Pleading - self-incrimination and penalty privileges

In Anderson v Australian Securities and Investments Commission [2012] QCA 301 the Queensland Court of Appeal allowed an appeal from the decision of the primary judge (ASIC v Managed Investments Ltd No 3 [2012] QSC 74. The Court of Appeal was satisfied that the defendants’ non-compliance with the pleading rules in the Uniform Civil Procedure Rules 1999 (Qld) was justified by the claims to privilege against self-incrimination or exposure to a penalty.

Tax and equality in 1972: The case of Lodge v FCT

This paper is part of a larger project described at http://www.law.uq.edu.au/australian-feminist-judgments-project as follows: This project draws its inspiration from two significant recent developments in law and feminist scholarship. The first has been the emergence in Canada and the UK of feminist judgment-writing projects, in which feminist academics, lawyers and activists have written alternative judgments in a series of legal cases, imagining the different decision that might have been made by a feminist judge hearing the case. The second has been the incremental shift in recent years in the number of women judges and Magistrates presiding in courts and tribunals throughout Australia. As part of this project, a group of scholars will write alternative feminist judgments. This paper is one of the alternative feminist judgements. The case used for this discussion is Lodge v Federal Commissioner of Tax [1972] HCA 49. In that case, a woman, earning income by way of commission in her occupation as a law costs clerk, which she carried out at her home, claimed to deduct from her assessable income child care fees that enabled her to devote time and attention to her work. The High Court held that no right to a deduction had arisen. It found that, although the purpose of the expenditure was for gaining assessable income, it did not take place in, or in the course of, preparing bills of cost. Further, the expenditure was of a ‘private or domestic’ nature. This seminal taxation decision, which prevents deductions for childcare, has broad financial ramifications for workers in the home and those with childcare responsibilities. It designates childcare duties as ‘private’, notwithstanding the need for these in order, particularly for women, to work in the public sphere.

Designing online assessment tools for disengaged youth

This article reports on the development of online assessment tools for disengaged youth in flexible learning environments. Sociocultural theories of learning and assessment and Bourdieu’s sociological concepts of capital and exchange were used to design a purpose-built content management system. This design experiment engaged participants in assessment that led to the exchange of self, peer and teacher judgements for credentialing. This collaborative approach required students and teachers to adapt and amend social networking practices for students to submit and judge their own and others’ work using comments, ratings, keywords and tags. Students and teachers refined their evaluative expertise across contexts, and negotiated meanings and values of digital works, which gave rise to revised versions and emergent assessment criteria. By combining social networking tools with sociological models of capital, assessment activities related to students’ digital productions were understood as valuations and judgements within an emergent, negotiable social field of exchange.

Wrongful birth : assessment of damages in 2013

More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.

Countering the Attention Deficit Hyperactivity Disorder epidemic: a question of ethics?

Recently in Australia, another media skirmish has erupted over the problem we currently call “Attention Deficit Hyperactivity Disorder”. This particular event was precipitated by the comments of a respected District Court judge. His claim that doctors are creating a generation of violent juvenile offenders by prescribing Ritalin to young children created a great deal of excitement, attracting the attention of election-conscious politicians who appear blissfully unaware of the role played by educational policy in creating and maintaining the problem. Given the short (election-driven) attention span of government policymakers, I bypass government to question what those at the front line can do to circumvent the questionable practice of diagnosing and medicating young children for difficulties they experience in schools and with learning.

Formative evaluation for improving collaborative planning : a case study at the regional scale

In an earlier paper (Cameron & Johnson 2004) we introduced the idea of formative evaluation (or evaluation for development), the purpose of which is to provide information for improving planning programs and activities. This type of evaluation differs from the two other types: outcome evaluation which aims to judge the success or otherwise of a program; and evaluation for knowledge which seeks to contribute to theoretical work on planning processes and activities. In the earlier paper we also outlined the first stage of formative evaluation in the SEQ 2021 regional planning exercise showing how the process of planning for community engagement was modified in light of the evaluation findings. This current paper details the second stage of formative evaluation in which the collaborative planning component of SEQ 2021 was evaluated, as such it further demonstrates how formative evaluation can be used to improve planning programs. The evaluation findings also provide insights into strategies for more effective collaborative planning. We begin with an overview of collaborative approaches to regional planning, including the SEQ 2021 regional planning program. We then outline formal and informal evaluations of various collaborative regional planning exercises, including the predecessor of SEQ 2021 - SEQ 2001. This sets the scene for discussion of the approach used to evaluate the collaborative component of SEQ 2021. After outlining the main findings from the evaluation and the ways these findings were used to refine the collaborative planning process we conclude with a series of recommendations, relevant not only to SEQ 2021 but to other collaborative planning exercises

Taming the terabytes : a human-centered approach to surviving the information deluge

A fear of imminent information overload predates the World Wide Web by decades. Yet, that fear has never abated. Worse, as the World Wide Web today takes the lion’s share of the information we deal with, both in amount and in time spent gathering it, the situation has only become more precarious. This chapter analyses new issues in information overload that have emerged with the advent of the Web, which emphasizes written communication, defined in this context as the exchange of ideas expressed informally, often casually, as in verbal language. The chapter focuses on three ways to mitigate these issues. First, it helps us, the users, to be more specific in what we ask for. Second, it helps us amend our request when we don't get what we think we asked for. And third, since only we, the human users, can judge whether the information received is what we want, it makes retrieval techniques more effective by basing them on how humans structure information. This chapter reports on extensive experiments we conducted in all three areas. First, to let users be more specific in describing an information need, they were allowed to express themselves in an unrestricted conversational style. This way, they could convey their information need as if they were talking to a fellow human instead of using the two or three words typically supplied to a search engine. Second, users were provided with effective ways to zoom in on the desired information once potentially relevant information became available. Third, a variety of experiments focused on the search engine itself as the mediator between request and delivery of information. All examples that are explained in detail have actually been implemented. The results of our experiments demonstrate how a human-centered approach can reduce information overload in an area that grows in importance with each day that passes. By actually having built these applications, I present an operational, not just aspirational approach.

Mainstreaming therapeutic jurisprudence and the adversarial paradigm—incommensurability and the possibility of a shared disciplinary matrix

Problem-solving courts appear to achieve outcomes that are not common in mainstream courts. There are increasing calls for the adoption of more therapeutic and problem-solving practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and arguably, outside the adversarial paradigm itself. To some extent, this work is tolerated but marginalised. However, do therapeutic and problem-solving functions have the potential to help define, rather than simply complement, the role of judicial officers? The core question addressed in this thesis is whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see—or are we seeing—a juristic paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn? This thesis examines the current relationship between adversarialism and therapeutic jurisprudence in the context of Kuhn’s conception of the transition from periods of ‘normal science’, through periods of anomaly and disciplinary crises to paradigm shifts. It considers whether therapeutic jurisprudence and adversarialism are incommensurable in the Kuhnian sense, and if so, what this means for the relationship between the two, and for the agenda to mainstream therapeutic jurisprudence. The thesis asserts that Kuhnian incommensurability is, in fact, a characteristic of the relationship between adversarialism and therapeutic jurisprudence, but that the possibility of a therapeutic paradigm shift in law can be reconciled with many adversarial and due process principles by relating this incommensurability to a broader disciplinary matrix.

Parties legally bound to unsigned put and call option

The point at which the parties to a negotiation for the sale of land are legally bound can often be difficult to judge. This is particularly so where the parties have agreed a lawyer is to formalise the agreement between them. When the parties have not agreed all matters relating to the transaction, interesting questions arise as to what terms regulate the relationship. In Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60 the Queensland Court of Appeal considered first, whether there was a binding agreement to sell and secondly, how the relationship would be regulated in the absence of express agreement in relation to many of the terms.

Martha and her sisters : women in films about journalism

HBO's Hemingway and Gellhorn (Philip Kaufman, 2012), broadcast in May on US television and starring Nicole Kidman as the pioneering female foreign correspondent, hasn't been well reviewed by the majority of critics. Variety described the biopic (with Clive Owen as Hemingway) as “swollen and heavy-handed”, while the Huffington Post declared it an “expensive misfire … a gigantic missed opportunity, a jaw-droppingly trying waste of time”. Regardless of whether such criticisms are fair—as this essay went to press I had been unable to see the film, so I cannot judge one way or the other—Hemingway and Gellhorn should be viewed as a significant addition to the filmography of journalism, retrieving from history as it does the achievements of one of the most significant of the early female practitioners. Gellhorn was a pioneer in a patriarchal press universe, a foreign and war correspondent at a time when this branch of the profession was seen very much as man's work. She covered the Spanish Civil War and the Second World War, and with just as much viscerality as any man.

Global story-telling in a socially-networked world

Journalists work in an intensively time-pressured environment, researching and writing to daily, often 24 hour, deadlines and always aware of the competition with other news outlets to be first with the news. This results, as Karen Sanders has observed, in journalists having very little time for reflection. “If they do reflect, it’s usually after a decision has been made” (Sanders 2003, 168). Yet time for reflection upon professional practice is important, especially in an era of extremely rapid and seismic technological change in the global media. This paper will reflect upon how freelance journalists can use advances in social media and web-based connectedness to tell global stories via mainstream media outlets. In exploring this question, I will examine the techniques and communications technologies used by three reporters working in the UK and Australia to find, investigate and break a series of articles, published simultaneously on the front pages of The Australian and The Times (London) newspapers, was a result of a six month investigation. The series exposed a 50-year cover-up of the serial abuse of children by one of the Church of England's most senior clergy, Robert Waddington, in Australia and the UK. It unearthed the existence of a culture of physical and sexual abuse at St Barnabas boarding school in Queensland, the sudden closure of the school and disappearance of student files - as well as Waddington's subsequent offences against children while Dean of Manchester Cathedral. We produced more than 20 articles. The coverage sparked church-ordered investigations in both countries, and also prompted the Archbishop of Canterbury to order a commission of inquiry – headed by a sitting UK judge - as well as a nationwide child safety audit of dioceses in Britain. In Australia, the church referred the case and handed its files to the Royal Commission into Child Sexual Abuse. The coverage marked the first publishing collaboration between The Australian and The Times to break an exclusive story in Australia and Britain simultaneously, on May 10, 2013.

Publishing, postage, and prizes : classic Australian children’s literature in the public eye

2012 saw the publication of competing and complementary lines of Australian “classics”: “A&R Australian Classics” (HarperCollins) and “Text Classics” (Text Publishing). While Angus and Robertson were key in establishing a canon of Australian children’s classics in the twentieth century, it was the Text Classics line which included a selection of young people’s titles in their 2013. In turn, Penguin Australia launched a selection of “Australian Children’s Classics”. In so doing, these publishers were drawing on particular literary and visual cultural traditions in Australian children’s literature. Public assertions of a particular selection of children’s books reveals not only contemporary assumptions about desirable childhood experiences but about the operation of nostalgia therein. In encouraging Australian adults to judge books by their covers, such gestures imply that Australian children may be similarly understood. Importantly, the illusion of unity, sameness, and legibility which is promised by circumscribed canons of “classic” children’s literature may well imply a desire for similarly illusory, unified, legible, “classic” childhood. This paper attends to public attempts to materialise (and legitimise) a canon of classic Australian children’s literature. In particular, it considers the ways in which publishing, postage stamps, and book awards make visible a range of children’s books, but do so in order to either fix or efface the content or meaning of the books themselves. Moving between assertions of the best books for children from the 1980s to today, and of the social values circulated within those books, this paper considers the possibilities and problematics of an Australian children’s canon.

Process compliance analysis based on behavioural profiles

Process compliance measurement is getting increasing attention in companies due to stricter legal requirements and market pressure for operational excellence. In order to judge on compliance of the business processing, the degree of behavioural deviation of a case, i.e., an observed execution sequence, is quantified with respect to a process model (referred to as fitness, or recall). Recently, different compliance measures have been proposed. Still, nearly all of them are grounded on state-based techniques and the trace equivalence criterion, in particular. As a consequence, these approaches have to deal with the state explosion problem. In this paper, we argue that a behavioural abstraction may be leveraged to measure the compliance of a process log – a collection of cases. To this end, we utilise causal behavioural profiles that capture the behavioural characteristics of process models and cases, and can be computed efficiently. We propose different compliance measures based on these profiles, discuss the impact of noise in process logs on our measures, and show how diagnostic information on non-compliance is derived. As a validation, we report on findings of applying our approach in a case study with an international service provider.

Teaching and using analogy in law

Analogy plays a central role in legal reasoning, yet how to analogize is poorly taught and poorly practiced. We all recognize when legal analogies are being made: when a law professor suggests a difficult hypothetical in class and a student tentatively guesses at the answer based on the cases she read the night before, when an attorney advises a client to settle because a previous case goes against him, or when a judge adopts one precedent over another on the basis that it better fits the present case. However, when it comes to explaining why certain analogies are compelling, persuasive, or better than the alternative, lawyers usually draw a blank. The purpose of this article is to provide a simple model that can be used to teach and to learn how analogy actually works, and what makes one analogy superior to a competing analogy. The model is drawn from a number of theories of analogy making in cognitive science. Cognitive science is the “long-term enterprise to understand the mind scientifically.” The field studies the mechanisms that are involved in cognitive processes like thinking, memory, learning, and recall; and one of its main foci has been on how people construct analogies. The lessons from cognitive science theories of analogy can be applied to legal analogies to give students and lawyers a better understanding of this fundamental process in legal reasoning.

Baidu’s perfect paradox : free speech and the right to censor

China’s biggest search engine has a constitutional right to filter its search results, a US court found last month. But that’s just the start of the story. Eight New York-based pro-democracy activists sued Baidu Inc in 2011, seeking damages because Baidu prevents their work from showing up in search results. Baidu follows Chinese law that requires it to censor politically sensitive results. But in what the plaintiffs’ lawyer has dubbed a “perfect paradox”, US District Judge Jesse Furman has dismissed the challenge, explaining that to hold Baidu liable for its decisions to censor pro-democracy content would itself infringe the right to free speech.