Vox Populi, Vox Dei? A closer look at the ‘public opinion’ argument for retention

The Japanese government’s justification for retaining the death penalty is that abolition would erode the legitimacy of and public trust in the criminal justice system, leading to victims’ families taking justice into their own hands. This justification is based on the results of a regularly administered public opinion survey, which is said to show strong public support for the death penalty. However, a close analysis of the results of the 2014 survey fails to validate this claim. Just over a third of respondents were committed to retaining the death penalty at all costs, while the rest accepted the possibility of future abolition, with some of them seeing this as contingent on the introduction of life imprisonment without parole as an alternative sentence. These findings hardly describe a society that expects the strict application of the death penalty and whose trust in justice depends on the government’s commitment to retaining it. My reading of the 2014 survey is that the Japanese public is ready to embrace abolition. Japan, after all, is a signatory to the International Covenant on Civil and Political Rights, which calls on states not to delay or prevent abolition, so this should be welcome news for the Japanese government!

Home truths about home detention

The Victorian Parliament has recently introduced a Bill which implements home detention as a sentencing option. Home detention is an intuitively appealing reform. The logic behind the proposal seems obvious. Prisons are expensive to run. There are too many offenders in prison. So let's take the cost out of prison by turning the homes of offenders into prisons: classic, user-pays, cost-shifting economics. The level of superficial appeal of the argument in favour of home detention is matched only by the depth of the fallacies underpinning some of the fundamental premises. The most basic of which is the assumption that offenders who are candidates for the new sanction should be in detention (of any kind) in the first place. Further, the narrow objective of reducing imprisonment is misguided. It should not be elevated to a cardinal sentencing objective?otherwise total success could be achieved by simply opening the prison gates. There are also other concerns about the appropriateness of home detention. The degree of pain it inflicts in many cases is questionable and it may also violate the principle that punishment should not be inflicted on the innocent. After examining the arguments for and against home detention, this article suggests the approach that should be adopted to achieve enlightened and meaningful sentencing reform.

Excessive force used in making an arrest: does it make the arrest ipso facto unlawful?

The purpose of this article is to consider whether or not the use of excessive force in effecting an arrest makes the arrest ipso facto unlawful at common law. With a dearth of appellate court authority on point in either Australia or the United Kingdom, the question is presently open. It is my argument that as force is not a minimum condition of an arrest, its excessive use will not, therefore, make unlawful an otherwise lawful arrest. This conclusion is a matter of some import. It exposes an arrester to civil and possibly even criminal liability for assault but not to an action for false imprisonment. It may also have practical repercussions for the possible discretionary exclusion of evidence on public policy grounds. In theory, it should not matter whether excessive force made an arrest unlawful or not, for the public policy discretion permits a judge to exclude evidence illegally or improperly obtained. But common sense suggests that a judge may not be so likely to exclude evidence when the relevant conduct amounts only to police impropriety not illegality.

R v Scobie, finally taking the Royal Commission into aboriginal deaths in custody seriously?

Royal Commission into Aboriginal Deaths in Custody examined in the context of R v Scobie - the use made of the Commission's recommendations by Justice Gray in R v Scobie - questioning the value of imprisonment for certain types of offenders.

The need for a higher custody threshold for indigenous offenders in Victoria

Over-representation of indigenous persons in the criminal justice system has changed little since the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) - claim by the Victorian Department of Justice that a key recommendation of RCIADIC had been implemented, namely that imprisonment should be a sentence of last resort for indigenous offenders - how to ensure that imprisonment is a sanction of last resort when indigenous prisoners present for sentence.

Australian sentencing : principles and practice

Australian Sentencing: Principles and Practice explains the rules, principles, policies and practices that underpin the manner in which people are punished for criminal behaviour in Australia. As well as dealing with sentencing law today, the book provides an extensive analysis of the wider policy, moral, and political consideration which shape sentencing law. It analyses and evaluates existing standards and practices, and suggests how sentencing law should be reformed so that it operates in a fairer, more efficient and effective manner.

Content: Part A: 1. The nature of sentencing and theories of punishment; 2. Plucking figures from the air: the instinctive synthesis; 3. The objectives that are attainable through sentencing; 4. High Court sentencing jurisprudence; Part B: 5. The principle of proportionality; 6. Aggravating factors; 7. Mitigating considerations; 8. The relevance of a guilty plea to sentence; 9. The relevance of prior criminality; 10. Aboriginality; Part C: 11. The nature of criminal sanctions; 12. Imprisonment; 13. Intermediate sanctions; 14. Discharges and bonds, fines and disqualifications; Part D: 15. The way forward ? strategic sentencing.

Excess and mimesis in organization theory: emancipation from within?

In organizational analysis it can be argued that 'radical separatism'—in the guise of the original 'agenda' for Radical Organization Theory (see Benson, 1977a; Burrell and Morgan, 1979; Clegg and Dunkerley, 1980) or more recently that for Critical Management Studies (see Alvesson and Willmott, 1992; Fournier and Grey, 2000; Casey, 2002; Grey, 2004)—has failed to breach the hegemony of functionalist orthodoxy, and notably so when it comes to practice. Given this failure, we speculate, upon the potential for a different emancipatory approach, one based theoretically on the fluid process of 'undecidability'. Unusually our approach attempts to undermine the conventions of functionalist organization theory from within. In brief, we speculate upon the adoption and enactment of Luce Irigaray's (1985, 1991) strategy of mimicry as a means to illuminate the notion of 'excess' in organization theory. To liberate the feminine, Irigaray mimics the symbolic representation of the female body to excess so as to expose the contradictions of phallocentric discourse. When applied to organization theory, this sees a deliberate mimicking of critiques of radical separatism so as to make explicit the latter's imprisonment within functionalism. Through excessive mimicking of the functionalists' critique, the radical/critical organization theorist may become cognizant of, but perhaps not so subjugated by, the hegemony of functionalist discourse.

Torts

Third edition of a text for university students providing a basic coverage of the principles of torts law, first published 1997. Covers all aspects of torts law including battery, assault, false imprisonment, trespass, negligence and statutory duty. Designed to be used with 'Torts: Cases and Commentary' or with any other torts law casebook. Includes charts, diagrams, references and index. New edition contains recent High Courts decisions that have changed the law of Torts in Australia. Editor is a senior lecturer at the School of Law, Deakin University.

Client identification and money laundering control : perspectives on the Financial Intelligence Centre Act 38 of 2001

The Financial Intelligence Centre Act 38 of 2001 (FICA) compels certain persons and institutions (defined as "accountable institutions'') to identify and verify the identity of a new client before any transaction may be concluded or any business relationship is established.1 Accountable institutions are listed in schedule ¹ to FICA and include banks, brokers, financial advisers, insurance companies, attorneys and estate agents. This duty to identify new clients came into effect on 30 June 2003. However, FICA also requires a similar procedure to be followed in respect of all current clients. Current clients are those with whom an accountable institution had business relationships on 30 June 2003.² After 30 June 2004 an institution may not conclude a transaction in the course of its business relationship with an unidentified current client, until it has established and verified that client's identity as prescribed. An institution that concludes any transaction in contravention of this prohibition, commits an offence and is liable to a fine not exceeding R10 million or to imprisonment of up to 15 years.³

The majority of accountable institutions and their clients failed to meet the June 2004 current client identification deadline.4 This failure posed serious economic and legal risks. With a few days to spare, the minister of finance granted a partial and temporary exemption in respect of these requirements. This article explores the statutory scheme for identification and re-identification of clients and some of the practical problems that were encountered. The June 2004 exemptions from these requirements are also considered and proposals for law reform are made.

The discussion of the FICA identification scheme necessitates the following brief overview of the international and South African money laundering control framework.

1 s 21(1) of FICA.
2 s 21(2) of FICA. See also s 82(2)(b).
3 s 46(2) of FICA read with s 68(1) of FICA.

Markers and risk factors for HCV, HBV and HIV in a network of injecting drug users in Melbourne

Background and aims: Current injecting drug users (IDU) in major street drug markets within greater Melbourne were recruited to a longitudinal study on blood borne viruses. Here we investigated risk factors for hepatitis C virus (HCV), hepatitis B virus (HBV) and HIV infection in these IDU at the time of their recruitment.

Methods : Three hundred and eighty-two IDU completed detailed questionnaires on their drug use and risk behaviours, and provided blood samples for serology testing. These data were analysed using univariate and multivariate techniques.

Results : The overall prevalence of exposure to HCV, HBV and HIV was estimated at 70%, 34% and <1%, respectively. Independent predictors of HCV exposure were history of imprisonment (RR 1.34, 95% CI 1.19–1.52), use of someone else's needle or syringe (RR 1.23, 95% CI 1.07–1.42), >7.6 years length of time injecting (RR 1.21, 95% CI 1.07–1.37), and originating from Vietnam (RR 1.12, 95% CI 1.07–1.18). Independent predictors of HBV exposure were HCV exposure (RR 2.15, 95% CI 1.35–3.43), >7.6 years length of time injecting (RR 1.57, 95% CI 1.17–2.13) and originating from outside Australia (RR 1.60, 95% CI 1.22–2.10). Neither prison- nor community-applied tattoos predicted HCV or HBV exposure. Up to 31% of IDU who injected for 1 year or less were HCV antibody positive, as were 53% of those who injected for 2 years or less.

Conclusions : Ongoing engagement with young IDU, through the provision of harm reduction education and resources, is critical if we are to address blood borne viral infections and other health and social harms associated with injecting drug use.

UnitingCare West Outreach Services and the Good Lives Model of offender rehabiliation

UnitingCare West is a not-for-profit community services organisation committed to achieving justice, hope and opportunity for all, and works to support and empower in particular those most in need in the WA community. Through its program Outreach Services, it delivers a specialist re-entry service for sex offenders and men serving life and indeterminate sentences. The program has recently been reviewed by Dr Andrew Day from the Centre for Offender Reintegration, Deakin University with input from Dr Tony Ward, University of Victoria, Wellington, New Zealand. In this paper we describe the aims of the review, the process and findings and our ongoing work in developing a rationale for the service that is underpinned by the Good Lives Model (GLM) of offender rehabilitation. More generally, the presentation will seek to understand the needs of offenders who re-enter the community following long-term imprisonment in relation to those areas of need identified in the GLM.

Sentencing of male and female child sex offenders : Australian study

Research suggests that, in line with the chivalry hypothesis of female offending, a range of mitigatory factors such as mental health problems, substance abuse, and personal experiences of abuse are brought into play when women who offend against children are brought to trial. This is reflected in sentencing comments made by judges and in the sanctions imposed on the offenders, and as a result female offenders are treated differently to male offenders. The current study investigated this in an Australian context. Seven cases of female-perpetrated child sexual abuse were identified over a 6-year period through the Austlii database. Seven cases of male-perpetrated child sex abuse matched as far as possible to these were identified. Court transcripts were then located, and sentencing comments and sanctions imposed were analysed. All offenders were sentenced to imprisonment, but in general the women were more likely than the men to receive less jail time and lower non-parole periods because their personal backgrounds or situation at the time of the offending (i.e., difficulties with intimate relationship, male dependence issues, depression, loneliness and anger) were perceived as worthy of sympathy, and they were considered as likely to be rehabilitated. Further investigations are needed to support these findings.

Honour bound in Australia : from defensive nationalism to critical nationalism

The imprisonment and trial of Guantanamo Bay detainee David Hicks catalysed widespread public debate in Australia over issues of nationalism and citizenship. This article discusses the competing forms of nationalism that underpinned this debate, especially critical nationalism, which evidences both a critique of and caring for the nation. Following Ghassan Hage's notion of the dichotomy between national caring and worrying, the article looks at a theatre production based on the David Hicks story to illustrate the role the arts play in challenging and redefining our attachment to the nation.

Below the styx : a novel

Martin Frobisher has been beating close family members about the head with an epergne. Frobisher, successful publisher and community leader, is in the City Remand Centre, awaiting trial for murder. What shadow has fallen across the comfortable lives of Frobisher, his ambitious wife Coralie and her flaky sister Madeleine? What has led a cultivated and reflective man, known to shoo spiders and earwigs out of the harm's way, to such reckless acts of violence?
With the prospect of imprisonment for the Term of his Natural Life, can Frobisher and his research assistant Petra find guidance in the life and fortunes of a brilliant young Englishman, marooned in Australia, 'the land of vulgarity and mob rule' more than a century earlier, and obsessed with the darker moments in the nation's history? Why does Frobisher appear to care more, in the end, about the life of Marcus Clarke than he does about his own?

Australia-China and Stern Hu : a dint in relations or business as usual?

China’s economic growth over the last decade has been spectacular and Australia has been a beneficiary of this growth in terms of China’s demand for resources and the strength of Chinese exports. Pundits even suggest that Australia avoided the global recession as a result of this strong trade relationship. Trade relations between Australia and China resulted in China becoming Australia’s key trading partner. The arrest and charging in 2009/10 of four Rio Tinto executives (including Stern Hu the head of Rio’s operation in China) based in China raised fears of posing a strain on this vital economic relationship. Moreover China’s inability to takeover Rio Tinto and the significance and consequences of this incident are at the core of this paper. How do these events reflect the uncertainties of doing business in China or do these events demonstrate China’s sovereign right to enforce anti-corruption legislation? While China has embraced the international business community, to what extent has the arrest and imprisonment of Stern Hu changed the Australian-China trade
relations including doing business in this thriving and buoyant market?