'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

An overview of liability and compensation for personal injury in China under the general principles of civil law

This article reviews the personal injury tort system in the People's Republic of China (PRC). The Chinese torts law has a number of unique features. To begin with, it is quite new — the legal framework of torts law was established only in 1986. The unique features of the Chinese torts law also stem from its long and difficult evolution over nearly 40 years. Equally important has been the remarkable blend of influences that have shaped its current law — a mixture of socialist objectives, capitalist pragmatism, and feudal doctrines combined with jurisprudential models taken from a range of western civil codes and, more recently, the common law.

Part one of the article briefly analyses the most important features of the existing Chinese legal system. Part two provides a background to the enactment of the General Principles of Civil Law (GPCL), which incorporates Chinese torts law. The review looks at the development and drafting of the GPCL legislation, and the influences that guided the formulation of legal principles. Part three of the article provides an overview of the torts law provisions in the GPCL. Part four examines the law of personal injury established by the GPCL. Part five uses some case studies to illustrate the principles highlighted in the previous two parts and part six contains a brief conclusion and some pointers to the directions that Chinese torts law may take in the future.

Restitution law

Contains comprehensive extracts of the most significant cases from Australia and England. Explains the various academic views in areas where these are likely to be influential and incorporates a number of important new cases. Includes new sections dealing with practical questions such as pleading a claim in restitution.

Law, governance and risk: deconstructing the public-private divide in climate change adaptation

The article focuses on the public–private divide in law and which organizes principles for and governance. It analyzes the governance model of public–private divide regarding for climate change adaptation in context to a case study of water governance and flood risk. It compares the relationship between state and individual laws which helps in policy setting.

Against interpretation? On global (non-)law, the breaking-up of homo juridicus, and the disappearance of the jurist

This paper investigates the nullification of homo juridicus and the vanishing of the jurist in relation to the liberal global-order project and the emergence and spread of soft-networked channels of post-national governance. By inquiring into the shift from the individual’s active will to the sterile behavioural schemes prompted by the universalisation of liberalism and economic analysis of social interactions, it will be argued that the jurist and the (rule of) law are no longer needed in a post-national system of rational and mechanic causations. Through an analysis of Susan Sontag’s and Josef Esser’s accounts for and against the interpretative task, it will be contended that the re-discovery of the anthropological and onto-sociopolitical function of the jurist depends upon the re-affirmation of: (1) the will’s oscillation between velle and nolle as constitutive of human uniqueness; (2) the need to interpret homo juridicus’s will power normativistically, and what this power leads to.

Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.

The law of insider trading in Australia

This book provides a detailed and practical analysis of Australian insider trading laws. The work: examines all fundamental concepts relating to insider trading such as 'who is an insider', 'what is inside information' and 'when is information generally available', together with commentaries on proposed changes to the laws and an examination of the impact of the most recent decisions, including Hannes, and Rivkin; provides a very detailed examination of the defences and exceptions, with particular attention to the operation of Chinese Walls; analyses fully and systematically the provisions on insider trading in the Corporations Act and the Criminal Code (Cth) within the context of decided cases and relevant secondary materials; covers comprehensively the penalties and remedies for contravention of the insider trading regime (including the intricate civil compensation provisions, and an up-to-date analysis of the civil penalties regime in light of ASIC v Petsas); and discusses the operation and effectiveness of continuous disclosure as a means of preventing insider trading.

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.

Back to the future : the war on terror and its impact on civil liberties

This comment looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to those terrorist acts. These legal changes have included the creation of specific "terrorism" offences, the legislative proscription of two foreign organisations and, most notably, a significant expansion of ASIO's investigative powers.1
Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. The reform involves vesting Ch III courts with the power to measure Commonwealth laws against the International Covenant on Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.

Preventative detention and the right of personal liberty and security under the International Covenant on Civil and Political Rights, 1966

Preventive detention enables a person to be deprived of liberty, by executive determination, for the purposes of safeguarding national security or public order without that person being charged or brought to trial. This paper examines Article 9(1) of the International Covenant on Civil and Political Rights, 1966 to assess whether preventive detention is prohibited by the phrase 'arbitrary arrest and detention '. To analyse this Article, this paper uses a textual and structural analysis of the Article, as well as reference to the travaux preparatoires and case law of the Human Rights Committee. This paper argues that preventive detention is not explicitly prohibited by Article 9(1) ofthe International Covenant on Civil and Political Rights 1966. If preventive detention is 'arbitrary', within the wide interpretation of that term as argued in this paper, it will be a permissible deprivation of personal liberty under Article 9(1) of the International Covenant on Civil and Political Rights, 1966. Preventive detention will, however, always be considered 'arbitrary' if sajeguards for those arrested and detained are not complied with, in particular the right to judicial review of the lawfulness of detention.

The status of flag desecration in Australian law

Law relating to the desecration of the Australian flag in a public place - the influence of the flag on Australia's culture and politics - whether flag desecration is a constitutionally protected political communication - the constitutionality of the Flags (Protection of Australian Flags) Amendment Bill 2008 - whether the treatment of flag desecration under Australian law is likely to change if and when a statutory bill of rights is enacted.