Democracy at risk : the cultural negotiation of hatred, rights and freedom

The idea for this panel emerged from a research project being undertaken at the Institute for Globalisation and Citizenship, Deakin University, Australia, – Moving On ›Cultural Negotiation‹ in Theory and Practice for the 21st Century.

The democratic credentials of statutory bills of rights (and those of a self-styled majoritarian democrat)

This article has two aims. First, it seeks to demonstrate that the democratic credentials of statutory rights instruments are stronger than bills of rights sceptics such as Professors James Allan and Jeremy Waldron realise. It does so by examining the process by which statutory bills of rights are enacted and then provides an account as to why they are adopted that differs from the one offered by Allan and Waldron. This is done to suggest that the reason why a statutory rights instrument is adopted and the process itself has considerable democratic significance. And second, it seeks to assess the democratic credentials of Professor Allan's own critique of statutory bills of rights. The analysis undertaken in this regard reveals that in important respects Allan is anything but the majoritarian democrat that he routinely claims to be.

Taking parliamentary sovereignty seriously within a Bill of Rights framework

The Victorian Government has made a commitment to consult with the community on how best to protect and promote human rights in Victoria. To this end, it has established a Human Rights Consultation Committee to undertake this consultation and to report on the desirability or otherwise of enacting a Bill of Rights. The government has, however, indicated its preference for a statutory Bill of Rights and one that preserves the 'sovereignty of Parliament'. This article takes those two government preferences as its baseline and then explores what might follow if the preservation of parliamentary sovereignty is taken seriously within a Victorian rights framework.

Demystifying the supply of capital and labour in a nation’s economic chain

Public capital has been considered to be the wheels of economic activity in a nation or region. The reverse effect, the contribution of economic growth to public capital, is also worth analysis. The non-structural vector auto-regression (VAR) approach is performed for the Australian economy using yearly data for the 1960-2008 period. The optimal lag is investigated to build the VAR model that is then tested for stability. The impulse response function is further employed to examine the response of one economic variable to the innovation of others and to determine the lagged terms for the maximum absolute value of the other variables’ responses. The results will provide historical evidence for the federal and regional governments of Australia to estimate the effects of these production variables, in particular, the effect of infrastructure spending on the gross domestic product.

Human rights and the treatment of sex offenders

Human rights create a protective zone around persons and allow them the opportunity to further their own valued personal projects without interference from others. All human beings hold human rights and that includes sex offenders, although some of their freedom rights may be legitimately curtailed by the State. In this paper we apply the concept of human rights to sex offenders. First we briefly analyze the concept of human rights, their structure, and justification. Second, we apply our own model of human rights to the assessment and treatment of sex offenders. We conclude that a significant advantage of a human rights approach is that it is able to integrate the value and capability aspects of offender treatment.

The moral rights of authors and performers: an international and comparative analysis

This book is a comprehensive guide to the development and utilization of authorial moral rights across the key jurisdictions of the English-speaking world and in France and Germany. In recent years, the copyright statutes of the common law countries have been expanded by the introduction of provisions dealing with purely authorial rights - moral rights.
The Moral Rights of Authors and Performers discusses the historical development of the rights in Europe, with particular reference to France and Germany, and shows the growth of moral rights theory and legislative coverage up to the late 1930s. During the 1920s the moral rights of authors became the subject of international protection, particularly through the operation of the Berne Convention for the Protection of Literary and Artistic Works. The book explores the adoption of moral rights into this and other international instruments, explaining the functions that moral rights were intended to perform.
The author gives detailed accounts of the operation of moral rights in France and Germany today, addressing both statutory interpretation and doctrinal issues. The provision of case studies gives an impression of the rich jurisprudence associated with the rights in these countries.
The book also contains a detailed discussion of the versions of moral rights that have become entrenched in Canada, the UK, the US and Australia, with each country considered independently. It deals separately with the introduction of the rights into each country and their operation and interpretation by courts and commentators. Material on common law analogues to the rights is provided, which indicates alternative actions that practitioners might take. Problems of cross-jurisdictional legal proceedings (especially arising from technological transfer of information) are also addressed, with moral rights protection elsewhere in the world summarized in tabular form.

Moral rights and substantiality: some questions of integration

Now that Australia has its long awaited legislation protecting the moral rights of authors, a new phase in the development of the rights begins. It must be asked how the incorporation of the rights into the existing copyright legislation, and their subjection to existing doctrines, will affect their operation. And how will existing doctrines be challenged and extended by the existence of the rights? Ultimately these questions will be worked out in the courts. The present article offers a consideration of one area where the legislature has purported to integrate moral rights into the existing scheme but where the practicalities oftheir integration are still unclear. It examines the interplay of moral rights with the doctrine of substantiality, suggesting that any clarification of what substantiality means in the moral rights context will be contingent upon the emergence of more precise definitions of what moral rights are and what interests they are intended to protect.

Basic Needs, Property Rights and Degradation Of Commons

A major problem in many developing countries is the degradation of commons. This degradation has occurred on account of the lack of fulfilment of the basic needs of the poor, free riding and ill–defined property rights. As these goods are essential for the survival of these people, they have to access these items from commons. This results in regular raids to common land for resources and also to private houses (for example, in New Delhi) which are not guarded for water. A variant of the agricultural household model is used to analyse the above problem. Several propositions are established and it is demonstrated that degradation can occur at both a low and high price of basic needs. This result has important policy implications as it demonstrates that land or common degradation cannot be solved by just using the price system. Properly defined property rights and provision of basic goods in kind may resolve the problem of degradation of commons.

Encouraging a culture of justification: a comparison of Teoh and Baker

Focuses on the intersection of administrative law, international law, and universal human rights concepts in Australia and Canada. Comparison of  court decision between the cases involving Ah Hin Teoh and the Canadian  Minister of Citizenship and Immigration; Effect of the ratified United Nations  Convention on the Rights of the Child on administrative decisions; Judicial supervision of executive actions.

RE Patrick & the rights and responsibilities of sperm donor fathers in Australian family law

In the matter of Re Patrick, Guest J of the Family Court of Australia held that a sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child to the extent that this was in the child's best interests. However, his Honour also held that due to the way in which particular provisions of the Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the "parent" of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, the authors will first explore the facts and decision in Re Patrick, and then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' under the Act.

What is 'political communication'? The rationale and scope of the implied freedom of political communication

The aim of this article is to identify what counts as ‘political communication’ for the purposes of the implied constitutional freedom of political communication. This is done for two reasons. The first is to delimit the scope of the implied freedom. The second is to clarify whether racial vilification is ‘political communication’, which is the initial step that must be taken in order to assess the constitutionality or otherwise of current Australian racial vilification laws. It is, however, necessary and desirable to establish a sound theoretical basis for the implied freedom before these questions can be properly considered. To this end, it is argued that a minimalist model of judicially-protected popular sovereignty underpins the implied freedom and is the rationale that must guide its interpretation and application. The analysis undertaken demonstrates that a generous zone of ‘political communication’ must attract constitutional protection and that racial vilification will in certain circumstances amount to ‘political communication’.