An entrenched bill of rights : a protection for the rights of minorities

This paper is concerned with the question of whether Australia would be better served by the inclusion of an entrenched Bill of Rights in the Constitution of the Commonwealth of Australia. In particular, attention will focus on the abuses of minorities that are all but certain to arise in any society that is based on majoritarian rule. This paper will also examine the question of whether an entrenched Bill of Rights would serve as an effective safeguard against such abuses, especially where the rights of unpopular minorities are involved. The analysis to follow is undertaken against the backdrop of the efficacy, or the lack thereof, of the Constitution of the United States in preventing such abuses, and particularly that portion of the American Constitution that is known as the Bill of Rights.

The constitutional rights of children and the Prevention of Organised Crime Act 121 of 1998

The Prevention of Organised Crime Act 121 of 1998 [POCA] embodies a serious attempt by the South African government to effectively police and curb organised crime, money laundering and criminal gang activities in South Africa. The Act provides inter alia for a range of crippling fines and for orders such as confiscation and forfeiture. Asset forfeiture and confiscation orders can affect the rights of third parties directly and indirectly in a number of ways. Young persons and children can beaffected indirectly because asset forfeiture and confiscation orders may violate the right to parental care of the dependent young persons and children of the person who is subject to the order. This brief article will investigate aspects of the protection afforded to the rights of children when such orders are made in terms of the provisions of the Prevention of Organised Crime Act.

Holding the purse strings : the continuing evolution of human rights law and the potential liability of the finance industry for human rights abuses

While the responsibility of States and, in more recent times, corporations, has been thoroughly discussed in relation to human right~, a new stage of evolution may be emerging in relation to the liability of the financial backers of an enterprise that is accused of human rights abuses. This article considers the basis in international law for such emerging liability and examines some of the legal avenues used in recent domestic litigation against financial institutions. The article concludes by examining some of the relevant instruments of 'soft' international law and notes that although there is little in the way of concrete legislation or judicial precedent that would hold financial institutions responsible for the actions of those they invest in, the potential for the law to evolve in that direction is clear.

Evaluation of the effectiveness of marine protected areas in temperate waters of Australasia

An evaluation of the effectiveness of Marine Protected Areas (MPAs) in temperate waters of Australasia has been conducted for this thesis. The aim was to identify key elements needed in a strategy for establishment and management of MPA’s in temperate waters of Australasia. This aim was achieved by assessing how effective a sample of MPA’s has been in meeting the conservation objectives for their establishment and by identifying factors that have contributed to success or failure of the MPA’s in meeting these objectives. Particular attention was paid to the objectives of ecological sustainability and biodiversity preservation. A MPA for the purposes of this research was defined as an area of coastal or marine environment, with a substantial subtidal component, set aside by law primarily for conservation purposes. The study region encompassed the coastal zones of Victoria, Tasmania and South Australia (Australia) and New Zealand. The questions posed in order to address the aim of this thesis were; a) Have existing MPA’s been effective in achieving conservation objectives? b) What have been the important influences on effectiveness of existing MPA’s? c) What are the key elements required for implementation of effective MPA’s? The thesis is divided into three parts. Part I is a review of the literature on implementation and effectiveness of MPA’s. Part II presents a detailed evaluation of one MPA: Point Lonsdale Marine Reserve (PLMR), Victoria, Australia. Part in is an evaluation of a number of Australasian temperate MPA’s based on information provided in a survey of people involved in management of MPA’s, and from a variety of published and unpublished documents. The MPA’s are described, evidence about ecological effectiveness is presented and factors that have enhanced and limited the ability of these MPA’s to achieve conservation objectives are derived. A substantial amount of scientific evidence was found for increases in abundance, mean size and size range of fish and invertebrate populations within the boundaries of ‘no-take’ MPA’s, Some evidence was found for ‘spillover’ of adults and juveniles into adjacent fishing grounds. Ecological effects detected within ‘no-take’ MPA’s in Australasia matched those described in the literature. The abundance and mean size of a number of previously exploited species have increased, migration into adjacent fishing grounds has been documented, and species richness has increased in at least one MPA. The PLMR was established primarily to protect the scientifically significant intertidal rock platforms. The results of the case study suggest that this objective has been achieved. Opinions about effectiveness were obtained for 28 MPA’s. Of these 19 were considered to be achieving some objectives and 10 were considered to be performing well in terms of overall ecological effectiveness. Positive effects on biodiversity were generally assumed as a result of reduction of damaging anthropogenic effects on habitat. Many questionnaire respondents noted an increase in community awareness about and support for marine conservation as a result of proclamation of MPA’s, Overall, the results support the value of MPA’s for sustainability of fish stocks and preservation of biodiversity, but there is substantial doubt over whether some of the MPA’s are too small to maintain benefits in the long-term. ‘No-take’ MPA’s, particularly those more remote from the impacts of human activities, have been the most effective in achieving objectives. A number of interacting factors important to eventual success of MPA’s were identified. The most important enhancing factors identified for the PLMR were physical attributes that limit the extent of human use and a strong conservation ethic amongst many of the visitors to this marine reserve. Limiting factors were far more numerous. Of most concern is the inadequacy of at-site management. Almost half of visitors to the area were not aware of its marine reserve status, despite the fact many were frequent visitors. The need for better educational and interpretative material on-site is highlighted by the results of the PLMR visitor survey. A total of 56 factors that have enhanced effectiveness and 46 factors that have limited effectiveness of Australasian temperate MPA’s were identified. A number of factors were important in more than one MPA and this was used to derive a set of critical, or key, factors. For example, a conclusion of all three approaches used in this study is that failure to implement day-to-day management through lack of resources was a major constraint on effectiveness. The importance of MPA’s to marine conservation depends, in part, on how well they are managed. The key factors that influence MPA effectiveness were used as the basis for derivation of the main requirements for implementation of MPA’s that will be capable of meeting the objectives for their establishment. The most important needs are: • that ‘no-take’ areas surrounded by buffer zones form the basis for a system of MPA’s; • that a high level of protection is bestowed by legislation and regulations; • that a minimum size be set for the ‘no-take’ core areas; • that the selection of sites for MPA’s takes into account land-based impacts; • that institutional arrangements are developed specifically for MPA’s; • that funding for MPA’s is increased to enable effective management; • that day-to-day management is implemented in all MPA’s, with enforcement and education programs as priority areas; • that a monitoring program for one or more MPA in each 'State' is established to provide evidence of ecological effects of reservation; • that public and stakeholder involvement in development and implementation of MPA’s is encouraged as this will influence the degree of public support and compliance; • that community-based programs to educate the general public, stakeholders, the media and decision-makers about the value of MPA’s are essential; and • that measures to reduce financial impact on affected stakeholders be implemented.

Restorative justice and the human rights of offenders : convergences and divergences

Restorative justice has gained significant momentum as a justice reform movement within the past three decades, and it is estimated that up to one hundred countries worldwide utilize restorative justice practices. Although claims about the role of restorative justice in protecting human rights are repeatedly made in the restorative justice literature, they are seldom supported by empirical evidence or a thorough analysis of human rights and their justification. In this paper, we discuss how the assumptions underpinning restorative justice practices impact on offenders' human rights, and their points of convergence and divergence. We argue that while these assumptions can protect certain offender rights, they may violate others. We finish with some suggestions about how to reconcile the tensions between human rights and restorative justice, focusing in particular on the relationship between community needs and individual well-being.

Immigration detention: the migration of a policy and its human impact

Before the turn of the century, few states used immigration detention. Today, nearly every state around the world has adopted immigration detention policy in some form. States practice detention as a means to address both the accelerating numbers of people crossing their borders, and the populations residing in their states without authorisation. This edited volume examines the contemporary diffusion of immigration detention policy throughout the world and the impact of this expansion on the prospects of protection for people seeking asylum. It includes contributions by immigration detention experts working in Australasia, the Americas, Europe, Africa and the Middle East. It is the first to set out a systematic comparison of immigration detention policy across these regions and to examine how immigration detention has become a ubiquitous part of border and immigration control strategies globally. In so doing, the volume presents a global perspective on the diversity of immigration detention policies and practices, how these circumstances developed, and the human impact of states exchanging individuals' rights to liberty for the collective assurance of border and immigration control. This text will be of key interest to scholars, students and practitioners of immigration, migration, public administration, comparative policy studies, comparative politics and international political economy.

The moral rights of authors and performers: an international and comparative analysis

This book is a comprehensive guide to the development and utilization of authorial moral rights across the key jurisdictions of the English-speaking world and in France and Germany. In recent years, the copyright statutes of the common law countries have been expanded by the introduction of provisions dealing with purely authorial rights - moral rights.
The Moral Rights of Authors and Performers discusses the historical development of the rights in Europe, with particular reference to France and Germany, and shows the growth of moral rights theory and legislative coverage up to the late 1930s. During the 1920s the moral rights of authors became the subject of international protection, particularly through the operation of the Berne Convention for the Protection of Literary and Artistic Works. The book explores the adoption of moral rights into this and other international instruments, explaining the functions that moral rights were intended to perform.
The author gives detailed accounts of the operation of moral rights in France and Germany today, addressing both statutory interpretation and doctrinal issues. The provision of case studies gives an impression of the rich jurisprudence associated with the rights in these countries.
The book also contains a detailed discussion of the versions of moral rights that have become entrenched in Canada, the UK, the US and Australia, with each country considered independently. It deals separately with the introduction of the rights into each country and their operation and interpretation by courts and commentators. Material on common law analogues to the rights is provided, which indicates alternative actions that practitioners might take. Problems of cross-jurisdictional legal proceedings (especially arising from technological transfer of information) are also addressed, with moral rights protection elsewhere in the world summarized in tabular form.

The role of personality in leadership: an application of the five-factor model in the Australian military

This study investigated the relation between the five-factor model (FFM) of personality trait domains and leadership effectiveness. Ninety-nine Australian Army commissioned officers completed the NEO Personality Inventory-Revised (NEO-PI-R; Costa & McCrae, 1992) and were rated by their superior officer on the Australian Army annual leadership effectiveness evaluation schedule. Participants indicated whether they had been selected to attend a leadership promotion course at the Army Command and Staff College, widely regarded within the Army as indicative of an officer's effectiveness. It was hypothesized that leadership effectiveness would be predicted by the personality trait domains of high Conscientiousness, Openness, Agreeableness, and Extraversion and by low Neuroticism. High Conscientiousness and low Extraversion scores predicted high leadership effectiveness and the likelihood of attending the leadership promotion course. High Openness scores also predicted the likelihood of attending the promotion course. The results support the utility of the FFM in exploring the role of personality in leadership effectiveness among military leaders.

Personality change and personality disorder : some initial thoughts on the application of McAdams' triarchic model to the treatment of personality disorder

It is increasingly accepted that psychological therapies have an important role to play in the management and treatment of those who are considered to have disorders of personality, particularly those with forensic histories. Whilst there appears to be an emerging evidence base supporting the effectiveness of treatment for this group, there have been relatively few attempts to link treatment approaches to current models of normal personality. In this paper we use McAdams' (1994) triarchic model of personality as a basis for understanding the effective treatment of personality disorders. We conclude that the model may be useful in assisting clinicians to engage patients in treatment, identify innovative methods of intervention, and conceptualise therapeutic progress.

Therapeutic Jurisprudence, juvenile justice and the UN Convention on the Rights of the Child : do they coexist?

The UN Convention on the Rights of the Child provides children and young people with over 40 substantive rights, the five outcomes of which are living a healthy lifestyle, staying safe, enjoying and achieving, making a positive contribution, and economic wellbeing. Moreover, Article 3 dictates that all organizations concerned with children should work towards what is best of each child. It is not clear how these rights translate to the care of children and young people who come before the courts (particularly those who are subsequently incarcerated). A review of the literature suggests that while best practice guidelines for the treatment and rehabilitation of adult offenders has moved forward, there is little consensus about how this might be achieved for young people. Therapeutic Jurisprudence (TJ) needs to extend beyond its current considerations of the rights of children and young people, and to expand its focus to the extent to which international human rights standards are complied with in the cases of juveniles in the criminal justice system. This presentation will (a) explore the extent to which current practices in juvenile justice are consistent with the UN's Convention and (b) whether the adoption a rehabilitative and treatment approach based on a TJ framework might serve to improve outcomes for young people and ensure their rights are not being violated.

Human dignity and vulnerable agency : an ethical framework for forensic practice

In this paper, we present an integrated ethical framework that covers the different levels of ethical tasks inherent in forensic and correctional work. First, we briefly give an overview of the ethical framework and its component notion of human dignity. Second we analyze in depth the concept of dignity and its relationship to normative theories and ethical concepts that are particularly relevant for forensic practitioners. Third, we explore the capacity of the conceptions of human dignity and vulnerable agency to integrate principles typically contained in ethical codes and practice, such as beneficence, autonomy, and justice. Fourth, we discuss how conflict between ethical codes or duties of station adhered to by practitioners can be effectively addressed in light of the model of dignity and agency outlined earlier. Fifth, we explain how individuals' specific ethical judgments and actions should proceed in light of our framework model.