Strolling the coastline: criminology in everyday life : through ‘landscape’ from gaol to ‘badlands’

Part travelogue, part flight of fancy, this paper recounts a coastline stroll from Maroubra Beach to Bondi in Sydney’s eastern suburbs. The author as ‘travel guide’ points out features of potential interest to two visiting criminological colleagues as they ‘pass by’ scenery of great beauty shadowed by acts of spectacular violence. The everyday acts of walking and talking while passing through a ‘landscape’ serve to constitute a criminology of everyday life, illustrating the way in which a consciousness of crime, crime sites, analyses and theories permeates the ways a ‘tourist trail’ might be experienced and seen, myths made and histories forged. The walk starts with the unseen lines of penal force radiating from Long Bay Gaol, before skirting through surfing and its regulation; the ‘brotherhood’ of the BRA Boys; the Hines killing and the politics of self defence; the shark arm case, the Virgin Mary and the Bali bombing memorial at Coogee; zones of the beach and Jock Young’s Vertigo at Bronte and Tamarama; before finishing at the Marks Park ‘badlands’ at Bondi, scene of a series of mostly unsolved and unpunished homophobic killings, giving rise to reflections on ‘ungrievable lives’, memory, mourning and forgetting.

Indigenous Australian women and work : an historical context

The aim of this on-going research is to interrogate the era of colonialism in Australia (1896-1966) and the denial of paid employment of Aboriginal women. The 1897 Aborigines Protection and the Restriction of the Sale of Opium Act witnessed thousands of Aboriginal people placed on Government run reserves and missions. This resulted in all aspects of their lives being controlled through state mechanisms. Under various Acts of Parliament, Aboriginal women were sent to privately owned properties to be utilised as ‘domestic servants’ through a system of forced indentured labour, which continued until the 1970’s. This paper discusses the hidden histories of these women through the use of primary sources documents including records from the Australian Department of Native Affairs and Department of Home and Health. This social history research reveals that the practice of removing Aboriginal women from their families at the age of 12 or 13 and to white families was more common practice than not. These women were often: not paid, worked up to 15 hour days, not allowed leave and subjected to many forms of abuse. Wages that were meant to be paid were re-directed to other others, including the Government. Whilst the retrieval of these ‘stolen wages’ is now an on-going issue resulting in the Queensland Government in 2002 offering AUS $2,000 to $4,000 in compensation for a lifetime of work, Aboriginal women were also asked to waive their legal right to further compensation. There are few documented histories of these Aboriginal women as told through the archives. This hidden Aboriginal Australian women’s history needs to be revealed to better understand the experiences and depth of misappropriation of Aboriginal women as domestic workers. In doing so, it also reveals a more accurate reflection of women’s work in Australia.

Feminism and Global Justice

This book attempts to persuade a new generation of scholars, criminologists, activists, and policy makers sympathetic to the quest for global justice to open the envelope, to step out of their comfort zones and typical frames of analysis to gaze at a world full of injustice against the female sex, much of it systemic, linked to culture, custom and religion. In some instances the sources of these injustices intersect with those that produce global inequality, imperialism and racism. This book also investigates circumstances where the globalising forces cultivate male on male violence in the anomic spaces of supercapitalism – the border zones of Mexico and the United States, and the frontier mining communities in the Australian desert. However systemic gendered injustices, such as forced marriage of child female brides, sati the cremation of widows, genital cutting, honour crimes, rape and domestic violence against women, are forms of violence only experienced by the female sex. The book does not shirk away from female violence either. Carrington argues that if feminism wants to have a voice in the public, cultural, political and criminological debates about heightened, albeit often exaggerated, social concerns about growing female violence and engagement in terrorism, then new directions in theorising female violence are required. Feminist silences about the violent crimes, atrocities and acts of terrorism committed by the female sex leave anti-feminist explanations uncontested. This allows a discursive space for feminist backlash ideologues to flourish. This book contests those ideologies to offer counter explanations for the rise in female violence and female terrorism, in a global context where systemic gendered violence against women is alarming and entrenched. The world needs feminism to take hold across the globe, now more than ever.

Gambling & gaming : power relations in dispute resolution

Who, ultimately, has power? Is it the senior executive with his finger on the off switch, is it the users themselves who make the decision to participate and contribute financially, or is it those who report on the actions of the company with the ability to reach large numbers of existing and potential players? In both the gambling and gaming industries, power is up for grabs. This work undertakes to consider how norms are formed in online gaming communities; that is, how the developers and players negotiate amongst themselves both how the game will operate. Also considered is how to resolve disputes that arise, and what power and limitations each side has when they need to make an impact – from developers switching off the server, to players quitting en-mass or causing disruption within the environment (using the recent example of Eve Online). Outside of the direct sphere of the game however a third party lurks – commentators. These may take the form of well established review sites, community forums or, in the case of the gambling industry, dispute resolution services but their power stake is clear – by publicising and interpreting the acts of both developers and players, they are in a position to influence whether current players stick with a company, whether new players join a company and how the company is perceived in the wider community.

Capital-C culture : the perfect American at the Brisbane Festival

A review of Philip Glass's opera The Perfect American. The Brisbane Festival’s production of Philip Glass’s opera The Perfect American is only the third production of the 2012 work ever to be staged. That’s quite a coup for the Brisbane Festival and Opera Queensland. The Perfect American was commissioned by Madrid’s Teatro Real and London’s English National Opera to mark the American composer’s 75th birthday. Glass’s telling of the Disney myth focuses on the final stages of Walt Disney’s life and career – a high art critique of a popular culture icon...

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Who killed fair use? A copyright murder mystery down under

Fair Use Week has been celebrated this week in the United States, with great gusto and enthusiasm. At Harvard Library, Kyle Courtney commented: ‘Fair use is critical and important to innovation, scholarship and research in the United States.’ Kenneth Crews emphasized that ‘the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.’ Legal director Corynne McSherry of the Electronic Frontier Foundation has highlighted the significance and the importance of the defence of fair use: ‘Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.’ For Techdirt, Mike Masnick has emphasized that fair use is a right – and not an exception or a mere defence. Peter Jaszi and Pat Aufderheide have highlighted the contextual operation of fair use in particular artistic communities. Molly Van Houweling of the Authors Alliance has written about the ecstasy of influence – the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation.

Eastern twists on Western concepts: Equality jurisprudence and sexual harassment in Japan

A rich source of Japanese jurisprudence on sexual equality underlies Japan's emerging law against sexual harassment. With no law specifically outlawing sexual harassment, academics and the courts have invoked the principle of sexual equality to support their conclusion that Japanese law carries an implicit prohibition against acts of sexual harassment. In developing a legal case against sexual harassment, Japanese courts and academic commentators have introduced novel constructions of equality. The key innovations include relational equality, inherent equality and quantifiable equality. In presenting some of these Japanese contributions to equality jurisprudence, the hope is that feminist discourse on equality can take place in a broader context-a context that does not ignore the Eastern cultural experience.

Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading

In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, bringing to an end nearly 50 years of ILC work on the subject. This article reviews the final group of changes to the text, focusing on the definitions of ‘injury’ and ‘damage’, assurances of non‐repetition in the light of the LaGrand case, procedural aspects of countermeasures and the controversy over measures taken in response to a breach by states which are not individually injured. The focus of debate now turns to the UNGA Sixth Committee, which will have to decide what to make of the Draft Articles. The ILC itself recommended an initial resolution taking note of the Articles, with subsequent consideration (after a period of years) of a possible diplomatic conference with a view to concluding a convention. This modest proposal allows for further reflection on the text and may help to avoid possibly divisive and inconclusive debate in the Sixth Committee. At the same time it allows time for better understanding of the many changes made as compared with the first reading text (1996).

Does section 420A impose ‘strict liability’ upon controllers for acts or omissions of agents and experts?

This article addresses in depth the question of whether section 420A of the Corporations Act 2001 (Cth) imposes ‘strict liability’ upon a controller for the failure of an agent or expert to take reasonable care. The weight of existing authority appears to suggest that controllers are liable under s 420A for the carelessness of their agents or expert advisers. However, a closer analysis of the text of the provision and relevant Australian and UK case law demonstrates that this aspect of the statutory construction of s 420A remains very much an open question. This article ultimately contends for a construction of s 420A which requires a controller to adequately supervise and scrutinise, but which does not render a blameless controller strictly liable for all careless acts and omissions of agents and expert advisers.

Australian copyright regimes and political economy of music

In this chapter I review the history of copyright in Australia through a singular and exemplary ruling of the Australian High Court made in 2012 and then relate that to the declining fortunes of Australian recorded music professionals. The case in point is Phonographic Performance Company [PPCA] of Australia Limited v Commonwealth of Australia [2012] HCA 8 (hereafter, HCA 8 2012). The case encapsulates the history of copyright law in Australia, with the judicial decision drawing substantive parts of its rationale from the Statute of Anne (8 Anne, c. 19, 1710), as well as copyright acts that regulated the Australian markets prior to 1968. More importantly the High Court decision serves to delineate some important political economic aspects of the recorded music professional in Australia and demonstrates Attali’s (1985) assertion that copyright is the mechanism through which composers are, by statute, literally excluded from capitalistic engagement as ‘productive labour’.