Annotated criminal legislation Victoria 2009

An indispensable resource for anyone who needs a sound understanding of the criminal law of Victoria. Butterworths Annotated Criminal Legislation Victoria is an indispensable resource for students, practitioners and others who need a sound understanding of the criminal law of Victoria. This book has an established reputation as an essential reference source. The Acts are annotated by Gerard Nash QC and Professor Mirko Bagaric of the School of Law, Deakin University. This book has been extracted from the four volume looseleaf service Bourke's Criminal Law Victoria. Important Features: mid Extensive new annotations discussing recent case law relating to various provisions of the Crimes Act 1958. mid A quick reference directory and grey shaded tabs provide ease of navigation. Related Titles: mid Arenson & Bagaric, Criminal Procedure: Victoria and Commonwealth, 2009. mid Clough & Mulhern, Butterworths Tutorial Series - Criminal Law, 2nd ed, 2004. mid Rush & Yeo, Criminal Law Sourcebook, 2nd ed, 2005. mid Spears & Hickie, Butterworths Questions & Answers - Criminal Law for Common Law States, 2009. mid Waller & Williams, Criminal Law: Text and Cases, 11th ed, 2009.

Regulatory and enabling approaches to corporate law enforcement : patterns of litigation 1986-2002 and the effect of recent reforms in New Zealand, Australia and the United Kingdom

Enforcement of corporate rights and duties may follow either a ‘regulatory’ or ‘enabling’ model. If a regulatory approach is taken, enforcement action will generally be undertaken by regulatory agencies such as, in New Zealand, the Registrar of Companies and Securities Commission, the Australian Securities and Investments Commission (ASIC) or the Department of Trade and Industry (DTI) in the United Kingdom. If an enabling approach is chosen, enforcement action will more often be by private parties such as company shareholders, directors or creditors. When New Zealand's company law was reformed in 1993, a primarily private enforcement regime was adopted, consisting of a list of statutory directors' duties and an enhanced collection of shareholder remedies, based in part upon North American models and including a statutory derivative action. Public enforcement was largely confined to administrative matters and the enforcement of the disclosure requirements of New Zealand's securities law. While the previous enforcement regime was similarly reliant on private action, the law on directors' duties was less accessible, and shareholder action was hindered by the majority rule principle and the rule in Foss v Harbottle. This approach is in contrast with that used in Australia and the United Kingdom, where public agencies have a much more prominent enforcement role despite recent and proposed reforms to directors' duties and shareholder remedies. These reforms are designed to improve the ability of private parties to enforce corporate rights and duties. A survey of enforcement litigation in New Zealand since 1986 indicates that the object of a primarily enabling enforcement regime seems to have been achieved, and may well have been achieved even without the 1993 reform package. Private enforcement has, in fact, been much more prevalent than public enforcement since well before the enactment of the new legislation. Most enforcement action both before and after the reform was commenced by shareholders and shareholder/directors, and most involved closely held companies. Public enforcement was largely undertaken in areas such as securities law, where the wider public interest was affected. Similar surveys of Australian and United Kingdom enforcement litigation reveal a proportionally much greater reliance on public bodies to enforce corporate rights and duties, indicating a more regulatory approach. The ASIC and DTI enforced a wider range of provisions, affecting both closely and widely held companies, than those subject to public enforcement in New Zealand. Publicly enforced provisions in Australia and the United Kingdom include directors' duties and provisions dealing with disqualification from managing companies, as well as securities law requirements.

The compliance of Australian preventative detention law with article 9(1) ICCPR

This thesis found that a provision of Australia's counter-terrorism policy, preventative detention, does not comply with a major international treaty, the ICCPR. This thesis provides an alternative model by which the Australian Government could achieve the legitimate purposes of preventative detention within the existing constraints of the Australian criminal law.

Zonal banning and public order in urban Australia

In recent years, Australian governments of various ideological persuasions at local, state and territory and federal levels have introduced a range of zonal governing techniques to manage the flow of people in urban spaces. Zonal governance involves the identification and formal declaration of a specific urban geographic region to enable police and security personnel to deploy special powers and allied forms of surveillance technologies as a supplement to their conventional public order maintenance functions.

Despite the impetus towards open flows or movement within sovereign territories or larger territorial groupings, such as the European Union, considerable governmental effort has been directed towards the use of new forms of criminal law to re-territorialize urban space through new administrative, property law and regulatory measures. These low-level spatial demarcations introduce various supplementary police powers and discretionary procedures that enhance surveillance within a declared area to increase the level of contemporary urban security. Of particular concern is the legal right to ban or exclude “undesirable” individuals and groups from entering or using certain designated urban zones, to prevent antisocial or violent behavior usually associated with alcohol consumption.

To date, most discussion of the impact of banning and related surveillance measures focuses on illegal migration through ports of entry into sovereign nations and the commensurate burdens this creates for both citizens and non-citizens to authenticate their movements at national geographic borders. This logic is permeating more localized forms of regulation adopted by Australian local and mid-tier state and territory governments to control the movement of people in and out of major event sites and in the urban night-time economy.

A survey of recent reforms in the state of Victoria reveals how this new logic of mass-surveillance aims to promote greater levels of urban security while reshaping the conventional order maintenance functions of both the public and private police. This chapter describes these procedures and their impact in sanctioning the efficient screening of people to promote order in specific zones within the contemporary Australian urban environment, at the expense of more progressive and inclusive crime prevention initiatives. We focus on two exemplars of the intensification of surveillance through zonal governance techniques: ‘major events’ and ‘designated alcohol zones’.

Legal issues: Disciplinary proceedings for inappropriate prescription of opioid medications by medical practitioners in Australia (2010-2014)

An analysis of 32 cases reported between July 2010 and September 2014 byprofessional disciplinary tribunals in New South Wales and Victoria againstmedical practitioners found guilty of inappropriately prescribing Sch 8 medications(mainly opioids) and Sch 4 drugs (mainly benzodiazepines) demonstrated, among others, a lengthy delay between the occurrence of the miscreant conduct and the conclusion of disciplinary proceedings. The study also raised questions about the appropriateness of utilising common criminal law theories of punishment and deterrence by non-judicial tribunals.

Retrials of persons acquitted of indictable offences in England and Australia: exceptions to the rule against double jeopardy

Jury directions in relation to the issue of consent in trials of sexual offence cases are mandated in two jurisdictions in Australia (Victoria and the Northern Territory). The Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, has recommended that provisions similar to those in Victoria should be contained in relevant legislation in all States and Territories. However, a recent series of cases in Victoria has revealed significant problems in relation to the mandatory jury directions. These difficulties have generated increasingly elaborate and complex directions. The complexity of these directions not only presents considerable challenges for judges but also may overwhelm, rather than assist, members of the jury. The Court of Appeal of Victoria has called for "urgent and wholesale reform". In the light of these concerns, it is suggested that the Victorian mandatory directions do not provide a model for other jurisdictions. Rather, the Victorian experience can be seen as a cautionary tale of the problems and pitfalls of such directions. Recently, the Victorian government has passed the Jury Directions Act 2013. This Act sets out "guiding principles" that should determine the content, and use, of jury directions. These guiding principles should form the basis for any jury directions with respect to sexual offences.

The disparity between human rights policy and parliamentary practice in Australia : a Victorian case study

Over the past decade alcohol-related violence in and around licensed premises has given rise to significant legislative, regulatory and operational policing developments. In Australia, the State of Victoria introduced police-imposed banning notices as part of a range of provisions and new powers targeting alcohol-related disorderly behaviour. Banning notices exemplify a broader shift towards discretionary, pre-emptive, regulatory, summary justice which circumvents the criminal law, dilutes individual rights, and reconfigures expectations of balance in the administration of justice. The legal principles upon which banning notices are based and the way in which they were enacted by the Victorian Parliament challenge both the purpose and specific requirements of Victoria’s Charter of Human Rights and Responsibilities Act 2006. Detailed analysis of the application of the Charter compliance processes to the banning notice provisions point to a notable disparity between the expectations of formal human rights policy and the reality of substantive practice. The broader effect of such a disconnect is potentially significant, but has been largely opaque to meaningful scrutiny.

The status of child offenders under international criminal justice: lessons from Sierra Leone

This article analyses the status of child offenders under international criminal justice. International criminal proceedings, especially those in the African continent, have recently highlighted the significance of children and young people as perpetrators of genocide, crimes against humanity and war crimes. It has been suggested by one commentator that there exist international prohibitions on the prosecution of children for international crimes. It will be argued here that this claim is not substantiated in respect either of customary or treaty-based international obligations.

Linkages: Mabo and the sentencing of indigenous offenders

The ground breaking decision by the High Court of Australia in Mabo v Queensland (No 2) overturned the principle of terra nullis as a legal fiction. It paved the way for a reconsideration of property law. Mabo arguably has significance beyond native title and property law to other areas of the law. This article examines the 'linkage' between the decision in Mabo and the criminal law and, in particular, the punishment of indigenous persons, it addresses the following question: Can a significantly distant temporal and physical act of dispossession as was recognized in Mabo have any relevance to contemporary questions of the punishment of indigenous persons?

Still plucking figures out of the air? Markarian and the affirmation of the instinctive synthesis

The High Court of Australia recently had the opportunity to reconsider the appropriate sentencing methodology to be adopted in the sentencing of offenders under Australian criminal law in the case of Markarian v The Queen. The High Court had to decide whether to continue with the instinctive synthesis approach to sentencing or a process that exposed in greater clarity the basis upon which sentencing was to occur. Ultimately, a majority of the Court favoured the continuance of the instinctive synthesis approach to sentencing in criminal cases. The article will consider the decision in Markarian and the implications that it will have for the sentencing of offenders in the States and Territories of Australia.

Models of understanding criminal behaviour and the sentencing process : a place for criminological theory?

The method by which a sentencing court understands the reasons for the commission of a criminal offence is crucial to the framing of the ultimate disposition imposed in all of the circumstances of the offence and the offender. Under Australian criminal law the insights of criminology are rarely. if ever. used in the discharge of the sentencing function. In particular, theories of crime causation evident in schools of criminological thought are not relied upon even though ostensibly such theories would appear to have a degree of relevance to the sentencing task. In this article, a short sketch of contemporary criminological theory is provided. This is followed by a survey of the use of criminological theory under Australian criminal law and what role, if any, it plays in contemporary  criminal justice administration. Finally, consideration is given as to whether or not criminological theory would be of assistance in the discharge of the  sentencing task in relation to not only understanding the reasons for the commission of the offence by the offender, but also in the determination of the appropriate sanction.

Australian sentencing : principles and practice

Australian Sentencing: Principles and Practice explains the rules, principles, policies and practices that underpin the manner in which people are punished for criminal behaviour in Australia. As well as dealing with sentencing law today, the book provides an extensive analysis of the wider policy, moral, and political consideration which shape sentencing law. It analyses and evaluates existing standards and practices, and suggests how sentencing law should be reformed so that it operates in a fairer, more efficient and effective manner.

Content: Part A: 1. The nature of sentencing and theories of punishment; 2. Plucking figures from the air: the instinctive synthesis; 3. The objectives that are attainable through sentencing; 4. High Court sentencing jurisprudence; Part B: 5. The principle of proportionality; 6. Aggravating factors; 7. Mitigating considerations; 8. The relevance of a guilty plea to sentence; 9. The relevance of prior criminality; 10. Aboriginality; Part C: 11. The nature of criminal sanctions; 12. Imprisonment; 13. Intermediate sanctions; 14. Discharges and bonds, fines and disqualifications; Part D: 15. The way forward ? strategic sentencing.

Family law

This series comprises a range of student texts, each adopting a problem-solving approach within a discrete area of the law. This text is designed as an easily accessible account of the legislative and judicial principles contained in Australian family law.

Concise corporations law

This highly regarded exposition of Australia's complex corporations law has been rewritten to take account of changes to September 2000, including most notably the CLERP Act 1999 and the decisions in "Re Wakim and Hughes". Includes succinct, plain language explanations and case summaries.