The honeymoon killer : plea bargaining and intimate femicide : a response to Watson

In October 2003, US citizen Christina Thomas died while scuba diving on Queensland’s Great Barrier Reef. Following over five years of delays, her husband David Watson accepted a plea bargain to which he pleaded guilty to manslaughter on the basis of criminal negligence. Watson was initially sentenced to four and a half years imprisonment, suspended after 12 months, however this was later increased on appeal to suspension after 18 months. Using Watson as a framework for analysis, this article examines some of the limitations of an inefficient justice system, with a particular focus on the private nature of the plea bargaining process, and the potentially favourable representations and sentencing of men who kill a female intimate partner. The authors argue that the need to respond to court inefficiency and under-resourcing in the criminal courts creates pressures that can result in a desire for increased efficiency being prioritised above other justice concerns, and this allows for existing flaws within the operation of the criminal justice system to be exacerbated, and excused.

Literary concepts and the plea in mitigation

The article focuses on the plea in mitigation, one of the most common occurrences in the criminal justice system. Methods of approaching the plea in mitigation typically emphasize the need for the advocate to address the circumstances of the offence and offender. Typically, such matters are put forward as items on a list which the advocate must ensure are addressed during the plea in mitigation. Whilst it is important for those matters to be covered in providing the factual background, or context, of the offender and the offence, it is contended that in a plea in mitigation it is not sufficient nor adequate to simply present such matters to a judicial officer at sentencing and to allow those matters then to be assembled and interpreted by the sentencing judge.

Against settlement? Owen Fiss, ADR and Australian discrimination law

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.

Workplace "bargaining" and the wages/working time nexus: counting the cost of decentralisation

The impact of deregulation on dispersion of earnings in Victoria has been
acknowledged in the findings of the recent task force enquiry into industrial relations in Victoria. This paper argues that the link between hours worked and rates of pay has played a significant role in this increased dispersion. Drawing upon detailed analysis of hours and wages in Victorian agreements, data is presented on declining take-home pay flowing from the loss of penalty rates. This, we argue, is attributable to
the lack of substantive and procedural protections available to Victorian workers under schedule 1A of the Workplace Relations Act, and formerly under the Victorian Employee Relations Act, 1992. We contrast these findings with collective agreements trading off penalty rates certified by the Australian Industrial Relations Commission, and Australian Workplace Agreements approved by the Office of the Employment
Advocate. We conclude by suggesting there is a scale of fair outcomes attached to the wages/hours trade-off, directly attributable to the various institutional mechanisms now influencing Australian wage determination.

The solution to the dilemma presented by the guilty plea discount : the qualified guilty plea - I'm pleading guilty only because of the discount..."

The guilty plea sentencing discount is arguably a triumph of expediency over principle. Strong utilitarian reasons favour providing less severe sentences to defendants who plead guilty. However, an unsavoury by-product of the guilty plea discount is that some innocent people are pressured into pleading guilty. This article suggests that a possible solution to the problems caused by the discount is to permit defendants to enter a ‘qualified guilty plea’. While formally amounting to a guilty of plea, the defendant would be permitted to advance submissions consistent with innocence as part of the plea in mitigation. If the sentencer is persuaded that the defendant had a tenable chance of an acquittal a penalty discount in excess of that available for merely pleading guilty would be conferred.

Enterprise bargaining as an organising opportunity - case study of a campaign by NTEU at one university

In the context of an increasingly de-regulated industrial relations' environment, enterprise bargaining has been viewed by unions as an opportunity for organising and increasing membership at the grass roots level. This paper uses a case study approach detailing the process at one university where the National Tertiary Education Union (NTEU) utilised organising tactics of the type currently promoted by the Australian Council of Trade Unions (ACTU). The campaign is described and assessed relative to outcomes at other NTEU sites during the same round of bargaining. It is concluded, that, firstly, the tactics used at this site succeeded in producing greater membership growth and mobilisation than at comparable sites. Secondly, the tactics used are applicable to a university workforce including academic and general staff. Thirdly, industrial campaigning in enterprise bargaining does not by itself result in membership growth.

Relative responsiveness of bargaining solutions to changes in status-quo payoffs

It is a well-known fact that several prominent bargaining solutions are responsive to changes in status-quo (i.e., disagreement or fallback) payoffs. When an agent’s status-quo payoff increases, his solution payoff either stays the same or increases. A fully general result for these solutions’ status-quo point ranking is impossible to establish. In this paper, using an important class of bargaining problems, a ranking of the relative status-quo point responsiveness of prominent bargaining solutions is obtained. Using the Constant Elasticity of Substitution class of bargaining problems, regardless of the concavity of the Pareto frontier and the level of increase in one’s status-quo payoff, we find the equal gains solution is the most responsive with respect to changes in status-quo payoffs, followed by the Nash solution. The equal sacrifice solutions is the least responsive, followed by the Kalai/Smorodinsky solution.

Reference functions and balanced concessions in bargaining

In bargaining, agents expect their concessions to be reciprocated. Using the 'reference function' concept of Thomson (1981), this paper constructs a class of solutions the outcomes of which lead to balanced concessions by agents as prescribed by the reference function adopted. The Kalai/Smorodinsky solution arises as a special case. Another solution in this class, which depends on the entire feasible set, is generated by using the centre of gravity as the reference function.