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.
{"title":"The New South Wales youth drug and alcohol court program: A decade of development","authors":"S. Turner","doi":"10.26180/5DB7FE8F069CD","DOIUrl":"https://doi.org/10.26180/5DB7FE8F069CD","url":null,"abstract":"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.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"36 1","pages":"280-297"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90037630","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 : 2010-08-24DOI: 10.4324/9781315254999-19
A. Stone
This comment traces the relationship between freedom of speech and the common law of defamation in India, Australia, South Africa, Canada, the United Kingdom and New Zealand. A central theme is the treatment of the iconic decision of the United States Supreme Court in New York Times v Sullivan. This comment shows that while the use of foreign precedent by judges in common law countries is widespread, the use of such precedent is, in the main, not uncritical. The reaction of common law courts to New York Times signals that these courts will usually reassess and exercise their own judgment in relation to even the most revered aspects of the American constitutional tradition.
{"title":"Freedom of Speech and Defamation: Developments in the Common Law World","authors":"A. Stone","doi":"10.4324/9781315254999-19","DOIUrl":"https://doi.org/10.4324/9781315254999-19","url":null,"abstract":"This comment traces the relationship between freedom of speech and the common law of defamation in India, Australia, South Africa, Canada, the United Kingdom and New Zealand. A central theme is the treatment of the iconic decision of the United States Supreme Court in New York Times v Sullivan. This comment shows that while the use of foreign precedent by judges in common law countries is widespread, the use of such precedent is, in the main, not uncritical. The reaction of common law courts to New York Times signals that these courts will usually reassess and exercise their own judgment in relation to even the most revered aspects of the American constitutional tradition.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"1 1","pages":"362"},"PeriodicalIF":0.0,"publicationDate":"2010-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84581962","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}
This paper reviews the outcomes of the United Nations ('UN') climate negotiations in Copenhagen 2009. By way of background, Part II of this paper commences with an overview of climate change, energy markets, and the international legal framework underpinning the ongoing annual climate change discussions by State Parties to the UNFCCC. Key aspects of the international climate change debate and outcomes of the COPI5/CMP5 are examined in Part III, including the Copenhagen Accord and other relevant decisions of State Parties to the COPI5/CMP5. While it is not possible to canvass all aspects of the ongoing climate change contretemps between State Parties, the major points of contention between developed and developing nations are set out in this part. The final part of this paper reviews Australia's position vis-a-vis climate change and rising national greenhouse gas emissions.
{"title":"Climate Change and the Copenhagen Legacy: Where to from Here?","authors":"Rowena Cantley-Smith","doi":"10.26180/5DB7FC9794401","DOIUrl":"https://doi.org/10.26180/5DB7FC9794401","url":null,"abstract":"This paper reviews the outcomes of the United Nations ('UN') climate negotiations in Copenhagen 2009. By way of background, Part II of this paper commences with an overview of climate change, energy markets, and the international legal framework underpinning the ongoing annual climate change discussions by State Parties to the UNFCCC. Key aspects of the international climate change debate and outcomes of the COPI5/CMP5 are examined in Part III, including the Copenhagen Accord and other relevant decisions of State Parties to the COPI5/CMP5. While it is not possible to canvass all aspects of the ongoing climate change contretemps between State Parties, the major points of contention between developed and developing nations are set out in this part. The final part of this paper reviews Australia's position vis-a-vis climate change and rising national greenhouse gas emissions.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"47 1","pages":"278-303"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90282538","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}
{"title":"Global warming after the Obama Accord","authors":"R. Garnaut","doi":"10.26180/5DB7FC6D907D9","DOIUrl":"https://doi.org/10.26180/5DB7FC6D907D9","url":null,"abstract":"","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"114 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76769434","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}
In 2005, the Victorian Government established the Human Rights Consultation Committee to undertake a community consultation about the state of rights in Victoria. The main recommendation of the Committee was the enactment of a domestic rights instrument for Victoria. The Victorian Government accepted the recommendation and, by mid-2006, the Victorian Parliament had enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter is based largely on the British Human Rights Act 1998 (UK) ('HRA'). This article explores some of the substantive difficulties with the adoption of the British model given the twin stated aims of the Victorian Government to preserve parliamentary sovereignty and to establish an educative inter-institutional dialogue. In particular, it explores how the mechanisms adopted to preserve parliamentary sovereignty - the s 32 judicial power of rights-compatible interpretation and the s 36 judicial power of declaration - may, in fact, undermine parliamentary sovereignty, threaten the educative dialogue amongst the differently placed, skilled and motivated arms of government, erode the justificatory and accountability aspects of rights instruments, and undermine the protection of rights.
{"title":"Parliamentary Sovereignty and Dialogue Under the Victorian Charter of Human Rights and Responsibilities: Drawing the Line between Judicial Interpretation and Judicial Law-Making","authors":"J. Debeljak","doi":"10.26180/5DB7F96B1DBAF","DOIUrl":"https://doi.org/10.26180/5DB7F96B1DBAF","url":null,"abstract":"In 2005, the Victorian Government established the Human Rights Consultation Committee to undertake a community consultation about the state of rights in Victoria. The main recommendation of the Committee was the enactment of a domestic rights instrument for Victoria. The Victorian Government accepted the recommendation and, by mid-2006, the Victorian Parliament had enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter is based largely on the British Human Rights Act 1998 (UK) ('HRA'). This article explores some of the substantive difficulties with the adoption of the British model given the twin stated aims of the Victorian Government to preserve parliamentary sovereignty and to establish an educative inter-institutional dialogue. In particular, it explores how the mechanisms adopted to preserve parliamentary sovereignty - the s 32 judicial power of rights-compatible interpretation and the s 36 judicial power of declaration - may, in fact, undermine parliamentary sovereignty, threaten the educative dialogue amongst the differently placed, skilled and motivated arms of government, erode the justificatory and accountability aspects of rights instruments, and undermine the protection of rights.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"30 1","pages":"9-71"},"PeriodicalIF":0.0,"publicationDate":"2009-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83088813","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}
{"title":"Gerry Simpson (ed), War Crimes Law, Volumes I and II (Ashgate, 2004)","authors":"B. McSherry","doi":"10.26180/5DB7F852A375A","DOIUrl":"https://doi.org/10.26180/5DB7F852A375A","url":null,"abstract":"","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"114 1","pages":"407-410"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73979521","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}
Drawing on the scholarship of legal ethicists and case studies of Australian legal practice, this article proposes a set of conceptual tools for assessing the ethics-in-practice and moral judgment of Australian lawyers. The article proposes that different approaches to legal ethical reasoning can be distinguished by the ways they answer the following questions: (1) to what extent should lawyers' ethics be determined by a special and particular social role that lawyers should play? (2) how should lawyer and client relate to one another in relation to ethical issues? Should one's view of morality prevail over the other? (3) what is the lawyer's obligation towards law and justice? (4) to what extent should lawyers in their daily work make sure they care for people and relationships? On this basis I identify four broad approaches to ethical reasoning in legal practice: adversarial advocate; responsible lawyer; moral activism; and ethics of care. A fifth approach, based solely on the law of professional responsibility and rules of professional conduct, is discussed and dismissed as an invalid ethical approach.
{"title":"A Critical Morality for Lawyers: Four Approaches to Lawyers' Ethics","authors":"C. Parker","doi":"10.26180/5DB7F6D64AB05","DOIUrl":"https://doi.org/10.26180/5DB7F6D64AB05","url":null,"abstract":"Drawing on the scholarship of legal ethicists and case studies of Australian legal practice, this article proposes a set of conceptual tools for assessing the ethics-in-practice and moral judgment of Australian lawyers. The article proposes that different approaches to legal ethical reasoning can be distinguished by the ways they answer the following questions: (1) to what extent should lawyers' ethics be determined by a special and particular social role that lawyers should play? (2) how should lawyer and client relate to one another in relation to ethical issues? Should one's view of morality prevail over the other? (3) what is the lawyer's obligation towards law and justice? (4) to what extent should lawyers in their daily work make sure they care for people and relationships? On this basis I identify four broad approaches to ethical reasoning in legal practice: adversarial advocate; responsible lawyer; moral activism; and ethics of care. A fifth approach, based solely on the law of professional responsibility and rules of professional conduct, is discussed and dismissed as an invalid ethical approach.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"1 1","pages":"49-74"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75588744","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 euthanasia debate has been re-ignited by the decision of the Dutch Parliament to legalise the practice. This will make the Netherlands the first nation in the world to legalise euthanasia. This paper explains the key aspects of the legislation and considers whether it provides a viable model for reform.
{"title":"The legalisation of euthanasia in the Netherlands: lessons to be learnt.","authors":"K Amarasekara, M Bagaric","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The euthanasia debate has been re-ignited by the decision of the Dutch Parliament to legalise the practice. This will make the Netherlands the first nation in the world to legalise euthanasia. This paper explains the key aspects of the legislation and considers whether it provides a viable model for reform.</p>","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"27 2","pages":"179-96"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25897783","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}
{"title":"Contemporary Australian abortion law: the description of a crime and the negation of a woman's right to abortion.","authors":"M J Rankin","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"27 2","pages":"229-52"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25868916","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}
Beginning with its momentous decision in Pavey & Matthews Pty Ltd v Paul,' the High Court has accepted that the concept of unjust enrichment underlies the law of restitution.2 That concept commonly is said to be comprised of four elements: (i) an enrichment to the defendant, (ii) received at the plaintiffs expense, (iii) acquired as the result of an unjust factor, (iv) in the absence of circumstances supporting a defence. Those elements are not analysed with equal regularity in the case law. Difficulties occasionally arise with respect to the first element, given the diverse nature of wealth and the relative novelty of the concept of unjust enrichment, and the courts have yet to determine conclusively which benefits count for the purposes of the law of restitution. 3 The third element is examined more frequently, indeed, in many instances, the existence or non-existence of a recognised unjust factor is the only contentious issue in a restitutionary action.4
{"title":"Mistaken payments return to the High Court: Commissioner of Revenue v. Royal Insurance","authors":"M. Mcinnes","doi":"10.7939/r38p5vq59","DOIUrl":"https://doi.org/10.7939/r38p5vq59","url":null,"abstract":"Beginning with its momentous decision in Pavey & Matthews Pty Ltd v Paul,' the High Court has accepted that the concept of unjust enrichment underlies the law of restitution.2 That concept commonly is said to be comprised of four elements: (i) an enrichment to the defendant, (ii) received at the plaintiffs expense, (iii) acquired as the result of an unjust factor, (iv) in the absence of circumstances supporting a defence. Those elements are not analysed with equal regularity in the case law. Difficulties occasionally arise with respect to the first element, given the diverse nature of wealth and the relative novelty of the concept of unjust enrichment, and the courts have yet to determine conclusively which benefits count for the purposes of the law of restitution. 3 The third element is examined more frequently, indeed, in many instances, the existence or non-existence of a recognised unjust factor is the only contentious issue in a restitutionary action.4","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"31 1","pages":"209"},"PeriodicalIF":0.0,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82672193","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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