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?

Commonwealth legislative power and "non punitive" detention: a constitutional roadmap

In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under  section 51 off he Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for “legitimate non punitive purposes”.  Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a “judicial process ” is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the “constitutional immunity ”from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.

Removal of directors of public companies takes centre stage in Australia : an exploration of the corporate law and governance issues

Increasing attention is being given to the legal and governance issues relating to the removal of directors in Australian public companies. This has been due mainly to the difficulties experienced by the board of National Australia Bank in attempting to remove one of its fellow directors, and the subsequent development of public companies entering into so-called 'prenuptial agreements' with new directors, requiring that the director 'resign' if the board pass a vote of no-confidence in the director. In this article, the author revisits the area of director removal in Australian public companies for two reasons. The first reason, which covers the majority of the article, is to engage in a detailed analysis of whether the pre-nuptial agreements which some public companies have indicated that they support using to remove directors, are in fact enforceable under Australia's Corporations Act The second reason is to outline a law reform proposal to enable public companies to remove directors without requiring the vote of shareholders at a general meeting. The proposal involves providing Australia' corporate  regulator, the Australian Securities and Investments Commission (ASIC) with the power to grant relief from the statutory removal provisions to public companies, but in a way which balances the competing objectives of commercial efficiency and shareholder participation and, very importantly, encourages good corporate governance practices by companies in relation to the performance assessment  of directors.

It is in the interests of both shareholders and directors to agree on a set of ground rules for the effective supervision of companies that reconciles the rights of the owners to overall control with the much tougher demands on modern directors

The high court and the utility of multiple judgments

Recently, the High Court has been criticised for its supposed increasing tendency to deliver multiple majority judgments. Ostensibly this impairs the capacity for the Court to clarify and unify the law, thereby making it more difficult for citizens to plan and coordinate their affairs. This criticism of the High Court is unsound. First, there is no evidence to suggest that the High Court is now more fragmented than it has been during other periods of its history. Secondly, the precise reasoning process (and the underlying jurisprudence reflected by this) is a cardinal aspect of the development of precedent and legal principle. Convergence in conclusion only is of little utility and does not promote certainty and clarity in the law. One cannot make an informed assessment of the impact and breadth of a decision without an understanding of the (actual) premise underpinning the decision. It is for this reason that legislation is such a poor vehicle for declaring the law and why in recent decades there has been an increasing degree of reliance on extraneous material to assist in the interpretation of legislation. Conclusion without (genuine) reasons is not highly instructive. Coerced agreement, no matter how subtle, is undesirable. The High Court should resist calls to deliver more single majority judgments.

Scientific proof that humans enjoy punishing wrongdoers: The implications for punishment and sentencing

Recent developments in brain science confirm that as a race we are in fact a punitive lot. Human beings actually derive pleasure from inflicting punishment on wrongdoers. We are wired in such a way that the part of our brain that reports pleasure is activated when we punish norm violators. This is even when punishment has no tangible or demonstrable benefits. However, we are not slaves lo our emotions. Another region of our brain 'kicks-in' if punishment becomes self-defeating, in that it conflicts with our other interests. The implications of this research for punishment theory and the practice of sentencing are discussed in this paper. The findings give qualified support to the theory known as intrinsic retributivism, but do not suggest it is the soundest theory of punishment. This is because we stop punishing when it comes at a cost to us. The good feeling that punishment invokes in punishers is another consequential consideration in favour of the utilitarian theory of punishment. However, it is not clear that the utilitarian calculus is necessarily affected by the findings. The main implication of the research findings relates to the relevance of public opinion to sentencing practice. The findings support the view that public sentiment, which seems to support increasingly tougher sanctions, can be curtailed of the public are informed that punishment comes of a cost to community.

State sovereignty and migration control: the ultimate act of discrimination?

Nations zealously guard their borders and carefully vet migrants. This consigns many people to live in states not of their choice and often diminishes their opportunities and their level of flourishing. In some cases it is the difference between life and death. The practice of imposing migration controls is discriminatory. In fact it is the ultimate form of discrimination: 'super-discrimination.' There is no logical or moral reason why non-nationals of a state should not have the same opportunities and freedoms as nationals in that state. One of the most common forms of discrimination is race - treating a person differently simply because of their place of birth. This is one of the clearest and most repugnant forms of discrimination because the location where a person is born is of course merely a happy or unhappy circumstance over which the individual has no control. An accident of birth should not qualify a person for extra privileges or opportunities. The world is a fairer place if to the maximum extent possible luck is taken out of the process for allocating benefits and burdens - which ought to be distributed on the basis of merit and dessert. This paper examines whether there are sound reasons for restricting the flow of world-wide people movement. The main arguments in favour of this policy, relating to security and national building, are ultimately flawed. This exposes a tragic irony given the great efforts that many Western states - which typically have the strongest migration controls - make to stamp out discrimination at the domestic level, and the vast array of international law anti-discrimination instruments, loudly trumpeted by Western nations. This is hypocrisy nearing its finest. The substratum of sovereign states upon which available international law is built is inherently discriminatory and in fact is probably responsible for more harm as a result of the innately discriminatory immigration policies than results from the cumulative operation of all domestic discrimination. The world should move towards loosening migration controls. This would have an enormous number of humanistic benefits, not the least of which is largely eradicating world hunger and poverty.

A lawyer's lawyer joins the high court of Australia

In November 2005, Susan Crennan was sworn in as the 45th justice of the High Court of Australia. This follows a brief two year period as a justice of the Federal Court of Australia. In this article, the author recounts the debate leading up to the latest appointment regarding what type of justice should be appointed to the Court, and reviews Crennan's Federal Court judgments in an attempt to provide some insight on the type of High Court justice Crennan will be. What is for certain is that Crennan is enchantingly mysterious.

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.

Soft-sediment deformation structures in the middle permian Wandrawandian siltstone, southern Sydney basin: implications for depositional environment and basin tectonics

The Middle Permian Wandrawandian Siltstone at Warden Head near Ulladulla in the southern Sydney Basin is dominated by fossiliferous siltstone and mudstone, with a large amount of dropstones (lonestones) and some pebbly sandstone beds. Two general types of deposits are recognised from the cliff succession in view of the timing and mechanism of their formation. One is represented by the background (or primary) deposits of offshore to slope environments with abundant dropstones of glacial marine origin. This facies occurs throughout the cliff sections at Warden Head. The second type is distinguished by secondary, soft-sediment deformational deposits and structures of the primary (background) deposits, and comprises three successive layers of sandy mudstone dikes. In the second type of deposit, metre scale, laterally extensive syn-depositional slump deformation structures occur extensively in the middle part of the Wandrawandian Siltstone. The deformation structures vary in morphology and pattern, including large-scale complex-type folds, flexural stratification, concave-up structures, small-magnitude -faults accompanied by folding and brecciation. The slumps and associated syn-depositional structures are herein attributed to penecontemporaneous deformations of soft sediments (mostly mud and silty mud), formed as a result of mass movement of unconsolidated and/or semi-consolidated substrate following earthquake events. The occurrence of the earthquake event deposits (or seismites) at Warden Head supports the current view that the Sydney Basin was located in a back-arc setting near the New England magmatic arc on an active continental margin during the Middle Permian, and the timing of the earthquake events is here interpreted to indicate the onset of the Hunter Bowen Orogeny in the southern Sydney Basin.

Soft-sediment deformation structures interpreted as seismite from the Middle Permian of the southern Sydney Basin, southeastern Australia

The Middle Permian Wandrawandian Siltstone of the southern Sydney Basin is well exposed along the coastline from Lagoon Head in the south to North Head in the north near Ulladulla in southern New South Wales. The unit is dominated by fossiliferous siltstone and mudstone, with abundant dropstones and minor pebbly sandstone interbeds, and contains an interval of well-preserved and extensive soft-sediment deformation structures. These deformation structures occur mainly in the middle part of the cliff sections and are bounded above and below by undeformed sedimentary units of similar lithology. A wide range of soft-sediment deformation structures have been observed, including cracks, sandstone and sandy mudstone dykes, a possible sand volcano, networks of relatively small and closely connected fissure-like structures, metre-scale complex-type slump folds, flexural stratification, concave-up depressional structures, small-scale normal faults (with displacements usually <1 m), shear planes, and breccias (pseudonodules). The slumps and associated deformations are here collectively interpreted as representing a seismite deposit attributable to penecontemporaneous deformation of soft, hydroplastic sediment layers following a liquefaction triggered by seismic shocks. The timing of the inferred earthquake events appears to correspond to the onset of a major basin-wide tectonism during the Middle Permian.

Lopingian (Late Permian) stratigraphy, sedimentation and palaeobiogeography in southern Tibet

Investigations of the Permian-Triassic sections and limestone blocks scattered in the Indus-Tsangbo Suture Zone in southern Tibet show widespread distribution of the Lopingian strata. The Lopingian deposits mostly contain rich brachiopod fossils and characteristic conodonts of the Mesogondolella shenz Zone of latest Changhsingian age in the topmost part. Brachiopod assemblages are largely comparable with those known from the upper Wargal and Chhidru Formations of the Salt Range, Pakistan, the Zewan Formation of Kashmir, the upper part of the Kuling Group in Spiti of India and the Hardman Formation of Western Australia. A revised Lopingian (Late Permian) age is proposed for the Selong Group and its equivalents in southern Tibet. The Lopingian deposits in southern Tibet can be grouped into three different sedimentary types, each of which reflects different sedimentary environments from coastal to continental shelfal settings on the northern peri-Gondwanan margin. The Qubu-type sequence represents marine coastal and proximal barrier-lagoon sediments during a gradual sea-level rise. Micaceous sandstone and shale of regressive origin, with abundant palynomorphs and acritarches, developed during the Late Lopingian sea-level lowstand, which is followed by a major rapid transgression at the very end of Permian. The Selong-type sequence in the Selong area consists of bioclastic limestone and calcareous shale in the lower part, and crinoid grainstone in the upper part. The latter part is believed to have been formed in a high-energy inner shelf shoal setting. The Chitichun-type sequence, sporadically distributed along the Indus-Tsangbo suture zone as small limestone blocks, consists of pure bioclastic sparite with the ammonoid Cyclolobus fauna. It is interpreted as the break-up products of sea-mounts and/or small isolated carbonate build-ups developed on the outer shelfal settings.

東澳大利亞悉尼盆地南部二疊紀的地層、沈積環境與盆地演化

The latest Carboniferous to Triassic Sydney-Gunnedah-Bowen Basin System in the eastern Australia is an elongate structural basin that locates between the Lachlan Caledonian Fold Belt in the west and the New England Fold Belt in the east. Extending from the Gunnedah district in the north to the Batemans Bay in the south, the Sydney Basin is a subbasin located in the southern part of the Sydney-Gunnedah-Bowen Basin System. The Permian in Sydney Basin consists of sedimentary sequences of fluvial, delta, littoral and shallow marine environments, as well as volcanic rocks. In the southwest of southern Sydney Basin, the Permian unconformably onlaps the highly deformed and metamorphosed Lachlan Fold Belts. The Permian System from the southern Sydney Basin comprises the Lower Permian Tallaterang Group (consisting of Clyde Coal Measures and Wasp Head Formation), Shoalhaven Group ( consisting of the Lower Permian Yadboro & Tallong Conglomerate, Yarrunga Coal Measures, Pebbly Beach Formation, Snapper Point Formation and the Middle Permian Wandrawandian Siltstone, Nowra Sandstone, Berry Siltstone and Broughton Formation) and the Upper Permian Illwarra Coal Measures. From the latest Carboniferous to the Middle Triassic, the SydneyBowen Basin had experienced different tectonic phases from a back-arc extensional regime to a typical foreland basin: a back-arc extensional phase, a passive thermal sag phase and a flexural loading and increased compressional phase.