Many people have placed Victoria on a pedestal because it was the first (and still only) state in Australia to have enacted human rights legislation. The Charter of Human Rights and Responsibilities 2006 (Vic) replicates many of the rights protected in the International Covenant on Civil and Political Rights, but notably fails to include art 24(2) which recognizes the right to birth registration. This omission is likely to have a disproportionately negative impact on Indigenous Victorians who, it has recently been discovered, are experiencing difficulties in their dealing with the Registrar of Births, Deaths and Marriages. Many Indigenous people are being denied basic rights of citizenship such as obtaining a driver's license or passport because they are unable to provide a copy of their birth certificate; the universally accepted proof of identity document. This article explores the problems faced by Indigenous Victorians in relation to birth registration and birth certificates, and analyses the extent to which the Charter of Human Rights and Responsibilities 2006 (Vic) can provide redress, notwithstanding the absence of a specific provision regarding the right to birth registration.
{"title":"A Right to Birth Registration in the Victorian Charter? - Seek and You Shall Not Find","authors":"A. Gargett, P. Gerber, M. Castan","doi":"10.2139/SSRN.2148827","DOIUrl":"https://doi.org/10.2139/SSRN.2148827","url":null,"abstract":"Many people have placed Victoria on a pedestal because it was the first (and still only) state in Australia to have enacted human rights legislation. The Charter of Human Rights and Responsibilities 2006 (Vic) replicates many of the rights protected in the International Covenant on Civil and Political Rights, but notably fails to include art 24(2) which recognizes the right to birth registration. This omission is likely to have a disproportionately negative impact on Indigenous Victorians who, it has recently been discovered, are experiencing difficulties in their dealing with the Registrar of Births, Deaths and Marriages. Many Indigenous people are being denied basic rights of citizenship such as obtaining a driver's license or passport because they are unable to provide a copy of their birth certificate; the universally accepted proof of identity document. This article explores the problems faced by Indigenous Victorians in relation to birth registration and birth certificates, and analyses the extent to which the Charter of Human Rights and Responsibilities 2006 (Vic) can provide redress, notwithstanding the absence of a specific provision regarding the right to birth registration.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"53 Pt 3 1","pages":"1-32"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84234302","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}
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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