Australia’s current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department of Home Affairs (DHA) under the Freedom of Information Act 1982 (Cth), which establishes the administrative process of ‘entry screening’. The article examines entry screening within the transnational framework governing Australia’s legal obligations towards individuals seeking international protection. While much scholarly and public attention has been directed towards policies such as offshore detention and interdiction at sea, the documents reveal that policies designed to deter ‘unauthorised maritime arrivals’ have similar manifestations — and consequences — for ‘unauthorised air arrivals’. The article then turns to an analysis of domestic law, arguing that the Migration Act 1958 (Cth) does not authorise the entry screening procedures and that the procedures contradict certain statutory guarantees and procedural fairness. The documents further indicate that DHA lacks accurate data on protection claims made in Australian airports. Finally, the article examines why the current practice of entry screening violates Australia’s international legal obligations of non-refoulement and non-penalisation.
{"title":"Assessing Refugee Protection Claims at Australian Airports: The Gap Between Law, Policy, and Practice","authors":"Regina Jeffries, Daniel Ghezelbash, Asher Hirsch","doi":"10.2139/SSRN.3746085","DOIUrl":"https://doi.org/10.2139/SSRN.3746085","url":null,"abstract":"Australia’s current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department of Home Affairs (DHA) under the Freedom of Information Act 1982 (Cth), which establishes the administrative process of ‘entry screening’. The article examines entry screening within the transnational framework governing Australia’s legal obligations towards individuals seeking international protection. While much scholarly and public attention has been directed towards policies such as offshore detention and interdiction at sea, the documents reveal that policies designed to deter ‘unauthorised maritime arrivals’ have similar manifestations — and consequences — for ‘unauthorised air arrivals’. The article then turns to an analysis of domestic law, arguing that the Migration Act 1958 (Cth) does not authorise the entry screening procedures and that the procedures contradict certain statutory guarantees and procedural fairness. The documents further indicate that DHA lacks accurate data on protection claims made in Australian airports. Finally, the article examines why the current practice of entry screening violates Australia’s international legal obligations of non-refoulement and non-penalisation.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"44 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46677783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Is a cause of action a castle? Statutory choses in action as property and s51(xxxi) of the Constitution","authors":"M. Duffy","doi":"10.2139/ssrn.3292575","DOIUrl":"https://doi.org/10.2139/ssrn.3292575","url":null,"abstract":"","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"4 1","pages":"1-54"},"PeriodicalIF":0.9,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68582643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many people, in recent years, have sought a decree of nullity on the basis that they have been tricked into marriage by fraudulent misrepresentations. These applications have routinely failed because the Family Court, applying ancient principles of canon law, has held that fraud is only relevant if it goes to the nature of the ceremony or the identity of the person, and not the motivation for entering the marriage. This article argues that many of these cases are wrongly decided. They have been treated as if they are all governed by the same principles, when important distinctions need to be made between different categories of case. The courts have failed to apply standard principles of statutory interpretation to the Marriage Act 1961 (Cth). Furthermore, the view that fraudulent misrepresentations can never provide the basis for a decree of nullity needs to be reconsidered as a consequence of the enactment of the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth). Parliament has now made it a criminal offence to force someone into marriage, and the definition of forced marriage includes deception. If such deception is treated as negating consent, it would be anomalous to hold that the marriage remains valid.
{"title":"Tricked into marriage","authors":"P. Parkinson","doi":"10.2139/ssrn.3286817","DOIUrl":"https://doi.org/10.2139/ssrn.3286817","url":null,"abstract":"Many people, in recent years, have sought a decree of nullity on the basis that they have been tricked into marriage by fraudulent misrepresentations. These applications have routinely failed because the Family Court, applying ancient principles of canon law, has held that fraud is only relevant if it goes to the nature of the ceremony or the identity of the person, and not the motivation for entering the marriage. This article argues that many of these cases are wrongly decided. They have been treated as if they are all governed by the same principles, when important distinctions need to be made between different categories of case. The courts have failed to apply standard principles of statutory interpretation to the Marriage Act 1961 (Cth). Furthermore, the view that fraudulent misrepresentations can never provide the basis for a decree of nullity needs to be reconsidered as a consequence of the enactment of the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth). Parliament has now made it a criminal offence to force someone into marriage, and the definition of forced marriage includes deception. If such deception is treated as negating consent, it would be anomalous to hold that the marriage remains valid.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"42 1","pages":"117-148"},"PeriodicalIF":0.9,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68581566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Protection of Stateless Persons in Australian Law: The Rationale for a Statelessness Determination Procedure","authors":"Michelle Foster, J. McAdam, Davina Wadley","doi":"10.2139/ssrn.3368661","DOIUrl":"https://doi.org/10.2139/ssrn.3368661","url":null,"abstract":"","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"40 1","pages":"401"},"PeriodicalIF":0.9,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68588206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nicolas Suzor, Bryony Seignior, Jennifer Singleton
This paper considers the legal options of victims of the non-consensual distribution of sexually explicit media - sometimes known as 'revenge porn'. The ALRC has called for Australia to introduce a new tort for serious invasions of privacy, and the Senate Legal and Constitutional Affairs Committee has recently reinforced the need for stronger penalties. A private members' Bill was introduced in the last Federal parliament, but has since lapsed. Each of these proposals focuses primarily on the wrongful acts of the perpetrator. As a deterrent and a strong signal of social opprobrium, they may be partially effective. They do not, however, consider in detail how victims may be able to seek some relief once material has already been posted online. In this paper, we consider explicitly what role internet intermediaries should play in responding to abuse online. The challenge in developing effective policy is not only to provide a remedy against the primary wrongdoer, but to impose some obligations on the platforms that host or enable access to harmful material. This is a difficult and complex issue, but only by engaging with this process are we likely to develop regulatory regimes that are likely to be reasonably effective.
{"title":"Non-consensual porn and the responsibilities of online intermediaries","authors":"Nicolas Suzor, Bryony Seignior, Jennifer Singleton","doi":"10.31228/osf.io/zx95e","DOIUrl":"https://doi.org/10.31228/osf.io/zx95e","url":null,"abstract":"This paper considers the legal options of victims of the non-consensual distribution of sexually explicit media - sometimes known as 'revenge porn'. The ALRC has called for Australia to introduce a new tort for serious invasions of privacy, and the Senate Legal and Constitutional Affairs Committee has recently reinforced the need for stronger penalties. A private members' Bill was introduced in the last Federal parliament, but has since lapsed. Each of these proposals focuses primarily on the wrongful acts of the perpetrator. As a deterrent and a strong signal of social opprobrium, they may be partially effective. They do not, however, consider in detail how victims may be able to seek some relief once material has already been posted online. In this paper, we consider explicitly what role internet intermediaries should play in responding to abuse online. The challenge in developing effective policy is not only to provide a remedy against the primary wrongdoer, but to impose some obligations on the platforms that host or enable access to harmful material. This is a difficult and complex issue, but only by engaging with this process are we likely to develop regulatory regimes that are likely to be reasonably effective.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2016-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite renewed global interest in statelessness over the past decade, stimulated in part by the 50th anniversary of the 1961 Convention on the Reduction of Statelessness in 2011 and the 60th anniversary of the 1954 Convention Relating to the Status of Stateless Persons in 2014, there has been virtually no legal or academic analysis of statelessness in Australia. This article, together with its companion piece, provides the first comprehensive analysis of the state of statelessness in Australian law. While the focus of the first article was on Australia’s compliance with obligations to identify and accord a secure legal status to stateless persons who seek protection in Australia, the focus of the present article is on Australia’s obligations with respect to the prevention and reduction of statelessness. Even though Australia does not have a large stateless population, however measured, there are nonetheless cohorts of people who do not have a nationality, may be at risk of losing their nationality, or may face difficulties acquiring Australian citizenship. This article undertakes the first comprehensive assessment of the extent to which Australian law complies with international legal obligations to prevent and reduce statelessness. In particular, it provides the first in-depth analysis of the ramifications of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) for
{"title":"The Prevention and Reduction of Statelessness in Australia: An Ongoing Challenge","authors":"Michelle Foster, J. McAdam, Davina Wadley","doi":"10.2139/ssrn.3367970","DOIUrl":"https://doi.org/10.2139/ssrn.3367970","url":null,"abstract":"Despite renewed global interest in statelessness over the past decade, stimulated in part by the 50th anniversary of the 1961 Convention on the Reduction of Statelessness in 2011 and the 60th anniversary of the 1954 Convention Relating to the Status of Stateless Persons in 2014, there has been virtually no legal or academic analysis of statelessness in Australia. This article, together with its companion piece, provides the first comprehensive analysis of the state of statelessness in Australian law. While the focus of the first article was on Australia’s compliance with obligations to identify and accord a secure legal status to stateless persons who seek protection in Australia, the focus of the present article is on Australia’s obligations with respect to the prevention and reduction of statelessness. Even though Australia does not have a large stateless population, however measured, there are nonetheless cohorts of people who do not have a nationality, may be at risk of losing their nationality, or may face difficulties acquiring Australian citizenship. This article undertakes the first comprehensive assessment of the extent to which Australian law complies with international legal obligations to prevent and reduce statelessness. In particular, it provides the first in-depth analysis of the ramifications of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) for","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"40 1","pages":"456"},"PeriodicalIF":0.9,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68587934","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.
{"title":"Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking","authors":"S. Dorsett, S. Mcveigh","doi":"10.2139/SSRN.2247382","DOIUrl":"https://doi.org/10.2139/SSRN.2247382","url":null,"abstract":"It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"36 1","pages":"470"},"PeriodicalIF":0.9,"publicationDate":"2013-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68029403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article builds on the author’s recent article ‘The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law.’ That article explained how recent Australian case law has seriously undermined copyright protection for works which are substantially shaped by software such that they lack a human author. The article argued that such works, if otherwise original, should not be denied copyright protection solely because they are computer-generated. This article thoroughly examines and evaluates three possible reform options: (1) deeming authorship of computer-generated works; (2) classifying computer-generated materials as subject matter other than works; and (3) sui generis protection. This article will also explore the sometimes difficult issues these options generate.
{"title":"Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories","authors":"Jani McCutcheon","doi":"10.2139/SSRN.2308187","DOIUrl":"https://doi.org/10.2139/SSRN.2308187","url":null,"abstract":"This article builds on the author’s recent article ‘The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law.’ That article explained how recent Australian case law has seriously undermined copyright protection for works which are substantially shaped by software such that they lack a human author. The article argued that such works, if otherwise original, should not be denied copyright protection solely because they are computer-generated. This article thoroughly examines and evaluates three possible reform options: (1) deeming authorship of computer-generated works; (2) classifying computer-generated materials as subject matter other than works; and (3) sui generis protection. This article will also explore the sometimes difficult issues these options generate.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"37 1","pages":"46-102"},"PeriodicalIF":0.9,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2308187","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68084714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The present comment considers an issue that has received little discussion in the common law world: namely whether fixation and authorship are parts of the same creative act in relation to literary, dramatic and musical works. The importance of the question is that, if authorship does not entail fixation, it should logically be possible for a person independent of the author to reduce the work to material form for copyright purposes. This would significantly expand the range of works protected by copyright and would extend protection to those works which have never been fixed by their authors. The focus of the comment is Australian law, but its discussion is comparative, with particular attention given to UK law.
{"title":"Authorship and fixation in copyright law: A comparative comment","authors":"E. Adeney","doi":"10.2139/SSRN.2856111","DOIUrl":"https://doi.org/10.2139/SSRN.2856111","url":null,"abstract":"The present comment considers an issue that has received little discussion in the common law world: namely whether fixation and authorship are parts of the same creative act in relation to literary, dramatic and musical works. The importance of the question is that, if authorship does not entail fixation, it should logically be possible for a person independent of the author to reduce the work to material form for copyright purposes. This would significantly expand the range of works protected by copyright and would extend protection to those works which have never been fixed by their authors. The focus of the comment is Australian law, but its discussion is comparative, with particular attention given to UK law.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"35 1","pages":"677-696"},"PeriodicalIF":0.9,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68392883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Examination of citations contained in the written record of judicial decisions provides useful insights into the evolution of the jurisprudence and policy formation of particular courts and of the judges who make significant contributions to those courts. It also sheds light on the process of judicial innovation and on communication patterns between courts. While there are several studies of the citation practices of courts in Canada and the United States, there are few such studies for Australian courts. The present paper examines the citation practice of the Supreme Court of Victoria, the highest court in Australia's second largest state, over the century 1905-2005 at ten year intervals. It employs the McCormick taxonomy of citations which distinguishes between consistency, hierarchical, coordinate and deference citations within the judicial system and tracks also citations to secondary authorities. Major findings of the study are that the length of judgments and the number of authorities cited by the Court have increased over time, and that consistency and hierarchical citations are the dominant form of allusion to prior authority. While these findings relate to only a single court, the Supreme Court of Victoria is an important intermediate appellate court within the Australian court hierarchy and, as such, the results are of relevance to those interested in the workings of other Australian state supreme courts and, indeed, intermediate appellate courts in general.
{"title":"A century of citation practice on the Supreme Court of Victoria","authors":"D. Fausten, I. Nielsen, R. Smyth","doi":"10.2139/SSRN.995060","DOIUrl":"https://doi.org/10.2139/SSRN.995060","url":null,"abstract":"Examination of citations contained in the written record of judicial decisions provides useful insights into the evolution of the jurisprudence and policy formation of particular courts and of the judges who make significant contributions to those courts. It also sheds light on the process of judicial innovation and on communication patterns between courts. While there are several studies of the citation practices of courts in Canada and the United States, there are few such studies for Australian courts. The present paper examines the citation practice of the Supreme Court of Victoria, the highest court in Australia's second largest state, over the century 1905-2005 at ten year intervals. It employs the McCormick taxonomy of citations which distinguishes between consistency, hierarchical, coordinate and deference citations within the judicial system and tracks also citations to secondary authorities. Major findings of the study are that the length of judgments and the number of authorities cited by the Court have increased over time, and that consistency and hierarchical citations are the dominant form of allusion to prior authority. While these findings relate to only a single court, the Supreme Court of Victoria is an important intermediate appellate court within the Australian court hierarchy and, as such, the results are of relevance to those interested in the workings of other Australian state supreme courts and, indeed, intermediate appellate courts in general.","PeriodicalId":46300,"journal":{"name":"Melbourne University Law Review","volume":"31 1","pages":"733-804"},"PeriodicalIF":0.9,"publicationDate":"2007-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.995060","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67932635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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