Drawing the line : the legal status and treatment of the 17-year-old accused in Queensland

Seventeen year olds who come into contact with the police in Queensland are classified as adults and are not afforded the protections available under the Youth Justice Act 1992 (Qld) (YJA). As with any other adult, their offences are dealt with under a raft of legislative provisions including the Criminal Code 1889 (Qld) (the Code), the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) and the Penalties and Sentences Act 1992 (Qld) (PSA). This article argues that this situation is unfair and contravenes international human rights agreements which Australia has ratified, in particular the United Nations Convention on the Rights of the Child (CROC). Article 1 of that Convention defines a child as a person under the age of 18. The youth offences legislation in Queensland only applies to those who have not yet turned 17. This article examines the effects of this anomaly in Queensland, focusing in particular on the pre-adjudication treatment of ‘17 year old adults’.

Problem-solving courts, therapeutic jurisprudence and the constitution : if two is company, is three a crowd?

Court costs, resource-intensive trials, booming prison populations and the obduracy of recidivism rates all present as ugly excesses of the criminal law adversarial paradigm. To combat these excesses, problem-solving courts have evolved with an edict to address the underlying issues that have caused an individual to commit a crime. When a judge seeks to help a problem-solving court participant deal with issues like addiction, mental health or poverty, they are performing a very different role to that of a judicial officer in the traditional court hierarchy. They are no longer the removed, independent arbiter — a problem-solving court judge steps into the ‘arena’ with the participant and makes active use of their judicial authority to assist in rehabilitation and positive behavioural change. Problem-solving court judges employing the principles of therapeutic jurisprudence appreciate that their interaction with participants can have therapeutic and anti-therapeutic consequences. This article will consider how the deployment of therapeutic measures (albeit with good intention) can lead to the behavioural manifestation of partiality and bias on the part of problem-solving court judges. Chapter III of the Commonwealth Constitution will then be analysed to highlight why the operation and functioning of problem solving courts may be deemed unconstitutional. Part IV of this article will explain how a problem-solving court judge who is not acting impartially or independently will potentially contravene the requirements of the Constitution. It will finally be suggested that judges who possess a high level of emotional intelligence will be the most successful in administering an independent and impartial problem solving court.

Criminology, Crime and Politics Before and After 9/11

Criminologists have mostly followed the criminal law in adopting an apolitical concept of crime. They paid limited attention to both political crime and the political power to criminalise. The article traces efforts to redress this since the 1960s. It nevertheless remained a minority concern, mostly of critical criminology. Yet crime has been politicised in various ways by other developments, also examined in the article. The events of 9/11 have crowned the emergence of crime as a strategic security issue posing a challenge to criminology to engage with politically inspired crime and its control.

From Absence to Presence, from Silence to Voice: Victims in Transitional Justice Since the Nuremberg Trials

As much as victims have been absent in traditional and national criminal justice for a long time, they were invisible in transitional and international criminal justice after World War II. The Nuremberg Trials were dominated by the perpetrators, and documents were mainly used instead of victim testimony. Contemporaries shared the perspective that transitional justice, both international and national procedures should channel revenge by the victims and their families into the more peaceful venues of courts and legal procedures. Since then, victims have gained an ever more important role in transitional, post-conflict and international criminal justice. Non-judicial tribunals, Truth and Reconciliation Commissions, and international criminal courts and tribunals are relying on the testimony of victims and thus provide a prominent role for victims who often take centre stage in such procedures and trials. International criminal law and the human rights regime have provided victims with several routes to make themselves heard and fight against impunity. This paper tracks the road from absence to presence, and from invisibility to the visibility of victims during the second half of the last and the beginning of the present century. It shows in which ways their presence has shaped and changed transitional and international justice, and in particular how their absence or presence is linked to amnesties.

How should Australia regulate voluntary euthanasia and assisted suicide?

The purpose of this paper is to provide a basis from which to start an informed and rational dialogue in Australia about voluntary euthanasia (VE) and assisted suicide (AS). It does this by seeking to chart the broad landscape of issues that can be raised as relevant to how this conduct should be regulated by the law. It is not our purpose to persuade. Rather, we have attempted to address the issues as neutrally as possible and to canvass both sides of the argument in an even-handed manner. We hope that this exercise places the reader in a position to consider the question posed by this paper: How should Australia regulate voluntary euthanasia and assisted suicide? In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation. We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful. There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered. The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus. We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues. If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice. We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?

Australian laws and policies on child neglect

This chapter describes the features of different Australian State and Territory laws and policies about child neglect. It makes observations about three major domains of law and policy: laws about child neglect to enable protection of children who are suffering severe neglect (child protection laws); laws and policies about the provision of services for children and their families when experiencing neglect (support-oriented laws and policies); and criminal laws about child neglect.

Cameron's hot air. Pollution, fraud and the politics of carbon emissions

It is widely recognised that exposure to air pollutants affect pulmonary and lung dysfunction as well as a range of neurological and vascular disorders. The rapid increase of worldwide carbon emissions continues to compromise environmental sustainability whilst contributing to premature death. Moreover, the harms caused by air pollution have a more pernicious reach, such as being the major source of climate change and ‘natural disasters’, which reportedly kills millions of people each year (World Health Organization, 2012). The opening quotations tell a story of the UK government's complacency towards the devastation of toxic and contaminating air emissions. The above headlines greeted the British public earlier this year after its government was taken to the Court of Appeal for an appalling air pollution record that continues to cause the premature deaths of 30,000 British people each year at a health cost estimated at £20 billion per annum. This combined with pending legal proceedings against the UK government for air pollution violations by the European Commission, point to a Cameron government that prioritises hot air and profit margins over human lives. The UK's legal air pollution regimes are an industry dominated process that relies on negotiation and partnership between regulators and polluters. The entire model seeks to assist business compliance rather than punish corporate offenders. There is no language of ‘crime’ in relation to UK air pollution violations but rather a discourse of ‘exceedence’ (Walters, 2010). It is a regulatory system not premised on the ‘polluter pay’ principle but instead the ‘polluter profit’ principle.

Green crime and the role of environmental courts

Environmental issues continue to capture international headlines and remain the subject of intense intellectual, political and public debate. As a result, environmental law is widely recognised as the fastest growing area of international jurisprudence. This, combined with the rapid expansion of environmental agreements and policies, has created a burgeoning landscape of administrative, regulatory and judicial regimes. Emerging from these developments are increases in environmental offences, and more recently environmental crimes. The judicial processing of environmental or ‘green’ crimes is rapidly developing across many jurisdictions. Since 1979, Australia has played a lead role in criminal justice processing of environment offences through the New South Wales Land and Environment Court (NSW LEC). This article draws on case data, observations and interviews with court personnel, to examine the ways in which environmental justice is now administered through the existing court structures, and how it has changed since the Court’s inception.

How should Australia regulate voluntary euthanasia and assisted suicide?

This paper invites consideration of how Australia should regulate voluntary euthanasia and assisted suicide. We have attempted to pose this question as neutrally as possible, acknowledging that both prohibition and legalisation of such conduct involve decisions about regulation. We begin by charting the wider field of law at the end of life, before considering the repeated, but ultimately unsuccessful, attempts at law reform in Australia. The situation in Australia is contrasted with permissive jurisdictions overseas where voluntary euthanasia and/or assisted suicide are lawful. We consider the arguments for and against legalisation of such conduct along with the available empirical evidence as to what happens in practice both in Australia and overseas. The paper concludes by outlining a framework for deliberating on how Australia should regulate voluntary euthanasia and assisted suicide. We ask a threshold question of whether such conduct should be criminal acts (as they presently are), the answer to which then leads to a range of possible regulatory options.

Prosecutorial discretion in assisted dying in Canada : a proposal for charging guidelines

An Expert Panel of the Royal Society of Canada and a Select Committee of the Québec National Assembly both recently recommended the issuance of permissive guidelines for the exercise of prosecutorial discretion on voluntary euthanasia and assisted suicide and “medical aid in dying” respectively. It seems timely, therefore, to propose a set of offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide in Canadian provinces and territories. We take as our starting point the only existing guidelines of this sort currently in force in the world (i.e. the British Columbia Guidelines, and the England and Wales Guidelines). In light of certain concerns we have with these guidelines, we outline an approach to constructing guidelines for Canadian jurisdictions that begins with identifying three guiding principles we argue are appropriate for this purpose (respect for autonomy, the need for high-quality prosecutorial decision making, and the importance of public confidence in that decision making), and ends with a concrete and detailed set of proposed guidelines. The paper is consistent with, but also extends, the work of the Royal Society of Canada Expert Panel on End of Life Decision Making. Un panel d’expert de la Société Royale du Canada et une Commission spéciale de l’Assemblée nationale du Québec ont tous les deux récemment recommandé que soit émises des directives permettant exercice d’un pouvoir de poursuite discrétionnaire concernant l’euthanasie et le suicide assisté et « l’assistance médicale pour mourir », respectivement. Il semble donc à propos de proposer une série de directives spécifiques aux offenses sur la façon dont le pouvoir de poursuite discrétionnaire dans les territoires et provinces canadiennes serait appliqué dans les cas d’euthanasie et de suicide assisté. Nous avons pris comme point de départ les seules directives de la sorte existant déjà (c’est-à-dire celle de la Colombie-Britannique et de l’Angleterre et du Pays de Galles). Par contre, compte tenu de certaines de nos réserves concernant ces directives, nous avons ensuite établi les grandes lignes d’une approche permettant de mettre sur pied des directives pour les juridictions canadiennes, qui débute par l’identification de trois principes de base qui sont selon nous appropriées à cette fin (respect de l’autonomie, besoin pour une grande qualité de prise de prise de décision du poursuivant et la confiance du public envers cette prise de décision) pour se terminer par une série de directives concrètes et détaillées. Le présent document est compatible avec le travail de la Société royale du Canada tout en en augmentant la portée.