Civil penalties : emphasising the adjective or the noun

In this article the writer argues that recent civil penalty cases demonstrate that a hybrid third way is evolving where the procedure shares some of the features of criminal and civil proceedings. The writer notes the recommendation of the Australian Law Reform Commission that Federal Parliament enact a Regulatory Contraventions Statute of general application and argues that such a statute might assist to provide greater consistency and clarity. The writer notes the debate about whether the courts’ approach is in line with legislative intention, but argues that where there are substantive law protections such as the privilege against a penalty, Parliament must do more than merely refer to the “rules of evidence and procedure for civil matters” and must expressly abrogate these protections if they are not to be available to defendants in such hearings.

Policing, rule of law, state capacity and sustainable peace in Timor-Leste

This paper sets out to demonstrate the link between development, state capacity and peace, employing Timor-Leste as the case study. It employs the association between state capacity and development to illustrate where if state capacity is lacking or functions improperly there is likely to be a low level of state legitimacy. This in turn manifests as lack of respect for or failure of rule of law, developing as generalised lawlessness and anti-state activity and eventually manifesting as intra-state or civil conflict. In particular, policing is seen as a critical component in state legitimacy, being the 'front line' of the judicial system from which legitimacy ultimately derives. This issue is particularly critical in states emerging from traditional legal and judicial structures, but which have not yet articulated into 'rational-legal' structures. Ipso facto, key state institutions, such as the judicial system and police are required to function well, while these are alone not enough to guarantee peace, they are significant contributors to and guarantors of peace.

Against settlement? Owen Fiss, ADR and Australian discrimination law

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.

Remedying discrimination : the limits of the law and the need for a systemic approach

Very few discrimination complaints reach the courts each year. As with other civil litigation, the reasons for this include the cost of pursuing litigation and, particularly for complainants, the risk of losing or receiving less than the complainant could have negotiated prior.

Drawing on interviews with lawyers and non-legal advocates in Victoria and an analysis of successful cases in three jurisdictions, this article examines the remedy the court is likely to award in a successful discrimination complaint and considers the effect of this on the eradication of discrimination in society. A comprehensive examination of the remedies awarded in successful discrimination complaints in Victoria over a three year period shows that courts are most likely to order compensation at modest amounts and complainants are not regularly awarded their costs. A comparison with Queensland and the federal system reveals a similar experience. Even in those jurisdictions where wider remedies are available, courts rarely take the opportunity to make broad orders which could affect other similarly situated individuals or deter would-be respondents.

While it is necessary to remedy the complainant’s experience, it is also necessary to address broader, systemic discrimination and a compensation award cannot do this. Remedying discrimination with compensation is primarily a problem because it is reactive. Compensation does not address other instances of discrimination in society or achieve systemic change nor does it encourage compliance because the respondent is not required to take anticipatory action to prevent another complaint.

Based on the interpretive principles and extensive remedies provided in South Africa’s recent anti-discrimination and a study of remedies ordered by the South African Equality Courts and the Irish Equality Tribunal, the article proposes reforms to Australia’s anti-discrimination legislation to enable courts to make wider orders which target other instances of discrimination in addition to remedying the complainant’s experience.

Neoliberalism, the developmental state and civil society in Korea

Following the Asian economic crisis of the late 1990s, some scholars predicted that the introduction of neoliberal ideas and policies would result in the definitive passing of the Korean developmental state. Despite these predictions, Korean state elites have retained their influential position as economic managers by, for instance, practicing a revised form of industrial policy. Neoliberal reform has, however, had significant social implications. Rather than neoliberalism acting as a democratising force that curtails the power of the state, this article illustrates that the Korean state has used the reform agenda to justify an expansion of its powers. The state presented itself as an agent capable of resolving long-standing economic problems, and of defending law and order. By doing so, the state reduced the political space available to non-state actors. The article concludes that for some states, neoliberalism is a means of retaining economic and political influence, and that former developmental states may be particularly adept at co-opting elements of civil society into governing alliances.

Mental health legislation (civil) in Australia and China: a comparative study

This comparative review of statutory provisions of Australian and Chinese law focuses on accessibility of mental health care, diagnosis, admission and treatment orders for involuntary patients in civil cases as well as discharge procedures. The introduction contextualises the object of the comparative study, including key rights and principles that are used as the basis for analysis. Such factors as different political and legal systems, history, culture, and infrastructure resources of China and Australia form the background for the legal examination. Not surprisingly, these five factors, rather than statutory texts per se, are found to be the most important drivers of each country’s approach to the law of mental health. Two cases, XX v WW [2014] VSC 564 in Australia and Xu Lixin v Xu Canxing, Qingchun Psychiatric Rehabilitation Hospital of Shanghai [2015], known as the Right to Liberty Case, in China illustrate practical differences in legal approach to involuntary treatment. The comparative analysis concludes by identifying the most problematic aspects of the legislation in each country.