The right to privacy and corporations

Traditionally the right of privacy has not been recognised at common law. However, recently the High Court has indicated that it may be willing to develop a new tort of invasion of privacy. Several of the justices have stated that the new action would only relate to natural persons, not corporations. This is because the principles said to underpin the right to privacy, autonomy and dignity, are supposedly inapposite to corporations. This article argues that this reasoning is flawed. Neither the right to autonomy nor dignity is capable of underpinning the right to privacy. Hence, no sustainable basis has so far been advanced for restricting the availability of any future tort of invasion of privacy to individuals. This article also questions whether a separate tort is needed in view of the protection already provided to the privacy interests of individuals and corporations under the equitable doctrine of confidence.

The right to privacy: appealing, but flawed

The right to privacy is not recognised at common law. However, like many  other rights, it has gained increasing prominence and legal recognition  since the explosion in rights-based normative discourse following the  Second World War. Rights-based moral theories are appealing because their language is individualising; promising to expand the sphere of liberty and protection offered to people. It is therefore not surprising that we as  individuals are attracted to such theories - they allow us a vehicle through  which we can project our wishes and demands onto the community. While in abstract the right to privacy sounds appealing, it has many potential  disadvantages. This article examines the justification for the right to privacy. It argues that either the right is illusory (devoid of an overarching doctrinal rationale) or at its highest the right to privacy is an insignificant right - one which should rarely trump other interests. It follows that there is a need to re-assess the desirability of introducing a separate cause of action protecting privacy interests.

The right to convert exploration licences to mining leases in Australia: a proposed national uniform model

In this article, the authors raise an important proposal for reform to Australia's mining legislation: a nationally-consistent model providing exploration licence holders with a legislative right to be granted a mining lease. This proposed national model will be designed to reflect the present Western Australian system - Western Australia being the only jurisdiction to provide exploration licence holders with the express right to be granted a mining lease on application. The authors believe that the Western Australian system should provide the basis for a national legislative model, given that it is designed to balance appropriately the interests of companies wanting a right to mine to recoup the costs involved in exploring for minerals, and the interests of the public in ensuring that exploration and mining is conducted
reasonably.

Preventive detention and the right to personal liberty and security under Article 5 ECHR

'Preventive detention' refers to detention by executive order as a  precautionary measure based on predicted criminal conduct. Detention is without criminal charge or trial as detention is based on the prediction of a future offence. This paper examines Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR'), in particular Article 5(1)(c) and Article 5(3). To explore this issue, this paper conducts a textual analysis of Article 5 and examines both the travaux preacuteparatoires of the ECHR, as well as jurisprudence of the European Court of Human Rights. This article argues that preventive detention is specifically provided for under the second ground of detention in Article 5(1)(c). A person in preventive detention, however, must be brought promptly before judicial authority under Article 5(3).

Obesity and the right to sue: would you like fries with that?

There is little chance that obese customers in Australia would fare any better in a claim against fast food companies than their counterparts in the US.

The trouble with woon: the selective answering of police questions and the right to pre-trial silence

The 1964 High Court decision in Woon v The Queen is commonly understood to permit the drawing of an inference of a ‘consciousness of guilt’ when a suspect selectively responds to police questions. It is the author’s contention that, in the light of the emphatic endorsement of the right to pre-trial silence by the High Court in 1993 in Petty v The Queen; Maiden v The Queen, Woon should now be regarded as bad law and should no longer be followed.

The right to own : internationalization of perspectives of plagiarism and the internet

Cultural diversity in tertiary classrooms is integral to the current university scene. Teachers must incorporate different methods of delivery and
assessment to cater for an increasingly international student population. This paper explores the notion of plagiarism from two perspectives: the law
and English as a Second Language (ESL) writing theory.

Re Kevin : gender dysphoria and the right to marry

What does it comfort any of us to insist that an individual shall be a man, when for the purposes of ordinary life that individual can only be, and be recognised, as a woman? What pride can there be for a law which vetoes the attitudes dictated by ordinary humanity?[1]

Those suffering from gender dysphoria have been described in the following simple language:

People with gender dysphoria or 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 right to an impartial hearing trumps the social imperative of bringing accused to trial even 'down under'

Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence.

Human rights and the right to development : insights into the Myanmar government's response to rights allegations

Myanmar is ruled by a military government that is strongly condemned for human rights abuses. In responding to these allegations, the Myanmar government repeatedly adopt the language of Right to Development as a counter perspective and counter allegation. The Right to Development is not well reflected in the Western human rights discourse, and both its development and Myanmar's position in the Right to Development dialogue are considered. This paper looks at the differing perspective that an understanding of the official public Myanmar response to rights allegations brings to the human rights debate surrounding Myanmar, highlighting contested ideas concerning the identity of rights duty-bearers, conceptions of those duties, and allegations of double standards. While the Myanmar position that sanctions violate the Right to Development is rejected, it is suggested that this difference in perspective is a contributor to the impasse and communication gap between the West and the Myanmar regime over human rights.