Duelling prospecting rights : a non-custodial second?

This decision of the Northern Cape division dealt with competing "old order prospecting rights" and prospecting rights in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). The decision represents an important contribution to the resolution of tensions between the old mineral law order and the new regime of Act 28 of 2002.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Finnis on the authority of law and the common good

This paper seeks to elucidate the role played by the common good in John Finnis's arguments for a generic and presumptive moral obligation to obey the law.1 Finnis's appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis's account of the relationship between basic goods, the common good, and the authority of law. Section II demonstrates how Finnis's emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz's objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Raz's critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis's work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust—and hence also more contentious—account of the common good.

The evolution of freedom of association in Australia's federal industrial relations law: from trade union security to workplace rights

The early provisions protecting freedom of association in Australian federal industrial relations law supported trade union security. The interests of individuals were seen as adequately protected by collective groups. This principle dominated the industrial relations laws from 1904 to the mid-1970s. However, from the late 1970s, the laws were incrementally altered to promote freedom of choice and the rights of individuals not to be part of trade unions. The reframing of the laws also reflected changes in the wider Australian community, manifested particularly in the decline of union density rates. These changes were also part of an international trend, favouring the ideology of neoliberalism which contributed to an unsympathetic environment for trade unions. The current Fair Work Act 2009 (Cth) has signalled a return to collectivism, although freedom of choice is at the heart of the laws rather than the promotion of collective groups. In the absence of legislative support promoting the viability of collective groups, this freedom to choose is threatened, leaving many workers with little choice but to disassociate.

Law, Theology, and Morality: Conceptions of the Rights to Relief of the Poor in the Twelfth and Thirteenth Centuries

This article presents an analysis of certain ways of thinking about law and its relationship to the poor, in particular the rights and entitlements of the poor to the basic necessities of life and the obligations of society to provide those necessities. It focuses on the works of Peter the Chanter and his “circle” at Paris in the late twelfth and early thirteenth centuries. Significant in their writings on the quandary between respect for private property and the need to allow those in need to take a share of this private property in order to survive is their negotiation of the intellectual boundaries and understandings between law, theology, and morality. In addition, an understanding of their discussions in light of canonistic and theological works of the time reveal a hitherto under-appreciated contribution to the “subjective rights” language in Peter the Chanter.

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.

Can international human rights law accommodate bodily diversity?

This article considers recent efforts by international bodies and advocacy groups to secure the human rights of individuals with intersex variation. Identifying that these efforts are constrained by powerful assumptions about binary sex, it argues that international rights discourse looks set to regulate intersex individuals by the same protective strategies applied to the last four decades of the women's rights movement. A frank reading of legal feminist scholarship indicates several possible risks for the nascent intersex campaign. Efforts to ensure the substantive enjoyment of rights (for all) need to move beyond the constraints of a binary system in which women and sexed/sexual minorities will always be produced as other. Having argued that human rights are not contingent on biological determinants, the right to non-discrimination on the basis of sex traits is considered.