Tyrone Kirchengast, Mary Iliadis, Michael O'connell
Meeting the needs of crime victims has emerged as a significant 21st century concern. In the Australian context, various commissions of inquiry have recently considered how the interests of victims may be maintained in a system based on adversarial exchange between the accused and the state. Consensus has emerged around the further development of existing charters of victims’ rights as the framework through which victims’ interests may be secured. Importantly, reform of existing charter rights and the office that administers such charters, the Office of Commissioner of Victims’ Rights, provides a means of addressing the recommendations of the various inquiries in a way that supports the participatory needs of victims, while maintaining the independence and integrity of criminal justice processes that provide due process to the accused. This article considers the ways in which the Office of Commissioner of Victims’ Rights may be further developed to provide for the needs of victims against the need to maintain the adversarial character of criminal justice, and due process rights of the accused.
{"title":"Development of the Office of Commissioner of Victims’ Rights as an Appropriate Response to Improving the Experiences of Victims in the Criminal Justice System: Integrity, Access and Justice for Victims of Crime","authors":"Tyrone Kirchengast, Mary Iliadis, Michael O'connell","doi":"10.26180/5D1327A9AB709","DOIUrl":"https://doi.org/10.26180/5D1327A9AB709","url":null,"abstract":"Meeting the needs of crime victims has emerged as a significant 21st century concern. In the Australian context, various commissions of inquiry have recently considered how the interests of victims may be maintained in a system based on adversarial exchange between the accused and the state. Consensus has emerged around the further development of existing charters of victims’ rights as the framework through which victims’ interests may be secured. Importantly, reform of existing charter rights and the office that administers such charters, the Office of Commissioner of Victims’ Rights, provides a means of addressing the recommendations of the various inquiries in a way that supports the participatory needs of victims, while maintaining the independence and integrity of criminal justice processes that provide due process to the accused. This article considers the ways in which the Office of Commissioner of Victims’ Rights may be further developed to provide for the needs of victims against the need to maintain the adversarial character of criminal justice, and due process rights of the accused.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"61 1","pages":"1-28"},"PeriodicalIF":0.0,"publicationDate":"2019-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79139244","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}
The ‘non-consensual sharing of intimate images’, more commonly known as ‘revenge pornography’, is a widespread issue, which can have devastating consequences for victims. However, it is an area where the law has only just started responding to technology, with legislative reforms in several states including South Australia, Victoria, New South Wales, the Australian Capital Territory and Western Australia. This paper provides an overview of relevant state and federal laws. Its main focus is to critique the most recent Commonwealth legislative reforms to regulate the non- consensual sharing of intimate images via a civil penalties regime. These reforms were made by the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018 (Cth), which amended the Enhancing Online Safety Act 2015 (Cth). This paper critiques the civil penalties regime from a sex equality perspective, and makes suggestions to improve the reforms so that victims are better protected and empowered.
{"title":"Regulating the Non-Consensual Sharing of Intimate Images ('Revenge Pornography') via a Civil Penalty Regime: A Sex Equality Analysis","authors":"Michelle Evans","doi":"10.26180/5DC678820944F","DOIUrl":"https://doi.org/10.26180/5DC678820944F","url":null,"abstract":"The ‘non-consensual sharing of intimate images’, more commonly known as ‘revenge pornography’, is a widespread issue, which can have devastating consequences for victims. However, it is an area where the law has only just started responding to technology, with legislative reforms in several states including South Australia, Victoria, New South Wales, the Australian Capital Territory and Western Australia. This paper provides an overview of relevant state and federal laws. Its main focus is to critique the most recent Commonwealth legislative reforms to regulate the non- consensual sharing of intimate images via a civil penalties regime. These reforms were made by the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018 (Cth), which amended the Enhancing Online Safety Act 2015 (Cth). This paper critiques the civil penalties regime from a sex equality perspective, and makes suggestions to improve the reforms so that victims are better protected and empowered.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"1 1","pages":"603-603"},"PeriodicalIF":0.0,"publicationDate":"2019-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83741851","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}
Despite a proclaimed commitment of the ‘developed West’ to international cooperation in the formation of durable solutions for refugees, a pattern of defensive policy designed to outsource obligations under the 1951 Refugee Convention has emerged. In this context, on 26 September 2014, Australia and Cambodia signed a ‘responsibility sharing’ agreement for the relocation to Cambodia of recognised refugees who originally sought protection in Australia and were removed to Nauru for processing. Whilst the Cambodia Agreement is of particular relevance in the Australasian region, this paper will analyse its nature and effect against the backdrop of the global trend of burden shifting and the implications of such an agreement for international law. This paper will examine whether the Cambodia Agreementt complies with the 1951 Refugee Convention through an analysis of the potential issues with fulfilment of the rights found therein. This requires the establishment of a continuum of jurisdiction pursuant to which it is concluded that transferees under the Cambodia Agreementt remain under the effective jurisdiction of Australia. This paper concludes that while a developing country may have the capacity to provide the requisite standard of protection to refugees under the 1951 Refugee Convention, in practice Cambodia fails to do so.
{"title":"Outsourcing obligations to developing nations: Australia's refugee resettlement agreement with Cambodia","authors":"Monique Failla","doi":"10.26180/5DB80801EF7CF","DOIUrl":"https://doi.org/10.26180/5DB80801EF7CF","url":null,"abstract":"Despite a proclaimed commitment of the ‘developed West’ to international cooperation in the formation of durable solutions for refugees, a pattern of defensive policy designed to outsource obligations under the 1951 Refugee Convention has emerged. In this context, on 26 September 2014, Australia and Cambodia signed a ‘responsibility sharing’ agreement for the relocation to Cambodia of recognised refugees who originally sought protection in Australia and were removed to Nauru for processing. Whilst the Cambodia Agreement is of particular relevance in the Australasian region, this paper will analyse its nature and effect against the backdrop of the global trend of burden shifting and the implications of such an agreement for international law. This paper will examine whether the Cambodia Agreementt complies with the 1951 Refugee Convention through an analysis of the potential issues with fulfilment of the rights found therein. This requires the establishment of a continuum of jurisdiction pursuant to which it is concluded that transferees under the Cambodia Agreementt remain under the effective jurisdiction of Australia. This paper concludes that while a developing country may have the capacity to provide the requisite standard of protection to refugees under the 1951 Refugee Convention, in practice Cambodia fails to do so.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"35 1","pages":"638"},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77416802","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}
Since the World Bank was established, its approach to human rights has evolved significantly. In the past, the Bank has been restricted by narrow interpretations of the legal framework within which it operates. The Bank's increasingly sophisticated understanding of development has led to the broadening of its mandate. Human rights are now generally considered to fall, to some extent at least, within the lawful scope of its operations. The door has been opened for the Bank to make a meaningful commitment to international human rights law. The Bank has not yet given a clear indication of how it will make this commitment. However, recent formal and informal policy statements suggest that the Bank's intention is to engage with human rights, but to 'do it quietly'. Such an approach constitutes an inadequate recognition of the established link between human rights and development. It may also fall below the standard required of the Bank under international human rights law. It is argued that a more explicit commitment to human rights law should be made through the inclusion of human rights standards in the Bank's operational policies and guidelines. Such a course would assist the Bank in its mission to alleviate poverty and would ensure greater respect for the human rights of those people in developing countries who are the intended beneficiaries of Bank projects.
{"title":"Doing it Quietly': The World Bank's Engagement with Human Rights","authors":"R. Ball","doi":"10.26180/5DB7FAD7E4698","DOIUrl":"https://doi.org/10.26180/5DB7FAD7E4698","url":null,"abstract":"Since the World Bank was established, its approach to human rights has evolved significantly. In the past, the Bank has been restricted by narrow interpretations of the legal framework within which it operates. The Bank's increasingly sophisticated understanding of development has led to the broadening of its mandate. Human rights are now generally considered to fall, to some extent at least, within the lawful scope of its operations. The door has been opened for the Bank to make a meaningful commitment to international human rights law. The Bank has not yet given a clear indication of how it will make this commitment. However, recent formal and informal policy statements suggest that the Bank's intention is to engage with human rights, but to 'do it quietly'. Such an approach constitutes an inadequate recognition of the established link between human rights and development. It may also fall below the standard required of the Bank under international human rights law. It is argued that a more explicit commitment to human rights law should be made through the inclusion of human rights standards in the Bank's operational policies and guidelines. Such a course would assist the Bank in its mission to alleviate poverty and would ensure greater respect for the human rights of those people in developing countries who are the intended beneficiaries of Bank projects.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"7 1","pages":"331-369"},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79120706","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}
Patent systems around the world are being pressed to recognise and protect challengingly new and exciting subject matter in order to keep pace with the rapid technological advancement of our age and the fact we are moving into the era of the ‘knowledge economy’. This rapid development and pressure to expand the bounds of what has traditionally been recognised as patentable subject matter has created uncertainty regarding what it is that the patent system is actually supposed to protect. Among other things, the patent system has had to contend with uncertainty surrounding claims to horticultural and agricultural methods, artificial living micro-organisms, methods of treating the human body, computer software and business methods. The contentious issue of the moment is one at whose heart lies the important distinction between what is a mere abstract idea and what is properly an invention deserving of the monopoly protection afforded by a patent. That question is whether purely intangible inventions, being methods that do not involve a physical aspect or effect or cause a physical transformation of matter, constitute patentable subject matter. This paper goes some way to addressing these uncertainties by considering how the Australian approach to the question can be informed by developments arising in the United States of America, and canvassing some of the possible lessons we in Australia might learn from the approaches taken thus far in the United States.
{"title":"The patentability of non-physical inventions : lessons from the United States","authors":"B. McEniery","doi":"10.26180/5DB7FBC59D755","DOIUrl":"https://doi.org/10.26180/5DB7FBC59D755","url":null,"abstract":"Patent systems around the world are being pressed to recognise and protect challengingly new and exciting subject matter in order to keep pace with the rapid technological advancement of our age and the fact we are moving into the era of the ‘knowledge economy’. This rapid development and pressure to expand the bounds of what has traditionally been recognised as patentable subject matter has created uncertainty regarding what it is that the patent system is actually supposed to protect. Among other things, the patent system has had to contend with uncertainty surrounding claims to horticultural and agricultural methods, artificial living micro-organisms, methods of treating the human body, computer software and business methods. The contentious issue of the moment is one at whose heart lies the important distinction between what is a mere abstract idea and what is properly an invention deserving of the monopoly protection afforded by a patent. That question is whether purely intangible inventions, being methods that do not involve a physical aspect or effect or cause a physical transformation of matter, constitute patentable subject matter. This paper goes some way to addressing these uncertainties by considering how the Australian approach to the question can be informed by developments arising in the United States of America, and canvassing some of the possible lessons we in Australia might learn from the approaches taken thus far in the United States.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"18 6 1","pages":"376"},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80807577","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}
The ability to recover damages for the costs of caring for, feeding, clothing and maintaining a ‘wrongful birth’ child has been debated worldwide by courts. Recent Australian cases have provided the opportunity to consider how damages for wrongful birth should be calculated in this jurisdiction.They have raised, but not clearly resolved, a number of issues relevant to the assessment of damages which might be usefully determined in future claims. This article begins by outlining the basic principles regulating damages assessment in wrongful conception and wrongful birth actions. It then examines the specific issues which fall for consideration when awarding compensation for the costs of child maintenance and care. This analysis considers Australian jurisprudence but also adopts a comparative approach which explores the treatment of such issues in the United Kingdom, with a view to informing their resolution in future Australian cases.
{"title":"Wrongful Birth Children and Assessing Damages for Costs of Care: Australian and British Jurisprudence Compared","authors":"T. Carver, Tina Cockburn, B. Madden","doi":"10.26180/5DB809C1004C1","DOIUrl":"https://doi.org/10.26180/5DB809C1004C1","url":null,"abstract":"The ability to recover damages for the costs of caring for, feeding, clothing and maintaining a ‘wrongful birth’ child has been debated worldwide by courts. Recent Australian cases have provided the opportunity to consider how damages for wrongful birth should be calculated in this jurisdiction.They have raised, but not clearly resolved, a number of issues relevant to the assessment of damages which might be usefully determined in future claims. This article begins by outlining the basic principles regulating damages assessment in wrongful conception and wrongful birth actions. It then examines the specific issues which fall for consideration when awarding compensation for the costs of child maintenance and care. This analysis considers Australian jurisprudence but also adopts a comparative approach which explores the treatment of such issues in the United Kingdom, with a view to informing their resolution in future Australian cases.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"13 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81950762","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}
Globalisation has seen regulation move beyond the state. International sports offer a strong example, with the evolution of an extensive system of global regulation and law. The creation of the Court of Arbitration for Sport, the development of the world anti-doping regime, and more recent efforts to battle corruption, are but a few of its more prominent elements. A significant feature of this system is the international partnering of private and government bodies. However, this partnership is not without its challenges. Its evolution reveals inherent tensions between international and national regulatory regimes, as international sporting organisations challenge the sovereignty of the nation-state. This article critically examines the evolving private-public partnership that is international sports regulation. In particular, it investigates two case studies: the International Olympic Committee and the Federation Internationale de Football Association. The intellectual lenses of public-private partnership and of power are adopted to analyse these cases. The social, cultural, political and economic importance of sport makes examining the evolution of international sports regulation an interesting and valuable exercise. Studying it also potentially offers valuable insights and lessons for the development of international regulatory systems and global law-making more broadly.
全球化已经使监管超越了国家。随着广泛的全球法规和法律体系的发展，国际体育运动提供了一个强有力的例子。国际体育仲裁法庭(Court of Arbitration for Sport)的成立、世界反兴奋剂制度的发展，以及最近打击腐败的努力，都是其中一些较为突出的因素。这一制度的一个重要特点是私营和政府机构的国际伙伴关系。然而，这种伙伴关系并非没有挑战。它的演变揭示了国际和国家监管制度之间固有的紧张关系，因为国际体育组织挑战民族国家的主权。本文批判性地考察了国际体育法规中不断发展的公私合作关系。它特别调查了两个案例:国际奥林匹克委员会和国际足联。本文采用公私伙伴关系和权力的知识视角来分析这些案例。体育的社会、文化、政治和经济重要性使得研究国际体育规则的演变成为一项有趣而有价值的运动。研究它还可能为国际监管体系的发展和更广泛的全球立法提供宝贵的见解和教训。
{"title":"International Sports Regulation: An Evolving Private-Public Partnership","authors":"E. Windholz, G. Hodge","doi":"10.26180/5e151a9c3490e","DOIUrl":"https://doi.org/10.26180/5e151a9c3490e","url":null,"abstract":"Globalisation has seen regulation move beyond the state. International sports offer a strong example, with the evolution of an extensive system of global regulation and law. The creation of the Court of Arbitration for Sport, the development of the world anti-doping regime, and more recent efforts to battle corruption, are but a few of its more prominent elements. A significant feature of this system is the international partnering of private and government bodies. However, this partnership is not without its challenges. Its evolution reveals inherent tensions between international and national regulatory regimes, as international sporting organisations challenge the sovereignty of the nation-state. This article critically examines the evolving private-public partnership that is international sports regulation. In particular, it investigates two case studies: the International Olympic Committee and the Federation Internationale de Football Association. The intellectual lenses of public-private partnership and of power are adopted to analyse these cases. The social, cultural, political and economic importance of sport makes examining the evolution of international sports regulation an interesting and valuable exercise. Studying it also potentially offers valuable insights and lessons for the development of international regulatory systems and global law-making more broadly.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"36 1","pages":"298-332"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90382547","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}
The statutory duty to make adjustments contained in the Disability Discrimination Act 1992 (Cth) is one mechanism to promote substantive equality in Australia. In theory, it requires duty-bearers to adjust existing practices to accomodate a person's needs. However, in Sklavos v Australasian College of Dermatologists, it was established that a duty-bearer is only required to make adjustments for persons with disabilities where the reason for the refusal to make adjustments is based on the disability itself. This removes the positive aspect of the duty from the requirement and it makes it almost impossible for a claimant to prove their claim. This is not the first time that an Australian appellate court has effectively removed the positive duty aspects of the duty to make adjustments. This article will consider the reasons why higher courts in Australia appear to struggle to give meaning to such a duty. It will outline the purpose of the duty to make adjustments, before considering the approach of Australian courts to the duty. It will conclude by considering the different approaches adopted to such a duty in comparable jurisdictions and suggest reforms to the current Australian approach.
1992年《残疾歧视法》(联邦)所载的作出调整的法定义务是促进澳大利亚实质性平等的一种机制。理论上，它要求责任承担者调整现有的做法以适应个人的需求。然而，在Sklavos诉Australasian College of Dermatologists一案中，规定只有当拒绝做出调整的理由是基于残疾本身时，才要求义务承担者为残疾人做出调整。这从要求中删除了责任的积极方面，使索赔人几乎不可能证明他们的索赔。这并不是澳大利亚上诉法院第一次有效地取消了该义务的积极义务方面进行调整。这篇文章将考虑为什么澳大利亚的高等法院似乎在努力赋予这种责任的意义。在考虑澳大利亚法院对该义务的做法之前，它将概述该义务进行调整的目的。最后，报告将审议在类似司法管辖区对这一义务采取的不同做法，并建议对澳大利亚目前的做法进行改革。
{"title":"Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading","authors":"Alice Taylor","doi":"10.26180/5E6C77949D4D0","DOIUrl":"https://doi.org/10.26180/5E6C77949D4D0","url":null,"abstract":"The statutory duty to make adjustments contained in the Disability Discrimination Act 1992 (Cth) is one mechanism to promote substantive equality in Australia. In theory, it requires duty-bearers to adjust existing practices to accomodate a person's needs. However, in Sklavos v Australasian College of Dermatologists, it was established that a duty-bearer is only required to make adjustments for persons with disabilities where the reason for the refusal to make adjustments is based on the disability itself. This removes the positive aspect of the duty from the requirement and it makes it almost impossible for a claimant to prove their claim. This is not the first time that an Australian appellate court has effectively removed the positive duty aspects of the duty to make adjustments. This article will consider the reasons why higher courts in Australia appear to struggle to give meaning to such a duty. It will outline the purpose of the duty to make adjustments, before considering the approach of Australian courts to the duty. It will conclude by considering the different approaches adopted to such a duty in comparable jurisdictions and suggest reforms to the current Australian approach.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"50 1","pages":"461-486"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73986888","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}
Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the Civil Procedure Act 2010 (Vic) as promoting mediation. As repeat players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.
{"title":"'Best for the Protagonists Involved': Views from Senior Tort Lawyers on the Value of Mediation in Victorian Medical Negligence Disputes","authors":"T. Popa, K. Douglas","doi":"10.26180/5E151D5CC2ECC","DOIUrl":"https://doi.org/10.26180/5E151D5CC2ECC","url":null,"abstract":"Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the Civil Procedure Act 2010 (Vic) as promoting mediation. As repeat players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"29 1","pages":"333-365"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89537667","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}
The complexity and diversity of unlawful killings — particularly those involving mentally impaired offenders — does not fit neatly across the binary distinction of offence/defence that structures criminal law. This is demonstrated in the Australian State of Victoria, where cognitively impaired homicide offenders who fail to meet the strict remit of the mental impairment defence have no (partial) defence or offence available to them which adequately captures their levels of criminal responsibility, moral agency and culpability. This makes the sentencing of such offenders not only particularly complex but means that the only stage in which both moral and legal culpability can be considered is in mitigation. This article argues that a progressive framework is needed to permit a small minority of (mentally impaired) homicide offenders to be simultaneously inculpated and (partially) exculpated. Accordingly, we propose introducing a model of diminished culpability manslaughter in Victoria, drawing from Loughnan’s seminal reconceptualisation of ‘diminished responsibility manslaughter’ as an offence-cum-defence, which renders the diminished accused differently liable. Informed by a study of all homicide cases (n=647) sentenced in Victoria between 1 January 2000 and 31 July 2017, we argue that this model would not revoke legal capacity and would instead enhance the legitimacy and coherence of criminal law procedures, allowing a wider range of more legitimate convictions and reflective sentencing dispositions.
{"title":"An Argument for Diminished Culpability Manslaughter: Responding to Gaps in Victorian Homicide Law","authors":"M. Ulbrick, A. Flynn, D. Tyson","doi":"10.26180/5DCA7AB6C7DBC","DOIUrl":"https://doi.org/10.26180/5DCA7AB6C7DBC","url":null,"abstract":"The complexity and diversity of unlawful killings — particularly those involving mentally impaired offenders — does not fit neatly across the binary distinction of offence/defence that structures criminal law. This is demonstrated in the Australian State of Victoria, where cognitively impaired homicide offenders who fail to meet the strict remit of the mental impairment defence have no (partial) defence or offence available to them which adequately captures their levels of criminal responsibility, moral agency and culpability. This makes the sentencing of such offenders not only particularly complex but means that the only stage in which both moral and legal culpability can be considered is in mitigation. This article argues that a progressive framework is needed to permit a small minority of (mentally impaired) homicide offenders to be simultaneously inculpated and (partially) exculpated. Accordingly, we propose introducing a model of diminished culpability manslaughter in Victoria, drawing from Loughnan’s seminal reconceptualisation of ‘diminished responsibility manslaughter’ as an offence-cum-defence, which renders the diminished accused differently liable. Informed by a study of all homicide cases (n=647) sentenced in Victoria between 1 January 2000 and 31 July 2017, we argue that this model would not revoke legal capacity and would instead enhance the legitimacy and coherence of criminal law procedures, allowing a wider range of more legitimate convictions and reflective sentencing dispositions.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"130 1","pages":"201-231"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75315211","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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