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Abortion and Conscientious Objection: The New Battleground 堕胎和良心反对:新的战场
Pub Date : 2012-07-10 DOI: 10.2139/SSRN.2262139
A. O'Rourke, L. Crespigny, A. Pyman
This paper examines the vexed issue of conscientious objection and abortion. It begins by outlining the increasing claims to conscientious objection invoked by physicians in reproductive health services. After an examination of developments overseas, the paper turns to the acrimonious debate in Victoria concerning the conscience clause and the 'obligation to refer' contained in the Abortion Law Reform Act 2008 (Vic) ('ALRA'). This paper questions the interpretation by the Catholic Church that the clause breaches its right to freedom of conscience and freedom of religion. We argue that the unregulated use of conscientious objection impedes women's rights to access safe lawful medical procedures. As such, we contend that a physician's withdrawal from patient care on the basis of conscience must be limited to certain circumstances. The paper then examines international and national guidelines, international treaties and recommendations of treaty monitoring bodies, laws in other jurisdictions, and trends in case law. The purpose of this examination is to show that the conscientious objection clause and the 'obligation to refer' in ALRA is consistent with international practice and laws in other jurisdictions. Finally, the paper turns to the problematic interpretation of conscience and moral responsibility in the context of abortion. We believe that narrow interpretations of conscience must be challenged, in order to incorporate patients' rights to include the choice of abortion and other lawful treatments according to their conscience. We conclude that the conscientious objection provisions in ALRA have achieved the right balance and that there is no justifiable legal reason upon which opponents can challenge the law.
本文探讨了良心拒服兵役和堕胎这一棘手的问题。报告首先概述了医生在生殖健康服务中援引的越来越多的出于良心拒服兵役的主张。在考察了海外的发展之后,本文转向维多利亚州关于良心条款和《2008年堕胎法改革法》(维多利亚州)(“ALRA”)中所载的“提及义务”的激烈辩论。本文质疑天主教会的解释,即该条款侵犯了其信仰自由和宗教自由的权利。我们认为,不受管制地使用良心拒服兵役妨碍了妇女获得安全合法医疗程序的权利。因此,我们认为,医生基于良心而退出对病人的护理必须限制在某些情况下。然后,本文审查了国际和国家准则、国际条约和条约监督机构的建议、其他司法管辖区的法律以及判例法的趋势。这一审查的目的是为了表明ALRA中的良心拒服兵役条款和“提交义务”与国际惯例和其他司法管辖区的法律是一致的。最后,本文转向堕胎背景下良心和道德责任的问题解释。我们认为,必须挑战对良心的狭隘解释,以便纳入病人的权利,包括根据他们的良心选择堕胎和其他合法治疗。我们的结论是,ALRA中的良心拒服兵役条款达到了适当的平衡,反对者没有正当的法律理由可以质疑法律。
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引用次数: 9
Peer assisted learning, skills development and Generation Y : a case study of a first year undergraduate law unit 同伴辅助学习,技能发展和Y一代:一年级本科法律单元的案例研究
Pub Date : 2012-01-01 DOI: 10.26180/5DB80006ED9F8
T. Carver
The majority of current first year university students belong to Generation Y. Consequently, research suggests that, in order to more effectively engage them, their particular learning preferences should be acknowledged in the organisation of their learning environments and in the support provided. These preferences are refl ected in the Torts Student Peer Mentor Program (‘Program’), which, as part of the undergraduate law degree at the Queensland University of Technology (‘QUT’), utilises active learning, structured sessions and teamwork so as to supplement student understanding of the substantive law of Torts with the development of life-long skills. This article outlines the Program and its relevance to the learning styles and experiences of Generation Y fi rst year law students transitioning to university, in order to investigate student perceptions of its effectiveness — both generally and, more specifi cally, in terms of the Program’s capacity to assist students to develop academic and workrelated skills.
因此,研究表明,为了更有效地吸引他们,他们特殊的学习偏好应该在他们学习环境的组织和提供的支持中得到承认。这些偏好反映在侵权学生同伴导师计划(“计划”)中,该计划作为昆士兰科技大学(“QUT”)本科法律学位的一部分,利用主动学习,结构化会议和团队合作,通过发展终身技能来补充学生对侵权实体法的理解。本文概述了该计划及其与Y一代一年级法律学生过渡到大学的学习风格和经历的相关性,以调查学生对其有效性的看法-无论是一般还是更具体地说,就该计划帮助学生发展学术和工作相关技能的能力而言。
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引用次数: 5
Lawyers' Views of Decision-Making in Child Protection Matters: The Tension between Adversarialism and Collaborative Approaches 律师对儿童保护事务决策的看法:对抗与合作之间的张力
Pub Date : 2012-01-01 DOI: 10.26180/5DB8010FEE888
T. Walsh, H. Douglas
Outcomes in child protection cases impact substantially on children and families. Decisions in child protection matters must, therefore, be made with due caution and sensitivity. In order for the best outcomes to be achieved for children and their families, research suggests that decisions should be made collaboratively, and proceedings should be less adversarial in nature. At the same time procedural rules should be rigorously adhered to when decisions of a serious nature are being made, particularly where State interference in individuals.' lives has occurred or is being contemplated. Thus, there is a tension in the child protection context between the use of informal dispute resolution methods, and the need to safeguard the rights of children and families. This tension is explored in this paper, with particular reference to the principles of natural justice and the rules of evidence. The discussion is informed by empirical research undertaken with child protection lawyers in Queensland. The authors conclude with some suggestions for reform which reflect the ideal of collaboration without compromising the need for procedural fairness.
儿童保护案件的结果对儿童和家庭产生重大影响。因此,在作出有关儿童保护事项的决定时必须适当谨慎和敏感。为了给孩子和他们的家庭带来最好的结果,研究表明,决策应该是共同做出的,诉讼程序应该减少对抗性。同时,在作出严重性质的决定时,特别是在国家干预个人的情况下,应严格遵守程序规则。已经发生或正在考虑的死亡。因此,在儿童保护方面,使用非正式的争端解决方法与保障儿童和家庭权利的需要之间存在着紧张关系。本文特别从自然正义原则和证据规则两方面探讨了这种张力。对昆士兰州儿童保护律师进行的实证研究为讨论提供了依据。最后,作者提出了一些改革建议,这些建议既体现了合作的理想,又不损害程序公平的需要。
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引用次数: 4
'Trading or financial corporations' under section 51(xx) of the constitution: A multifactorial approach 《宪法》第51(xx)条规定的“贸易或金融公司”:多因素方法
Pub Date : 2012-01-01 DOI: 10.26180/5DB7FFA55D8A0
Christopher Tran
The Commonwealth has legislative power with respect to 'trading or financial corporations' under s 51(xx) of the Constitution. An important question is thus how to identify a trading or financial corporation. For around 30 years, the accepted doctrine has been that a court looks at a corporation's activities. This article examines the justifications for and application of this activities test in the High Court and in recent lower court decisions. It argues that the activities test should be replaced by a multifactorial approach. Such an approach is more transparent and informative, and also better reflects what the courts actually do when deciding cases in this area.
根据《宪法》第51(xx)条,联邦拥有关于“贸易或金融公司”的立法权。因此,一个重要的问题是如何确定贸易或金融公司。大约30年来,公认的原则一直是法院关注公司的活动。本文考察了高等法院和最近下级法院判决中这一行为检验的理由和适用。它认为活动测试应该被多因素方法所取代。这种方法更透明、更翔实,也更能反映法院在这方面的实际情况。
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引用次数: 1
Refusing to Process Voluminous Requests: Contrary to the Spirit of Freedom of Information? 拒绝处理大量请求:违背信息自由精神?
Pub Date : 2011-08-14 DOI: 10.26180/5DB7FFDD3DB16
Bruce Chen
The power of Victorian government agencies to refuse to process voluminous Freedom of Information (‘FOI’) requests is contained in s 25A(1) of the Freedom of Information Act 1982 (Vic). During the initial years of operation, it was claimed that this power would not be ‘antidemocratic’, ‘anti-open government’ or ‘otherwise contrary to the spirit of FOI’, given the existence of adequate safeguards and so long as agencies upheld their duties in practice. This article examines whether that has proven to be the case nearly two decades on from the provision’s introduction in 1993. It concludes that despite several conceptual difficulties, s 25A(1) has its rightful place in the FOI statutory regime.
维多利亚州政府机构拒绝处理大量信息自由(FOI)请求的权力载于《1982年信息自由法》(维多利亚州)第25A(1)条。在最初几年的运作中,它声称这种权力不会“反民主”,“反开放政府”或“与信息自由精神相反”,只要存在足够的保障措施,只要机构在实践中履行其职责。本文考察了自1993年该条款出台近20年来,情况是否已被证明是如此。它的结论是,尽管存在一些概念上的困难,但第25A(1)条在《信息自由法》的法定制度中有其应有的地位。
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引用次数: 0
Capacity in Victorian Guardianship Law: Options for Reform 维多利亚监护法中的行为能力:改革的选择
Pub Date : 2011-01-01 DOI: 10.26180/5DB7FDDA56E6D
J. Chesterman
The Victorian Guardianship and Administration Act 1986 (Vic) is currently under review by the Victorian Law Reform Commission. This article investigates the criteria that need to be established before a guardian can be appointed under the current Act, and draws on developments in other jurisdictions and in international law, as well as on expertise at Victoria's Office of the Public Advocate, to argue that these criteria should be amended. In particular, the article argues that the criteria should be more narrowly confined to those situations where an impairment renders an individual unable to make a specific decision, or when the failure to appoint a guardian to make a particular decision would place an individual at an unacceptable risk of harm.
《1986年维多利亚州监护和管理法》目前正在由维多利亚州法律改革委员会进行审查。本文调查了在现行法案下可以指定监护人之前需要建立的标准,并借鉴了其他司法管辖区和国际法的发展,以及维多利亚州公共辩护办公室的专业知识,认为这些标准应该修改。特别是,该条认为,标准应更狭义地局限于下列情况:残疾使个人无法作出具体决定,或未能指定监护人作出具体决定将使个人面临不可接受的伤害风险。
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引用次数: 5
Inside running: Internal complaints management practice and regulation in the legal profession 内部运行:法律行业内部投诉管理实践与规范
Pub Date : 2011-01-01 DOI: 10.26180/5DB7FE1FF3435
C. Parker, L. Haller
This paper examines what makes for good complaints management in legal practice, how law firms are faring at complaints management, and the role of a regulator in encouraging implementation of effective complaints management. The first part of the paper argues that it can be important from the point of view of clients, legal practices and regulators for legal practices to implement internal complaints management practices. The second part of the paper considers the potential possibilities and problems when regulators attempt to mandate internal complaints management by legal practices. We examine a recent initiative by the Queensland regulator to ask lawyers to complete a survey on complaints management systems. We argue that this approach - of promoting awareness of, discussion about, and commitment to good complaints management inside legal practices, but without mandating any particular system - is a promising model that other jurisdictions should consider closely. The third part of the paper examines what good complaints management involves in principle, and the perceptions, attitudes and practices of legal and non-legal staff in relation to complaints management, using the results from the Queensland survey.
本文探讨了在法律实践中是什么促成了良好的投诉管理,律师事务所如何进行投诉管理,以及监管机构在鼓励实施有效投诉管理方面的作用。本文的第一部分认为,从客户、法律实践和监管机构的角度来看,法律实践实施内部投诉管理实践是很重要的。论文的第二部分考虑了潜在的可能性和问题,当监管机构试图通过法律实践强制内部投诉管理。我们研究了昆士兰州监管机构最近的一项倡议,要求律师完成一项关于投诉管理系统的调查。我们认为,这种方法——在法律实践中促进对良好投诉管理的认识、讨论和承诺,但不强制规定任何特定的制度——是一种有前途的模式,值得其他司法管辖区密切考虑。论文的第三部分考察了良好的投诉管理涉及的原则,以及法律和非法律人员在投诉管理方面的看法,态度和做法,使用昆士兰州调查的结果。
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引用次数: 4
Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices 在传统环境下新评判方法的机遇:态度、技能和实践
Pub Date : 2011-01-01 DOI: 10.26180/5DB7FE5760A8F
K. Mack, S. Anleu
In Australia, magistrates and their courts have undertaken steps to make the disposition of cases more appropriate and more sensitive to the varied needs of defendants. One development is more engaged approaches to judging, which entails direct judicial interaction with court users, requiring judicial communication skills and perhaps greater emotional capacities such as empathy. Careful analysis of empirical evidence of judicial attitudes and practices in court identifies important links between conventional judging values, skills and actions and some elements of the newer forms of judging. This research identifies magistrates’ commitment to core judicial values such as impartiality, their views about skills and practices associated with more engaged judging, such as listening and empathy and their orientation to the social value of their work. The article then examines in-court behaviours, including the demeanours magistrates display towards defendants and the circumstances in which they look at and speak directly to defendants. The findings suggest apparent tensions between legitimacy based on a conventional judicial role in an adversary process and the legitimacy of more engaged, active judging. This research finds ways in which values and practices of less-adversarial judging can be incorporated within a relatively conventional understanding and performance of the judicial role.
在澳大利亚,地方法官及其法院已采取步骤,使案件的处理更适当,更顾及被告的各种需要。一种发展是更加参与的审判方法,这需要与法院用户进行直接的司法互动,需要司法沟通技巧,也许还需要更大的情感能力,如同理心。对法庭上司法态度和做法的经验证据进行仔细分析,可以确定传统的审判价值观、技能和行动与较新的审判形式的一些要素之间的重要联系。这项研究确定了地方法官对公正等核心司法价值观的承诺,他们对与更投入的审判相关的技能和实践的看法,如倾听和同情,以及他们对工作社会价值的取向。然后,文章研究了法庭上的行为,包括地方法官对被告的行为举止,以及他们直接看着被告并与之交谈的情况。研究结果表明,在对抗过程中基于传统司法角色的合法性与更积极参与的审判的合法性之间存在明显的紧张关系。本研究找到了将较少对抗性审判的价值观和实践纳入相对传统的司法角色理解和表现的方法。
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引用次数: 23
Five Reasons Why Judges Should Conduct Settlement Conferences 法官应该召开和解会议的五个理由
Pub Date : 2011-01-01 DOI: 10.2139/SSRN.2125727
Tania Sourdin
Judges conduct settlement conferences in civil disputes in many parts of the world. This is an important feature of judicial work in many jurisdictions. In Australia, the role of judges and their relationship with Alternative or Appropriate Dispute Resolution ('ADR') processes and, in particular, their role in judicial settlement conferencing processes conducted within the civil justice setting, has been the subject of some discussion in recent years. This article explores the evolving nature of the relationship between courts and ADR and more specifically comments on the nature of the judicial function and its relationship with ADR, before discussing the role of judges in relation to judicial settlement conferences. The reasons why judges should conduct settlement conferences are considered in the context of changing court and societal trends and objectives, the skills and attributes of judges, the objectives of the civil justice system and the important role that judges can play in this form of court integrated ADR.
法官在世界许多地方召开民事纠纷和解会议。这是许多司法管辖区司法工作的一个重要特点。在澳大利亚,法官的作用及其与替代性或适当争议解决(ADR)程序的关系,特别是他们在民事司法环境中进行的司法和解会议程序中的作用,近年来一直是一些讨论的主题。在讨论法官在司法和解会议中的作用之前,本文探讨了法院与ADR之间关系的演变性质,并更具体地评论了司法职能的性质及其与ADR的关系。法官应该召开和解会议的原因是在不断变化的法院和社会趋势和目标、法官的技能和属性、民事司法制度的目标以及法官在这种法院综合ADR形式中可以发挥的重要作用的背景下考虑的。
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引用次数: 4
The New South Wales youth drug and alcohol court program: A decade of development 新南威尔士州青少年毒品和酒精法庭项目:十年发展
Pub Date : 2011-01-01 DOI: 10.26180/5DB7FE8F069CD
S. Turner
In 2010, the NSW Youth Drug and Alcohol Court ('YDAC') Program celebrated its 10th year of continual operation, but despite a promising early evaluation of the Program, 1 it remains an indefinite pilot. In 2000, the year the YDAC program commenced as a pilot, Freiberg remarked that, '[o]n balance, Australia is right in experimenting with drug courts, providing that they are rigorously and carefully evaluated and carefully targeted at those who are most likely to benefit.' Notably, the 'NSW Drug Summit 1999 - Government Plan of Action', declared that '[a]s with the adult Drug Court program, the Youth Drug Court will be carefully evaluated.' However, to date there is only one published evaluation of the YDAC Program4 and very limited available information that describes or analyses its development and current structure and characteristics. This paper attempts to redress this gap in the literature somewhat, by providing a descriptive overview of the YDAC Program based on publicly available information about the program and the author's own experiences as the former manager of this program. This is then critically compared to research evidence about criminal justice programs and services that work to reduce young offenders' rates of recidivism and harmful substance misuse.
2010年,新南威尔士州青少年毒品和酒精法庭(" YDAC ")方案庆祝了其持续运作的第10个年头,但尽管对该方案进行了有希望的早期评估,但它仍然是一个无限期的试点项目。2000年,也就是YDAC项目作为试点开始的那一年,Freiberg评论说:“总的来说,澳大利亚在毒品法庭上进行试验是正确的,只要它们经过严格和仔细的评估,并谨慎地针对那些最有可能受益的人。”值得注意的是,“1999年新南威尔士州毒品首脑会议——政府行动计划”宣布,“与成人毒品法庭方案一样,将仔细评估青少年毒品法庭。”然而,到目前为止,只有一份关于YDAC项目的公开评价,而且描述或分析其发展及其当前结构和特征的可用信息非常有限。本文试图在一定程度上弥补文献中的这一空白,通过提供一个描述性的概述YDAC计划基于公开的信息和作者自己的经验,作为该计划的前任经理。然后将其与刑事司法项目和服务的研究证据进行严格比较,这些项目和服务旨在降低年轻罪犯的累犯率和有害物质滥用率。
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引用次数: 4
期刊
Monash University Law Review
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