Remedying discrimination : the limits of the law and the need for a systemic approach

Very few discrimination complaints reach the courts each year. As with other civil litigation, the reasons for this include the cost of pursuing litigation and, particularly for complainants, the risk of losing or receiving less than the complainant could have negotiated prior.

Drawing on interviews with lawyers and non-legal advocates in Victoria and an analysis of successful cases in three jurisdictions, this article examines the remedy the court is likely to award in a successful discrimination complaint and considers the effect of this on the eradication of discrimination in society. A comprehensive examination of the remedies awarded in successful discrimination complaints in Victoria over a three year period shows that courts are most likely to order compensation at modest amounts and complainants are not regularly awarded their costs. A comparison with Queensland and the federal system reveals a similar experience. Even in those jurisdictions where wider remedies are available, courts rarely take the opportunity to make broad orders which could affect other similarly situated individuals or deter would-be respondents.

While it is necessary to remedy the complainant’s experience, it is also necessary to address broader, systemic discrimination and a compensation award cannot do this. Remedying discrimination with compensation is primarily a problem because it is reactive. Compensation does not address other instances of discrimination in society or achieve systemic change nor does it encourage compliance because the respondent is not required to take anticipatory action to prevent another complaint.

Based on the interpretive principles and extensive remedies provided in South Africa’s recent anti-discrimination and a study of remedies ordered by the South African Equality Courts and the Irish Equality Tribunal, the article proposes reforms to Australia’s anti-discrimination legislation to enable courts to make wider orders which target other instances of discrimination in addition to remedying the complainant’s experience.

Surveillance, criminal law and sovereighty

Seeking better understanding of the relationship between criminal law and surveillance demands investigating the evolving nature of sovereignty in an era of transnational digital information flows. While territorial boundaries determine the limits of police investigative and surveillance powers under the criminal law, several recent United States (US) examples demonstrate how new forms of extraterritorial surveillance that enable police to access online communications by foreign citizens and digital information stored in offshore locations are authorized by US courts. This discussion outlines how the processes of mutual legal assistance that ordinarily govern the search, seizure and transfer of digital evidence from one jurisdiction to another are increasingly considered to undermine police efficiency, even though they protect the due process rights afforded to crime suspects under established principles of sovereignty (Palmer and Warren 2013).

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

Holding the purse strings : the continuing evolution of human rights law and the potential liability of the finance industry for human rights abuses

While the responsibility of States and, in more recent times, corporations, has been thoroughly discussed in relation to human right~, a new stage of evolution may be emerging in relation to the liability of the financial backers of an enterprise that is accused of human rights abuses. This article considers the basis in international law for such emerging liability and examines some of the legal avenues used in recent domestic litigation against financial institutions. The article concludes by examining some of the relevant instruments of 'soft' international law and notes that although there is little in the way of concrete legislation or judicial precedent that would hold financial institutions responsible for the actions of those they invest in, the potential for the law to evolve in that direction is clear.

Removal of directors of public companies takes centre stage in Australia : an exploration of the corporate law and governance issues

Increasing attention is being given to the legal and governance issues relating to the removal of directors in Australian public companies. This has been due mainly to the difficulties experienced by the board of National Australia Bank in attempting to remove one of its fellow directors, and the subsequent development of public companies entering into so-called 'prenuptial agreements' with new directors, requiring that the director 'resign' if the board pass a vote of no-confidence in the director. In this article, the author revisits the area of director removal in Australian public companies for two reasons. The first reason, which covers the majority of the article, is to engage in a detailed analysis of whether the pre-nuptial agreements which some public companies have indicated that they support using to remove directors, are in fact enforceable under Australia's Corporations Act The second reason is to outline a law reform proposal to enable public companies to remove directors without requiring the vote of shareholders at a general meeting. The proposal involves providing Australia' corporate  regulator, the Australian Securities and Investments Commission (ASIC) with the power to grant relief from the statutory removal provisions to public companies, but in a way which balances the competing objectives of commercial efficiency and shareholder participation and, very importantly, encourages good corporate governance practices by companies in relation to the performance assessment  of directors.

It is in the interests of both shareholders and directors to agree on a set of ground rules for the effective supervision of companies that reconciles the rights of the owners to overall control with the much tougher demands on modern directors

Regulating history: Australian racial vilification law and history denial

Whether the law can make a reasonable assessment and determination on matters of the historical record - whether current Australian law equips judges and other relevant decision-makers with the analytic and prescriptive tools capable of identifying instances of racial vilification masquerading as bona fide historical scholarship.

Science in school and society

This article describes the insights generated from a series of focus groups conducted around significant areas of science research and development, with practitioners of science and technology, and policy and education people from industry and government. The participants in these groups had a great deal to say about how important the understandings and attitudes of members of the community were to their field of activity, as well as the way science is practiced in contemporary settings. On the basis of the evidence we argue that school science should take as its focus the development of understandings of, and attitudes to, science for citizens generally. We suggest that this means, for both future citizens and scientists, that practice in school science needs to change to better represent contemporary science practice.

Socratic teaching, the law and professional identity

This paper uses critical discourse analysis of interactions between law students and their lecturer to show how ‘Socratic’ teaching is used as a powerful technique to shape student identities. Data from a moot or simulated court in taxation law is analysed to show how students position themselves and are positioned as legal professionals. The paper argues that one student’s poor performance in the moot can be interpreted as resistance to attempts to influence her to adopt an uncongenial speaking position. This example supports the view that the difficulty law students have in learning to ‘think like a lawyer’ results not from a failure of skill but from the problems they have in assuming the speaking position of a legal professional. It is suggested that educators should consider helping students come to terms with the fragmented and contradictory subject positions associated with professionalisation.

Causation in law and medicine

Causation is an issue that is fundamental in both law and medicine, as well as the interface between the two disciplines. It is vital for the resolution of a great many disputes in court concerning personal injuries, medical negligence, criminal law and coronial issues, as well as in the provision of both diagnoses and treatment in medicine. This book offers a vital analysis of issues such as causation in law and medicine, issues of causal responsibility, agency and harm in criminal law, causation in forensic medicine, scientific and statistical approaches to causation, proof of cause, influence and effect, and causal responsibility in tort law

Competition law and policy : cases and materials

This book evaluates Australian competition law including the economics and politics that lay at its heart. This fully revised second edition draws together a comprehensive collection of material providing an excellent and up-to-date guide to Australian competition law.