principle of legality, play an important role in rights protection, they can only stretch so far. Clear statutory language can displace and abrogate common law rights and patch up pyrrhic administrative law victories. Several of the cases identified in the book reveal this tension. John Koowarta may have secured a groundbreaking win against the Bjelke-Petersen government in 1982, but it too","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"232 - 235"},"PeriodicalIF":0.7,"publicationDate":"2023-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44344486","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 : 2023-08-18DOI: 10.1177/1037969x231194415
A. Freiberg
{"title":"Parole populism and hard cases","authors":"A. Freiberg","doi":"10.1177/1037969x231194415","DOIUrl":"https://doi.org/10.1177/1037969x231194415","url":null,"abstract":"","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"157 - 158"},"PeriodicalIF":0.7,"publicationDate":"2023-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48189236","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 : 2023-08-13DOI: 10.1177/1037969X231196983
K. Race
This article reflects on the policing of sexual and gender minorities in New South Wales (NSW) in connection with Justin Ellis’ Policing Legitimacy: Social media, scandal and sexual citizenship. Ellis’ book approaches the scandal precipitated by the social media circulation of bystander footage of police assaulting a young gay man at the 2013 Sydney Gay and Lesbian Mardi Gras as a threshold case of ‘sousveillance’ – ‘watching from below’ – and investigates the disruption this practice can make to instituted relations between police, media and other organisations, and its significance for sexual citizenship.
{"title":"Public orders: The sex crimes of policing","authors":"K. Race","doi":"10.1177/1037969X231196983","DOIUrl":"https://doi.org/10.1177/1037969X231196983","url":null,"abstract":"This article reflects on the policing of sexual and gender minorities in New South Wales (NSW) in connection with Justin Ellis’ Policing Legitimacy: Social media, scandal and sexual citizenship. Ellis’ book approaches the scandal precipitated by the social media circulation of bystander footage of police assaulting a young gay man at the 2013 Sydney Gay and Lesbian Mardi Gras as a threshold case of ‘sousveillance’ – ‘watching from below’ – and investigates the disruption this practice can make to instituted relations between police, media and other organisations, and its significance for sexual citizenship.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"225 - 229"},"PeriodicalIF":0.7,"publicationDate":"2023-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45958404","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 : 2023-08-09DOI: 10.1177/1037969x231193227
{"title":"Would a Juries Advisory Council improve deliberations on deliberators?","authors":"","doi":"10.1177/1037969x231193227","DOIUrl":"https://doi.org/10.1177/1037969x231193227","url":null,"abstract":"","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"230 - 230"},"PeriodicalIF":0.7,"publicationDate":"2023-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48503522","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 : 2023-07-31DOI: 10.1177/1037969X231192184
G. Byrne
In a high-profile trial, jury verdicts, jury questions, and the conduct of a so-called ‘detective juror’, may ignite public discussion and criticism of the role of juries in criminal trials. If, in the course of this discussion, a juror or jury is criticised, the voice of jurors is rarely heard in response. Through the examination of several high-profile cases, this article examines the role and limitations of a judge, Juries Commissioner, Attorney-General and academics in promoting informed public debate about jury trials. This article then discusses how a Juries Advisory Council could improve public discourse about juries and juror misconduct.
{"title":"Juries and the ‘detective juror’: Improving public discussion about juries and jurors","authors":"G. Byrne","doi":"10.1177/1037969X231192184","DOIUrl":"https://doi.org/10.1177/1037969X231192184","url":null,"abstract":"In a high-profile trial, jury verdicts, jury questions, and the conduct of a so-called ‘detective juror’, may ignite public discussion and criticism of the role of juries in criminal trials. If, in the course of this discussion, a juror or jury is criticised, the voice of jurors is rarely heard in response. Through the examination of several high-profile cases, this article examines the role and limitations of a judge, Juries Commissioner, Attorney-General and academics in promoting informed public debate about jury trials. This article then discusses how a Juries Advisory Council could improve public discourse about juries and juror misconduct.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"185 - 190"},"PeriodicalIF":0.7,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46113681","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 : 2023-07-25DOI: 10.1177/1037969X231190484
T. Oosthuizen, L. Howes, Robert O. White
This article considers the historical development of DNA-related forensic procedures legislation in Australian jurisdictions from a critical forensic studies lens. It shows that the original intent of such legislation was to balance society’s need for effective crime control against certain rights of the individual, such as privacy and bodily integrity, and the rights of a suspect to due process. The article documents how the initial legislative intent has been eroded. This has occurred because, in conjunction with the continued development of DNA techniques, the use of forensic DNA data has been routinised. The current legislation focuses too much on crime control, while consideration of the suspect's right to privacy, dignity and honour, as required by the initial legislation, has decreased in relative importance.
{"title":"Forensic DNA analysis and legislative provisions: Balancing rights in a time of scientific advancement","authors":"T. Oosthuizen, L. Howes, Robert O. White","doi":"10.1177/1037969X231190484","DOIUrl":"https://doi.org/10.1177/1037969X231190484","url":null,"abstract":"This article considers the historical development of DNA-related forensic procedures legislation in Australian jurisdictions from a critical forensic studies lens. It shows that the original intent of such legislation was to balance society’s need for effective crime control against certain rights of the individual, such as privacy and bodily integrity, and the rights of a suspect to due process. The article documents how the initial legislative intent has been eroded. This has occurred because, in conjunction with the continued development of DNA techniques, the use of forensic DNA data has been routinised. The current legislation focuses too much on crime control, while consideration of the suspect's right to privacy, dignity and honour, as required by the initial legislation, has decreased in relative importance.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"178 - 184"},"PeriodicalIF":0.7,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43653973","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 : 2023-07-24DOI: 10.1177/1037969X231190485
Guzyal Hill
Calls for federal harmonisation of legislation can result in a heated debate revolving around substantive law and an approach to achieve harmonisation. Some favour a bottom-up approach whereby the state and territory jurisdictions achieve uniform legislation without interference from the Commonwealth. Others favour a top-down approach whereby the Commonwealth achieves uniform legislation. This article argues that these two approaches create a false impression of instant harmonisation. Harmonisation of legislation cannot be treated as a short-term project in which uniformity has to be achieved by a specified deadline; rather, the exercise of harmonisation requires ongoing reforms based on consecutive waves. Therefore, policymakers, law reformers and legislative drafters must adopt a long-term view of harmonisation as an iterative process.
{"title":"Debunking the myth of instant harmonisation and embracing the iterative approach","authors":"Guzyal Hill","doi":"10.1177/1037969X231190485","DOIUrl":"https://doi.org/10.1177/1037969X231190485","url":null,"abstract":"Calls for federal harmonisation of legislation can result in a heated debate revolving around substantive law and an approach to achieve harmonisation. Some favour a bottom-up approach whereby the state and territory jurisdictions achieve uniform legislation without interference from the Commonwealth. Others favour a top-down approach whereby the Commonwealth achieves uniform legislation. This article argues that these two approaches create a false impression of instant harmonisation. Harmonisation of legislation cannot be treated as a short-term project in which uniformity has to be achieved by a specified deadline; rather, the exercise of harmonisation requires ongoing reforms based on consecutive waves. Therefore, policymakers, law reformers and legislative drafters must adopt a long-term view of harmonisation as an iterative process.","PeriodicalId":44595,"journal":{"name":"Alternative Law Journal","volume":"48 1","pages":"197 - 203"},"PeriodicalIF":0.7,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48062054","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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