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

Developing a model of care to improve the health and well-being for Indigenous people receiving renal dialysis treatment

The high levels of end-stage renal disease among Indigenous Australians, particularly in remote areas of the country, are a serious public health concern. The magnitude of the problem is reflected in figures from the Australian and New Zealand Transplant and Dialysis Registry that show that Indigenous Australians experience end-stage renal disease at a rate almost 9–10 times higher than other non-Indigenous Australians. A majority of Indigenous Australians have to relocate to receive appropriate renal dialysis treatment. In some Australian states, renal treatment is based on self-care dialysis which allows those Indigenous Australians to be treated back in their community. Evidence clearly shows that reuniting renal patients with community and family improves overall health and well-being for those Indigenous Australians. With the appropriate resources, training, and support, self-care management of renal dialysis treatment is an effective way for Indigenous people with end-stage renal failure to be treated at home. In this context, the study was used to gain insight and further understanding of the impact that end-stage renal disease and renal dialysis treatment has had on the lives of Indigenous community members. The study findings are from 14 individually interviewed people from South East Queensland. Data from the interviews were analysed using a combination of thematic and content analysis. The study methodology was based on qualitative data principles where the Indigenous community members were able to share their experiences and journeys living with end-stage renal disease. Many of the experiences and understanding closely relate to the renal disease pattern and the treatment with other outside influences, such as social, cultural, and environmental influences, all having an equal impact. Each community member’s experience with end-stage renal disease is unique; some manage with family and medical support, while others try to manage independently. From the study, community members who managed their renal dialysis treatment independently were much more aware of their renal health status. The study provides recommendations towards a model of care to improve the health and well-being is based on self-care and self-determination principles.

The mandatory notification of data breaches : issues arising for Australian and EU legal developments

Public and private sector organisations are now able to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other jurisdictions. This article reviews US, Australian and EU legal developments regarding the mandatory notification of data breaches. The authors highlight areas of concern based on the extant US experience that require further consideration in Australia and in the EU.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

‘Universities are not the safe places we would like to think they are, but they are getting safer’: Indigenous women academics in higher education

This paper outlines some of the experiences of Indigenous women academics in higher education. The author offers these experiences, not to position Indigenous women academics as victims, but to expose the problematic nature of racism, systemic marginalisation, white race privilege and radicalised subjectivity played out within Australian higher education institutions. By utilising the experiences and examples she seeks to bring the theoretical into the everyday world of being Indigenous within academe. In analysing these examples, the author reveals the relationships between oppression, white race privilege, institutional privilege and the epistemology that maintains them. She argues that, in moving from a position of being silent to speaking about what she has witnessed and experienced, she is able to move from the position of object to subject and gain a form of liberated voice (hooks 1989: 9) for herself and other Indigenous women. She seeks to challenge the practices within universities that continue to subjugate Indigenous women academics.

Indigenous research and broader issues in the Academy

The Rudd Labour Government rode to power in Australia on the education promise of 'an education revolution'. The term 'education revolution' carries all the obligatory marketing metaphors that an aspirant government might want recognised by the general public on the eve government came to power however in revolutionary terms it fades into insignificance in comparison to the real revolution in Australian education. This revolution simply put is to elevate Indigenous Knowledge Systems, in Australian Universities. In the forty three years since the nation setting Referendum of 1967 a generation has made a beach head on the educational landscape. Now a further generation who having made it into the field of higher degrees yearn for the ways and means to authentically marshal Indigenous knowledge? The Institute of Koorie Education at Deakin has for over twenty years not only witnessed the transition but is also a leader in the field. With the appointment of two Chairs of Indigenous Knowledge Systems to build on to its already established research profile the Institute moved towards what is the 'real revolution' in education – the elevation of Indigenous Knowledge as a legitimate knowledge system. This paper lays out the Institute of Koorie Education‘s Research Plan and the basis of an argument put to the academy that will be the driver for this pursuit.