The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Self-Government and the fashioning of resilient personae : legal education, criminal justice, and the government of mental health

This paper explores attempts to shape resilient personae through relations of self-government, and highlights the way that this features as part of advanced liberal forms of rule. As an example of this process, it focuses on the way that undergraduate law students are encouraged to fashion resilient personae throughout their legal studies, so as to avoid, or effectively respond to, experiences that may have a detrimental effect on their mental health. This paper argues that the production of such resilience relies on students being encouraged to take up psychologically- and biomedically-infused subject positions, becoming well-disciplined subjects, entrepreneurs of the self, and even virtuous persons. It highlights that the fashioning of resilient personae in this way involves extensions to the targets and practices of self-government and reinforces advanced liberal government. The paper then suggests how insights into fashioning resilience in this context can inform further research on resilience, particularly resilience produced within criminal justice professionals.

Becoming a 'Bastion Against Tyranny' : Australian legal education and the government of the self

Research into legal education suggests that many students enter law school with ideals about using the law to achieve social change, but graduate with some cynicism regarding these ideals. It is often argued that law schools provide a negative, competitive, and conservative environment for students, pushing many away from social justice ideals towards more self-interested, vocational concerns. This article uses Michel Foucault’s work on the government of the self to suggest another way of understanding this process. It examines a range of prescriptive texts that provide students with advice about how to study law and ‘survive’ law school. In doing so, it posits that this apparent loss of social ideals does not necessarily always signify that the student has become politically conservative or has had a negative educational experience. While these legal personae may appear outwardly conservative, and indeed still reflect particular gendered or raced perspectives, by examining the messages that these texts offer students, this article suggests that an apparent loss of social ideals can be the result of a productive shaping of the self. The legal persona they fashion can incorporate social justice ideals and necessitate specific ways of acting on those ideals. This analysis adds to the growing body of research that uses Foucault’s work to rethink common narratives of power and the shaping of the self in legal education, and provides legal educators with new ways of reflecting on the effects of legal education.

Cross-border insolvency and legal transnationalisation

The last twenty years have seen an explosion of approaches for dealing with an inevitable consequence of globalised markets, that of cross-border insolvencies. This article places phenomena such as the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-border Insolvency and Cross-border Insolvency Agreements (also known as Protocols) within the context of developing laws on international commercial transactions. First it briefly describes the evolution of the international commercial law (sometimes known as the law merchant) to provide a context to understanding the international commercial responses to the problems created by cross-border insolvencies. Next, it outlines the range of approaches being adopted by States and multilateral bodies in recent decades to resolve cross-border insolvency issues. Finally it draws some preliminary conclusions on the potential implication of this transnationalisation process and broader international commercial law perspective, in particular on the capacity of Cross-Border Insolvency Agreements to address cross-border insolvency issues.

Defining and describing what we do : doctrinal legal research

The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

Making a case for social impact assessment in urban development : social impacts and legal disputes in Queensland, Australia

Urban land use planning and policy decisions are often contested, with the multiple stakeholders (business, developers, residents, policymakers and the wider community) frequently holding opposing viewpoints about the issues and best solution. In recent years, however, the participatory process of social impact assessment (SIA) has received significant attention as a way to mitigate conflict, facilitating negotiation and conflict resolution. This paper examines how social impacts have informed development appeals in Australia, focussing on ten cases from the Queensland Planning and Environment Court (QPEC). Half are appeals from community members (typically neighbours) wanting to oppose approvals and half from organisations appealing against City Councils’ decisions to deny their development applications. While legal challenges do not necessarily reflect attitudes and practices, they provide a means to begin to assess how social impacts (although not often explicitly defined as such) inform development related disputes. Based on the nature and outcomes of 10 QPEC cases, we argue that many legal cases could have been avoided if SIA had been undertaken appropriately. First, the issues in each case are clearly social, incorporating impacts on amenity, the character of an area, the needs of different social groups, perceptions of risk and a range of other social issues. Second, the outcomes and recommendations from each case, such as negotiating agreements, modifying plans and accommodating community concerns would have been equally served thorough SIA. Our argument is that engagement at an early stage, utilising SIA, could have likely achieved the same result in a less adversarial and much less expensive and time-consuming environment than a legal case.

Does legal heritage affect obesity? The channel of motor vehicle dependence

We find a robust relationship between motor vehicle ownership, its interaction with legal heritage and obesity in OECD countries. Our estimates indicate that an increase of 100 motor vehicles per thousand residents is associated with about a 6% point increase in obesity in common law countries, whereas it has a much smaller or insignificant impact in civil law countries. These relations hold whether we examine trend data and simple correlations, or conduct cross-section or panel data regression analysis. Our results suggest that obesity rises with motor vehicle ownership in countries following a common law tradition where individual liberty is encouraged, whereas the link is small or statistically non-existent in countries with a civil law background where the rights of the individual tend to be circumscribed by the power of the state.

Normative requirements for business process compliance

Norms regulate the behaviour of their subjects and define what is legal and what is illegal. Norms typically describe the conditions under which they are applicable and the normative effects as a results of their applications. On the other hand, process models specify how a business operation or service is to be carried out to achieve a desired outcome. Norms can have significant impact on how business operations are conducted and they can apply to the whole or part of a business process. For example, they may impose conditions on the different aspects of a process (e.g., perform tasks in a specific sequence (control-flow), at a specific time or within a certain time frame (temporal aspect), by specific people (resources)). We propose a framework that provides the formal semantics of the normative requirements for determining whether a business process complies with a normative document (where a normative document can be understood in a very broad sense, ranging from internal policies to best practice policies, to statutory acts). We also present a classification of normal requirements based on the notion of different types of obligations and the effects of violating these obligations.

Competency and capacity : the legal and medical interface

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian society. Legal and medical professionals are increasingly being asked to determine whether individuals are legally competent/capable to make their own testamentary and substitute decision-making, that is financial and/or personal/health care, decisions. No consistent and transparent competency/capacity assessment paradigm currently exists in Australia. Consequently, assessments are currently being undertaken on an ad hoc basis which is concerning as Australia’s population ages and issues of competency/capacity increase. The absence of nationally accepted competency/capacity assessment guidelines and supporting principles results in legal and medical professionals involved with competency/capacity assessment implementing individual processes tailored to their own abilities. Legal and medical approaches differ both between and within the professions. The terminology used also varies. The legal practitioner is concerned with whether the individual has the legal ability to make the decision. A medical practitioner assesses fluctuations in physical and mental abilities. The problem is that the terms competency and capacity are used interchangeably resulting in confusion about what is actually being assessed. The terminological and methodological differences subsequently create miscommunication and misunderstanding between the professions. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner when assessing testamentary and/or substitute decision-making competency/capacity. This research investigates the effects of the current inadequate testamentary and substitute decision-making assessment paradigm and whether there is a more satisfactory approach. This exploration is undertaken within a framework of therapeutic jurisprudence which promotes principles fundamentally important in this context. Empirical research has been undertaken to first, explore the effects of the current process with practising legal and medical professionals; and second, to determine whether miscommunication and misunderstanding actually exist between the professions such that it gives rise to a tense relationship which is not conducive to satisfactory competency/capacity assessments. The necessity of reviewing the adequacy of the existing competency/capacity assessment methodology in the testamentary and substitute decision-making domain will be demonstrated and recommendations for the development of a suitable process made.

Child complainants and the court process in Australia

In recent years, it has been recognised that child complainants in the criminal justice system can experience difficulties over and above those of other complainants and that children can experience the court process as extremely traumatising. This can be exacerbated if children are complainants in child sexual offence matters and if they have to give evidence against a family member. This paper has three primary aims. First, it outlines the major factors that contribute to making court processes harrowing for child complainants. Second, it outlines some of the main initiatives that have been introduced to address these factors. Finally, it weighs up the evidence about initiatives designed to assist child complainants and concludes that such initiatives have had only limited practical impact for child complainants in the criminal justice system. The limited impact is attributed to the need to balance the rights of the accused with consideration for the complainant, a failure to translate legislative changes into practice, the impact of judicial discretion and/or a focus on protecting child complainants at the expense of increasing convictions.

A therapeutic approach to assessing legal capacity in Australia

Australia lacks a satisfactory, national paradigm for assessing legal capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon legal capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. This article will discuss legal capacity assessment in Australia and how to strengthen the relationship between legal and medical professionals involved in capacity assessments. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

Process compliance measurement based on behavioural profiles

Process compliance measurement is getting increasing attention in companies due to stricter legal requirements and market pressure for operational excellence. On the other hand, the metrics to quantify process compliance have only been defined recently. A major criticism points to the fact that existing measures appear to be unintuitive. In this paper, we trace back this problem to a more foundational question: which notion of behavioural equivalence is appropriate for discussing compliance? We present a quantification approach based on behavioural profiles, which is a process abstraction mechanism. Behavioural profiles can be regarded as weaker than existing equivalence notions like trace equivalence, and they can be calculated efficiently. As a validation, we present a respective implementation that measures compliance of logs against a normative process model. This implementation is being evaluated in a case study with an international service provider.

Process compliance analysis based on behavioural profiles

Process compliance measurement is getting increasing attention in companies due to stricter legal requirements and market pressure for operational excellence. In order to judge on compliance of the business processing, the degree of behavioural deviation of a case, i.e., an observed execution sequence, is quantified with respect to a process model (referred to as fitness, or recall). Recently, different compliance measures have been proposed. Still, nearly all of them are grounded on state-based techniques and the trace equivalence criterion, in particular. As a consequence, these approaches have to deal with the state explosion problem. In this paper, we argue that a behavioural abstraction may be leveraged to measure the compliance of a process log – a collection of cases. To this end, we utilise causal behavioural profiles that capture the behavioural characteristics of process models and cases, and can be computed efficiently. We propose different compliance measures based on these profiles, discuss the impact of noise in process logs on our measures, and show how diagnostic information on non-compliance is derived. As a validation, we report on findings of applying our approach in a case study with an international service provider.

Developing Co-operating Legal Knowledge Based Systems

In attempting to build intelligent litigation support tools, we have moved beyond first generation, production rule legal expert systems. Our work supplements rule-based reasoning with case based reasoning and intelligent information retrieval. This research, specifies an approach to the case based retrieval problem which relies heavily on an extended object-oriented / rule-based system architecture that is supplemented with causal background information. Machine learning techniques and a distributed agent architecture are used to help simulate the reasoning process of lawyers. In this paper, we outline our implementation of the hybrid IKBALS II Rule Based Reasoning / Case Based Reasoning system. It makes extensive use of an automated case representation editor and background information.