Rejection of the fruit of the poisonous tree doctrine in Australia : a retreat from progressivism

This article canvasses the key Australian exclusionary rules and discretions to exclude evidence under both the common law and its statutory counterparts in the Uniform Evidence Legislation now in effect in the Commonwealth, Victoria, New South Wales, the Australian Capital Territory and Tasmania. In examining these exclusionary rules and discretions, an analysis is made as to whether evidence derived from primary evidence excluded under one or more of these rules should also be excluded under an American style 'fruit of the poisonous tree doctrine' - and why or why not. Finally, the article compares the current Australian approach to this doctrine with the present state of the American doctrine and the recognised exceptions thereto. The article concludes with recommendations for applying the doctrine in both countries, subject to suggested changes in the Jaw that take the realities of political correctness and human frailty into account.

A warrior nation

Under Prime Minister John Howard, Australia today appears to have turned away from Asia, returning to a Western oriantation. Has racial invasion fear, once expressed in the 'White Australia' policy, been the determinant of relations with Asia? I argue, in contrast, first, that invasion fear preceded race fear and, second, that Australia was unlucky, in coming to nationhood during the eras of Social Darwinism and New Imperialism, scaling ideas of race citizenship into its national formation. It was unlucky to associate national 'manhood' with Gallipoli and war, making the national tradition expeditionary nationalism, or ANZAC. War is central in national memory and public patriotism, primarily because war has been carried out overseas rather than through fighting on Australian soil, and the devastation of Australian cities. Even after the retreat of Western empires in Asia, and of racial ideology, why has this romantic and foolish view of war as an expression of the nation persisted? Paradoxically, Australians romanticise war even though, after 1788, there has been no other invasion of a continent which is harder to invade than it is to defend.

The global mio-pliocene climatic equability and coastal ostracod faunas of southeast Australia

This study on the Mio–Pliocene ostracod successions of southeast Australia outlines several faunal events indicative of climate warming and/or increased rainfall events. Ostracod faunas associated with a late Late Miocene sea level rise event suggest that the climate of this time in southeast Australia was similar to, or slightly warmer than that of present day southeast Australia. However, it was probably wetter and significantly warmer than immediately preceding (mid Late Miocene) palaeoclimatic conditions within the region. Evidence for a change to wetter and warmer conditions during the late Late Miocene is seen in the appearance of various extant euryhaline and semi-thermophilic ostracod species in coastal ostracod faunas. The appearance of euryhaline species, which are mostly absent from older shallow marine Cenozoic strata of the Bass Strait hinterland, suggests a major influx of fresh water into coastal marine settings, which contributed to the initial phase of development of the southeast Australian late Neogene barrier coastline and associated marginal marine palaeoenvironments.

During the time interval latest Miocene to earliest Pliocene, and during the early Late Pliocene, two subsequent global sea level rise events are also preserved in the southeast Australian coastal plain. Many of the species present in ostracod faunas associated with these two events are the same as in older local late Late Miocene faunas. In earliest (?) Pliocene faunas, there is minor evidence for the reappearance of semi-thermophilic ostracods. Faunas of early Late Pliocene age often exhibit a conspicuous faunal dominance by, or large abundance of euryhaline species, indicating the particularly strong influence of fresh water influxes into coastal marine palaeoenvironments. This may reflect the presence of especially wet local temperate palaeoclimatic conditions during a time of equable global climates.

Succeeding estuarine, lagoonal and coastal embayment ostracod faunas of late Late Pliocene age are associated with marginal marine sediments that are interbedded with coastal dune aeolianites. This suggests an overall seaward retreat of marginal marine environments that was initiated by a major global sea level fall linked to the onset of cooler Late Pliocene and Quaternary global climates.

Few choices under work choices

This paper sets out the history of the philosophical understanding held by the major political parties towards the governance of the Australian industrial relations system. In so doing it notes there has been a long legacy of socialist and conservative political and ideological support for mediating industrial conflict through the institutional agencies provided by conciliation and arbitration tribunals. The discussion notes the erosion of this legacy under the recent ascendancy of neo-liberal political and neo-classical economic thought, an ascendancy that has seen a significant retreat of state responsibility for mediating relations between the two sides of industry in the name of improving business productivity and national economic outcomes. The passing of the Workplace Amendment (Work Choices) Bill 2005 is the latest legislative manifestation of this thinking. This paper challenges the labour market assumptions and expectations of the Bill by arguing that equality in bargaining power between the two sides of industry in the manner afforded by conciliation and arbitration tribunals is essential for any genuine and lasting prosperity to exist between labour and capital.

Emerging health issues: the widening challenge for population health promotion

The spectrum of tasks for health promotion has widened since the Ottawa Charter was signed. In 1986, infectious diseases still seemed in retreat, the potential extent of HIV/AIDS was unrecognized, the Green Revolution was at its height and global poverty appeared less intractable. Global climate change had not yet emerged as a major threat to development and health. Most economists forecast continuous improvement, and chronic diseases were broadly anticipated as the next major health issue. Today, although many broadly averaged measures of population health have improved, many of the determinants of global health have faltered. Many infectious diseases have emerged; others have unexpectedly reappeared. Reasons include urban crowding, environmental changes, altered sexual relations, intensified food production and increased mobility and trade. Foremost, however, is the persistence of poverty and the exacerbation of regional and global inequality. Life expectancy has unexpectedly declined in several countries. Rather than being a faint echo from an earlier time of hardship, these declines could signify the future. Relatedly, the demographic and epidemiological   transitions have faltered. In some regions, declining fertility has overshot that needed for optimal age structure, whereas elsewhere mortality increases have reduced population growth rates, despite continuing high fertility. Few, if any, Millennium Development Goals (MDG), including those for health and sustainability, seem achievable. Policy-makers generally misunderstand the link between environmental sustainability (MDG #7) and health. Many health workers also fail to realize that social cohesion and sustainability—maintenance of the Earth’s ecological and geophysical systems—is a necessary basis for health. In sum, these issues present an enormous challenge to health. Health promotion must address population health influences that transcend national boundaries and generations and engage with the development, human rights and environmental movements. The big task is to promote sustainable environmental and social conditions that bring enduring and equitable health gains.

T.S. Eliot`s idea of the clerisy, and its discussion by Karl Mannheim and Michael Polanyi in the context of J.H. Oldham`s moot

In 1938, Joseph Oldham, a leading British Christian ecumenist, formed a discussion group that came to be known as the Moot. The Moot met in a retreat setting for several long weekends each year until early 1947, its discussions carefully organized and convened by Oldham. More than anything else, the discussions of the Moot revolved around the topic of order and, more particularly, around the problem of how order might be restored in British society and culture in the context of a ‘world turned upside down’. Oldham and most members of the group sought a central place for Christian ideas and ideals in British social life.

A striking feature of the Moot was the intellectual stature and the diversity of interests of its members. Among its 16 or so regular members were Oldham (1874-1969), his close friend T.S. Eliot (1888-1963) and Karl Mannheim (1893-1947). Among the later ‘visitors’ to Moot meetings was Michael Polanyi (1891-1976), who first came to the 20th Moot meeting in June of 1944.1

This article presents several papers that were produced for the Moot discussion of 15-18 December 1944 by Eliot, Mannheim and Polanyi. These papers have intrinsic and historical interest, and are published together for the first time here. The initial paper, written by Eliot, treats the role in society of ‘the clerisy’2 - a term borrowed from Samuel Taylor Coleridge that points to an intellectual elite or vanguard. Eliot requested that Oldham solicit responses to his paper from Mannheim and Polanyi. Mannheim’s response was a set of detailed answers to four questions that Eliot posed at the end of his essay. Polanyi’s response was a short, coherent essay, which he identified as ‘my own position with respect’ to Eliot’s discussion; his essay outlines a brief account of the role of the clerisy in science.3 Eliot wrote short comments on the responses of both Mannheim and Polanyi. These five pieces, which have a natural unity, should be of interest to anyone working in the history of social thought. We have abridged only Mannheim’s lengthy response and have eliminated a few lines of illustrative material from Eliot’s reply to Mannheim, but these excisions in no way detract from the clarity of the authors’ perspectives in this rich trilogue.

Antinomies of Slavoj Zizek

For the last decade, Slavoj Zizek's provocative and insightful interventions have contested the contemporary abandonment of radical politics and the postmodern retreat from the Enlightenment. Rejecting talk of the "victory of liberalism," Zizek calls for a revolutionary analysis of the connection between multinational capitalism and political subjectivity capable of reconstructing the project of global emancipation. In opposition to postmodern relativism, Zizek positions Lacan not as a postmodern theorist but as an Enlightenment thinker. His Lacanian interpretation of ideology proposes that the missing link in post-Althusserian theories is the unconscious subject, as the unruly by-product of ideological interpellation. Zizek combines this...

Making water public

The recent 11 years of conservative government rule in Australia was marked by what some commentators refer to as a 'hardening of hearts' and a notable decline in the public realm. At the same time, climate change and drought made an increasing impact on Australian environments and society. This paper responds to the overwhelming tendency, which it aligns with a retreat from the concept of public-ness, to instrumentalise efforts to remediate environmental decline. Focusing in particular on water - or the lack of it - in Australia today, the paper draws on innovations in cultural theory and research practice to retum the question of public-ness to centre stage. This involves a reorientation of what it might mean to 'make water public'  that is not reliant on the sole agency of humans.

Towering over all : the Italianate villa in the colonial landscape

The Picturesque aesthetic emerged in the later 18th century, uniting the Sublime and the Beautiful and had its roots in the paintings of Claude Lorrain. In Britain, and in Australia, it came to link art, literature and landscape with architecture. The Picturesque aesthetic informed much of colonial culture which was achieved, in part, through the production and dissemination of architectural pattern books catering for the aspirations of the rising middle classes. This was against a background of political change including democratic reform. The Italianate villa, codified and promoted in such pattern books, was a particularly successful synthesis of style, form and function. The first Italianate villa in England, Cronkhill (1803) by John Nash contains all the ingredients which were essential to the model and had a deeper meaning. Deepdene (from 1807) by Thomas Hope gave the model further impetus. The works of Charles Barry and others in a second generation confirmed the model's acceptability. In Britain, its public status peaked with Osborne House (from 1845), Queen Victoria's Italianate villa on the Isle of Wight, Robert Kerr used a vignette of Osborne House on the title page of his sophisticated and influential pattern book, The Gentleman's House (1864,1871). It was one of many books, including those of J.C, Loudon and AJ. Downing, current in colonial Victoria. The latter authors and horticulturists were themselves villa dwellers with libraries and orchards, two criteria for the true villa lifestyle. Situation and a sense of retreat were the two further criteria for the villa lifestyle. As the new colony of Victoria blossomed between 1851 and 1891, the Italianate villa, its garden setting and its landscape siting captured the tenor of the times. Melbourne, the capital was a rich manufacturing metropolis with a productive hinterland and international markets. The people enjoyed a prosperity and lifestyle which they wished to display. Those who had a position in society were keen to demonstrate and protect it. Those with aspirations attempted to provide the evidence necessary for such acceptance, The model matured and became ubiquitous. Its evolution can be traced through a series of increasingly complicated rural and suburban examples, a process which modernist historians have dismissed as a decadent decline. These villas, in fact, demonstrate an increasingly sophisticated retreat by merchants from ‘the Town’ and by graziers from ‘the Country’. In both town and country, the towers of villas mark territory newly acquired. The same claim was often made in humbler situations. Government House, Melbourne (from 1871), a splendid Italianate villa and arguably finer than Osborne House, was set in a cultivated landscape and towered above all It incorporated the four criteria and, in addition, claimed its domain, focused authority and established the colony's social status. It symbolised ancient notions of democracy and idealism but with a modem appreciation for the informal and domestic. Government House in Melbourne is the epitome of the Italianate villa in the colonial landscape and is the climax of the Picturesque aesthetic in Victoria.