Home truths about home detention

The Victorian Parliament has recently introduced a Bill which implements home detention as a sentencing option. Home detention is an intuitively appealing reform. The logic behind the proposal seems obvious. Prisons are expensive to run. There are too many offenders in prison. So let's take the cost out of prison by turning the homes of offenders into prisons: classic, user-pays, cost-shifting economics. The level of superficial appeal of the argument in favour of home detention is matched only by the depth of the fallacies underpinning some of the fundamental premises. The most basic of which is the assumption that offenders who are candidates for the new sanction should be in detention (of any kind) in the first place. Further, the narrow objective of reducing imprisonment is misguided. It should not be elevated to a cardinal sentencing objective?otherwise total success could be achieved by simply opening the prison gates. There are also other concerns about the appropriateness of home detention. The degree of pain it inflicts in many cases is questionable and it may also violate the principle that punishment should not be inflicted on the innocent. After examining the arguments for and against home detention, this article suggests the approach that should be adopted to achieve enlightened and meaningful sentencing reform.

The desirability of criminal penalties for breaches of part IV of the trade practices act

Following the introduction of criminal sanction, including jail terms, for hard core cartelisation in the United Kingdom, the Dawson Review has recently recommended that criminal penalties be introduced in Australia for individuals and corporations found to have engaged in hard core cartels. A number of reasons have been advanced to justify the introduction of criminal sanctions for this type of conduct, the most common of which are that it would bring Australia in line with other competition regimes and that criminal sanctions are more likely to provide an effective deterrent. This article evaluates those reasons, and others, to determine whether there is any adequate justification for the proposed criminal regime.

Legal ethics is (just) normal ethics: towards a coherent system of legal ethics

The standards governing how lawyers ought to conduct themselves consist of a number disparate principles and rules, which are devoid of an overarching rationale. We argue that legal ethics is not a stand-alone social construct. Rather, it is the application of normal ethical principles so far as they relate to the law. Approached in this manner, legal ethics becomes a far more coherent and justifiable institution. In this paper we apply general moral theory to several key dilemmas facing lawyers. This results in outcomes which some may find counter-intuitive. We conclude that lawyers should not do pro bono work; that the first cab rank off the rank principle is unsound and that there is no relevant difference between expressly misleading the court and putting the other side to the proof of its case.

Expanding criminal sanctions for corporate crimes-deprivation of right to work and cancellation of education qualifications

Fines are the standard sanctions employed by most Western countries when a corporation has been convicted of a crime. However, some offences committed by corporations are too serious to be dealt with by way of a fine. There is a need to consider other sanctions that can be invoked in order to deter corporate crime. In this article, it is suggested that the focus should be on criminal sanctions against the natural persons who can potentially commit crimes on behalf of a corporation. New sentencing options against those who can potentially commit crimes on behalf of a corporation should include the annulment or suspension of an offender's academic  qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

Embryonic stem cell research: the principal ethical issue-when does life begin?

Embryonic stem cell research is perhaps the most controversial ethical issue of the new century. This is not surprising. It promises unprecedented potential benefits to human health but arguably comes at the expense of violating the most fundamental moral virtue - the right to life. The debate has become increasingly emotive. The Catholic Church has labelled stem cell research as cannibalism.1 This has led perhaps the world's most famous moral philosopher, Peter Singer, to label the Church, which has over a billion followers, as irrelevant.2 The principal purpose of this paper is not to  discuss all of the relevant moral issues in the embryonic stem cell debate. Considerations of space do not permit this and in any event there are  numerous reports which catalogue the relevant issues.3 Rather we attempt  to identify the crux of the issues in the debate. In our view, the main issue is the point at which life commences. We offer some preliminary observations on this matter. This discussion appears in section four. In the next section, we provide a brief  overview of nature and potential benefits of stem cell  research. This is followed by a discussion of the current legal position. In the final section, we offer some concluding remarks including some  suggestions for law reform.

The Australian Constitution: A century of irrelevance

Why the Australian Constitution is irrelevant - while some aspects of the Constitution, such as the separation of powers doctrine, provide the prospect for a Constitution that is more committed to principles of relevance to the citizenry, consideration must be given to the role played by the Constitution in Australian society, and whether it is as important as it should be - effort spent interpreting many sections of the Constitution has been a waste of the High Court's time and energy - given that no important rights and duties are at stake, consistency should be the main objective for the Court in such cases - in the teaching of constitutional law, less time should be spent focusing on mechanistic case law - emphasis should be placed on the values and ideals that inform the content and development of constitutional principles.

The War in Iraq: the illusion of international law? Where to now?

Examines the legality of the U.S.-led invasion in Iraq. Relevance of the international law framework; Advantages and danger of humanitarian intervention principle; Implications of the war for the future of international law.

Provocation: the ongoing subservience of principle to tradition

The defence of provocation has been highly criticised. Most
commentators argue that the defence i" misguided. There does not appear
to be any community pressure to preserve the defence. Despite this,
legislatures are reluctant to abolish provocation as a partial defence to,
murder. This article examines the underlying rationale for tile defence. I1
concludes that the defence is founded on a flaw~ed assumption about
human nature-that people are captive to some of their emotional states.
It is also argued that the convoluted and confusing (if not confused) test
for provocation is evidence of the unsound nature of the defence-it is
simply a case of not being able to develop a feasible (and candid) principle
for a doctrine that is devoid of a sound justification.

The right to convert exploration licences to mining leases in Australia: a proposed national uniform model

In this article, the authors raise an important proposal for reform to Australia's mining legislation: a nationally-consistent model providing exploration licence holders with a legislative right to be granted a mining lease. This proposed national model will be designed to reflect the present Western Australian system - Western Australia being the only jurisdiction to provide exploration licence holders with the express right to be granted a mining lease on application. The authors believe that the Western Australian system should provide the basis for a national legislative model, given that it is designed to balance appropriately the interests of companies wanting a right to mine to recoup the costs involved in exploring for minerals, and the interests of the public in ensuring that exploration and mining is conducted
reasonably.

What's instinct got to do with it? A blueprint for a coherent approach to punishing criminals

As a result of the instinctive synthesis approach to sentencing, decisions are often based on the intuitive inclinations and sentiments of sentencers, as opposed to binding rules and principles. In particular, insufficient regard is paid to the purposes and objectives that can be achieved through a state-imposed system of punishment. Momentum is gathering for the High Court to revisit the manner in which the sentencing inquiry is undertaken. We believe that the court should use the opportunity to implement fundamental reform in sentencing and direct the sentencing process down a more transparent and forensic path. We suggest that there are seven basic steps that need to be undertaken to achieve enlightened sentencing reform. Ideally this is a role for the legislature. However, given the populist climate in which we live we have little confidence that the legislature will undertake such an exacting task – one which would almost certainly lead to a less severe sentencing regime. The judiciary offers the strongest hope that at least some of these steps will be taken. This article offers a blueprint for how such reform can be implemented. The first step is simply to assume that the institution of state-imposed punishment is justified – this has already been undertaken. The second is to select the theory which best justifies punishing wrongdoers. Thirdly, public opinion must be ignored in developing sentencing principle. Next it must be determined which objectives (such as deterrence and rehabilitation) can be achieved through sentencing. The fifth step involves matching the punishment to the crime. Step six is to critically analyse the foundation, and reassess the relevance, of the hundreds of aggravating and mitigating considerations that presently affect the sentencing calculus. Finally, sentencing law and practice should be subject to ongoing reform to take into account emerging empirical evidence concerning the positive benefits that can be achieved through sentencing.

Macleod and the offence of defrauding the company in one-person businesses: the divergence between legal principle and logic widens

The recent High Court decision in Macleod v R establishes that a director and sole shareholder may be convicted of fraudulently applying a company's property even though the person has consented to the personal use of the company's property. It is contended that while this decision is consistent with the weight of precedent, it is wrong in principle. The decision implies that corporations are not only separate legal entities, but that they are highly virtuous legal entities -- incapable of being imbued with the dishonest intentions and activities of the individuals controlling the company.

Volunteering and social capital in regional Victoria

The link between volunteerism and social capital has received some attention in Australia in recent years. Of particular note to this paper is the work of Baum, Bush, Modra, Murray, Cox, Alexander, and Potter (2000), who described the contribution volunteers made to social capital in a metropolitan setting - the western suburbs of Adelaide, South Australia. The aim of this current study is twofold, to describe the contribution volunteers make to social capital through participation, reciprocity and social trust in a regional and rural setting; and to compare findings with those relating to a metropolitan environment. In the light of differing volunteer patterns in rural and regional environments compared to metropolitan environments, we hypothesised that the relationship between volunteerism and indicators of social capital would also be different. The results from this study support the findings of Baum, Modra, Bush, Cox, Cooke, and Potter (1999) and therefore reinforce the premise that volunteers make a substantial. contribution to social capital. While greater numbers of people who live in rural or regional areas undertake volunteer work, we found there are more similarities between the rural/regional and metropolitan sectors regarding volunteerism than there are differences.

Refugee law: time for a fundamental re-think: need as the criterion for assistance

Concern that the definition of refugee based on race, religion, nationality, membership of a particular social group or political opinion found in 1951 United Nations Convention relating to the Status of Refugees is unduly narrow and arbitrary and should be replaced by a definition reflecting the concept of deprivation and need.

The right to privacy and corporations

Traditionally the right of privacy has not been recognised at common law. However, recently the High Court has indicated that it may be willing to develop a new tort of invasion of privacy. Several of the justices have stated that the new action would only relate to natural persons, not corporations. This is because the principles said to underpin the right to privacy, autonomy and dignity, are supposedly inapposite to corporations. This article argues that this reasoning is flawed. Neither the right to autonomy nor dignity is capable of underpinning the right to privacy. Hence, no sustainable basis has so far been advanced for restricting the availability of any future tort of invasion of privacy to individuals. This article also questions whether a separate tort is needed in view of the protection already provided to the privacy interests of individuals and corporations under the equitable doctrine of confidence.

Disloyality and divorce: why (and when) the traitor should pay

Loyalty n3 is the catalyst for an enormous amount of admirable human conduct. It is also a desirable virtue: 'in loyalty . . . is the fulfilment of the whole of morality'. n4 It may be justly argued that loyalty grounds more of the principled, honourable and other kinds of non-selfish behaviour in which people engage than does any other moral principle. Curiously, loyalty is almost totally ignored by the law. The area of law in which the principle of loyalty most acutely applies (at least potentially) is family law -- in particular to the concept of marriage. n5 Loyalty is the brussel sprout of the law. Almost everyone recognises [*2] its inherent goodness but few are prepared to make a meal of it. Despite its moral desirability, there are virtually no legal principles that are expressly derived from, or give effect to, the virtue of loyalty. This paper examines the extent to which loyalty should be given legal recognition in matrimonial law. Although the main purpose of this paper is to raise awareness of the potential relevance of loyalty to the dissolution of marriage (and therefore to encourage further consideration and debate on this issue), for the sake of completeness we provide an example of a legal framework in which loyalty should be incorporated into matrimonial law. We argue that within the scope of the 'no-fault' based system of divorce in some circumstances betrayals should be penalised by means of a reduced property settlement.