An argument for uniform Australian sentencing law

Sentencing law and practice impacts on fundamental individual interests, both from the perspective of offenders and victims. It also affects community safety and security The scope of sentencing law and its principal objectives are broadly similar throughout Australia. However, there are many important differences, especially in relation to sentencing practice, with some jurisdictions appearing to impose considerably heavier penalties for certain offence types. This article argues that uniform sentencing law should be implemented throughout Australia. The likely benefits would extend beyond achieving greater consistency in sentencing outcomes. A move toward uniform national sentencing laws would provide the catalyst for an objective, evidence-based review of sentencing policy and practice, thereby providing a vehicle for harmonising the law with a wealth of empirical data regarding the objectives that can be achieved through a system of state-imposed sanctions. It would also present a meaningful opportunity for a normative assessment of the justifiable operation of sentencing law. The main impediment to uniform sentencing laws is likely to come from state and territory governments seeking to maintain control over this often socially controversial area as a means of securing and maintaining community support. However, this obstacle is not necessarily insurmountable. It is not clear whether sentencing policy is, in fact, a main driver of voter preferences. Some politicians may prefer to have ·national uniformity' as a buffer to counteract reflexive calls for tougher sentencing that often occur following particularly serious crimes or seemingly light sentences handed down by courts.

Tracks to advocacy: journalism studies, animal rights and Australian media law

This article considers the role of animal rights-based journalism and its connection to teaching media law and ethics to undergraduate students in an Australian university arts faculty. An anecdotal discussion of a reflective practice informing the teaching of an undergraduate course in a journalism major relates questions of ethics and law to broader considerations of the role of advocacy in and around journalism, and media practice. It is argued that animal rights-related stories have a role in training media professionals, and also in inspiring journalists to envision their own work as part of the democratic mechanisms of social and legal reform in Australia.

Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen

The following discussion is an exposition of the recognised exceptions to the general rule that the law will not sanction the giving of a lawful consent to the application or threat of actual or grievous bodily harm. The discussion will also focus on a series of decisions in the UK and Australia, particularly Neal v The Queen, that have altered the law's approach to these exceptions and, more importantly, now permit a personto give an informed consent to the risk of contracting HIV or any other sexually transmitted diseases, provided there was no intention on the part of the accused to actually infect the other person. The underlying rationale for sanctioning an informed consent to such a risk is that consenting adults should be accorded the utmost autonomy in conductingtheir private affairs, and particularly so in the context of the choices they make regarding their private sexual activities. Whether one agrees or disagrees with the notion of allowing one to lawfully consent to such a risk, it raises an important question as to the current status of the general rule that one cannot generally give an informed consent to the applicationor threat of actual or grievous bodily harm. More succinctly stated, if the law is prepared to allow an informed consent to the risk of contracting a potentially fatal disease, then what remains of what had previously been a well-settled rule that, save for a few well-recognised exceptions, persons were generally prohibited from consenting to the application or threat of actual or grievous bodily harm?

The roots of punitive damages at common law: a longer history

This Article aims to revisit the historical development of the doctrine ofexemplary or punitive damages. Punitive damages are anomalous in that they lie in both tort and crime, a matter that has led to much criticism by modern commentators. Yet, a definitive history of punitive damages does not exist to explain this anomaly. The main contribution of this Article, then, is to begin such a history by way of a meta-narrative. It identifies and links the historically significant moments that led to punitive damages, beginning with the background period of classical Roman law, its renewed reception in Western Europe in the twelfth and thirteenth centuries that coincided with the emergence of the English common law,the English statutes of the late thirteenth century, to the court cases of Wilkes v. Wood and Huckle v. Money in the eighteenth century that heralded the "first explicit articulation" of the legal principle of punitive damages. This Article argues that this history is not linear in nature but historically contingent. This is a corrective to present scholarship, which fails to adequately connect or contextualize these historical moments, or over-simplifies this development over time.

Savings provisions in Australian electoral law : their forms, functions and historical development

The introduction of universal suffrage in 1902 established voting as a right for adult Australians who were British subjects and over 21 years of age. However, parties, parliaments, and electoral authorities have not been content with merely ensuring that citizens are entitled to vote. They have also enacted measures that aim to maximise citizen participation in elections. Turnout was made compulsory in 1925, which largely solved the ‘problem’ of voluntary abstention from the ballot box. A second concern has been disenfranchisement caused by incorrectly completed ballot papers. This situation arises when a voter submits a ballot that fails to comply with the legal requirements for a formal vote. Since the introduction of compulsory voting, debates about how to improve electoral turnout have largely concentrated on how to reduce rates of informality.The ‘problem’ of informality has long occupied the attention of electoral authorities and policy makers. This is due, in part, to the fact that rates of informality in Australia have been consistently high relative to other mature democracies. Moreover, the prevailing view in much of the Australian literature is that most informal voting is the result of mistakes and therefore ‘accidental’ or ‘unintentional’. Estimates of unintentional informal voting at national elections vary, but usually fall within the range of 80 to 85 per cent of informal votes cast. Even by the more conservative estimates of the Australian Electoral Commission (‘AEC’) the average rate of unintentional voting in the four national elections conducted in the period between 2001 and 2010 was 60.45 per cent.

Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

The status of using drug detection dogs under Australian law

In recent years it has become increasingly common for drug detection dogs to be active in and around public transport, busy nightclub precincts, music festivals and dance parties. However, the legal status of police using drug detection dogs is anything but clear in many parts of Australia. The aim of this article is to outline the nature and scope of the powers available to police at common law and under statute that allow their use.

Privacy law in Australia

This book begins by examining the nature and scope of the right to privacy and the moral basis and status: What is privacy? What interests does it affect and protect? Is there a justification for the right?
It discusses the relevant legal regime in all Australian jurisdictions. It covers the extent to which privacy has been protected under common law and equity and then weaves these principles into the statutory discussion of privacy. It focusses specifically on the most important areas of privacy protection - medical records, communications, criminal investigations and DNA, employment, territory, etc. Finally, it examines how the law may develop in the future.

Tip top result goes stale: ACCC-v- Australian Safeway Stores Pty Ltd(No 2)

Bread, its constituents, its methods of manufacture and its price and availability to consumers can claim to be the leitmotiv of competition law, both ancient and modern. The inelasticity of demand for such a staple food explains laws against monopolies being included in the eighteenth century BC Code of Hammurabi, why corn laws exercised the minds of the Gracchi brothers in second century B.C. Rome, and why ineffective regulation of the price of bread was seen as an important precipitator of revolutions in Europe in the eighteenth and nineteenth centuries. In the common law the early restraint of trade case, Mitchell v Reynolds saw a parish wide five year non-competition clause in a contract for the sale of a bakery upheld as reasonable. In the post-Shennan Anti-Trust Act (1890) United States, attempts by manufacturers of macaroni to change its constituents because of the prevailing high price of durm wheat were held in National Macaroni Manufacturers Association v FCT) to constitute price-fixing, an offence illegal per se under American anti-trust law.