Evaluation of the Hamilton Youth Court Pilot 2003-2005

Pilot Youth Courts were introduced at Hamilton Sheriff Court in June 2003 and at Airdrie Sheriff Court in June 2004. Although introduced as one of a number of measures aimed at responding more effectively to youth crime (including young people dealt with through the Children’s Hearings System), the Youth Courts were intended for young people who would otherwise have been dealt with in the adult Sheriff Summary Court. The objectives of the pilot Youth Courts were to: • reduce the frequency and seriousness of re-offending by 16 and 17 year old offenders, particularly persistent offenders (and some 15 year olds who are referred to the court); • promote the social inclusion, citizenship and personal responsibility of these young offenders while maximising their potential; • establish fast track procedures for those young persons appearing before the Youth Court; • enhance community safety, by reducing the harm caused to individual victims of crime and providing respite to those communities which are experiencing high levels of crime; and • test the viability and usefulness of a Youth Court using existing legislation and to demonstrate whether legislative and practical improvements might be appropriate. Evaluation of the Hamilton and Airdrie Sheriff Youth Court pilots suggested that they had been successful in meeting the objectives set for them by the Youth Court Feasibility Group. Both were tightly run courts that dealt with a heavy volume of business. The particular strengths of the Youth Court model over previous arrangements included the fast-tracking of young people to and through the court, the reduction in trials, the availability of a wider range of resources and services for young people and ongoing judicial review. The successful operation of the pilot Youth Courts was dependent upon effective teamwork among the relevant agencies and professionals concerned. Good information sharing, liaison and communication appeared to exist across agencies and the procedures that were in place to facilitate the sharing of information seemed to be working well. This was also facilitated by the presence of dedicated staff within agencies, resulting in clear channels of communication, and in the opportunity provided by the multi-agency Implementation Groups to identify and address operational issues on an ongoing basis. However, whether Youth Courts are required in Scotland or whether procedural improvement were possible in the absence of dedicated resources and personnel was more difficult to assess. Two issues in particular required further attention. First, consideration needed to be given to whether the Youth Courts should be more explicitly youth focused and what this might entail. Second, greater clarity was required regarding for whom the Youth Courts were intended. This suggested the need for further discussion of Youth Court targeting and its potential consequences among the various agencies concerned.

From Absence to Presence, from Silence to Voice: Victims in Transitional Justice Since the Nuremberg Trials

As much as victims have been absent in traditional and national criminal justice for a long time, they were invisible in transitional and international criminal justice after World War II. The Nuremberg Trials were dominated by the perpetrators, and documents were mainly used instead of victim testimony. Contemporaries shared the perspective that transitional justice, both international and national procedures should channel revenge by the victims and their families into the more peaceful venues of courts and legal procedures. Since then, victims have gained an ever more important role in transitional, post-conflict and international criminal justice. Non-judicial tribunals, Truth and Reconciliation Commissions, and international criminal courts and tribunals are relying on the testimony of victims and thus provide a prominent role for victims who often take centre stage in such procedures and trials. International criminal law and the human rights regime have provided victims with several routes to make themselves heard and fight against impunity. This paper tracks the road from absence to presence, and from invisibility to the visibility of victims during the second half of the last and the beginning of the present century. It shows in which ways their presence has shaped and changed transitional and international justice, and in particular how their absence or presence is linked to amnesties.

Juveniles’ contact with the criminal justice system in Australia

This report presents the first collection of data on juveniles’ contact with the criminal justice system as both alleged/convicted offenders and complainants/victims in New South Wales, the Australian Capital Territory, Victoria, Queensland, Western Australia, South Australia and the Northern Territory. Its primary objectives are to outline data from each of these jurisdictions on juveniles’ contact with the policing, courts and correctional systems and to determine what we do and do not know about juveniles’ contact with the criminal justice system.

Qualitative criminology : Stories from the field

Qualitative researchers in the discipline of criminology perform a wide range of challenging tasks. They interview prisoners, police officers, magistrates and judges. They speak with survivors of domestic violence, and drink tea with the mothers of murdered children. They observe courts and communities, investigate the decision-making processes of juries and immerse themselves in the data they collect. They ask ‘big’ questions – ‘how do we criminalise the producers of toxic toys?’ – as well as ‘little’ questions – ‘what should I wear to conduct this interview?’ Qualitative Criminology: Stories from the Field brings to life the stories behind the research of both emerging and established scholars in Australian criminology. The book’s contributors provided honest, reflective, and decidedly unsanitised accounts of their qualitative research journeys - the lively tales of what really happens when conducting research of this nature, the stories that often make for parenthetical asides in conference papers but tend to be excised from journal articles. This book considers the gap between research methods and the realities of qualitative research. As such, it aims to help researchers and students who conduct qualitative criminological research reflect upon their role as researchers, and the practical, ideological and ethical issues which may arise in the course of their research. It is also a call to criminologists to make public the ‘failures’ and missteps of their research endeavours so that we can learn from one another and become better informed and more reflexive qualitative criminologists.

An examination of the independent certification processes of a construction contract

Construction contracts often provide that the decision of an independent certifier is final and binding. The effect of a contractual term like this has been debated in the courts over time. This paper considers the binding nature of certificates in the context of traditional construction contract arrangements and also considers the implications for more complex contracts like those entered into to facilitate public private partnerships. This article considers the response of the courts and the drafting implications and argues that a different focus would be advantageous.

Women in prison : where are we going?

Female imprisonment rates have dramatically increased over the last two decades at state, national and international levels. This paper reviews women's imprisonment in Australia and looks at sentence management and programs, highlighting the critical issues which impact daily on female inmates.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

Brave New World of Health

"Within contemporary society the meaning of 'health' is surprisingly unstable. Guiding principles that once seemed self-evident have been challenged by new social, scientific and economic forces. This book argues that the foundational terms and concepts, which form the basic building blocks of dialogue about health, are now in flux. While the forces in play differ, and the pace of change is varied, there is now a 'brave new world' of health which characterises policy debate about health (and illness or disability). This permeates even the more narrow technical issues within clinical medicine, the law and medical science. This construction and reconstruction of health has important implications for the development of law and policy. The book draws on international and local experts to explore these issues. It opens with consideration of the economic and social forces of 'globalisation' - the macro level forces which now shape the 'lived realities' of health for the world's people. This is then contextualised through a series of detailed 'case studies' of more localised examples including; pharmaceuticals, preimplantation genetic diagnosis, body modification, abortion, anorexia and post-traumatic stress disorder. The book also interrogates the way modern health research influences public conceptions of health. Across these issues the book canvasses the social forces at work in the construction of health, disability and illness in shaping our understandings of such concepts by the public, by individuals, by the courts, and by international bodies. Brave New World of Health is an important contribution to advancing that understanding."--Publisher's website.

In conversation with the Honourable Ian Callinan AC

When, in 1977, the Australian electorate provided a double majority to effect a change of section 72 of the Commonwealth Constitution requiring judges of the High Court of Australia to retire at the age of 70 years old, I doubt we understood the continuing capacity of these esteemed members of the judiciary. For the opportunity to sit and talk with Ian Callinan AC who, in compliance with that amendment, retired from the High Court in September 2007, I needed to wait until he returned from The Hague where he was sitting as a Judge ad hoc on the International Court of Justice. Although a native of Casino, New South Wales, Mr Callinan is regarded as a Queenslander. Indeed, he grew up in Brisbane, finished high school at Brisbane Grammar and graduated in law at The University of Queensland. Appointed in 1978 as a Queen’s Counsel, Mr Callinan enjoyed this period of his legal career and we discussed an aspect of the Christopher Skase case, which reinforced my belief that Mr Callinan is an incredibly skilful advocate. On 14 September 1998, ABC Four Corners broadcasted the views of some prominent Australians on the appointment of Mr Callinan to the High Court. In assessing the type of person Mr Callinan is, Tony Morris QC said: “Ian Callinan isn't a coward”, while former Commonwealth Attorney-General, Michael Lavarch, said: “He was regarded as an absolutely outstanding criminal lawyer within the Queensland legal profession, I mean really a top-notch advocate”. I was not interested in raising any of the controversial issues that Mr Callinan has encountered as an advocate in high profile matters. I wanted to know how he felt about his time on the High Court, what his thoughts are on the operation of the High Court, the IP cases he decided, the real life issues that he feels impact on counsel who are appearing before the High Court and the people he regarded as role models. During our conversation, Mr Callinan laughed often and when he did his eyes lit up, revealing his passion for life. He is an incredibly genuine Australian who loved his time as a barrister, enjoyed his role on the High Court, enjoys his current job as mediator, loves writing novels, has a great desire for continual improvement in the quality of legal education and legal advocacy and sees a need for change in IP law. When I asked: “So, what might the future hold for you?”, he laughed and said: “Well, at my age I don’t have a long horizon time”. I said: “Just enjoy the journey?”, to which Mr Callinan responded: “Exactly”.

The New Lawyer

This text is designed to implement the Threshold Learning Outcomes (TLOs) for law in the first year, and to incorporate Sally Kift’s First Year Curriculum principles: http://tls.vu.edu.au/portal/site/trans/Resources/KiftTransitonPedagogySixPrinciples_16Nov09.pdf This is a learning-centered text book intentionally designed for first year students and written by experts in legal education and the first year experience. It is written in a tone and style that engages and communicates effectively with first year law students, without compromising its rigour. It provides students with opportunities to contextualise and make sense of their learning by connecting that learning with what they already know, and with current contemporary issues and affairs. This work is designed to ease students through the transition from a diverse variety of backgrounds (such as high school, work or other disciplines) to the first year of law. It provides practical guidance about adjusting to law school and to university. Students are asked to regularly reflect upon why they are studying law. The book also prepares law students for success in their latter year studies in law by ensuring that they are equipped with the necessary threshold concepts and foundational skills to do well: for example, research skills (particularly, online research skills), reasoning skills, written communication skills, negotiation skills, and self-management skills. A range of practical tips on studying law are provided throughout the book. The work also asks students to engage with developing an emergent sense of professional identity – including what it means to ‘think like a lawyer’. In supporting the students to engage with the concept of professional identity, the work begins a process of preparing students for transition from law school to legal practice. This is achieved by providing explanations of how the material being presented relates to the practice of law, as well as practical information relating to employability skills as a new graduate. This work has a number of learning and teaching objectives to enhance the quality of student learning in their first year of law by engaging, motivating and supporting that learning. First, the work is designed to engage first year students with their legal education and with a future sense of professional identity. It does this through its: • Dynamic writing style • Engaging format • Inclusion of contemporary issues and events • Flowcharts, checklists, mind-maps, tables and timelines • Inclusion of real-world problems and dilemmas. Second, the text motivates student learning by promoting active learning. It does this by: • Demonstrating, and asking students to practice, what they need to do – that is, the work is not simply focussed on telling students what they need to know • Including regular self-directed learning exercises throughout each chapter, such as practical exercises for the development of important foundational legal skills • Including exercises that promote student collaboration, and that require students to apply their learning to practical situations, and • Incorporating a range of interesting active thinking points and research activities. Third, the book supports student learning by encouraging reflective learning and independent learning. It does this by including: • Specific content on how to be a reflective practitioner and an independent learner • Exercises that require students to engage in independent learning, particularly in relation to legal research skill development • Exercises requiring students to reflect upon what they have learned, and encouraging students to keep a reflective learning journal • Exercises requiring students to reflect upon their own views and beliefs • Reflection on whether students have achieved the learning objectives articulated at the beginning of the chapter. The work also: • Demonstrates respect for student experiences, views, opinions and values • Acknowledges student diversity • Recognises the importance of being globally minded law students and lawyers • Supports law teachers in using the work in their classrooms through the provision of comprehensive teaching materials.

Abandoning the Magic Circle

As a concept, the magic circle is in reality just 4 years old. Whilst often accredited to Johan Huizinga (1955), the modern usage of term in truth belongs to Katie Salen and Eric Zimmerman. It became in academia following the publication of “Rules of Play” in 2003. Because of the terminologyused, it carries with it unhelpful preconceptions that the game world, or play-space, excludes reality. In this paper, I argue that Salen and Zimmerman (2003) have taken a term used as an example, and applied a meaning to it that was never intended, based primarily upon definitions given by other authors, namely Apter (1991) and Sniderman (n.d.). I further argue that the definition itself contains a logical fallacy, which has prevented the full understanding of the definition in later work. Through a study of the literature in Game Theory, and examples of possible issues which could arise in contemporary games, I suggest that the emotions of the play experience continue beyond the play space, and that emotions from the “real world” enter it with the participants. I consider a reprise of the Stanley Milgram Obedience Experiment (2006), and what that tells us about human emotions and the effect that events taking place in a virtual environment can have upon them. I evaluate the opinion espoused by some authors of there being different magic circles for different players, and assert that this is not a useful approach to take when studying games, because it prevents the analysis of a game as a single entity. Furthermore I consider the reasons given by other authors for the existence of the Magic Circle, and I assert that the term “Magic Circle” should be discarded, that it has no relevance to contemporary games, and indeed it acts as a hindrance to the design and study of games. I conclude that the play space which it claims to protect from the courts and other governmental authorities would be better served by the existing concepts of intent, consent, and commonly accepted principles associated with international travel.

‘Structuring’ judicial sentencing discretion : consistency, guidance or pandering to the punitive?

Until quite recently, most Australian jurisdictions gave statutory force to the principle of imprisonment as a sanction of last resort, reflecting its status as the most punitive sentencing option open to the court.1 That principle gave primary discretion as to whether incarceration was the most appropriate means of achieving the purpose of a sentence to the sentencing court, which received all of the information relevant to the offence, the offender and any victim(s). The disestablishment of this principle is symptomatic of an increasing erosion of judicial discretion with respect to sentencing, which appears to be resulting in some extremely punitive consequences.

Competition Law in Australia [6th ed.]

Competition Law in Australia, 6th edition provides a comprehensive discussion of the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) dealing with the regulation of competition and markets in Australia. This book covers disparate topics, such as restrictions in horizontal and vertical agreements, horizontal mergers and acquisitions, misuse of market power, and access to services necessary to compete in upstream or downstream markets. However, the unifying theme of this text is that it is not possible to use a formalistic approach in applying the CCA. The decisions of the courts, and the competition authorities responsible for implementing and enforcing the CCA, underline the need to undertake a detailed substantive economic analysis of the effect of the agreement or conduct at issue on competition, efficiency and consumer welfare.

An Australian perspective on the ALI-III global principles for cooperation in International insolvency cases

In 2012, Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (The Netherlands) presented a Report to the American Law Institute and the International Insolvency Institute entitled Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“Global Principles”). This followed their appointment as Joint Reporters to investigate whether the essential provisions of the American Law Institute Principles of Cooperation among the North American Free Trade Agreement Countries with their annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. This article comments on the Global Principles from the perspective of a jurisdiction which has adopted the UNCITRAL Model Law on Cross-border Insolvency (“Model Law”). In 2008, Australia enacted a standalone statute, the Cross-border Insolvency Act 2008 (Cth) to which is annexed the Model Law. In that process, it made minimal changes to the Model Law text. Against the background of the 2008 Act, related procedural laws as well as Australia’s general insolvency statutes and recent cross-border insolvency jurisprudence, this article comments on the potential relevance of the Transnational Insolvency Report as a point of reference for Australian courts and insolvency administrators when addressing international insolvency cases. By comparing the Global Principles with the Model Law as closely adopted in Australia, this analysis is a resource for other Model Law jurisdictions when considering the potential relevance of the Global Principles for their own international insolvency practice.