Double jeopardy in Australia: the illusion of an absolute protection and the prosecution process as punishment

Outline of the nature and scope of the double jeopardy principle as it operates in the pleas in the bar and the court's discretion to prevent an abuse of the process - rationales advanced in favour of doctrine - some anomalies and implications from the claim that the double jeopardy principle is absolute - some suggestions for reform.

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.

A note on psychoanalysis and the crime of torture

Torture and the legitimate powers of the state - why are psychoanalysts involved - torture can be seen as an information gathering device - psychoanalysis may play a role in the creation of information gathering coercion techniques.

Do governments lead or lag in fighting crime?

We examine the Granger causal relationship between police strength and a variety of different types of crime for South Australia. We find that with the exception of assault and homicide in the long run, the crime rate and police strength are neutral.

Investigating 'indecent, obscene or pornographic' art : lessons from the Bill Henson controversy

This article considers the manner in which police in Australia investigate art that is putatively indecent, obscene or pornographic. It does so by examining the recent Bill Henson controversy and other similar instances where art and the criminal law have collided. This analysis will demonstrate that under Australian law there is little or no chance of a successful criminal prosecution for obscenity, indecency or pornography. Consequently, it is argued that police investigative procedures must take account of this legal reality. To this end a reform proposal is offered: upon receiving a complaint of this nature, police must — as a matter of internal procedure or law — immediately refer the impugned artwork to the Classification Board for a classification decision before they commence a formal investigation.

Retribution, deterrence and reform : the dilemmas of plagiarism management in universities

Universities face constant scrutiny about their plagiarism management strategies, policies and procedures. A resounding theme, usually media inspired, is that plagiarism is rife, unstoppable and university processes are ineffectual in its wake. This has been referred to as a 'moral panic' approach (Carroll & Sutherland-Smith, forthcoming; Clegg, 2007) and suggests plagiarism will thwart all efforts to reclaim academic integrity in higher education. However, revisiting the origins of plagiarism and exploring its legal evolution reveals that legal discourse is the foundation for many plagiarism management policies and processes around the world. Interestingly, criminal justice aims are also reflected in university plagiarism management strategies. Although universities strive for deterrence of plagiarism in a variety of ways, the media most often calls for retribution through increasingly tougher penalties. However, a primary aim of the justice system, sustainable reform, is not often reported in the media or visible in university policies or processes. Using critical discourse analysis, this paper examines the disjunction between media calls for increased retribution in the wake of moral panic and institutional responses to plagiarism. I argue that many universities have not yet moved to sustainable reform in plagiarism management.

Crime risks of three-dimensional virtual environments

Three-dimensional virtual environments (3dves) are the new generation of digital multi-user social networking platforms. Their immersive character allows users to create a digital humanised representation or avatar, enabling a degree of virtual interaction not possible through conventional text-based internet technologies. As recent international experience demonstrates, in addition to the conventional range of cybercrimes (including economic fraud, the dissemination of child pornography and copyright violations), the 'virtual-reality' promoted by 3dves is the source of great speculation and concern over a range of specific and emerging forms of crime and harm to users. This paper provides some examples of the types of harm currently emerging in 3dves and suggests internal regulation by user groups, terms of service, or end-user licensing agreements, possibly linked to real-world criminological principles. This paper also provides some directions for future research aimed at understanding the role of Australian criminal law and the justice system more broadly in this emerging field.

IP in Asia

This presentation will start with a brief review of the first phase of this project, which focused largely on the impact on innovation of legal and institutional IP reforms in Asia triggered by the WTO Agreement on Trade Related Intellectual Property Rights (TRIPS) and by subsequent bilateral or multilateral Free Trade Agreements (FTAs). The presentation will then show the emerging issues relevant for the second phase of the project, which in an increasingly diversified IP landscape will lie at the intersection of IP with other disciplines and other areas of law, such as competition law, media law, criminal law, human rights, environmental law and constitutional 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’.

Homicide, self-defence and the (inchoate) criminology of battered women

Law reform is increasingly underpinned by empirical research. This is clearly evident in contemporary reform of the laws of self-defence and homicide. These reforms have been motivated largely by concern for battered women who kill their abusive partners. An extensive body of empirical criminological research has been utilised to identify bias in the operation of the traditional law of homicide and self-defence and has been relied upon by many law reform bodies. This article identifies and evaluates the "implicit criminology" constituted by these empirical studies. Five matters that have formed the backdrop to contemporary reform are investigated: the origins of the law of murder; the operation of the law of self-defence; the historical utilisation of mental state defences by battered women; the circumstances in which battered women kill their abusers; and the trial as a key location for processing these offenders. It is argued that the implicit criminology that has driven reform of the law of homicide and self-defence is largely undeveloped or unsubstantiated. Despite the centrality of concern for battered defendants in much contemporary discussion in criminology and the criminal law, it appears that there is still substantial research to be done to clarify the circumstances in which victims of chronic violence kill their abusive partners, how these defendants experience the law and the availability of self-defence to them. What seems to have been established may be more complex, contingent and inchoate than previously acknowledged.

Surveillance, Governance and Professional Sport

The surveillance capacities of professional sports clubs and Leagues are directly related to their modes of governance. This paper identifies how private sports clubs enact surveillance through processes of inclusion and exclusion. Using three examples to demonstrate these processes, we argue that the surveillance mechanisms associated with sports governance at times replicate, at other times contradict, and at other times influence those associated with broader law enforcement and security developments. These examples also suggest potential increases in surveillance activities that emerge in club governance often flow from external concerns regarding allegations of crime, national security breaches and corruption. These context-specific case studies (Flyvbjerg 2001) demonstrate how surveillance and identity authentication are closely tied to the complex, multi-tiered governance structures and practices in three distinct sports. We then explore how these patterns can be interpreted as either connected to or distinct from equivalent developments involving the surveillance surge (Murakami Wood 2009) and concepts of inclusion and exclusion under the criminal law. We conclude by discussing how both internal and external regulatory forces can shape interrelated facets of surveillance, governance and exclusion in elite sports.

The pursuit of exclusion through zonal banning

In recent years, a growing emphasis has been placed on the use of zonal banning to address violence and anti-social behaviour associated with alcohol consumption. While we recognise the longer historical links between territory and crime, this article focuses on recent efforts to govern territory through new zonal regulations. Recent processes in Australia involve the conflation criminal law principles with processes of managing order in and around private spaces through new administrative approaches to alcohol-related law enforcement. The article outlines the nature of sub-sovereign ‘police laws’ and the extent to which they have been used based on Victorian data. We conclude by suggesting these developments need ongoing critical scrutiny given evidence of the ongoing expansion of proprietary-based principles in the management of urban disorder, and the potential for these developments to promote the increased use of surveillance technologies to exclude undesirable populations from the nighttime economies of Australian cities.