The impact of court delays on the prosecutor and the defendant: an economic analysis

One important aspect of the economic theory of criminal court delay is to understand how the prosecutor and the defendant make their decisions, and how these respond to changes in trial delay. If both parties jointly maximise expected utility, trial delay may increase or decrease the number of trials, depending upon the decision makers' attitudes towards risk. The main policy implication is that providing the criminal courts with more resources in the form of additional judges and court capacity may lengthen the trial queue rather than shorten it. This is a counterintuitive result contrary to popular belief.

The high court on vicarious liability

Vicarious liability (respondeat superior) is a venerable common law doctrine which holds an employer liable for the torts of employees, regardless of the fault of the employer. An employer's liability for the torts of its employees can represent a significant financial obligation and can affect both hiring and operational decisions of businesses. Vicarious liability is a prominent theme in the background of much litigation and is often the reason for litigating the issue of whether or not a worker is an employee. Vicarious liability may also arise through other relationships, such as partnership and agency. Two recent decisions by the High Court of Australia have drawn attention to the issue of vicarious liability. These decisions illuminate the High Court's view of vicarious liability's two main streams: negligence (Hollis v Vabu Pty Ltd) n2 and intentional tort (NSW v Lepore). [*2] n3

Court delays and the defendant behaviour: an economic analysis

Court delays are consistently criticised as being inimical to social welfare. However, the theoretical basis for this assertion is not well established in the law and economics literature. As a first step, very little is known about the impact of court delay on the defendant's optimal plea decision. If the defendant is rational in the sense of inter temporally optimising, court delay may increase or decrease the probability of a trial depending on the defendant's bail status. Some empirical support for this theoretical proposition is found using data on plea behaviour for a selection of cases heard in NSW Australia.

Case note - Roosters, ducks and labour hire arrangements : Damevski v Guidice (2003) 202 ALR 494 (FCA Full Court)

One of the features of the current Australian labour market is the growth in the number of businesses "contracting out" work that was previously performed by their employees. The "contracting out" is often done through labour hire arrangements: the business engages a labour hire agency to provide it with suitable labour on an "as needs" basis. A common scenario is that the labour hire agency contracts both with the workers who provide the services to the agency's client, and with the client to whom those services are provided. Often the agency pays the workers and bills its client for the labour costs, plus a service fee. Research indicates that during the first half of the 1990s, "the number of agency workers more or less doubled."1 Analysis of the latest data from the Australian Bureau of Statistics on the number of workers employed through labour hire arrangements has suggested: "290,100 employees were 'on-hired' through agencies in June 2002 and 162,000 workers were paid by labour hire firms in November 2001 (almost doubling from 84,300 some three years earlier)." The value of the employment services industry in 2001-02 was $10.2 billion. 2

Re Alex: adolescent gender identity disorder and the family court of Australia

'People with gender identity disorder live with a conviction that their physical anatomy is incompatible with their true gender role. They have an overwhelming desire to live and function in the opposite biological sex' . The manifestation of the disorder in children and adolescents is dominated by secrecy, confusion and shame. The purpose of this article is to promote discussion amongst the legal fraternity of the difficult issues confronting the Family Court of Australia when asked to make decisions with life-altering ramifications for the young and vulnerable.

Section 46 of the Trade Practices Act-has the High Court made a "u-turn" on "taking advantage"?

Examination of High Court decisions on misuse of market power in regard to the element of "taking advantage" reveals inconsistency of application. Whilst being consistent regarding the need for a connection between the market power and the impugned conduct, the High Court has not been consistent regarding the degree of connection required. Two streams have developed, one supporting a high degree of connection, the other a lower degree before a firm is found to have "taken advantage" of its market power. Added to this has been the development of the "rational business explanation" which, it is argued, is either used as a defence to a s 46 action or is premised on the higher threshold of connection. Initially the high Court supported the lower threshold. In later decisions, whilst expressing support for the earlier decisions, in application the High Court favoured the higher threshold and at one point the rational business explanation. This trend appears to have been reversed with the most recent High Court decision which indicates substantive support for the earlier s 46 decisions.

Improving the reliability of child witness testimony in court : the importance of focusing on questioning techniques

Considerable discussion during recent years has focused on ways to increase the reliability of child witness evidence, and reduce the negative impact of the courtroom environment on children's credibility and their psychological well-being. A large proportion of this discussion has focused on removing child witnesses from the courtroom and developing alternative arrangements by which children can give evidence (e.g., videotaped statements used as evidence-in-chief, closed-circuit television). There is no doubt that these arrangements have played a major role in reducing children's feelings of uncertainty and intimidation, and they have increased the ability of children 10 tell their stories and answer questions reliably (Cashmore 2002; Eastwood & Patton 2002). However, there are many
other factors. apart from the physical environment in which a child's evidence is elicited, that impact on the quality and accuracy of a child witness's evidence.

This contemporary comment focuses on one of the most important factors that impacts on the quality and accuracy of a child's evidence; the questioning techniques. It offers four recommendations for improving the reliability of child witness evidence in court. along with justifications for these recommendations and suggestions for bow these recommendations might be implemented. Each suggestion focuses on the impact of questioning techniques, from pre-trial questioning to questioning during the trial. It does not focus on the rules of evidence regarding child statements or the physical environment in which children's evidence is elicited.

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.