The politicization of youth crime in Scotland and the rise of the 'Burberry Court'

In 2003, the youth justice system in Scotland entered a new phase with the introduction of a pilot youth court. The processing of persistent 16 and 17 year old (and serious 15 year olds) represented a stark deviation from a ‘child centred’ and needs-oriented state apparatus for dealing with young offenders to one based on deeds and individual responsibility. This article, based on an evaluation funded by the Scottish Executive, is the first to provide a critical appraisal of this youth justice reform. It examines the views of the judiciary and young offenders and reveals that the pilot youth court in Scotland represents a punitive excursion that poses serious concerns for due process, human rights and net widening.

The influence of justice theories on international climate policies and measures

While the justice implications of climate change are well understood by the international climate regime, solutions to meaningfully address climate injustice are still emerging. This article explores how a number of different theories of justice have influenced the development of international climate regime policies and measures. Such analysis is undertaken by examining the theories of remedial justice, environmental justice, energy justice, social justice and international justice. This article demonstrates how each of these theories has influenced the development of international climate policies or measures. No one theory of justice has the ability to respond to the multifaceted justice implications that arise as a result of climate change. It is argued that a variety of lenses of justice are useful when examining issues of injustice in the climate context. It is believed that articulating the justice implications of climate change by reference to theories of justice assists in clarifying the key issues giving rise to injustice. This article finds that while there has been some progress by the regime in recognising the injustices associated with climate change, such recognition is piecemeal and the implementation of many of the policies and measures discussed within this article needs to be either scaled up, or extended into more far-reaching policies and measures to overcome climate justice concerns. Overall it is suggested that climate justice concerns need to be clearly enunciated within key adaptation instruments so as to provide a legal and legitimate basis upon which to leverage action.

Refugees : the Millenium Development Goals' overlooked priority group

The Millennium Development Goals (MDGs) apply to the world’s 43 million refugees and forcibly displaced. While States have an obligation to meet minimum human rights levels for all persons including 'non-citizens', UNHCR must ensure countries adopting MDG targets report on the progress of their refugee populations. If we are to make significant change within the MDG time-frame, the health and human rights needs of refugees and the displaced must be urgently integrated into the development policy agendas of sovereign States, and be at the fore of the international community’s attention.

Protection of Refugees and Displaced Persons in the Asia Pacific Region

The chapters in this book explore the impact of recent shifts in global and regional power and the subsequent development and enforcement of international refugee protection standards in the Asia Pacific region. Drawing on their expertise across a number of jurisdictions, the contributors assess the challenges confronting the implementation of international law in the region, as well as new opportunities for extending protection norms into national and regional dialogues. The case studies span key jurisdictions across the region and include a comparative analysis with China, Indonesia, Thailand, Myanmar, Malaysia, Bangladesh and Australia. This topical and important book raises critical questions for the Asia Pacific region and sheds light on the challenges confronting the protection of refugees and displaced persons in this area. Interdisciplinary in its approach, it will be of interest to academics, researchers, students and policy-makers concerned with the rights and protection of refugees.

Submission to National Inquiry into Children in Immigration Detention from The Australian Psychological Society

Executive Summary The Australian Psychological Society categorically condemns the practice of detaining child asylum seekers and their families, on the grounds that it is not commensurate with psychological best practice concerning children’s development and mental health and wellbeing. Detention of children in this fashion is also arguably a violation of the UN Convention on the Rights of the Child. A thorough review of relevant psychological theory and available research findings from international research has led the Australian Psychological Society to conclude that: • Detention is a negative socialisation experience. • Detention is accentuates developmental risks. • Detention threatens the bonds between children and significant caregivers. • Detention limits educational opportunities. • Detention has traumatic impacts on children of asylum seekers. • Detention reduces children’s potential to recover from trauma. • Detention exacerbates the impacts of other traumas. • Detention of children from these families in many respects is worse for them than being imprisoned. In the absence of any indication from the Australian Government that it intends in the near future to alter the practice of holding children in immigration detention, the Australian Psychological Society’s intermediate position is that the facilitation of short-term and long-term psychological development and wellbeing of children is the basic tenet upon which detention centres should be audited and judged. Based on that position, the Society has identified a series of questions and concerns that arise directly from the various psychological perspectives that have been brought to bear on estimating the effects of detention on child asylum seekers. The Society argues that, because these questions and concerns relate specifically to improvement and maintenance of child detainees’ educational, social and psychological wellbeing, they are legitimate matters for the Inquiry to consider and investigate. • What steps are currently being taken to monitor the psyc hological welfare of the children in detention? In particular, what steps are being taken to monitor the psychological wellbeing of children arriving from war-torn countries? • What qualifications and training do staff who care for children and their families in detention centres have? What knowledge do they have of psychological issues faced by people who have been subjected to traumatic experiences and are suffering high degrees of anxiety, stress and uncertainty? • What provisions have been made for psycho-educational assessment of children’s specific learning needs prior to their attending formal educational programmes? • who are suffering chronic and/or vicarious trauma as a result of witnessing threatening behaviour whilst in detention? • What provisions have been made for families who have been seriously affected by displacement to participate in family therapy? • What critical incident debriefing procedures are in place for children who have witnessed their parents, other family members, or social acquaintances engaging in acts of self-harm or being harmed while in detention? What psychotherapeutic support is in place for children who themselves have been harmed or have engaged in self- harmful acts while in detention? • What provisions are in place for parenting programmes that provide support for parents of children under extremely difficult psychological and physical circumstances? • What efforts are being made to provide parents with the opportunity to model traditional family roles for children, such as working to earn an income, meal preparation, other household duties, etc.? • What opportunities are in place for the assessment of safety issues such as bullying, and sexual or physical abuse of children or their mothers in detention centres? • How are resources distributed to children and families in detention centres? • What socialization opportunities are available either within detention centres or in the wider community for children to develop skills and independence, engage in social activities, participate in cultural traditions, and communicate and interaction with same-age peers and adults from similar ethnic and religious backgrounds? • What access do children and families have to videos, music and entertainment from their cultures of origin? • What provisions are in place to ensure the maintenance of privacy in a manner commensurate with usual cultural practice? • What is the Government’s rationale for continuing to implement a policy of mandatory detention of child asylum seekers that on the face of it is likely to have a pernicious impact on these children’s mental health? • In view of the evidence on the potential long-term impact of mandatory detention on children, what processes may be followed by Government to avoid such a practice and, more importantly, to develop policies and practices that will have a positive impact on these children’s psychological development and mental health?

The Gothenburg Recommendations on Education for Sustainable Development

This document calls on governments, civil society and in particular educators to prioritize processes that develop and strengthen education for sustainable development (ESD). The world has changed since the UN World Summit on Sustainable Development in 2002. While there have been significant initiatives and progress has been made, the scale of effort is still overshadowed by the scope of the problem. For instance, human-induced climate change is creating a long-lasting ecological crisis with severe economic and social consequences. Recently the global economic crisis has drawn attention to the problem of borrowing from resources that do not exist. Poverty, conflict and social injustice remain critical issues on the global agenda. A renewed sense of commitment to the UN Decade of Education for Sustainable Development 2005-2014 is required. Formal, informal and non-formal education and learning processes for sustainability must be strengthened and prioritized. This document supports and builds on the concepts and values that are put forward within UNESCO’s International Implementation Scheme for Education for Sustainable Development and in the Earth Charter. The purpose of ESD is to reorient education in order to contribute to a sustainable future for the common good of present and future generations. ESD recognizes the interdependence of environmental, social and economic perspectives and the dependence of humanity on a healthy biosphere. Participation and involvement are necessary components of ESD, with an emphasis on empowerment and agency for active citizenship, human rights and societal change. Re-orientation is necessary at all levels and in all phases of education, and encompasses community learning, thus making ESD a wider process challenging the form and purpose of education itself.

Mandatory sentencing : a criminological perspective

This paper will give a ‘criminological perspective’ on mandatory sentencing. It will however largely avoid the issues of the effect of mandatory sentencing provisions on the judicial process and judicial independence, as this has already been covered by Sir Anthony Mason. It will also avoid the legal issues concerning the constitutional, human rights and international law aspects of mandatory sentencing which will be covered by later speakers. The aim will be to give a brief overview of research which evaluates the effects of mandatory sentencing provisions in terms of the available evidence of whether they meet their stated aims of deterrence, selective incapacitation and the reduction of crime rates. This will be done in two parts, first in relation to the more extensive experiment in mandatory sentencing in the USA which has provided some of the impetus and metaphors ("three strikes") for recent Australian developments; and second the recent mandatory sentencing provisions in Western Australia (WA) and the Northern Territory (NT). Evidence from both the US and WA (NT is hard to assess because of the lack of proper monitoring and criminal statistics) indicates that mandatory sentencing does not produce the effects of deterrence, selective incapacitation and crime reduction which are its stated justifications and does produce a range of damaging side effects in terms of distortion of the judicial process, wildly disproportionate sentencing, additional financial and social cost and deepening social exclusion of individuals and particular communities. So what is left are the less acknowledged underpinnings of mandatory sentencing in the form of the symbolic politics of law and order, the politics of social exclusion and a displacement of racial anxieties and hostilities onto the terrain of the legal. In fashioning this necessarily brief overview a number of sources have been heavily drawn upon, in particular the excellent work by Neil Morgan from UWA (Morgan, 1995;1999; 2000); Dianne Johnson and George Zdenkowski in their detailed report to the Senate Inquiry (2000); and a number of articles appearing in 1999 in an excellent special issue of the UNSW Law Journal, all of which are highly recommended for further reading.

The Politics and Legality of Prisoner Disenfranchisement in Australian Federal Elections

To remove the right of prisoners to vote does many things. … It signals that whatever the prisoner says is not of interest to those at the top, that you are not interested in talking to them or even listening to them, that you want to exclude them and that you have no interest in knowing about them. INTRODUCTION In June 2006, Australia passed legislation disenfranchising all prisoners serving full-time custodial sentences from voting in federal elections. This followed a succession of changes dating from 1983 that alternately extended and restricted the prisoner franchise. In 1989 and 1995, the Australian Labor Party (ALP) federal government prepared draft legislation removing any restrictions on prisoner voting rights in federal elections; the measures were defeated and withdrawn. With the 2006 legislation, the Howard Coalition government (composed of the Liberal and National parties) successfully achieved the total disenfranchisement it first sought in 1998. This chapter examines the politics and legality of the 2006 disenfranchisement. This will be approached, first, by briefly outlining the key provisions of the Commonwealth Electoral Act 1918, offering a short legislative history of prisoner franchise, and examining some of the key constitutional issues. Second, the 2006 disenfranchisement introduced in the Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006 will be examined in greater detail, particularly in terms of the manner in which it was achieved and the arguments that were mobilized both in support of and against the change.

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

A Submission to the Joint Standing Committee on Treaties on the Anti-Counterfeiting Trade Agreement 2011 (# ACTA)

“If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.” David Fewer “While European and American IP maximalists have pushed for TRIPS-Plus provisions in FTAs and bilateral agreements, they are now pushing for TRIPS-Plus-Plus protections in these various forums.” Susan Sell “ACTA is a threat to the future of a free and open Internet.” Alexander Furnas “Implementing the agreement could open a Pandora's box of potential human rights violations.” Amnesty International. “I will not take part in this masquerade.” Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament Executive Summary As an independent scholar and expert in intellectual property, I am of the view that the Australian Parliament should reject the adoption of the Anti-Counterfeiting Trade Agreement 2011. I would take issue with the Department of Foreign Affairs and Trade’s rather partisan account of the negotiations, the consultations, and the outcomes associated with the Anti-Counterfeiting Trade Agreement 2011. In my view, the negotiations were secretive and biased; the local consultations were sometimes farcical because of the lack of information about the draft texts of the agreement; and the final text of the Anti-Counterfeiting Trade Agreement 2011 is not in the best interests of Australia, particularly given that it is a net importer of copyright works and trade mark goods and services. I would also express grave reservations about the quality of the rather pitiful National Interest Analysis – and the lack of any regulatory impact statement – associated with the Anti-Counterfeiting Trade Agreement 2011. The assertion that the Anti-Counterfeiting Trade Agreement 2011 does not require legislative measures is questionable – especially given the United States Trade Representative has called the agreement ‘the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.’ It is worthwhile reiterating that there has been much criticism of the secretive and partisan nature of the negotiations surrounding the Anti-Counterfeiting Trade Agreement 2011. Sean Flynn summarizes these concerns: "The negotiation process for ACTA has been a case study in establishing the conditions for effective industry capture of a lawmaking process. Instead of using the relatively transparent and inclusive multilateral processes, ACTA was launched through a closed and secretive “‘club approach’ in which like-minded jurisdictions define enforcement ‘membership’ rules and then invite other countries to join, presumably via other trade agreements.” The most influential developing countries, including Brazil, India, China and Russia, were excluded. Likewise, a series of manoeuvres ensured that public knowledge about the specifics of the agreement and opportunities for input into the process were severely limited. Negotiations were held with mere hours notice to the public as to when and where they would be convened, often in countries half away around the world from where public interest groups are housed. Once there, all negotiation processes were closed to the public. Draft texts were not released before or after most negotiating rounds, and meetings with stakeholders took place only behind closed doors and off the record. A public release of draft text, in April 2010, was followed by no public or on-the-record meetings with negotiators." Moreover, it is disturbing that the Anti-Counterfeiting Trade Agreement 2011 has been driven by ideology and faith, rather than by any evidence-based policy making Professor Duncan Matthews has raised significant questions about the quality of empirical evidence used to support the proposal of Anti-Counterfeiting Trade Agreement 2011: ‘There are concerns that statements about levels of counterfeiting and piracy are based either on customs seizures, with the actual quantities of infringing goods in free circulation in any particular market largely unknown, or on estimated losses derived from industry surveys.’ It is particularly disturbing that, in spite of past criticism, the Department of Foreign Affairs and Trade has supported the Anti-Counterfeiting Trade Agreement 2011, without engaging the Productivity Commission or the Treasury to do a proper economic analysis of the proposed treaty. Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament, quit his position, and said of the process: "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly. As rapporteur of this text, I have faced never-before-seen manoeuvres from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands.” Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications. This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade." There have been parallel concerns about the process and substance of the Anti-Counterfeiting Trade Agreement 2011 in the context of Australia. I have a number of concerns about the substance of the Anti-Counterfeiting Trade Agreement 2011. First, I am concerned that the Anti-Counterfeiting Trade Agreement 2011 fails to provide appropriate safeguards in respect of human rights, consumer protection, competition, and privacy laws. It is recommended that the new Joint Parliamentary Committee on Human Rights investigate this treaty. Second, I argue that there is a lack of balance to the copyright measures in the Anti-Counterfeiting Trade Agreement 2011 – the definition of piracy is overbroad; the suite of civil remedies, criminal offences, and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations, and remedies. Third, I discuss trade mark law, intermediary liability, and counterfeiting. I express my concerns, in this context, that the Anti-Counterfeiting Trade Agreement 2011 could have an adverse impact upon consumer interests, competition policy, and innovation in the digital economy. I also note, with concern, the lobbying by tobacco industries for the Anti-Counterfeiting Trade Agreement 2011 – and the lack of any recognition in the treaty for the capacity of countries to take measures of tobacco control under the World Health Organization Framework Convention on Tobacco Control. Fourth, I note that the Anti-Counterfeiting Trade Agreement 2011 provides no positive obligations to promote access to essential medicines. It is particularly lamentable that Australia and the United States of America have failed to implement the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003. Fifth, I express concerns about the border measures in the Anti-Counterfeiting Trade Agreement 2011. Such measures lack balance – and unduly favour the interests of intellectual property owners over consumers, importers, and exporters. Moreover, such measures will be costly, as they involve shifting the burden of intellectual property enforcement to customs and border authorities. Interdicting, seizing, and destroying goods may also raise significant trade issues. Finally, I express concern that the Anti-Counterfeiting Trade Agreement 2011 undermines the role of existing international organisations, such as the United Nations, the World Intellectual Property Organization and the World Trade Organization, and subverts international initiatives such as the WIPO Development Agenda 2007. I also question the raison d'être, independence, transparency, and accountability of the proposed new ‘ACTA Committee’. In this context, I am concerned by the shift in the position of the Labor Party in its approach to international treaty-making in relation to intellectual property. The Australian Parliament adopted the Australia-United States Free Trade Agreement 2004, which included a large Chapter on intellectual property. The treaty was a ‘TRIPs-Plus’ agreement, because the obligations were much more extensive and prescriptive than those required under the multilateral framework established by the TRIPS Agreement 1994. During the debate over the Australia-United States Free Trade Agreement 2004, the Labor Party expressed the view that it would seek to mitigate the effects of the TRIPS-Plus Agreement, when at such time it gained power. Far from seeking to ameliorate the effects of the Australia-United States Free Trade Agreement 2004, the Labor Government would seek to lock Australia into a TRIPS-Double Plus Agreement – the Anti-Counterfeiting Trade Agreement 2011. There has not been a clear political explanation for this change in approach to international intellectual property. For both reasons of process and substance, I conclude that the Australian Parliament and the Australian Government should reject the Anti-Counterfeiting Trade Agreement 2011. The Australian Government would do better to endorse the Washington Declaration on Intellectual Property and the Public Interest 2011, and implement its outstanding obligations in respect of access to knowledge, access to essential medicines, and the WIPO Development Agenda 2007. The case study of the Anti-Counterfeiting Trade Agreement 2011 highlights the need for further reforms to the process by which Australia engages in international treaty-making.

Development and validation of a questionnaire to measure health professionals' attitudes toward identification of female victimes of domestic violence

Background Domestic violence against women is a major public health problem and violations of women’s human rights. Health professionals could play an important role in screening for the victims. From the evidence to date, it is unclear whether health professionals do play an active role in identification of the victims. Objectives To develop a reliable and valid instrument to measure health professionals’ attitude to identifying female victims of domestic violence. Methods A primary questionnaire was constructed in accordance with established guidelines using the Theory of Planned Behaviour Ajzen (1975) to develop an instrument to measure health professionals’ attitudes in identifying female victim of DV. An expert panel was used to establish content validity. Focus groups amongst a group of health professionals (N = 5) of the target population were performed to confirm face validity. A pilot study (N = 30 nurses and doctors) was undertaken to elicit the feasibility and reliability of the questionnaire. The questionnaire was also administered a second time after one week to check the stability of the tests. Results Feedbacks of the expert panel’s and group discussion confirmed that the questionnaire had the content and face validity. Cronbach’s alpha values for all the items were greater than 0.7. Strong correlations between the direct and indirect measures confirmed that the indirect measures were well constructed. High test-retest correlations confirmed that the measures were reliable in the sense of temporal stability. Significance This tool has the potential to be used by researchers in expanding the knowledge base in this important area.