ERA Law Peer Reviewed Papers and Journal Articles

A Human Rights Act for Australia

The Hon David K. Malcolm — Wed, 07 Apr 2010 18:21:12 PDT

It is a matter of considerable regret that in 2001 the renewed calls for a bill of rights to be included in the Constitution were ignored.This paper covers the attempts that have been made since Federation to include a Bill of Rights in the Constitution and also outlines the arguments against a bill of rights including the existing protections of rights through the common law and parliamentary sovereignty. The paper submits that Australia is suffering as a result of going against the international trend to include a bill of rights in the Constitution.Australia’s failure to include a bill of rights in the Constitution is regrettable because Australia can ill afford to fall behind the rest of the developed world.

Development of Human Rights Throughout the Asia-Pacific Region

The Hon David K. Malcolm — Wed, 07 Apr 2010 17:50:20 PDT

Against the background of a general review of the number of points of convergence between Western concepts of human rights and influential Asian philosophies, the author reports on the effectiveness of national human rights institutions and endeavours to illustrate the problems encountered in the development of an Asia-Pacific regional human rights agreement. Key institutions such as the Asia- Pacific Forum and LAWASIA, which produce vital documents such as the Asian Human Rights Charter and the 1995 Beijing Statement of Principles of the Independence of the Judiciary, are scrutinised in the context of providing guidance in a global political climate where state sovereignty is constantly threatening to encroach upon basic individual human rights.

The Role of the Chief Justice

The Hon David K. Malcolm — Wed, 07 Apr 2010 00:36:39 PDT

Principles of judicial status and performance - independence, impartiality, fairness and competence - role and powers of the chief justice - leadership - authority and responsibility for the administration of justice - role as spokesperson for the judiciary.

A Small Denial of Natural Justice Is All Right Under Security of Payment Legislation!

Sarah Withnall et al. — Wed, 24 Jun 2009 18:10:55 PDT

Natural justice appears to be a term loosely used, and perhaps not all that well understood, by non-lawyers. This article attempts to provide a brief comment on the application of the rules of natural justice to assist non-lawyers arbitrators and adjudicators.

The Australian Construction Law Bulletin is published by LexisNexis Butterworths and may be accessed at: http://www.lexisnexis.com.au/aus/products/catalog/current_htm/CLB.asp

Property Rights in Human Corpses and Human Tissue: The position in Western Australia

Celia Hammond — Tue, 16 Jun 2009 00:01:53 PDT

The purpose of this article is to critically examine the current law in Western Australia with respect to the regulation of dead bodies and the tissue of those bodies.⁶ In so doing, two issues will be addressed:

1. Whether the law in Western Australia impliedly recognises the existence of property rights in corpses and body tissue despite the traditional judicial and legislative reluctance⁷ to expressly acknowledge such rights.

2. Whether the traditional reluctance to expressly recognise property rights in corpses and human tissue should be overcome so that the removal, disposal and usage of them can be regulated according to clear, consistent and established rules of property law.

Censoring Internet Pornography in Australia: A call for a civil rights approach to address pornographic harms

Michelle Evans — Thu, 04 Jun 2009 20:45:22 PDT

The internet makes pornography readily available, with the majority of Australians having internet access in their homes and businesses (1). Whilst pornography in general contributes to women's unequal position in society through the, use of gendered hierarchies of dominance and submission (2), much internet pornography is also violent in nature with many web sites depicting rape, torture and sexual abuse in a sexual context. The internet brings these violent depictions, which encourage and promote sexual violence, into women's homes like never before.

Pornography and Australia's Sex Discrimination Legislation: A call for a more effective approach to the regulation of sexual inequality.

Michelle Evans — Thu, 04 Jun 2009 20:14:48 PDT

In the case of Horne & Anor v Press Clough Joint Venture & Anor ('Horne'),' the Western Australian Equal Opportunity Commission recognised that the prolific display of pornography in a male dominated workplace amounted to sex discrimination and victimisation by the women's employer and trade union. The case is an example of how a sex discrimination approach to the regulation of pornographic harm allows women to take action aganst the discrimination pornography causes, while educating the public against discriminatory behaviour that, like pornography is gender based. This paper argues that these objectives can be further enhanced if the anti-pornography civil rights ordinances, drafted by American Law Professor Catharine A. MacKinnon and feminist writer Andrea Dworkin, are enacted into Australian law by way of amendment to existing sex discrimination legislation. As well as specifically recognising pornography as central to maintaining women's inequality in society, the ordinance provides a greater range of remedies to women harmed by pornography. These remedies allow women, such as the women in Horne, to obtain damages from those responsible for forcing pornography upon them, as well as their employers and trade unions. The ordinance also enables women to sue the makers and distributors of pornography, as well as to obtain injunctive relief to require the removal of pornography in the workplace.

'A Man’s Home Is His Castle' – or is it? How to take houses from people without convicting them of anything: the Criminal Property Confiscation Act 2000 (WA)

Ben Clarke — Thu, 04 Jun 2009 19:10:09 PDT

This article highlights the steady erosion of fundamental principles of justice under statutory-based civil confiscation regimes in Australia. It commences with a brief overview of the legal framework for the forfeiture of criminal assets under both conviction and non-conviction-based statutory confiscation schemes. Particular reference is made to the currentconfiscation legislation in Western Australia – the Criminal Property Confiscation Act 2000 (WA) (CPCA) (1). The confiscation triggers found in the CPCA are discussed, with particular attention being paid to the unexplained wealth provisions. Criticisms of the legislation are offered, and potential grounds for constitutional challenge are explored. Aspects of the CPCA requiring further research and analysis are identified, and suggested amendments to the Act are outlined. This article is by no means a comprehensive critique of what is a complex and as yet largely untested statutory confiscation regime.

The Application of Therapeutic Jurisprudence to the Work of Western Australian Courts

The Hon David K. Malcolm — Wed, 03 Jun 2009 23:25:56 PDT

This article contends that the adoption of a therapeutic approach clearly has a place in the sentencing regime. This involves the adoption of a multi-disciplinary approach which addresses not only the issue upon which an accused appears before the court, but also tackles the harder underlying issues at the root of the problem. Therapeutic jurisprudence regards the law as a social force, the goal of which is to produce therapeutic consequences for the victim and the offender, in particular, as well as society at large. Attention is drawn to the lack of appropriate facilities for dealing with offenders with drug and alcohol dependence issues which is contrary to the interests of the community. The establishment of the Drug Court in 2000 was a major advance, but therapeutic jurisprudence should involve all facets of the court system, particularly in regional areas of Western Australia, which are worthy of support not only by the government, but also the community at large.

Book Review: Kendall, C. N. (2004). Gay Male Pornography: An Issue of Sex Discrimination.Vancouver, Canada: UBC Press.

Michelle Evans — Wed, 03 Jun 2009 23:10:51 PDT

Speaking out against pornography, and in particular the individual and systemic harms it causes, is a difficult task. Firstly, there is the risk of being labelled a 'moral crusader', attempting to paternalistically censor freedom of speech and the sexual activities of consenting adults¹. Secondly, those who oppose pornography are accused of defying legal logic by arguing that pornography causes harm, which is alleged not tobe scientifically quantifiable ².

The task of speaking out against pornography is made even more difficult if one is speaking of the harms of gay male pornography, which is perceived by many gay men to be empowering³. This is because some argue that gay male pornography provides positive representations of gay male sexuality in a homophobic society - a society in which gay male identity is stifled and censored by compulsory heterosexuality⁴. Christopher Kendall, a gay male academic and long time opponent of the production and distribution of gay male pornography, has not been afraid to face these criticisms⁵. Kendall's latest book 'Gay Male Pornography: An Issue of Sex Discrimination' is no exception⁶.

The Juridical Status of Civilian Resistance to Occupation Under the Law of Nations and Contemporary International Law

Ben Clarke — Wed, 03 Jun 2009 21:44:21 PDT

The recent invasion and occupation of Iraq has focused attention on a number of areas of the law of war. The law of war is made up of jus ad bellum and jus in bello. Jus ad bellum are the norms governing the right to go to war (or to use contemporary lexicon, the right to resort to "armed conflict"). Jus in bello is the body of rules which apply during armed conflict. This paper explores an area of jus ad bellum that has been the subject of significant controversy: the question of whether local inhabitants may wage war against a foreign occupation. Resolution of this issue necessarily involves recourse to Jus in bello, including the norms of lawful belligerency (the requirements for combatant status) and the law of occupation (the body of international law which applies when territory is under the effective control of enemy forces.) 'The historical development of jus ad bellum and jus in bello had been influenced by 19th century traditions of war.Three such traditions were recently examined by Palestinian scholar Karma Nabulsi. Nabulsi's analysis of the impact of these traditions upon the development of the laws of war and the norms of belligerency is a significant and unique contribution to legal scholarship. Extensive reference is made to Nabulsi's erudition in an attempt to resolve two lingering questions:

1. Was civilian participation in armed resistance to enemy occupation of the homeland a recognised norm of 19th century customary law?

2. If so, has this norm survived the codification of the laws of war?

A New Regime for Judicial Review of Adjudication Determinations: Brodyn Pty Ltd t/as Time Cost and Quality v Davenport and Anor

Philip Evans — Wed, 03 Jun 2009 21:34:01 PDT

The resolution of construction disputes, especially those relating to payment, are notoriously time consuming and expensive. These disputes are often founded in, or exacerbated by misunderstandings between the parties as to their respective rights and obligations. There is also often a significant power imbalance between owner and contractor, or contractor and sub contractor. Prior to the introduction of the Construction Contracts Act 2004 (WA), ('WA Act') where there had been a dispute over payment for work done or materials supplied, the person who had done the work or supplied the materials was at a distinct disadvantage. They were faced with the prospect of a lengthy and time consuming task in attempting to obtain payment for work for which they were legitimately entitled. In order to redress these difficulties the Western Australian government passed the Construction Contracts Act 2004 which came into force on the 1st of January 2005. Similar legislation exists in New South Wales, Victoria and Queensland.

Addressing Juvenile Crime by Fixing the Dysfunctional Family

The Hon David K. Malcolm — Wed, 03 Jun 2009 20:43:49 PDT

My comments in this paper will be directed primarily to the role of the family in preventing crime and, in particular, the families of children who are at risk of offending. Our criminal justice system focuses on the criminal liability and punishment of the individual offender after an offence has been committed. The nature of relationships within an offender’s family, the structure of the family and the behaviour of an offender’s parents have a significant effect on the offender’s personal development and can be one of the primary causes of the offender commencing and pursuing a criminal ‘career’. Considerable work has been done with offenders in the fields of sociology, psychology and criminology in an attempt to identify risk factors or indicators that a child is at risk of commencing a criminal ‘career’. Much of that work traces the origins of crime back to the offender’s family environment.

An Ethics Survey of Australian Criminal Law Practitioners

Ben Clarke — Thu, 28 May 2009 19:34:14 PDT

The ethics of criminal lawyers is a largely unexplored area of legal scholarship. This article offers preliminary insights into the ethics of a cohort of 20 Australian criminal law practitioners. It critiques the survey responses of defence lawyers, prosecutors and judicial officers to a series of ethics questions. The survey results suggest that criminal law practitioners deal with a variety of ethical issues in practice; regard themselves as ethical professionals; are generally not prepared to compromise their professional integrity by violating the professional conduct rules to advance the interests of a client; consider senior criminal lawyers to have a professional duty to assist junior practitioners when called upon to offer advice on ethical issues; and strongly support the inclusion of a mandatory legal ethics subject in Australian law degrees. Criminal law practitioners’ perceptions of both their own professional behaviour and the adequacy of applicable professional conduct rules (1) in addressing ethical issues that arise in the practice of criminal law, are also explored in this article.

Confiscation of Unexplained Wealth: Western Australia's response to Organised Crime Gangs

Ben Clarke — Wed, 27 May 2009 22:06:10 PDT

This article examines a new non-conviction based method of confiscation of property suspected of being the proceeds of crime. The Western Australian Parliament has enacted a provision for the confiscation of 'unexplained wealth'. This mechanism is proving to be both effective and lucrative, in the pursuit of ill-gotten gains and the proceeds of organised crime activity.

Conflicts of Law

Lisa Jarvis — Tue, 19 May 2009 22:26:50 PDT

In Australia, financial agreements¹ which allow de facto or married couples to enter into some form of contract or agreement about how financial matters between them should be regulated, are available in all States, Territories and the Commonwealth of Australia.²

This article looks at the use and effectiveness of choice of law and jurisdiction clauses in financial agreements. A choice of law and jurisdiction clause typically states that the law governing the contract will be, for instance, the law of Western Australia, and that any dispute about the terms of the contract or enforcement of the contract, will be determined by the Courts in Western Australia. Does a clause such as this, actually mean that the law in Western Australia will be the law which applies to the agreement, or will it depend on the laws that are applicable in the forum in which one party to the agreement makes an application?

Beyond Subjectivism: Testing the Limits of Criminal Liability

Meredith Blake — Wed, 13 May 2009 23:00:49 PDT

A review of Andrew Simester and Robert Sullivan, Criminal Law Theory and Doctrine, second edition (revised May 2004) Hart publishing, 697 pages.

Ethics and the Criminal Defence Lawyer

Meredith Blake et al. — Thu, 07 May 2009 20:45:33 PDT

What are the duties of lawyers who defend criminal cases? What are their ethical obligations, and what ethical limits are, or should be, imposed on their conduct in this role? Should the defence lawyer operate simply as the client’s mouthpiece, or always as an officer of the court, or as a zealous protector of rights? These possibilities will be explored below, but it is immediately apparent that there will be conflicts and ethical dilemmas to confront. Thus Monroe Freedman has claimed that the criminal defence lawyer operates on the horns of a trilemma—to accumulate as much knowledge as possible about the case, to hold it in confidence, and yet never to mislead the court. He argues that the adversarial system provides the best means for “advances in individual rights and liberties”, and regards zealous advocacy as central to achieving this aim. His conclusion is that the lawyer’s duty to his or her client is paramount. Before that can be accepted, we need to consider whether the position of the criminal defence lawyer is special, what bearing the shape of the criminal justice system has upon the issue, whether the professional codes deal with the important issues adequately, and what the bearing of neutral partisanship is upon the questions to be discussed.