The judiciary in contemporary society : Australia

In Australia the appointment of judges is, by constitution or statute, universally the responsibility of the executive branch. The federal government handles all such matters relating to the High Court, the Federal Court, the Family Court and other federal judicial bodies. State governments exercise similar authority over the state supreme courts, district and magistrates' courts. All appointments are formally made by the Governor-General, or the Governor, in Council...

Arguing the Autopsy : mutual suspicion, jurisdictional confusion and the socially marginal

Vulnerable and marginalised populations are not only over-represented in the criminal justice system, but also in civil jurisdictions like the coronial system. Moreover, many of the personnel who deal with criminal matters, especially in rural and regional areas, are also those who manage the coronial death investigation. This movement back and forth between civil and criminal jurisdictions is difficult for the both professional personnel and the families, but especially for those families who may also have had dealings with these personnel in the criminal justice system, or who present as suspicious due to larger historical and global issues. While coronial legislation now allows families to raise cultural and religious concerns about the process, particularly to do with the autopsy of their loved one, this also requires them to identify themselves to police at the initial stage of the death investigation. This paper, part of a larger body of work on autopsy decision making, discusses the ways in which this information is gathered by police, how it is communicated through the system, the ways in which families are supported through the process, and the difficulties that ensue.

Regulating bereavement : inquests, family pressure and the gate keeping of suicide statistics

This study of English Coronial practice raises a number of questions, not only regarding state investigations of suicide, but also of the role of the Coroner itself. Following observations at over 20 inquests into possible suicides, and in-depth interviews with six Coroners, three main issue emerged: first, there exists considerable slippage between different Coroners over which deaths are likely to be classified as suicide; second, the high standard of proof required, and immense pressure faced by Coroners from family members at inquest to reach any verdict other than suicide, can significantly depress likely suicide rates; and finally, Coroners feel no professional obligation, either individually or collectively, to contribute to the production of consistent and useful social data regarding suicide—arguably rendering comparative suicide statistics relatively worthless. These issues lead, ultimately, to a more important question about the role we expect Coroners to play within social governance, and within an effective, contemporary democracy.

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.

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Transnational organised environmental crime

Transnational environmental crime must become a government priority, as organised criminal networks continue to exploit the environment with unprecedented profits. Such earnings come at a substantial social, economic and environmental expense for communities and their livelihoods. Indeed, organised environmental crime is identified by the United Nations as a key factor in the impoverishment, displacement and violent conflicts affecting millions of people — notably in developing societies.2 It is widely recognised that organised environmental crime syndicates, motivated by substantial financial rewards, continue to flourish and expand in disadvantaged societies with porous borders, where corruption is widespread and regulation is poor. The theft of biodiversity and the demise of animal species and habitats have resulted not only in financial loss, but also in an increase in “environmental refugees” — people dislocated and forced to migrate due to loss of livelihoods.

Tax and equality in 1972: The case of Lodge v FCT

This paper is part of a larger project described at http://www.law.uq.edu.au/australian-feminist-judgments-project as follows: This project draws its inspiration from two significant recent developments in law and feminist scholarship. The first has been the emergence in Canada and the UK of feminist judgment-writing projects, in which feminist academics, lawyers and activists have written alternative judgments in a series of legal cases, imagining the different decision that might have been made by a feminist judge hearing the case. The second has been the incremental shift in recent years in the number of women judges and Magistrates presiding in courts and tribunals throughout Australia. As part of this project, a group of scholars will write alternative feminist judgments. This paper is one of the alternative feminist judgements. The case used for this discussion is Lodge v Federal Commissioner of Tax [1972] HCA 49. In that case, a woman, earning income by way of commission in her occupation as a law costs clerk, which she carried out at her home, claimed to deduct from her assessable income child care fees that enabled her to devote time and attention to her work. The High Court held that no right to a deduction had arisen. It found that, although the purpose of the expenditure was for gaining assessable income, it did not take place in, or in the course of, preparing bills of cost. Further, the expenditure was of a ‘private or domestic’ nature. This seminal taxation decision, which prevents deductions for childcare, has broad financial ramifications for workers in the home and those with childcare responsibilities. It designates childcare duties as ‘private’, notwithstanding the need for these in order, particularly for women, to work in the public sphere.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.

What are the offence and offender risk factors for Indigenous repeat drink drivers in Queensland?

In Australia and internationally, there is scant information about Indigenous repeat drink drivers. The aim was to identify the risk factors associated with repeat offending. De-identified data on drink driving convictions by offenders identifying as Indigenous in Queensland between 2006 and 2010 were examined. A range of univariate analyses were used to compare first time and repeat offenders on gender, age, court location and region (based on the accessibility/remoteness index of Australia), blood alcohol concentration and sentencing severity. Multivariate logistic regression adjusted for confounding variables. Convictions for repeat offenders were more likely from locations other than ‘major cities’ with the association strongest for courts in the ‘very remote’ region (OR=2.75, 2.06-3.76, p<.001). Indigenous offenders 40 years or older were found to be at reduced risk in comparison to offenders aged 15-24 years (OR=0.68, 0.54-0.86, p=0.01). After controlling for confounding factors, gender, sentencing severity and blood alcohol concentration levels were not significantly associated with recidivism. The association of recidivism and remoteness is consistent with higher rates of alcohol-related transport accidents involving Indigenous Australians in isolated areas. This study provides a platform for future research and allows for early attempts to address the need for intervention to reduce Indigenous drink driving recidivism.

The Australian corporate rescue provisions : how do they compare?

A notable feature of corporate legislative development in western countries for the past 30 years is the various mechanisms introduced to facilitate the survival of company structures facing insolvency. Australia’s corporate rescue version, called a “voluntary administration”, is now contained in Part 5.3A of the Corporations Act 2001 (Cth), although first introduced in 1993. The Australian provisions apply to all corporate entities and commence with a short moratorium followed by a meeting of creditors. At the creditors’ meeting a “rescue” plan called a deed of company arrangement may be entered into, or, alternatively the company may be liquidated. The voluntary administration provisions have become a significant part of Australia’s corporate insolvency landscape and are critical to the operation of corporate law outside of insolvency. Australia does not have a specialist bankruptcy court, rather it utilises the English approach where insolvency practitioners are accountants and appointed to the insolvent company as administrators. In Australia, insolvency practitioners must be registered with the Australian Securities and Investments Commission (“ASIC”), the corporate and securities regulator. A voluntary administration is usually commenced by the board of directors appointing an insolvency practitioner to the company. There exists no opportunity for a voluntary administration to commence at the creditors’ or court’s behest. This chapter seeks to address the comparative necessity of Australia’s corporate regime.

Voluntary bankruptcy

"Voluntary bankruptcy occurs where a debtor commences the process of bankruptcy against himself or herself. One of the policies underlying the modern law of bankruptcy is that a person in a hopeless financial position should be given an opportunity to start again without the burden of previous debts.1 This has long been recognised by the courts; for example as Kennedy J. stated in relation to the position in the UK..."

Surrogacy : competing interests or a tangled web?

Overseas commercial surrogacy is a legally challenging but commonly utilised form of assisted reproductive technology. Not only does it raise complex and competing policy issues, but it tests the relevant Family Law legislation which underpins parenting orders. Decisions handed down by the judiciary are inconsistent. Legislation is inadequate. But still the surge in surrogacy continues as surrogacy destinations such as India and Thailand continue to increase in popularity. Part one of this article addresses the competing interests of the illegality of overseas commercial surrogacy arrangements with the welfare of the child born as a result of such arrangements, and the inconsistent approaches taken by the judiciary. Part two concerns the interpretation of Family Law legislation by the courts in an attempt to provide intended couples and their children with certainty and finality, again resulting in inconsistent judicial decisions. Overseas commercial surrogacy is legally problematic, and intended parents need to be aware of its limitations.

Mainstreaming therapeutic jurisprudence and the adversarial paradigm—incommensurability and the possibility of a shared disciplinary matrix

Problem-solving courts appear to achieve outcomes that are not common in mainstream courts. There are increasing calls for the adoption of more therapeutic and problem-solving practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and arguably, outside the adversarial paradigm itself. To some extent, this work is tolerated but marginalised. However, do therapeutic and problem-solving functions have the potential to help define, rather than simply complement, the role of judicial officers? The core question addressed in this thesis is whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see—or are we seeing—a juristic paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn? This thesis examines the current relationship between adversarialism and therapeutic jurisprudence in the context of Kuhn’s conception of the transition from periods of ‘normal science’, through periods of anomaly and disciplinary crises to paradigm shifts. It considers whether therapeutic jurisprudence and adversarialism are incommensurable in the Kuhnian sense, and if so, what this means for the relationship between the two, and for the agenda to mainstream therapeutic jurisprudence. The thesis asserts that Kuhnian incommensurability is, in fact, a characteristic of the relationship between adversarialism and therapeutic jurisprudence, but that the possibility of a therapeutic paradigm shift in law can be reconciled with many adversarial and due process principles by relating this incommensurability to a broader disciplinary matrix.

Mapping the conditions of penal hope

This article examines the conditions of penal hope behind suggestions that the penal expansionism of the last three decades may be at a ‘turning point’. The article proceeds by outlining David Green’s (2013b) suggested catalysts of penal reform and considers how applicable they are in the Australian context. Green’s suggested catalysts are: the cycles and saturation thesis; shifts in the dominant conception of the offender; the global financial crisis (GFC) and budgetary constraints; the drop in crime; the emergence of the prisoner re‐entry movement; apparent shifts in public opinion; the influence of evangelical Christian ideas; and the Right on Crime initiative. The article then considers a number of other possible catalysts or forces: the role of trade unions; the role of courts; the emergence of recidivism as a political issue; the influence of ‘evidence based’/‘what works’ discourse; and the emergence of justice reinvestment (JR). The article concludes with some comments about the capacity of criminology and criminologists to contribute to penal reductionism, offering an optimistic assessment for the prospects of a reflexive criminology that engages in and engenders a wider politics around criminal justice issues.