A legacy of assimilation : abuse in Canadian native residential schools

Unlike the position in Australia, Canada has appropriately responded to the revelations of forced removal of indigenous children by apologising to those persons who suffered through the Native Residential Schools - Canada has also sought to facilitate settlements with many of these persons with validated claims.

Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.

The stolen generations- Canada and Australia. The legacy of assimilation

Comparison of issues regarding the policy of Australian and Canadian governments of removing aboriginal children from their families and placing them in institutions - some Canadian claimantThis article provides a comparative overview of issues pertaining to the stolen generation in Canada and Australia. It includes a historical overview of the removal and detaining of aboriginal children in Canada and Australia. As a consequence of the revelations of this past practice, litigation has been undertaken by members of the stolen generations in both Canada and Australia. The article includes a summary of the key cases in Canada and Australia. Unlike in Australia, some Canadian aboriginal claimants have successfully brought actions for compensation against the federal Canadian government for the damages stemming from their experiences in the aboriginal residential schools. In the course of this discussion, the various causes of actions relied upon by the plaintiffs are examined While the plaintiffs in these leading Canadian cases were ultimately successful under at least one of their heads of claim, the approaches in these cases in regard to the Crown's liability for breaching fiduciary duties, the duty of care, and non-delegable duties is inconsistent. Thus even in regard to the Canadian jurisprudence key legal issues pertaining to the Crown's liability for the aboriginal residential school experience continues to be unresolved.

The common law principle of legality

In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that '[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.' This development has occurred throughout the common law world most relevantly in New Zealand and the United Kingdom where its re-emergence coincided with the enactment of statutory bill of rights. It is however the aim of this article to outline the nature and scope of the principle of legality in contemporary Australian law.

The principle of legality as clear statement rule: significance and problems

In Australia, the common law principle of legality has hardened into a strong clear statement rule that is applied when legislation engages common law rights and freedoms. It has transformed a loose collection of rebuttable interpretive presumptions into a quasi-constitutional common law bill of rights. However, these developments are not without controversy or issue. The analysis undertaken in this article suggests that the principle of legality as clear statement rule -- as mandated by the High Court in Coco v The Queen -- can only work legitimately if Parliament has clear and prior notice of the rights and freedoms that it operates to protect. But it is problematic if what a common law right, such as freedom of speech, requires or guarantees in any given legislative context is unclear and contested, and so must be judicially divined at the point of application. In these cases, the principle operates to enforce a (post-legislative) judicial approximation of what best protects and promotes an abstract legal value or principle. It amounts to the illegitimate judicial remaking of prior legislative decisions on rights. This undercuts the normative justifications for the principle of legality as it obscures from Parliament the common law (rights) backdrop against which its legislation is enacted and interpreted.

Addressing the curious black spot that is the separation between the principle of legality and sentencing

The principle of legality has evolved into a clear and entrenchedjurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and fre edoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legalsystem operates in its most coercive manner against individuals. In thisarticle, we argue that logically the principle of legality has an importantrole in the sentencing system given the incursions by criminal sanctionsinto a number of basic rights, including the right to liberty, the freedom ofassociation and the deprivation of property. By way of illustration, we setout how the principle of legality should apply to the interpretation of keystatutory provisions. To this end, we argue that the objectives of generaldeterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send offenders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of offenders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

The principle of legality and contemporanea exposition est optima et fortissima in lege

If the principle of legality operates to obscure from Parliament the common law (rights) backdrop against which it legislates, the clarity or rights-sensitivity of that legislation cannot be improved. This undercuts, rather than promotes, the democratic and rule of law values that underpin the modern conception of the principle and its contemporary normative justification. So the courts must strive to give Parliament the clearest possible picture as to the content of the fundamental common law rights it seeks to protect and, depending on the right, freedom, or principle in legislative play, the strength with which the principle will be applied in order to do so. Parliament (and parliamentary counsel) can only ‘squarely confront’ those fundamental rights the existence and content of which was known at the time of legislating. The proposition which, necessarily, follows is that the rule of contemporanea exposition est optima et fortissimo in lege must be revived when judges apply the principle of legality to the construction of statutes. If the courts are to maintain and take seriously the normative justification for the principle then its application to the construction of statutes can only operate to protect from legislative encroachment those fundamental rights existing at the time the statute was enacted.

Resisting assimilation : the mild aesthetics and wild perceptions of the migrant house

The physical adaptation, remaking and maintenance, or building of the house plays a significant role in immigrants’ sense of belonging to a community, especially in contexts of first generation elderly immigrants with minimal English language skills. Psychoanalytic theories propose that objects are integral to a subject’s identity, but that the path of effect between the subject and object is not causal or direct, rather it goes via the unconscious. This paper seeks to examine the relationship between immigrants and their houses through these theories adapting them to an analysis of the houses. It draws its data from field research of three elderly immigrant households. The iconography of the house has always been perceived as central to the analysis of dreams, here the thesis is that the house is the most significant object of the immigrant because it mediates the many worlds inherent to the migrant’s imaginary landscapes. The analysis will seek to understand this role of the house.

Secondly, while many houses in which migrants live can barely be differentiated in clear physical ways from the typology of houses built in Australia, the perception that they are different is a strong myth. At the least it has resulted in very little, if any, study of this vernacular of new Australian houses. It would be easy to argue that to build a house in Australia is the most important mode of assimilation because a way of life is intrinsically set by this suburban paradigm. But for the reason of this perception of difference I will explore an idea about ethnic aesthetics as a mode of resisting assimilation. In writing on taste in his seminal book, Distinction, the sociologist, Pierre Bourdieu, has argued that taste is a way of classifying people into classes, race, culture, but it is also a way for dominant and ruling classes to resist challenges from other parties, and maintain a particular hierarchy of society. In this case those other parties are ethnic communities in Australia whose tastes are not always the same as that of the dominant Anglo-Celtic community.

Quo iure? Defendants' liability to rescuers in the tort of negligence

The year 2001 marks the 80th anniversary of Cardozo J's judgment in Wagner v International Railway Co 232 NY 176 (1921). This article examines theoretical and procedural problems associated with the concept of duty of care as a foundation for the defendant's liability in negligence to altruistic rescuers, and suggests that Cardozo J's judgment did not establish the principle that defendants owe rescuers a duty of care in negligence. It is argued that subsequent judgments failed to provide the duty of care owed to rescuers under tortious negligence with proper jurisprudential foundations. Conceptual difficulties inherent in a jurisprudential principle that would provide physically injured rescuers with a legal right to a duty of care from the defendant under the tort of negligence were compounded once compensation for negligently occasioned pure emotional distress became available. This article analyses various theories of recovery for pure psychiatric injury and the classification of rescuers into primary and secondary victims. It proposes a solution in the form of a separate cause of action on the case for liability to injured rescuers, partly based on the principle of necessity that governs the Roman action for negotiorum gestio. Cases from the United States, England and Australia are used to illustrate the similarities and differences in the development of and approaches to, the law of rescue.

Net Energy Analysis of Double Glazing for Residential Buildings in Temperate Climates

Energy used in buildings is a major contributor to Australia’s energy consumption and associated environmental impacts. The advent of complex glazing systems such as double glazing, particularly in northern America and Europe, has partially closed a weak thermal link in the building envelope. In milder climates, however, building envelope features may not be as effective in life cycle energy terms, i.e. including the embodied energy of their manufacture. A net energy analysis compares the savings in operational energy to the additional requirements for embodied energy, in terms of the energy payback period and energy return on investment. The effectiveness of double glazing is determined for an Australian residential building. A wide range of building operation regimes was simulated. These results support the principle of installing double glazing in residential buildings in Melbourne, Australia, at least in terms of net primary energy savings.

The making of modern scientific personae: the scientist as a moral person? Emil Du Bois-Reymond and his friends

This article examines the notion of the 'scientist as a moral person' in the light of the early stages of the commodification of science and the transformation of research into a big enterprise, operating on the principle of the division of labour. These processes were set in train at the end of the 19th century. The article focuses on the concomitant changes in the public persona and the habitus of scientific entrepreneurs. I begin by showing the significance of the professional networks that were built up and maintained to further a group's research ideas and the careers of its members, thus demonstrating one condition on which depended their practice of science and their ability to earn a living. This leads to a characterization of the changing styles of work, thought and life, and to a consideration of public perceptions and of the ways in which a new self-image of scholarship and science was fashioned. A critical discussion of the public role of these mandarin scientists follows in order to highlight the strains created by the commodification of science at a time of international tensions and conflicts, when shared beliefs in scholarly cosmopolitanism were subverted by appeals to science and scholarship to work in the service of one's own nation as its 'courtiers'. Various considerations of peculiar analogies between national styles of research and the style of social organization are then noted. In the final section, the article queries the long-term impact of these developments on the ideal of the scientist as a 'moral person'. Taking a cue from Max Weber and pursuing reflections by Zygmunt Bauman on 'science moralized', I argue that the emergence of a type of 'specialists without spirit' was an unintended but fatal consequence of the changes in research practices promoted by scientific entrepreneurs such as Du Bois-Reymond. I conclude that the temptation to sever the ties to a general ethos of civil virtues lay in the rationalization, specialization and potential de-humanization of the objectifying scientific outlook once advocated for its efficiency.