An inspector's-eye view - The prospective enforcement of work-related fatality cases

This paper concerns the prospective implementation of the proposed 'corporate killing' offence. These proposals suggested that the Health and Safety Executive (HSE)-the body currently responsible for regulating work-related health and safety issues-should handle cases in which a 'corporate killing' charge is a possibility. Relatively little attention has been paid to this issue of implementation. An empirical investigation was undertaken to assess the compatibility of the HSE's methodology and enforcement philosophy with the new offence. It was found that inspectors categorize themselves as enforcers of criminal law, see enforcement action as valuable and support the new offence, but disagree over its use. They also broadly supported the HSE taking responsibility for the new offence. This suggests that 'corporate killing' may not necessarily be incompatible with the HSE's modus operandi, and there may be positive reasons forgiving the HSE this responsibility.

Mediating punitiveness: understanding public attitudes towards work-related fatality cases

This paper concerns an empirical investigation into public attitudes towards work-related fatality cases, where organizational offenders cause the death of workers or members of the public. This issue is particularly relevant following the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 into UK law. Here, as elsewhere, the use of criminal law against companies reflects governmental concerns over public confidence in the law’s ability to regulate risk. The empirical findings demonstrate that high levels of public concern over these cases do not translate into punitive attitudes. Such cases are viewed rationally and constructively, and lead to instrumental rather than purely expressive enforcement preferences.

Double jeopardy in Australia: the illusion of an absolute protection and the prosecution process as punishment

Outline of the nature and scope of the double jeopardy principle as it operates in the pleas in the bar and the court's discretion to prevent an abuse of the process - rationales advanced in favour of doctrine - some anomalies and implications from the claim that the double jeopardy principle is absolute - some suggestions for reform.

Still plucking figures out of the air? Markarian and the affirmation of the instinctive synthesis

The High Court of Australia recently had the opportunity to reconsider the appropriate sentencing methodology to be adopted in the sentencing of offenders under Australian criminal law in the case of Markarian v The Queen. The High Court had to decide whether to continue with the instinctive synthesis approach to sentencing or a process that exposed in greater clarity the basis upon which sentencing was to occur. Ultimately, a majority of the Court favoured the continuance of the instinctive synthesis approach to sentencing in criminal cases. The article will consider the decision in Markarian and the implications that it will have for the sentencing of offenders in the States and Territories of Australia.

Migration and refugee law : principles and practice in Australia

Provides an overview of the legal principles governing the entry of people into Australia, and analyses the policy and moral considerations underpinning this area of law - particularly in relation to refugee law, one of the most divisive social issues of our time. Suggests proposals for change.

Migration and refugee law in Australia

Immigration is expected to be one of the most important issues facing Australia this century. The book analyses the policy and moral considerations underpinning migration law and suggests an overarching framework for developing migration law and critiquing existing policies and practices.

Income tax test, materials & essential cases

A comprehensive cases and materials book intended for commerce or law students undertaking semester-length courses in Australian income tax law.

Concise corporations law

The purpose of this text is to provide a comprehensive, yet succinct, examination of the most significant areas of corporations law. By identifying the key elements underlying the pertinent statutory provisions, writing in a plain English style, and using a simple format, the text seeks to make corporations law more accessible to students and practitioners.

Can you seek security for costs in international arbitration in Australia?

International arbitrations can be conducted under either federal or State legislation in Australia. In both cases complexities arise in the resolution of procedural questions, such as whether security for costs can be granted. There is scant Australian case law on such issues. This article considers whether an arbitral tribunal or a court has the power [*2] to order security for costs in an international arbitration in Australia. After analysing Australia's international arbitration laws and discussing New Zealand and House of Lords' authority, it is argued that unless the parties have specifically empowered the arbitral tribunal to order security for costs, only the relevant court has that power, and even that is uncertain.

Regulatory and enabling approaches to corporate law enforcement : patterns of litigation 1986-2002 and the effect of recent reforms in New Zealand, Australia and the United Kingdom

Enforcement of corporate rights and duties may follow either a ‘regulatory’ or ‘enabling’ model. If a regulatory approach is taken, enforcement action will generally be undertaken by regulatory agencies such as, in New Zealand, the Registrar of Companies and Securities Commission, the Australian Securities and Investments Commission (ASIC) or the Department of Trade and Industry (DTI) in the United Kingdom. If an enabling approach is chosen, enforcement action will more often be by private parties such as company shareholders, directors or creditors. When New Zealand's company law was reformed in 1993, a primarily private enforcement regime was adopted, consisting of a list of statutory directors' duties and an enhanced collection of shareholder remedies, based in part upon North American models and including a statutory derivative action. Public enforcement was largely confined to administrative matters and the enforcement of the disclosure requirements of New Zealand's securities law. While the previous enforcement regime was similarly reliant on private action, the law on directors' duties was less accessible, and shareholder action was hindered by the majority rule principle and the rule in Foss v Harbottle. This approach is in contrast with that used in Australia and the United Kingdom, where public agencies have a much more prominent enforcement role despite recent and proposed reforms to directors' duties and shareholder remedies. These reforms are designed to improve the ability of private parties to enforce corporate rights and duties. A survey of enforcement litigation in New Zealand since 1986 indicates that the object of a primarily enabling enforcement regime seems to have been achieved, and may well have been achieved even without the 1993 reform package. Private enforcement has, in fact, been much more prevalent than public enforcement since well before the enactment of the new legislation. Most enforcement action both before and after the reform was commenced by shareholders and shareholder/directors, and most involved closely held companies. Public enforcement was largely undertaken in areas such as securities law, where the wider public interest was affected. Similar surveys of Australian and United Kingdom enforcement litigation reveal a proportionally much greater reliance on public bodies to enforce corporate rights and duties, indicating a more regulatory approach. The ASIC and DTI enforced a wider range of provisions, affecting both closely and widely held companies, than those subject to public enforcement in New Zealand. Publicly enforced provisions in Australia and the United Kingdom include directors' duties and provisions dealing with disqualification from managing companies, as well as securities law requirements.

The compliance of Australian preventative detention law with article 9(1) ICCPR

This thesis found that a provision of Australia's counter-terrorism policy, preventative detention, does not comply with a major international treaty, the ICCPR. This thesis provides an alternative model by which the Australian Government could achieve the legitimate purposes of preventative detention within the existing constraints of the Australian criminal law.

Zonal banning and public order in urban Australia

In recent years, Australian governments of various ideological persuasions at local, state and territory and federal levels have introduced a range of zonal governing techniques to manage the flow of people in urban spaces. Zonal governance involves the identification and formal declaration of a specific urban geographic region to enable police and security personnel to deploy special powers and allied forms of surveillance technologies as a supplement to their conventional public order maintenance functions.

Despite the impetus towards open flows or movement within sovereign territories or larger territorial groupings, such as the European Union, considerable governmental effort has been directed towards the use of new forms of criminal law to re-territorialize urban space through new administrative, property law and regulatory measures. These low-level spatial demarcations introduce various supplementary police powers and discretionary procedures that enhance surveillance within a declared area to increase the level of contemporary urban security. Of particular concern is the legal right to ban or exclude “undesirable” individuals and groups from entering or using certain designated urban zones, to prevent antisocial or violent behavior usually associated with alcohol consumption.

To date, most discussion of the impact of banning and related surveillance measures focuses on illegal migration through ports of entry into sovereign nations and the commensurate burdens this creates for both citizens and non-citizens to authenticate their movements at national geographic borders. This logic is permeating more localized forms of regulation adopted by Australian local and mid-tier state and territory governments to control the movement of people in and out of major event sites and in the urban night-time economy.

A survey of recent reforms in the state of Victoria reveals how this new logic of mass-surveillance aims to promote greater levels of urban security while reshaping the conventional order maintenance functions of both the public and private police. This chapter describes these procedures and their impact in sanctioning the efficient screening of people to promote order in specific zones within the contemporary Australian urban environment, at the expense of more progressive and inclusive crime prevention initiatives. We focus on two exemplars of the intensification of surveillance through zonal governance techniques: ‘major events’ and ‘designated alcohol zones’.