Sentencing indigenous and non-indigenous women in Western Australia's higher courts : A summary of the main findings of a narrative study

This paper presents the main findings of a narrative examination of higher court sentencing remarks to explore the relationship between Indigeneity and sentencing for female defendants in Western Australia. Using the theoretical framework of focal concerns, we found that key differences in the construction of blameworthiness and risk between the sentencing stories of Indigenous and non-Indigenous female offenders, through the identification of issues such as mental health, substance abuse, familial trauma and community ties. Further, in the sentencing narratives, Indigenous women were viewed differently in terms of social costs of imprisonment.

The legal effect of settlement statements

The decision of Carrapetta v. Rado [2012] NSWCA 202 raises a short but very practical point relating to the right to deliver a notice to complete or have otherwise called for completion where time is of the essence of the contract in circumstances where a settlement statement subsequently sent from the seller has overstated the amount owing under the contract. It was common ground , following the oft quoted High Court decisions of Neeta (Epping) Pty Ltd v Phillips(1974) 131 CLR 286 and Louinder v Leis (1982) 149 CLR 509 that a Notice to Complete which called for completion outside the terms of the contract would be invalid. These decisions also further confirm the long accepted principles that a seller who is not “ready willing and able” to perform all their obligations or who is otherwise in breach of contract at the time could not deliver a Notice to Complete (at[27]).The issue in this case did not so much concern the efficacy of the Notice to Complete at the time was delivered ,but the legal effect upon the Notice to Complete of the later delivery of a settlement statement for what the buyer considered to be performance beyond that required by the contract.

Pre-service teachers' pedagogical relationships and experiences of embedding Indigenous Australian knowledge in teaching practicum

This paper argues from the standpoint that embedding Indigenous knowledge and perspectives in Australian curricula occurs within a space of tension, ‘the cultural interface’ (Nakata, 2002), in negotiation and contestation with other dominant knowledge systems. In this interface, Indigenous knowledge (IK) is in a state of constancy and flux, invisible and simultaneously pronounced depending on the teaching and learning contexts. More often than not, IK competes for validity and is vexed by questions of racial and cultural authenticity, and therefore struggles to be located centrally in educational systems, curricula and pedagogies. Interrogating normative western notions of what constitutes authentic or legitimate knowledge is critical to teaching Indigenous studies and embedding IK. The inclusion (and exclusion) of IK at the interface is central to developing curriculum that allows teachers to test and prod, create new knowledge and teaching approaches. From this perspective, we explore Indigenous Australian pre-service teachers’ experiences of pedagogical relationships within the teaching habitus of Australian classrooms. Our study is engaged with the strategic transgressions of praxis. We contend that tensions that participant Indigenous Australian pre-service teachers experience mirror the broader (and unresolved) political status of Indigenous people and thus where and why IK is strategically deployed as ‘new’ or ‘old knowledge within Australian liberal democratic systems of curriculum and schooling. It is significant to discuss the formation and transformation of the pedagogical cultural identity of the teaching profession within which Indigenous and non-Indigenous pre-service teachers are employed.

‘My people right here…’ Indigenous young people, alienation and paint sniffing in inner Brisbane

This paper describes and explains the social worlds of a group of young Murris who are engaged in chroming (paint sniffing) and who sleep rough in inner Brisbane. In particular, the paper considers the ways young Indigenous drug users describe their marginalisation from wider society and its structures of opportunity, but it also includes some reflections from their youth worker and a young man who frequents the young people’s squat. The paper demonstrates the centrality of racism and material disadvantage to the experience of a group of young Aboriginal and Torres Strait Islander sniffers, a perspective largely unreflected in the literature on Indigenous volatile substance misuse. Further, the young people’s ways of interacting with the broader society are described to explain the ways their rejection of mainstream norms form a significant political response to their marginality and reflect, at least in part, the wider Indigenous historical experience. The work draws on theories of alienation and subculture to analyse the young people’s descriptions of their social estrangement and the formation of the ‘paint sniffer group’. It is concluded that paint sniffing among urban Indigenous youth is, at least in part, an obnoxious and encoded distillation of a wider Indigenous rebuttal of broader societal norms, and that the dominant — normalising — modes of treatment risk further alienating an already oppositional group of young people.

Disproportionate over-representation of Indigenous students in New South Wales government special schools

A significant gap exists in the Australian research literature on the disproportionate over-representation of minority groups in special education. The aim of this paper is to make a contribution to the research evidence-base by sketching an outline of the issue as it presents in Australia’s largest education system in the state of New South Wales. Findings from this research show that Indigenous students are equally represented in special schools enrolling students with autism, physical, sensory, and intellectual disabilities, but significantly over-represented in special schools enrolling students under the categories of emotional disturbance, behaviour disorder and juvenile detention. Factors that might influence the disproportionate over-representation of Indigenous children and young people are discussed, and based on these observations, some practical implications for policy and practice are provided.

Does legal heritage affect obesity? The channel of motor vehicle dependence

We find a robust relationship between motor vehicle ownership, its interaction with legal heritage and obesity in OECD countries. Our estimates indicate that an increase of 100 motor vehicles per thousand residents is associated with about a 6% point increase in obesity in common law countries, whereas it has a much smaller or insignificant impact in civil law countries. These relations hold whether we examine trend data and simple correlations, or conduct cross-section or panel data regression analysis. Our results suggest that obesity rises with motor vehicle ownership in countries following a common law tradition where individual liberty is encouraged, whereas the link is small or statistically non-existent in countries with a civil law background where the rights of the individual tend to be circumscribed by the power of the state.

I sang Amazing Grace for about 3 hours that day : understanding Indigenous Australians’ experience of seclusion

Research shows that Indigenous Australians suspicion and fear of being ‘locked up’ may influence mental health service avoidance. Given this, the aim of this study was to explore, by qualitative analysis of in depth interviews (N = 3), how three Indigenous people experienced the controversial practice of seclusion Hans-Georg Gadamer’s phenomenology guided analysis of the material, and allowed narrated experiences to be understood within their cultural and historical context. Participants viewed seclusion negatively: police involvement in psychiatric care; perceptions of being punished and powerless; occasions of extreme use of force; and lack of care were prominent themes throughout the interviews. While power imbalances inherent in seclusion are problematic for all mental health clients, the distinguishing factor in the Indigenous clients’ experience is that seclusion is continuous with the discriminatory and degrading treatment by governments, police and health services that many Indigenous people have experienced since colonisation. The participants’ experiences echoed Goffman’s (1961) findings that institutional practices act to degrade and dehumanise clients whose resulting conformity eases the work of nursing staff. While some nurses perceive that seclusion reduces clients’ agitation (Meehan, Bergen & Fjeldsoe, 2004; Wynaden et al., 2001), one must ask at what cost to clients’ dignity, humanity and basic human rights.

Legal issues in the design and implementation of environmental offset and environmental trading frameworks

The Queensland Government released its new Environmental Offset Policy in July 2008. This policy creates a set of overarching principles which are to be incorporated into existing environmental offset policy. This article is the final article in a set of three interrelated articles discussing the operation and implementation of environmental offsets in Queensland. The first article discusses the Environmental Offsets Discussion Paper and the existing environmental offset requirements. No significant changes have been made to these existing offset requirements under the new Environmental Offset Policy. This article also touches briefly on the legal issues associated with design and implementation of environmental offset and trading frameworks. The second article considered the compatibility of different land tenure arrangements in Queensland against the requirements for the creation and trade of environmental offsets. The third article being the present article, discusses the application of the new Environmental Offset Policy while also analysing the legal issues associated with environmental offsets in further detail.

The legal nature of justice in REDD+

Formation of Reduced Emissions from Deforestation and Degradation (REDD+) policy within the international climate regime has raised a number of discussions about ‘justice’. REDD+ aims to provide an incentive for developing countries to preserve or increase the amount of carbon stored in their forested areas. Governance of REDD+ is multi-layered: at the international level, a guiding framework must be determined; at the national level, strong legal frameworks are a pre-requisite to ensure both public and private investor confidence and at the sub-national level, forest-dependent peoples need to agree to participate as stewards of forest carbon project areas. At the international level the overall objective of REDD+ is yet to be determined, with competing mitigation, biological and justice agendas. Existing international law pertaining to the environment (international environmental principles and law, IEL) and human rights (international human rights law, IHRL) should inform the development of international and national REDD+ policy especially in relation to ensuring the environmental integrity of projects and participation and benefit-sharing rights for forest dependent communities. National laws applicable to REDD+ must accommodate the needs of all stakeholders and articulate boundaries which define their interactions, paying particular attention to ensuring that vulnerable groups are protected. This paper i) examines justice theories and IEL and IHRL to inform our understanding of what ‘justice’ means in the context of REDD+, and ii) applies international law to create a reference tool for policy-makers dealing with the complex sub-debates within this emerging climate policy. We achieve this by: 1) Briefly outlining theories of justice (for example – perspectives offered by anthropogenic and ecocentric approaches, and views from ‘green economics’). 2) Commenting on what ‘climate justice’ means in the context of REDD+. 3) Outlining a selection of IEL and IHRL principles and laws to inform our understanding of ‘justice’ in this policy realm (for example – common but differentiated responsibilities, the precautionary principle, sovereignty and prevention drawn from the principles of IEL, the UNFCCC and CBD as relevant conventions of international environmental law; and UNDRIP and the Declaration on the Right to Development as applicable international human rights instruments) 4) Noting how this informs what ‘justice’ is for different REDD+ stakeholders 5) Considering how current law-making (at both the international and national levels) reflects these principles and rules drawn from international law 6) Presenting how international law can inform policy-making by providing a reference tool of applicable international law and how it could be applied to different issues linked to REDD+. As such, this paper will help scholars and policy-makers to understand how international law can assist us to both conceptualise and embody ‘justice’ within frameworks for REDD+ at both the international and national levels.

Climate Change and Human Displacement

This paper will focus on the legal issues associated with people displaced as a result of water scarcity. Human displacement can lead to internal displacement (displacement of people within their country) and external displacement (displacement of people into another country). If the displacement takes place as a result of climate change these people may be referred to as climate refugees. The majority of work on climate refugees has focused on those people that will lose their homes as a result of sea –level rise. The number of people that could be displaced as a result of prolonged drought and lack of adequate water supplies is likely to be far more significant in number. There are estimates that around 2.8 billion people will suffer water shortages by 2025 and many of these people are at increased risk of internal or external displacement. Certain groups are more likely to be displaced as a result of prolonged drought or water scarcity. These groups include indigenous and minorities groups living in areas that are more susceptible to climate change and groups living in areas with a history of water shortage and supply issues. People displaced as a result of water scarcity are at increased risks of malnutrition and of dehydration. Furthermore the lack of adequate water supplies in such areas increases the risk and spread of disease among the population. In certain instances internal and external displacement may lead to escalation of conflict and competition for water resources in newly settled territories. This paper will use case studies from Australia (indigenous groups and rural landholders) and East Africa (Ethiopia, Sudan and Kenya) to demonstrate the significance of human displacement arising as a result of water scarcity. Climate adaptation policy frameworks will need to address a number of legal issues, arising as a result of climate displacement from water scarcity. There are a number of unresolved legal issues for both categories of environmental displaced people. The major legal issue for externally environmentally displaced people is lack of international recognition and support for these people. The Climate Change Convention, the Refugee Convention, the Desertification Convention and Human Rights instruments all fail to provide recognition for people externally displaced as a result of environmental conditions. Similarly there is a lack of legal recognition and legal support mechanisms to assist those people internally displaced by environmental conditions. The lack of developed environmental rights in most countries contributes to this problem. Polices and governance frameworks must be put in place which aims to prevent such displacement through programs identifying populations at risk and instigating damage mitigation and relocation programs. In addition there are a number of legal issues which may arise such as; rights of compensation, property and tenure disputes, increases on the water demand and environmental degradation in places of relocation and jurisdictional issues arising in federal countries. This paper will provide an overview of the legal issues at the international and national levels arising as a result of climate displacement from water scarcity.  

The Future of the World's Forests

Forest regulation is never far from the headlines. The recent COP 18 negotiations held in Doha towards the end of 2012 were criticized by observers for slowing the development of the ‘REDD+’ initiative and for marking the end of ‘Forest Day’, whilst in the last month controversy has arisen following reports that the World Bank’s investment in forestry-related projects has failed to address poverty or benefit local communities. Dr Rowena Maguire’s research focuses on international climate and forest regulation and indigenous and community groups rights and responsibilities in connection with environmental management. Her new book, Global Forest Governance, identifies the fundamental legal principles and governance requirements of Sustainable Forest Management, an introduction to which is provided in her article below.

Shifting global powers and international law : challenges and opportunities [Challenges of Globalisation series]

This book examines the influence of emerging economies on international legal rules, institutions and processes. It describes recent and predicted changes in economic, political and cultural powers, flowing from the growth of emerging economies such as China, India, Brazil, South Africa and Russia, and analyses the influence of these changes on various legal frameworks and norms. Its contributors come from a variety of fields of expertise, including international law, politics, environmental law, human rights, economics and finance. The book begins by providing a broad analysis of the nature of the shifting global dynamic in its historical and contemporary contexts, including analysis of the rise of China as a major economic and political power and the end of the period of United States domination in international affairs. It illustrates the impact of these changes on states’ domestic policies and priorities, as they adapt to a new international dynamic. The authors then offer a range of perspectives on the impact of these changes as they relate to specific regimes and issues, including climate change regulation, collective security, indigenous rights, the rights of women and girls, environmental protection and foreign aid and development. The book provides a fresh and comprehensive analysis of an issue with extensive implications for international law and politics.

Assessment of applicability and transferability of evidence-based antenatal interventions to the Australian indigenous setting

There is a need for public health interventions to be based on the best available evidence. Unfortunately, well-conducted studies from settings similar to that in which an intervention is to be implemented are often not available. Therefore, health practitioners are forced to make judgements about proven effective interventions in one setting and their suitability to make a difference in their own setting. The framework of Wang et al. has been proposed to help with this process. This paper provides a case study on the application of the framework to a decision-making process regarding antenatal care in Aboriginal and Torres Strait Islander communities in Queensland. This method involved undertaking a systematic search of the current available evidence, then conducting a second literature search to determine factors that may affect the applicability and transferability of these interventions into these communities. Finally, in consideration of these factors, clinical judgement decisions on the applicability and transferability of these interventions were made. This method identified several interventions or strategies for which there was evidence of improving antenatal care or outcomes. By using the framework, we concluded that several of these effective interventions would be feasible in Aboriginal and Torres Strait Islander communities within Queensland.

Legal practitioners’ negligence liability for claim investigation and advice

Nigam v Harm (No 2) [2011] WASCA 221, Western Australia Court of Appeal, 18 October 2011