The mandatory life sentence for murder : an argument for judicial discretion in England

In 1965, alongside the abolition of capital punishment, a mandatory life sentence for murder was implemented in England and Wales. The mandatory life sentence served as a signal to the public that the criminal justice system would still implement the most severe sanction of life imprisonment in cases of murder. Nearly 50 years later, this article examines whether the imposition of a mandatory life sentence for murder is still in the best interests of justice or whether English homicide law would be better served by a discretionary sentencing system. In doing so, the article considers debates surrounding the political and public need for a mandatory life sentence for murder by drawing upon interviews conducted with 29 members of the English criminal justice system. This research concludes that a discretionary sentencing framework is required to adequately respond to the many contexts within which the crime of murder is committed.

At the discretion of management: immigration detention in Indonesia

 This chapter outlines the policy, practice, and human impact of immigration detention in Indonesia. An important part of the Indonesian immigration detention story is the role of Australia, and this chapter explains how Australian diplomacy, human resources, and funding have been central to the development of Indonesia's immigration detention network.

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.

Valuing talent: do CEOs' ability and discretion unambiguously increase firm performance

This study investigates how the association between more able managers and firm performance, documented in prior research, is affected by the joint effect of managerial discretion and monitoring quality. We find that higher levels of managerial discretion afford more able managers to further improve firm outcomes only when such discretion is monitored closely to curb more able managers' rent seeking incentives. Our results are robust to a battery of additional and sensitivity analyses that we perform.

Investment opportunities and leverage: some Australian evidence on the role of board monitoring and director equity ownership

This paper tests the hypothesis that the negative relationship between investment opportunity set (IOS) and debt is moderated by board monitoring and director equity ownership. According to contracting theory, firms with high growth opportunities (high IOS) are associated with lower levels of debt as a result of the asset substitution and the under-investment problem. However, our hypotheses test the conjecture that the negative debt / IOS relationship will be moderated by the proportion of non-executive directors (NEDs) on the board and director equity ownership. NEDs provide higher monitoring which reduces management discretion while director equity ownership provides incentives for managers to maximize the value of the firm. More specifically, we expect that high growth firms with a higher proportion of non-executive directors and director equity ownership are less likely to be associated with asset substitution and under investment. Thus, the negative investment opportunity set / debt relationship will be weaker for firms with higher levels of non-executive directors and high director equity ownership. Data collected from Australian companies support both these two hypotheses. Results have significant implications for corporate finance theory.

Excessive force used in making an arrest: does it make the arrest ipso facto unlawful?

The purpose of this article is to consider whether or not the use of excessive force in effecting an arrest makes the arrest ipso facto unlawful at common law. With a dearth of appellate court authority on point in either Australia or the United Kingdom, the question is presently open. It is my argument that as force is not a minimum condition of an arrest, its excessive use will not, therefore, make unlawful an otherwise lawful arrest. This conclusion is a matter of some import. It exposes an arrester to civil and possibly even criminal liability for assault but not to an action for false imprisonment. It may also have practical repercussions for the possible discretionary exclusion of evidence on public policy grounds. In theory, it should not matter whether excessive force made an arrest unlawful or not, for the public policy discretion permits a judge to exclude evidence illegally or improperly obtained. But common sense suggests that a judge may not be so likely to exclude evidence when the relevant conduct amounts only to police impropriety not illegality.

New community governance in small rural towns: the Australian experience

State and federal governments in Australia have developed a range of policy instruments for rural areas in Australia that are infused with a new sense of ‘community’, employing leading concepts like social capital, social enterprise, community development, partnerships and community building. This has encouraged local people and organisations to play a greater role in the provision of their local services and has led to the development of a variety of ‘community’ organisations aimed at stemming social and economic decline. In Victoria, local decision-making, before municipal amalgamations, gave small towns some sense of autonomy and some discretion over their affairs. However, following municipal amalgamations these small towns lost many of the resources—legal, financial, political, informational and organisational—associated with their former municipal status. This left a vacuum in these communities and the outcome was the emergence of local development groups. Some of these groups are new but many of them are organisations that have been reconstituted as groups with a broader community focus. The outcomes have varied from place to place but overall there has been a significant shift in governance processes at community level. This paper looks at the processes of ‘community governance’ and how it applies in a number of case studies in Victoria.

The sentencing advisory commission and the hope of smarter sentencing

Sentencing law practice - confused and incoherent Sentencing has been described as the 'high point in anti-jurisprudence' (Smith 1997:174). This comment reflects the fact that sentencing law is devoid of an overarching rationale. It is marked by a high degree of discretion and is shaped more by political expedience and intuition than informed inquiry and principle. The fact that sentencing is 'the most controversial and politically sensitive aspect of the criminal law' (Freckleton 1996:ix) has militated heavily against it being developed in a coherent and principled manner.

Introduction: Lambert and lampposts: the end of equality in Anglo-Australian matrimonial property law

This contribution introduces the volume by classifying the collection into 3 categories: (i) examinations of the area of property law which focus on the relationship between the decisions in White, Figgins and Lambert; (ii) reactions to the implications of McFarlane, Parlour for the evolution of spousal maintenance; (iii) more general theoretical considerations of ‘fairness’. It is argued that the judicial response to the breadth of the discretion provided by the respective legislatures has been to create ‘rules of thumb’; and that the absence of any serious examination of underlying principles has been to permit opportunistic cross-referencing between the jurisdictions. In this context it is argued that (analogously with the introduction of no-fault divorce) the recent attraction of ‘equality’ as a governing principle owes more to the incapacity and/or unwillingness of the forensic process to evaluate contribution in a coherent manner than to any genuine commitment to substantive equality.

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.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Technology and marginalization: a case study of the limited adoption of the intranet at a state-owned organisation in rural Australia

Taking a critical theory approach and the pluralist view of technology, this paper examines the problems in organizational communication that arose due to the implementation of a limited intranet electronic mail system as the main channel of communication between a rural stateowned organization and its city-based Head Office, installed at the sole discretion of the latter.
The intranet was provided only to the administration division and managers of some units due to financial constraints. This required others to receive information carried via the intranet through a gatekeeper who due to information and work overload, failed to disseminate the information effectively and efficiently. Using a combination of qualitative data collection methods, this study found that the intranet had marginalized those without access to it and reinforced the privileged position of those already with higher status within the organization, contrary to the utopian predictions
of new technologies as leading to social equality.

Reflexivity: a concept and its meanings for practitioners working with children and families

Reflexivity is a concept that is increasingly gaining currency in professional practice literature, particularly in relation to working with uncertainty and as an important feature of professional discretion and ethical practice. This article discusses how practitioners working in child and family welfare/protection organisations understood and interpreted the concept of reflexivity for their practice, as one of the outcomes of larger, collaborative research project. This project was conducted through a series of workshops with practitioners. The overall research that aimed to expand practitioners’ practice repertoires from narrowly-defined risk assessment, to an approach that could account for the uncertainties of practice, included the concept of reflexivity as an alternative or a complement to instrumental accountability that is increasingly a feature in child welfare/protection organisations. This article discusses how the concept of reflexivity was explored in the research and how practitioners interpreted the concept for their practice. We conclude that while concepts like reflexivity are central to formal theories for professional practice, we also recognise that individual practitioners interpret concepts (in ways that are both practically and contextually relevant), thus creating practical meanings appropriate to their practice contexts.

Roman concept of mental capacity to make end-of-life decisions

When assessing decisional competence of patients, psychiatrists have to balance the patients' right to personal autonomy, their condition and wishes against principles of medical ethics and professional discretion. This article explores the age-old legal and ethical dilemmas posed by refusal of vital medical treatment by patients and their mental capacity to make end-of-life decisions against the background of philosophical, legal and medical approaches to these issues in the time of the Younger Pliny (c62–c113 CE). Classical Roman discourse regarding mental competency and "voluntary death" formed an important theme of the vast corpus of Greco-Roman writings, which was moulded not only by legal permissibility of suicide but also by philosophical (in modern terms, moral or ethical) considerations. Indeed, the legal and ethical issues of evaluating the acceptability of end of life decisions discussed in the Letters are as pertinent today as they were 2000 years ago. We may gain valuable insights about our own methodologies and frames of reference in this area of the law and psychiatry by examining Classical Roman approaches to evaluating acceptability of death-choices as described in Pliny's Letters and the writings of some of his peers.