Teachers reporting child sexual abuse : towards evidence-based reform of law, policy and practice

This report presents the results of the largest study ever conducted into the law, policy and practice of primary school teachers’ reporting of child sexual abuse in New South Wales, Queensland and Western Australia. The study included the largest Australian survey of teachers about reporting sexual abuse, in both government and non-government schools (n=470). Our research has produced evidence-based findings to enhance law, policy and practice about teachers’ reporting of child sexual abuse. The major benefits of our findings and recommendations are to: • Show how the legislation in each State can be improved; • Show how the policies in government and non-government school sectors can be improved; and • Show how teacher training can be improved. These improvements can enhance the already valuable contribution that teachers are making to identify cases of child sexual abuse. Based on the findings of our research, this report proposes solutions to issues in seven key areas of law, policy and practice. These solutions are relevant for State Parliaments, government and non-government educational authorities, and child protection departments. The solutions in each State are practicable, low-cost, and align with current government policy approaches. Implementing these solutions will: • protect more children from sexual abuse; • save cost to governments and society; • develop a professional teacher workforce better equipped for their child protection role; and • protect government and school authorities from legal liability.

The legal framework of the Australian health system

This chapter is about the role of law in the creation and operation of Australian health systems. Accordingly, this chapter discusses how law regulates the way in which health services in Australia are funded, organised, regulated, managed, operated and governed. (The question of how health professionals are regulated is discussed in Chapter 15.) Although the focus of much of health law is on legal mechanisms for the resolution of disputes or disagreements between the state, health providers, professionals, patients and families and friends, and through dispute resolutions processes setting standards for practice, these are only some of the “jobs” that health law performs. In health systems where the state undertakes a significant role in regulating, funding, managing and providing health services, health law also performs an important constitutive function. Health law declares the values upon which the health system is based, shapes social processes to achieve public ends and provides a structure for the complex interactions that occur within a modern health system. Health law regulates decision-makers in health systems by establishing who has the power to participate in decisions and in what circumstances, establishing processes through which decisions are made and creating mechanisms for decision-makers to be held publicly accountable. It is this broader constitutive function of health law that is a primary focus of much of this chapter — how and why governments use their legislative powers to structure and shape the health system.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Governmentality and the reflection of legal educators : assessment practices as a case study

This paper presents a conceptual framework, informed by Foucault’s work on governmentality, which allows for new kinds of reflection on the practice of legal education. Put simply, this framework suggests that legal education can be understood as a form of government that relies on a specific rationalisation and programming of the activities of legal educators, students, and administrators, and is implemented by harnessing specific techniques and bodies of ‘know-how’. Applying this framework to assessment at three Australian law schools, this paper highlights how assessment practices are rationalised, programmed, and implemented, and points out how this government shapes students’ legal personae. In particular, this analysis focuses on the governmental effects of pedagogical discourses that are dominant within the design and scholarship of legal education. It demonstrates that the development of pedagogically-sound regimes of assessment has contributed to a reformulation of the terrain of government, by providing the conditions under which forms of legal personae may be more effectively shaped, and extending the power relations that achieve this. This analysis provides legal educators with an original way of reflecting on the power effects of teaching the law, and new opportunities for thinking about what is possible in legal education.

Adoption Law and Practice [2nd ed.]

This book addresses the modern law relating to adoption. It comes at a time of fundamental change in adoption practice as, increasingly, Irish couples look outside the jurisdiction for the child that will make their family complete.---------- * Examines and explains the new regulatory framework and the law now governing domestic and intercountry adoption.---------- * Provides a guide to the changes outlined in the Adoption Bill 2008 which also consolidates the provisions of seven previous statutes and incorporates the Hague Convention into Irish statute law.---------- * Considers the responsibilities of the new Adoption Authority, and the roles of other administrative and legal bodies.---------- * Sets out the adoption process, explaining the complexities of intercountry adoption, giving consideration to the interface between adoption and children in care and dealing with the rights of the parties involved.

Black v Garnock : implications for Queensland conveyancing practice

What was previously established as a fundamental principle, that a judgment creditor may take no interest beyond what the judgment debtor could give, has now been called into question by the decision of the High Court in Black v Garnock [2007] HCA 31. This article examines the implications of the decision of the High Court for conveyancing practice in Queensland. The relevant facts of Black v Garnock [2007] HCA 31 may be briefly stated: The Garnocks and the Luffs, as purchasers, entered a contract to purchase a rural property from Mrs Smith with settlement due on 24 August 2005. On 23 August 2005, a creditor obtained a writ against Mrs Smith from the District Court of New South Wales. No caveat was lodged on behalf of the purchasers prior to settlement (there being no equivalent, in New South Wales, of the Queensland settlement notice mechanism).

Developing ethical identities in young offenders through restorative justice practice in Australia

Restorative justice is firmly established in Australian juvenile justice. While the official language used to describe restorative initiatives varies across states and territories, the most common form is a meeting or conference between young offenders and their victims (most commonly known as a family group or youth justice conference). During the past decade, an impressive amount of empirical research has examined how the restorative justice process affects offenders, victims and other participants (such as supporters for young offenders and victims). Results from this line of research are remarkably consistent and show that participants generally regard restorative conferences as procedurally fair and that they are satisfied with the outcomes (eg what young offenders agree to do to make up for their offending behaviour, such as offer a sincere apology or perform work for the victim or the community). What is less common, however, is the perception among participants that restorative conferences achieve the key aim of restoration.By ‘restoration’ we refer to encounters where ‘offenders apologise, their apologies are accepted, victims offer forgiveness,and conferences conclude with a feeling of mutual good will’.

Young children as regenerative tissue donors : considering the need for legal reform in light of divergent ethical approaches

In Australia, young children who lack decision-making capacity can have regenerative tissue removed to treat another person suffering from a severe or life-threatening disease. While great good can potentially result from this as the recipient’s life may be saved, ethical unease remains over the ‘use’ of young children in this way. This paper examines the ethical approaches that have featured in the debate over the acceptability and limits of this practice, and how these are reflected in Australia’s legal regime governing removal of tissue from young children. This analysis demonstrates a troubling dichotomy within the Australia’s laws that requires decision-makers to adopt inconsistent ethical approaches depending on where a donor child is situated. It is argued that this inconsistency in approach warrants legal reform of this ethically sensitive issue.

Legal Profession Act 2007 s 319 - Whether costs agreement made after trial valid and enforceable - whether agreement had retrospective operation

The decision in QCOAL Pty Ltd v Cliffs Australia Coal Pty Ltd [2010] QSC 479 involved an examination of a number of issues relating to the assessment of costs under the Legal Profession Act 2007 (Qld). The decision highlights a range of issues which, in slightly different circumstances, may have deprived the successful party of the right to recover costs by reference to the costs agreement.

Female genital mutilation : legal, attitudinal and practical reform

Female genital mutilation (FGM) is a cultural practice common in many Islamic societies. It involves the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from less damaging incisions to actual removal of genitalia and narrowing or even closing of the vagina. While often thought to be required by religion, FGM both predates and has no basis in the Koran. Rather, it is a cultural tradition, motivated by a patriarchal social desire to control female bodies to ensure virginity at marriage (preserving family honour), and to prevent infidelity by limiting sexual desire. In the USA and Australia in 2010, peak medical bodies considered endorsing the medical administration of a ‘lesser’ form of FGM. The basis for this was pragmatic: it would be preferable to satisfy patients’ desire for FGM in medically-controlled conditions, rather than have these patients seek it, possibly in more severe forms, under less safe conditions. While arguments favouring medically-administered FGM were soon overcome, the prospect of endorsing FGM illuminated the issue in these two Western countries and beyond. This paper will review the nature of FGM, its physical and psychological health consequences, and Australian laws prohibiting FGM. Then, it will scan recent developments in Africa, where FGM has been made illegal by a growing number of nations and by the Protocol to the African Charter on Human and Peoples’ Rights 2003 (the Maputo Protocol), but is still proving difficult to eradicate. Finally, based on arguments derived from theories of rights, health evidence, and the historical and religious contexts, this paper will ask whether an absolute human right against FGM can be developed.

The'dream'of multi-agency crime prevention : pitfalls in policy and practice

During the 1980s, terms such as interagency or multi-agency cooperation, collaboration, coordination, and interaction have became permanent features of both crime prevention rhetoric and government crime policy. The concept of having the government, local authorities, and the community working in partnership has characterized both left and right politics for over a decade. The U.S. National Advisory Commission on Criminal Justice Standards and Goals in the U.S.. Circulars 8/84 and 44/90 released by the U.K. Home Office, and the British Morgan Report-coupled with the launch of government strategies in France, the Netherlands, England and Wales, Australia, and, more recently, in Belgium, New Zealand, and Canada-have all emphasized the importance of agencies working together to prevent or reduce crime. This paper draws upon recent Australian research and critically analyzes multi-agency crime prevention. It suggests that agency conflicts and power struggles may be exacerbated by neo-liberal economic theory, by the politics of crime prevention management, and by policies that aim to combine situational and social prevention endeavors. Furthermore, it concludes that indigenous peoples are excluded by crime prevention strategies that fail to define and interpret crime and its prevention in culturally appropriate ways.

Child welfare policy and practice on children’s exposure to domestic violence

There are emerging movements in several countries to improve policy and practice to protect children from exposure to domestic violence. These movements have resulted in the collection of new data on EDV and the design and implementation of new child welfare policies and practices. To assist with the development of child welfare practice, this article summarizes current knowledge on the prevalence of EDV, and on child welfare services policies and practices that may hold promise for reducing the frequency and impact of EDV on children. We focus on Australia, Canada, and the United States, as these countries share a similar socio-legal context, a long history of enacting and expanding legislation about reporting of maltreatment, debates regarding the application of reporting laws to EDV, and new child welfare practices that show promise for responding more effectively to EDV.

Power in legal education : a (new) critical and analytical approach

This article explores power within legal education scholarship. It suggests that power relations are not effectively reflected on within this scholarship, and it provokes legal educators to consider power more explicitly and effectively. It then outlines in-depth a conceptual and methodological approach based on Michel Foucault’s concept of ‘governmentality’ to assist in such an analysis. By detailing the conceptual moves required in order to research power in legal education more effectively, this article seeks to stimulate new reflection and thought about the practice and scholarship of legal education, and allow for political interventions to become more ethically sensitive and potentially more effective.

Autonomy versus futility? Barriers to good clinical practice in end-of-life care : a Queensland case

Findings from a Queensland coronial inquest highlight the complex clinical, ethical and legal issues that arise in end-of-life care when clinicians and family members disagree about a diagnosis of clinical futility. The tension between the law and best medical practice is highlighted in this case, as doctors are compelled to seek family consent to not commence a futile intervention. Good communication between doctors and families, as well as community and professional education, is essential to resolve tensions that can arise when there is disagreement about treatment at the end of life.