‘The door creaked shut’: The new breach of bail offence for youth in Queensland

As part of the 2014 amendments to the Youth Justice Act 1992 (Qld) the previous Queensland government introduced a new breach of bail offence and a reverse onus provision in relation to the new offence. Also included in the raft of amendments was a provision removing the internationally accepted principle that, in relation to young offenders, detention should be used as ‘a last resort’. This article argues that these changes are likely to increase the entrenchment of young people within the criminal justice system.

Court finds solicitor in breach of fiduciary duty owed to client but loss not caused by the breach

A solicitor owes fiduciary obligations to his or her client including the obligations of loyalty and disclosure. The Court of Appeal in Mantonella Pty Ltd v Thompson (2009) 255 ALR 367; [2009] QCA 80; BC200902311 recently considered when the fiduciary duty owed by a solicitor to a client is breached and the consequent liability of the solicitor...

Speaking too soon : the sabotage of bail reform in New South Wales

Within just over one month of coming into operation in May 2014, the new Bail Act 2013 (NSW), a product of long-term law reform consideration, was reviewed and then amended after talk-back radio ‘shock jock’ and tabloid newspaper outcry over three cases. This article examines the media triggers, the main arguments of the review conducted by former New South Wales (NSW) Attorney General John Hatzistergos, and the amendments, with our analysis of the judicial interpretation of the Act thus far providing relevant background. We argue that the amendments are premature, unnecessary, create complexity and confusion, and, quite possibly, will have unintended consequences: in short, they are a mess. The whole process of reversal is an example of law and order politics driven by the shock jocks and tabloid media, the views of which, are based on fundamental misconceptions of the purpose of bail and its place in the criminal process, resulting in a conflation of accusation, guilt and punishment. Other consequences of the review and amendments process recognised in this article include the denigration of judicial expertise and lack of concern with evidence and process; the disproportionate influence of the shock jocks, tabloids and Police Association of NSW on policy formation; the practice of using retired politicians to produce ‘quick fix’ reviews; and the political failure to understand and defend fundamental legal principles that benefit us all and are central to the maintenance of a democratic society and the rule of law. The article concludes with some discussion of ways in which media and political debate might be conducted to produce more balanced outcomes.

Virtual assignments: breach of covenant against parting with or sharing of possession

Comments on the Chancery Division decision in Clarence House Ltd v National Westminster Bank Plc on whether the alienation covenant in a lease of commercial premises had been breached by the tenant effecting a virtual assignment of it, under which all the economic benefits and burdens of the lease were transferred to a third party without there being any actually assignment of the leasehold interest or change in occupancy.

Putting a Price on Prisoner Release: The History of Bail and the Future of Parole

In this article, we argue that the history of bail foretells the future of parole. Under a plancalled the Conditional Post-Conviction Release Bond Act (recently passed into law inthree states), US prisoners can secure early release only after posting ‘post-convictionbail’. As with pre-trial bail, the fledgling model would require prisoners to pay a percent-age of the bail amount to secure their release under the contractual responsibility of acommercial bail agency. If release conditions are breached, bounty hunters are legallyempowered to seize and return the parolee to prison. Our inquiry outlines the origins of this post-conviction bond plan and the research upon which it is based. Drawing on the‘new penology’ framework, we identify several underlying factors that make for a ripeadvocacy environment and set the stage for widespread state-level adoption of this planin the near future. Post-conviction bail fits squarely within the growing policy trendstoward privatization, managerialism, and actuarial justice. Most importantly, though,advocates have the benefit of precedent on their side, as most US states have longrelied on a system of commercial bail bonding and private bounty hunting to manageconditional pretrial release.

Power of water discharged over breach of weir

Power of water discharged over breach of weir (1 page, handwritten), n.d.

Fine-tuning the use of bail-in to promote a stronger EU financial system. CEPS Special Report No. 136/April 2016

This paper discusses the application of the new European rules for burden-sharing and bail-in in the banking sector, in view of their ability to accommodate broader policy goals of aggregate financial stability. It finds that the Treaty principles and the new discipline of state aid and the restructuring of banks provide a solid framework for combating moral hazard and removing incentives that encourage excessive risk-taking by bankers. However, the application of the new rules may have become excessively attentive to the case-by-case evaluation of individual institutions, while perhaps losing sight of the aggregate policy needs of the banking system. Indeed, in this first phase of the banking union, while large segments of the EU banking sector still require a substantial restructuring and recapitalisation, the market may not be able to provide all the needed resources in the current environment of depressed profitability and low growth. Thus, a systemic market failure may be making the problem impossible to fix without resorting to temporary public support. But the risk of large write-offs of capital instruments due to burden-sharing and bail-in may represent an insurmountable obstacle to such public support as it may set in motion an investors’ flight. The paper concludes by showing that existing rules do contain the flexibility required to accommodate aggregate policy requirements in the general interest, and outlines a public support scheme for the precautionary recapitalisation of solvent banks that would be compliant with EU law.