Failed states and the rule of law

The last decade has seen an emerging consensus that the rule of law is critical in both domestic and international affairs. ‘Failed’ states generate important issues for both the rule of law and, importantly, for their intersection or interaction. A ‘failed’ state almost inevitably involves a breakdown of the domestic rule of law. When international intervention occurs, it raises concerns over substantive issues. Among these is the application of international law and international norms, including among other, the conventions and treaties, the responsibility to protect and protection of civilians. Where international missions seek to assist the people of ‘failed’ states in rebuilding their nations, establishing the rule of law is often the primary or initial pursuit. Any such international assistance/intervention is more effective if it is clearly subject to the rule of law and provides an exemplar/demonstration of how power should be exercised

Continuous and pedagogically sound assessment : A new economy of power relations in Australian Law schools

In recent decades, assessment practices within Australian law schools have moved from the overwhelming use of end-of-year closed-book examinations to an increase in the use of a wider range of techniques. This shift is often characterised as providing a ‘better’ learning environment for students, contributing more positively to their own ‘personal development’ within higher education, or, considered along the lines of critical legal thought, as ‘liberating’ them from the ‘conservatising’ and ‘indoctrinating’ effects of the power relations that operate in law schools. This paper seeks to render problematic such liberal-progressive narratives about these changes to law school assessment practices. It will do so by utilising the work of French historian and philosopher Michel Foucault on power, arguing that the current range of assessment techniques demonstrates a shift in the ‘economy’ of power relations within the law school. Rather than ‘liberating’ students from relations of power, these practices actually extend the power relations through which students are governed. This analysis is intended to inform legal education research and assessment practice by providing a far more nuanced conceptual framework than one that seeks to ‘free’ law students from these ‘repressive’ practices, or hopes to ‘objectively’ contribute to their ‘personal development’.

The rules of autogeddon : sex death and law in J G Ballard’s Crash

It was reported that the manuscript of Crash was returned to the publisher with a note reading ‘The author is beyond psychiatric help’. Ballard took the lay diagnosis as proof of complete artistic success. Crash conflates the Freudian tropes of libido and thanatos, overlaying these onto the twentieth century erotic icon, the car. Beyond mere incompetent adolescent copulatory fumblings in the back seat of the parental sedan or the clichéd phallic locomotor of the mid-life Ferrari, Ballard engages the full potentialities of the automobile as the locus and sine qua non of a perverse, though functional erotic. ‘Autoeroticism’ is transformed into automotive, traumatic or surgical paraphilia, driving Helmut Newton’s insipid photo-essays of BDSM and orthopædics into an entirely new dimension, dancing precisely where (but more crucially, because) the ‘body is bruised to pleasure soul’. The serendipity of quotidian accidental collisions is supplanted, in pursuit of the fetishised object, by contrived (though not simulated) recreations of iconographic celebrity deaths. Penetration remains as a guiding trope of sexuality, but it is confounded by a perversity of focus. Such an obsessive pursuit of this autoerotic-as-reality necessitates the rejection of the law of human sexual regulation, requiring the re-interpretation of what constitutes sex itself by looking beyond or through conventional sexuality into Ballard’s paraphiliac and nightmarish consensual Other. This Other allows for (if not demands) the tangled wreckage of a sportscar to function as a transformative sexual agent, creating, of woman, a being of ‘free and perverse sexuality, releasing within its dying chromium and leaking engine-parts, all the deviant possibilities of her sex’.

Under the carpet : the politics and trauma of patient harm

Few studies have investigated iatrogenic outcomes from the viewpoint of patient experience. To address this anomaly, the broad aim of this research is to explore the lived experience of patient harm. Patient harm is defined as major harm to the patient, either psychosocial or physical in nature, resulting from any aspect of health care. Utilising the method of Consensual Qualitative Research (CQR), in-depth interviews are conducted with twenty-four volunteer research participants who self-report having been severely harmed by an invasive medical procedure. A standardised measure of emotional distress, the Impact of Event Scale (IES), is additionally employed for purposes of triangulation. Thematic analysis of transcript data indicate numerous findings including: (i) difficulties regarding patients‘ prior understanding of risks involved with their medical procedure; (ii) the problematic response of the health system post-procedure; (iii) multiple adverse effects upon life functioning; (iv) limited recourse options for patients; and (v) the approach desired in terms of how patient harm should be systemically handled. In addition, IES results indicate a clinically significant level of distress in the sample as a whole. To discuss findings, a cross-disciplinary approach is adopted that draws upon sociology, medicine, medical anthropology, psychology, philosophy, history, ethics, law, and political theory. Furthermore, an overall explanatory framework is proposed in terms of the master themes of power and trauma. In terms of the theme of power, a postmodernist analysis explores the politics of patient harm, particularly the dynamics surrounding the politics of knowledge (e.g., notions of subjective versus objective knowledge, informed consent, and open disclosure). This analysis suggests that patient care is not the prime function of the health system, which appears more focussed upon serving the interests of those in the upper levels of its hierarchy. In terms of the master theme of trauma, current understandings of posttraumatic stress disorder (PTSD) are critiqued, and based on data from this research as well as the international literature, a new model of trauma is proposed. This model is based upon the principle of homeostasis observed in biology, whereby within every cell or organism a state of equilibrium is sought and maintained. The proposed model identifies several bio-psychosocial markers of trauma across its three main phases. These trauma markers include: (i) a profound sense of loss; (ii) a lack of perceived control; (iii) passive trauma processing responses; (iv) an identity crisis; (v) a quest to fully understand the trauma event; (vi) a need for social validation of the traumatic experience; and (vii) posttraumatic adaption with the possibility of positive change. To further explore the master themes of power and trauma, a natural group interview is carried out at a meeting of a patient support group for arachnoiditis. Observations at this meeting and members‘ stories in general support the homeostatic model of trauma, particularly the quest to find answers in the face of distressing experience, as well as the need for social recognition of that experience. In addition, the sociopolitical response to arachnoiditis highlights how public domains of knowledge are largely constructed and controlled by vested interests. Implications of the data overall are discussed in terms of a cultural revolution being needed in health care to position core values around a prime focus upon patients as human beings.

Human rights and environmental wrongs : achieving environmental justice through human rights law

The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

Borders, mobility and technologies of control

Territorial borders are taking on a new significance, the implications of which are relatively unexplored within the discipline of criminology. This book presents the first systematic attempt to develop a critical criminology of the border and offers a unique treatment of the impact of globalisation and mobility. It focuses on borders and the significance of the activities which take place on and around them. For many the border is an everyday reality, a space in which to live, a land necessary to cross. For states the border space increasingly requires protection and defence; is at the centre of state ideology and performance; is the site for investing significant political and material resources, and is ultimately ungovernable. Providing a wealth of case material from Australia, Europe and North America, it is for students, academics, and practitioners working in the areas of criminology, migration, human geography, international law and politics, globalisation, sociology and cultural anthropology.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.

Developing a transition pedagogy : intentional curriculum design in first and final year law programs

This chapter will first consider the rationale for a transition pedagogy for first and final year law students. It then discusses the elements of a transition pedagogy for both years, noting the synergies and differences between programs designed to assist transition into and out of a law degree. In doing so, the authors attempt to explore the extent to which the first year curriculum principles identified by Sally Kift under an Australian Learning and Teaching Council (ALTC) Senior Fellowship may also be applied to the final year university experience. During the course of the discussion, examples are drawn from universities and Law Schools in Australia and internationally which seek to address these imperatives...

Capacity-building workshops on the responsibility to protect (R2P) and the protection of civilians (POC) in armed conflict - Summary Report

In June 2011, a research project team from the Institute for Ethics, Governance and Law (IEGL), Queensland University of Technology, the United Nations University, and the Australian Government’s Asia Pacific Civil-Military Centre of Excellence (APCMCOE) held three Capacity-Building Workshops (the Workshops) on the Responsibility to Protect (R2P) and the Protection of Civilians (POC) in Armed Conflict in Manila, Kuala Lumpur, and Jakarta. The research project is funded by the Australian Responsibility to Protect Fund, with support from APCMCOE. Developments in Libya and Cote d’Ivoire and the actions of the United Nations Security Council have given new significance to the relationship between R2P and POC, providing impetus to the relevance and application of the POC principle recognised in numerous Security Council resolutions, and the R2P principle, which was recognised by the United Nations General Assembly in 2005 and, now, by the Security Council. The Workshops considered the relationship between R2P and POC. The project team presented the preliminary findings of their study and sought contributions and feedback from Workshop participants. Prior to the Workshops, members of the project team undertook interviews with UN offices and agencies, international organisations (IOs) and non-government organisations (NGOs) in Geneva and New York as part of the process of mapping the relationship between R2P and POC. Initial findings were considered at an Academic-Practitioner Workshop held at the University of Sydney in November 2010. In addition to an extensive literature review and a series of academic publications, the project team is preparing a practical guidance text (the Guide) on the relationship between R2P and POC to assist the United Nations, governments, regional bodies, IOs and NGOs in considering and applying appropriate protection strategies. It is intended that the Guide be presented to the United Nations Secretariat in New York in early 2012. The primary aim of the Workshops was to test the project’s initial findings among an audience of diplomats, military, police, civilian policy-makers, practitioners, researchers and experts from within the region. Through dialogue and discussion, the project team gathered feedback – comments, questions, critique and suggestions – to help shape the development of practical guidance about when, how and by whom R2P and POC might be implemented.

The younger audience : children and broadcasting in New Zealand

The role and influence of media in the lives of children are ongoing sources of public, political and academic debates. These debates move back and forth along a care-control continuum (Cohen, 1997), and reflect a commitment both to educate children and to regulate their media experiences. Rapid advancements in computer technologies have vastly expanded the range of media experiences available to children. The development of Internet information and the rapid expansion of channels as a result of digital television have created increasingly accessible and diverse sources of media for children. These media are instantaneous and, in some circumstances, constantly available. As a result, a substantial body of international research has emerged that examines the influence of media consumption on children. How much time do children spend interacting with media? What sorts of media do they access? Are media harmful or beneficial to children? If so, in which contexts? Do media influence children�s personal development? And what role should governments, broadcasters and independent producers play in the regulation of the media? These questions remain central to contemporary debates about children and the media.

Justice, globalisation and human rights

Criminal Justice: Local and Global covers the way the 'local' can be widened out to look at international, transnational and supranational aspects of justice. This means that issues such as corporate crime and human rights can be discussed in a comparative and critical way, examining the possibility, for example of an International Criminal Court, cross-national jurisdictions of regulation and control (such as Interpol) and so on. Each chapter covers a different area of regulation, punishment and process.

Good and bad Sharia : Australia's mixed response to Islamic law

Reflecting on the legal consequences of globalisation in the 21st century, Twining predicted that societies in the West would have to 'wrestle with the extent to which the state should recognise, make concessions to, or even enforce norms and values embedded in different religions, cultures or traditions'. This is borne out as the direction across the common law world moves towards entrenching legal pluralism. The concessions each nation has made to minorities with different religions, cultures and traditions have varied. The special character of Islam, as a comprehensive blueprint for life in which law and religion unite, has meant that the negotiations for a special place for Muslims within each common law jurisdiction has been at the forefront of new legal ordering possibilities. This is the crux of the pluralism debate. Cautiously, Australians have watched the, at times histrionic, discourse in Canada and Great Britain on official recognition for Islamic law.