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.

In her own right : women officers and equality in the Salvation Army

The nature of women's equality in the Army, during the 19th century, was unprecedented, and even today women can rise to positions of power and authority not easily equalled in the community. In the 20th century the principle of equality remained the same, but the practice did not. Any major turnaround in women's officership will require an orientation to first identifying and understanding the forces that effect women's advancement in the Army, plus the introduction of fairly exact and regulated remedial measures.

Cultural equality and its soft power against terrorism

This book is a collection of papers originally presented at a workshop entitled 'After Nine Eleven: Ethics in the Time of Terror' hosted by Monash University on 24 June 2005. The workshop participants included members of the Ethics of War and Peace (EWAP) working group which was inaugurated at the first Oceanic Conference on International Studies in July 2004. EWAP provides a cross-disciplinary forum for scholars and non-academic professionals to exchange and debate ideas on topics including the ethics of armed intervention, the Just War, pacifist ethics, international humanitarian law, ethics in the military profession, and the relationship between law, ethics and politics.

The chapters within this book examine themes including 'lesser evils' and 'dirty hands' in the fight against terrorism, the ethics of intelligence gathering, humanitarian intervention, terrorism and the North-South divide, cultural equality as a response to terrorism, human rights and counterterrorism legislation, and the ethics of defending against 'bioterrorism'. 

Contributors include Alex Bellamy and Richard Devetak (University of Queensland), Baogang He (Deakin University), Christopher Michaelsen (Office for Democratic Institutions and Human Rights, Organization for Security and Co-operation in Europe), Jeremy Moses (University of Canterbury), Christian Enemark and Hugh Smith (University of New South Wales, Australian Defence Force Academy).

In whose interests? The best interests principle under ethical scrutiny

This paper critically examines the best interests principle and its role in making decisions about intensive care treatment. In current practice the best interests principle is sometimes relied upon to guide decision making in circumstances when the patient is incompetent, although it is intrinsically linked to inconsistent assumptions about what is meant by quality of life. This situation means that there is potential that moral errors will be made that may result in an unwanted extension of life for some individuals or the premature death of others.

It is difficult to justify such decision making on ethical grounds. A greater understanding of the best interests principle, and consequently the concept of quality of life, is needed in order to ensure that decision making about intensive care is ethically defensible. It is argued that an ideal theory of quality of life provides an appropriate framework for best interests decisions, and that the decision making process ought to, whenever possible, involve the patient's close family.

Decision making in health care: limitations of the substituted judgement principle

The substituted judgement principle is often recommended as a means of promoting the self-determination of an incompetent individual when proxy decision makers are faced with having to make decisions about health care. This article represents a critical ethical analysis of this decision-making principle and describes practical impediments that serve to undermine its fundamental purpose. These impediments predominantly stem from the informality associated with the application of the substituted judgement principle. It is recommended that the principles upon which decisions are made about health care for another person should be transparent to all those involved in the process. Furthermore, the substituted judgement principle requires greater rigour in its practical application than currently tends to be the case. It may be that this principle should be subsumed as a component of advance directives in order that it fulfils its aim of serving to respect the self-determination of incompetent individuals.

Provocation: the ongoing subservience of principle to tradition

The defence of provocation has been highly criticised. Most
commentators argue that the defence i" misguided. There does not appear
to be any community pressure to preserve the defence. Despite this,
legislatures are reluctant to abolish provocation as a partial defence to,
murder. This article examines the underlying rationale for tile defence. I1
concludes that the defence is founded on a flaw~ed assumption about
human nature-that people are captive to some of their emotional states.
It is also argued that the convoluted and confusing (if not confused) test
for provocation is evidence of the unsound nature of the defence-it is
simply a case of not being able to develop a feasible (and candid) principle
for a doctrine that is devoid of a sound justification.

Macleod and the offence of defrauding the company in one-person businesses: the divergence between legal principle and logic widens

The recent High Court decision in Macleod v R establishes that a director and sole shareholder may be convicted of fraudulently applying a company's property even though the person has consented to the personal use of the company's property. It is contended that while this decision is consistent with the weight of precedent, it is wrong in principle. The decision implies that corporations are not only separate legal entities, but that they are highly virtuous legal entities -- incapable of being imbued with the dishonest intentions and activities of the individuals controlling the company.

The problem of voluntariness: parents and the anti-discrimination principle

Examines the theoretical justifications for the anti-discrimination protection for working parents in Australia. Implication of discrimination, voluntaries and employment; Analysis of the tort principles; Factors affecting the justification for protecting working parents.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.

Gendering men: implications for gender equality

This paper provides an overview of the main questions about men’s involvement in policies and practices toward gender equality and the key debates and issues that arise from them. It argues for the importance of locating this issue in the context of the limitations and potential of gender mainstreaming and an understanding of the gendered nature of the state and the social construction of men’s gender interests. It articulates the case for encouraging men’s involvement in gender equality, whilst being conscious of the dangers of involving men, and outlines a strategy to work through the dilemmas and tensions.

Moving from voluntary euthanasia to non-voluntary euthanasia: equality and compassion

The recent Dutch law legalising active voluntary euthanasia will reignite the euthanasia debate. An illuminating method for evaluating the moral status of a practice is to follow the implications of the practice to its logical conclusion. The argument for compassion is one of the central arguments in favour of voluntary active euthanasia. This argument applies perhaps even more forcefully in relation to incompetent patients. If active voluntary euthanasia is legalised, arguments based on compassion and equality will be directed towards legalising active non-voluntary euthanasia in order to make accelerated termination of death available also to the incompetent. The removal of discrimination against the incompetent has the potential to become as potent a catch-cry as the right to die. However, the legalisation of non-voluntary euthanasia is undesirable. A review of the relevant authorities reveals that there is no coherent and workable "best interests" test which can be invoked to decide whether an incompetent patient is better off dead. This provides a strong reason for not stepping onto the slippery path of permitting active voluntary euthanasia.