Prosecution of maritime terrorists : the role of national courts in ensuring accountability

Maritime security has emerged as a critical legal and political issue in the contemporary world. Terrorism in the maritime domain is a major maritime security issue. Ten out of the 44 major terrorist groups of the world, as identified in the US Department of State’s Country Reports on Terrorism, have maritime terrorism capabilities. Prosecution of maritime terrorists is a politically and legally difficult issue, which may create conflicts of jurisdiction. Prosecution of alleged maritime terrorists is carried out by national courts. There is no international judicial institution for the prosecution of maritime terrorists. International law has therefore anticipated a vital role for national courts in this respect. The international legal framework for combating maritime terrorism has been elaborately examined in existing literature therefore this paper will only highlight the issues regarding the prosecution of maritime terrorists. This paper argues that despite having comprehensive intentional legal framework for the prosecution of maritime terrorists there is still some scopes for conflicts of jurisdiction particularly where two or more States are interested to prosecute the same offender. This existing legal problem has been further aggravated in the post September 11 era. Due to the political and security implications, States may show reluctance in ensuring the international law safeguards of alleged perpetrators in the arrest, detention and prosecution process. Nevertheless, international law has established a comprehensive system for the prosecution of maritime terrorists where national courts is the main forum of ensuring the international law safeguards of alleged perpetrators as well as ensuring the effective prosecution of maritime terrorists thereby playing an instrumental role in establishing a rule based system for combating maritime terrorism. Using two case studies, this paper shows that the role of national courts has become more important in the present era because there may be some situations where no State is interested to initiate proceedings in international forums for vindicating rights of an alleged offender even if there is a clear evidence of violation of international human rights law in the arrest, detention and prosecution process. This paper presents that despite some bottlenecks national courts are actively playing this critical role. Overall, this paper highlights the instrumental role of national courts in the international legal order.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

What are the offence and offender risk factors for Indigenous repeat drink drivers in Queensland?

In Australia and internationally, there is scant information about Indigenous repeat drink drivers. The aim was to identify the risk factors associated with repeat offending. De-identified data on drink driving convictions by offenders identifying as Indigenous in Queensland between 2006 and 2010 were examined. A range of univariate analyses were used to compare first time and repeat offenders on gender, age, court location and region (based on the accessibility/remoteness index of Australia), blood alcohol concentration and sentencing severity. Multivariate logistic regression adjusted for confounding variables. Convictions for repeat offenders were more likely from locations other than ‘major cities’ with the association strongest for courts in the ‘very remote’ region (OR=2.75, 2.06-3.76, p<.001). Indigenous offenders 40 years or older were found to be at reduced risk in comparison to offenders aged 15-24 years (OR=0.68, 0.54-0.86, p=0.01). After controlling for confounding factors, gender, sentencing severity and blood alcohol concentration levels were not significantly associated with recidivism. The association of recidivism and remoteness is consistent with higher rates of alcohol-related transport accidents involving Indigenous Australians in isolated areas. This study provides a platform for future research and allows for early attempts to address the need for intervention to reduce Indigenous drink driving recidivism.

Child complainants and the court process in Australia

In recent years, it has been recognised that child complainants in the criminal justice system can experience difficulties over and above those of other complainants and that children can experience the court process as extremely traumatising. This can be exacerbated if children are complainants in child sexual offence matters and if they have to give evidence against a family member. This paper has three primary aims. First, it outlines the major factors that contribute to making court processes harrowing for child complainants. Second, it outlines some of the main initiatives that have been introduced to address these factors. Finally, it weighs up the evidence about initiatives designed to assist child complainants and concludes that such initiatives have had only limited practical impact for child complainants in the criminal justice system. The limited impact is attributed to the need to balance the rights of the accused with consideration for the complainant, a failure to translate legislative changes into practice, the impact of judicial discretion and/or a focus on protecting child complainants at the expense of increasing convictions.

Tension between privacy and justice : ordering medical tests

Courts set guidelines for when genetic testing would be ordered - medical testing - life insurers - use of test results - confidentiality.

Commentary on papers by Professor Fletcher and Mr Martin

In light of the time available today, I will limit my comments to addressing that aspect of Professor Fletcher’s paper in which he refers to the 2012 report he co-authored with Professor Wessels of the Netherlands for the American Law Institute (ALI) and the International Insolvency Institute (III) on Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases. I will comment on the potential benefits for Australian courts as well as insolvency administrators and their advisers in referring to the ALI-III Report - in light of Australia’s adoption of the UNCITRAL Model Law. In so doing, I would like to acknowledge the support of the Australian Academy of Law, under the leadership of The Hon Dr Kevin Lindgren for the research project underpinning these comments, as well as to acknowledge the contributions of my colleagues Associate Professor Sheryl Jackson and Mark Wellard.

The development of an effective and efficient dispute resolution processes for strata scheme disputes in peninsular Malaysia

Dispute resolution in strata schemes in Peninsular Malaysia should focus on more than just "settlement." The quality of the outcome, its sustainability and its relevance in supporting the basic principles of a good neighbourhood and self-governance in a strata scheme are also fundamental. Based on the comprehensive law movement, this thesis develops a theoretical framework for strata scheme disputes within the parameters of therapeutic jurisprudence, preventive law, alternative dispute resolution (ADR) and problem-solving courts. The therapeutic orientation of this model offers approaches that promote positive communication between disputing parties, preserve neighbour relations and optimise people's psychological and emotional well-being.

Women on the Heritage Register : the case of Nellie McCredie and Uanda House

Uanda house is of historical importance to Queensland both in terms of its architectural design and its social history. Uanda is a low set, single story house built in 1928, located in the inner city Brisbane suburb of Wilston. Architecturally, the house has a number of features that distinguish it from the surrounding bungalow influenced inter-war houses. The house has been described as a Queensland style house with neo-Georgian influences. Historically, it is associated with the entry of women into the profession of architecture in Queensland. Uanda is the only remaining intact work of architect/draftswoman Nellie McCredie and one of a very few examples of works by pioneering women architects in Queensland. The house was entered into the Queensland Heritage Register, in 2000, after an appeal against Brisbane City Council’s refusal of an application to demolish the house was disputed in the Queensland Planning and Environment court in 1998/1999. In the court’s report, Judge Robin QC, DCJ, stated that, “The importance of preserving women's history and heritage, often previously marginalised or lost, is now accepted at government level, recognising that role models are vital for bringing new generations of women into the professions and public life.” While acknowledging women’s contribution to the profession of architecture is an important endeavour, it also has the potential to isolate women architects as separate to a mainstream history of architecture. As Julie Willis writes, it can imply an atypical, feminine style of architecture. What is the impact or potential implications of recognising heritage buildings designed by women architects? The Judge also highlights the absence of a recorded history of unique Brisbane houses and questions the authority of the heritage register. This research looks at these points of difference through a case study of the Uanda house. The paper will investigate the processes of adding the house to the heritage register, the court case and existing research on Nellie McCredie and Uanda House.

Archimedes, aid/watch, constitutional levers and where we now stand

Archimedes is reported as famously saying: 'Give me a place to stand and I will move the earth.' He was referring to the power of levers. His point was that a person of ordinary capacity with a place to stand, a fulcrum and a level could change the path of planets. This principle of physics is a metaphor for how the common law has moved over the last millennium. Courts have found a stable foundation on which to stand, such as the constitutional bedrock or well-grounded precedent, and, using cases as fulcrums and legal principles as levers, the have moved the law. Australia is at a critical juncture in the development of the law of charities. The High Court of Australia has held that political purposes can be charitable in certain circumstances. The Parliament of Australia has not only enshrined this in a statutory definition of charity but has done so with a preamble to the legislation which affirms the basis for this development in residing in the 'unique nature and diversity of charities and the distinctive and important role that they play in Australia'.

“Best interests” and withholding and withdrawing life-sustaining treatment from an adult who lacks capacity in the parens patriae jurisdiction

Disputes about withholding and withdrawing life-sustaining treatment are increasingly coming before Australian Supreme Courts. Such cases are generally heard in the parens patriae jurisdiction where the test applied is what is in the patient’s “best interests”. However, the application of the “best interests” test, and its meaning, remains unclear in this context. To shed light on this emerging body of jurisprudence, this article analyses the Australian superior court decisions that consider an adult’s best interests in the context of decisions about life-sustaining treatment. We identify a number of themes from the current body of cases and consider how these themes may guide future decision-making. After then considering the law in the United Kingdom, we suggest an approach for assessing best interests that could be adopted by Australian Supreme Courts. We argue that the suggested approach will lead to a more structured and systematic decision-making process that better promotes the best interests of the patient.

Assessment of damages for defamation of business and personal reputation

An award of damages for defamation is to provide reparation for harm to a plaintiff’s reputation for the publication of defamatory material, compensate for any personal distress caused and vindicate the plaintiff’s reputation.1 Assessing such damages is recognised as a difficult task and perhaps the Queensland courts face further difficulties as there are few awards of damages for defamation in the state. This was pointed out in the recent decision of the Queensland Court of Appeal, Cerutti & Anor v Crestside Pty Ltd & Anor.2 This decision examined in detail the principles of assessing damages for defamation.

Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...

Book Review : "Statutory Will Applications : A practical Guide by Richard Williams and Sam McCullough"

The jurisdiction of Australian courts to make wills for those lacking testamentary capacity is relatively new, having been granted by legislation progressively enacted across the various states and territories between 1996 and 2010. Given increasing numbers of statutory will applications since the legislative reform, and a growing body of law, the publication of the specialist work, Statutory Will Applications: A Practical Guide, by Richard Williams and Sam McCullough, is timely and valuable. This work will be of great interest to those who act for individual clients, especially wills and estates practitioners, but also personal injury practitioners acting for incapacitated persons who have been awarded substantial damages.

The court and the factory the legal construction of occupational health and safety offences in Victoria

This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.

Medical negligence, causation and liability for non-disclosure of risk : a post-wallace framework and critique

Through an examination of Wallace v Kam, this article considers and evaluates the law of causation in the specific context of a medical practitioner’s duty to provide information to patients concerning material risks of treatment. To supply a contextual background for the analysis which follows, Part II summarises the basic principles of causation law, while Part III provides an overview of the case and the reasoning adopted in the decisions at first instance and on appeal. With particular emphasis upon the reasoning in the courts of appeal, Part IV then examines the implications of the case in the context of other jurisprudence in this field and, in so doing, provides a framework for a structured consideration of causation issues in future non-disclosure cases under the Australian civil liability legislation. As will become clear, Wallace was fundamentally decided on the basis of policy reasoning centred upon the purpose behind the legal duty violated. Although the plurality in Rogers v Whitaker rejected the utility of expressions such as ‘the patient’s right of self-determination’ in this context, some Australian jurisprudence may be thought to frame the practitioner’s duty to warn in terms of promoting a patient’s autonomy, or right to decide whether to submit to treatment proposed. Accordingly, the impact of Wallace upon the protection of this right, and the interrelation between it and the duty to warn’s purpose, is investigated. The analysis in Part IV also evaluates the courts’ reasoning in Wallace by questioning the extent to which Wallace’s approach to liability and causal connection in non-disclosure of risk cases: depends upon the nature and classification of the risk(s) in question; and can be reconciled with the way in which patients make decisions. Finally, Part V adopts a comparative approach by considering whether the same decision might be reached if Wallace was determined according to English law.