Back to the future : the war on terror and its impact on civil liberties

This comment looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to those terrorist acts. These legal changes have included the creation of specific "terrorism" offences, the legislative proscription of two foreign organisations and, most notably, a significant expansion of ASIO's investigative powers.1
Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. The reform involves vesting Ch III courts with the power to measure Commonwealth laws against the International Covenant on Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

Introducing personal liability under the continuous disclosure regime : The essentials and non-essentials

Under the Federal Government's CLERP 9 legislation, expected at the time of writing to come into force in July 2004, personal liability will be introduced for the first time under the continuous disclosure regime. Individuals who are 'involved' in a failure to immediately disclose materially price sensitive information to the market will be subject to a civil penalty, in addition to the company being liable. According to the author, the introduction of personal liability per se is not contentious and indeed is a favourable change; what is questionable, however, is whether 'involvement' in a contravention is the appropriate test for imposing personal liability in relation to breaches of the continuous disclosure provisions. Based on the case law to date on the meaning of 'involved', there is particular uncertainty as to whether an individual would need to have actual knowledge that non-disclosed information is 'materially price sensitive' in order to satisfy the test of 'involved' in the context of continuous disclosure, or whether mere knowledge that the information has not been disclosed would be sufficient. This uncertainty arises due to the vague concept of 'essential matters' which the courts have developed as a test for what degree of knowledge a person needs to have in order to be 'involved'. The author argues that all the confusion as to what 'involved' means could be addressed by removing the word 'essential' from the dialogue, so that the test of 'involvement' would simply be based on whether the particular person had actual knowledge of each of the factual elements constituting the offence.

Allegations of unlawful discrimination in education: parents taking their fight for Auslan to the courts

This paper examines the use of the Disability Discrimination Act (Commonwealth of Australia, 1992) by parents seeking access for their deaf children to native sign language in the classroom. It reviews a number of cases in which Australian parents have claimed indirect discrimination by educational authorities over their children's lack of access to instruction through Australian Sign Language (Auslan) and discusses the outcomes of such litigation. The policies endorsed by deafness organizations are contrasted with those of state educational authorities. The author discusses the limitations of a complaints-based system to address systemic discrimination and suggests the need for legislation to protect the linguistic rights of deaf children.

Section 46:where we have been and where we are going: a review of the recent debate

Two recent reviews of Part IV of the Trade Practices Act (Commonwealth) (1974) have looked specifically at the operation of Section 46 of this Act and have come to very different conclusions concerning its efficacy. The Dawson review (2003) argued that no change to S 46 was required as the courts were providing sufficient guidance in the application of the legislation in this respect. The Senate Committee review (2004) came to different conclusions arguing that the Act needed clarification in regard to certain sections. These reports highlight the controversy that has surrounded this section of the Trade Practices Act for the past thirty years. The aim of this paper is to consider these reviews and evaluate the extent to which the High Court has been able to provide guidance in the application of legislation that prohibits the misuse of market power.

Feudal tenure and native title: revising an enduring fiction

This article argues that the feudal doctrine of tenure continues to endure as the foundation for Australian land law despite its obvious social and historical irrelevance. The doctrine of tenure is a derivation of feudal history. The article examines some of its historical foundations with the aim of highlighting the disparity between the fiction of this inherited form and the reality of a colonial Australian landscape. Particular attention is given to the fact that Australian feudal tenure was always a passive framework. It was disconnected with the landscape and therefore incapable of responding to the needs of colonial expansion. This resulted in a clear disparity between feudal form and the reality of a land system populated by statutory grants. The article argues that feudal tenure was never truly devised as a responsive land system but rather, adopted as a sovereignty device. In this sense, legal history was utilised with the aim of promoting imperial objectives within colonial Australia. Tenure was equated with absolute Crown ownership over all Australian territory despite the fact that this was inconsistent with the orthodox tenets of feudal tenure.
The article argues that the consequence of adopting feudal tenure and absolute Crown ownership has been the estrangement of indigenous rights, title and culture. The creation and legitimisation of a land framework with a fundamentally Eurocentric perspective completely destroyed indigenous interests during the settlement and colonial era. It created an imperial ideology where colonists silently accepted the denial of indigenous identity. The decision of the Mabo High Court to reassess this historical perspective and accept the validity of proven native title claims clearly disturbed tenurial assumptions. However, the High Courts' reification of the feudal form created a fundamental paradox: indigenous title was accepted as a proprietary right within a framework incapable of and unequipped to recognise the fundamentally different cultural perspectives of customary ownership. The article argues that native title cannot evolve within a common law framework that regards ownership as a derivation of the English Crown. It is suggested that ultimately, a pluralist property culture, where indigenous and non-indigenous title exist as equalised entities, can only be properly nurtured with the full and absolute abolition of the feudal doctrine of tenure.

Fat and the law: who should take the blame?

The incidence of obesity in both adults and children is rising at a rapid rate in most developed countries, including in Australia. Some obese people are seeking to place the blame for their condition on the fast-food industry, as demonstrated by the recent litigation in the United States brought by two obese plaintiffs against McDonald's. This litigation was unsuccessful, and on existing Australian negligence principles any similar litigation commenced here is likely to suffer the same fate. Principles of personal responsibility, autonomy and free will should prevail to deny a negligence claim. The risk of obesity and concomitant health problems from eating fast food to excess is an obvious risk which the plaintiff should not have ignored and which he or she has voluntarily assumed. It is for the Australian Government, not the courts, to regulate the behaviour of the fast-food industry. The government should take action by requiring all major fast-food chains to label their products with nutritional information, and by imposing restrictions on the advertising of food to children.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Accountants and valuations in Australian family court proceedings

This paper investigates issues related to the role of accountants in presenting expert evidence in the form of share valuations in Family Court of Australia proceedings. By providing a background to the valuation rules applied by the Family Court and examining relevant cases, the paper emphasises that considerable ambiguity exists. The paper highlights some of the inconsistencies that are evident from reported decisions and stresses the difficulties that judges have experienced with valuations presented by accountants in Family Court cases. It is evident that the courts, despite the legal precedents, continue to have considerable difficulty with valuation issues and methodologies. By exploring issues related to accounting based valuations in the context of Australian family law cases, the present paper examines accounting in a particular social and institutional setting. The paper is interdisciplinary in nature, in that issues extending over accounting, finance and legal boundaries are considered.

Ulster-New Zealand migration and cultural transfers / Brad Patterson

Books
Medievalism and the Gothic in Australian Culture. Edited by Stephanie Trigg.

What If? Australian History as It Might Have Been. Edited by Stuart Macintyre and Sean Scalmer.

Disputed Histories: Imagining New Zealand's Pasts. Edited by Tony Ballantyne and Brian Moloughney.

The Myth of the Great Depression. By David Potts.

Memory, Monuments and Museums: The Past in the Present. Edited by Marilyn Lake.

Connected Worlds: History in Transnational Perspective. Edited by Marilyn Lake and Ann Curthoys.

Island Ministers: Indigenous Leadership in Nineteenth Century Pacific Islands Christianity. By Raeburn Lange.

Texts and Contexts: Reflections in Pacific Islands Historiography. Edited by Doug Munro and Brij V. Lai.

Day of Reckoning. By Lachlan Strahan.

Appropriated Pasts: Indigenous Peoples and the Colonial Culture of Archaeology. By Ian J. McNiven and Lynette Russell.

Recognising Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. By Peter H. Russell.

Black Glass: Western Australian Courts of Native Affairs 1936-54. By Kate Auty.

Edward Eyre, Race and Colonial Governance. By Julie Evans.

Gender and Empire. By Angela Woollacott.

Uncommon Ground: White Women in Aboriginal History. Edited by Anna Cole, Victoria Haskins and Fiona Paisley.

Mixed Relations: Asian-Aboriginal Contact in North Australia. By Regina Ganter, with contributions from Julia Martinez and Gary Lee.

Botany Bay: Where Histories Meet. By Maria Nugent.

A Man of All Tribes: The Life of Alick Jackomos. By Richard Broome and Corinne Manning.

Black Founders: The Unknown Story of Australia's First Black Settlers. By Cassandra Pybus.

Over the Mountains of the Sea: Life on the Migrant Ships 1870-1885. By David Hastings.

Ulster-New Zealand Migration and Cultural Transfers. Edited by Brad Patterson.

From Paesani to Global Italians: Veneto Migrants in Australia. By Loretta Baldassar and Ros Pesman.

Ways of Seeing China: From Yellow Peril to Shangrila. By Timothy Kendall.

East by South: China in the Australasian Imagination. Edited by Charles Ferrall, Paul Millar and Keren Smith.

Arthur Tange: Last of the Mandarins. By Peter Edwards.

Kin: A Collective Biography of a Working-Class New Zealand Family. By Melanie Nolan.

Ida Leeson A Life: Not a Blue-Stocking Lady. By Sylvia Martin.

Will Dyson: Australia's Radical Genius. By Ross McMullin.

Francis De Groot: Irish Fascist Australian Legend. By Andrew Moore.

South by Northwest: The Magnetic Crusade and the Contest for Antarctica. By Granville Allen Mawer.

From Woolloomooloo to 'Eternity': A History of Australian Baptists. 2 vols. Volume 1: Crowing and Australian Church (1831-1914), Volume 2: A National Church in a Global Community (1914-2005). By Ken R. Manley.

Doing it in the courts : opening research to public scrutiny

This paper analyses the positioning of researchers and their research by the courts in legal complaints brought against educational authorities. Over the past decade at least eleven formal complaints related to deaf children's access to native sign language in education have been lodged with the Human Rights and Equal Opportunity Commission.

This ongoing legal action has brought a pedagogical debate over educational policy into the courts. The most recent case to reach the Federal Court of Australia was taken by the families of two deaf children against a state educational authority, allegedly for failing to provide the children with an adequate education. The complainants called for teachers fluent in Auslan (Australian Sign Language) or interpreters to be employed alongside mainstream teachers.

As a researcher in this field, I have acted as an expert witness in eight of these cases, tendered my thesis as evidence, and been cross-examined in the Federal Court. Court transcripts from the two most recent cases provide the data for an analysis of the way in which legal counsel position researchers (as 'advocates', having vested interests, representing lobby groups) and interpret their research to support the legal arguments being made.

Managing sport in drought-new stakeholders and new governance issues : a case study

Globally, almost every nation is facing some form of water crisis (World Commission on Water 2000). In Australia, the sport and recreation industry is one of the highest consumers of water. Other high water consuming industries (such as agriculture and farming) have been forced to adhere to strict managerial and governance reform due to the water crisis, yet in the sport and recreation industry, such changes are yet to be implemented and fully realised across the sector.

This research examines the impacts of drought and sustainable water management for sport and recreation. Specifically, it provides a case study of sport and recreation provision in a municipality that has already undergone considerable reform due to long-term drought. Sport and recreation use water for purposes such as irrigation of playing fields/pitches, filling swimming pools, stadium amenities and facilities, kitchens, maintenance and cleaning, and clubhouse amenities.

For sports that are heavy users of water for the maintenance of playing fields (such as soccer, Australian Rules football, rugby league, rugby union, grass and clay tennis courts to name a few) the impacts of drought and water restrictions have been severe. Some sports have reported an increase in the risk of injury to participants because of the condition of un-watered playing fields (Sport and Recreation Victoria 2007). Others have been forced to delay or shorten their seasons (Sleeman 2007), or worse still, cancel training and organised competition completely (Connolly and Bell 2007). While the impact of water restrictions has been profound on most sports, there are some sports that are not heavy water users and the impact of drought and water restrictions has been minimal. This problem creates issues and apparent inequities raising the need to further examine water consumption in sport and recreation. The potential outcome that arises is that the future of those sports that cannot conduct their competitions may be disadvantaged, while other sports that do not have such problems may be able to flourish.

Water, and those who control the supply of it, then defines which sports are able to flourish and sustain sport development pathways, compared to those whose survival may be in jeopardy. This research explores the stakeholder management and governance issues that have resulted for sport and recreation in the City of Greater Geelong (CoGG) located in Victoria, Australia--a region in long-term water crisis. The supply of sport and recreation facilities in the CoGG (like most municipalities in Australia) is largely the responsibility of the municipal council. The corporation responsible for the supply of water to the municipality is Barwon Water.

Although other sport and recreation facilities exist in the CoGG, the municipal council of CoGG owns and maintains over 120 sporting ovals (including the stadium used by its professional Australian Football League (AFL) team, the Cats), six swimming pools, and three golf courses. The CoGG host their professional AFL team, a range of local, national and international sport events, and provide a wide range of sport and recreation facilities for the community residents.

Eight interviews were conducted in total. Interviews were conducted with representatives from CoGG municipal council (who are responsible for the delivery of sport and recreation services and facilities in Geelong), and representatives from Barwon Water (who are responsible for the ongoing provision and maintenance of sport and recreation services and facilities) through the provision of water. Results show that the ten highest users of water in the municipality are sport and recreation facilitieswhich between them use almost one-third of the city's total water consumption (City of Greater Geelong 2006).

The municipal council is under considerable pressure to find ways to continue to provide sport and recreation opportunities for community members, as well as professional athletes and teams who use these facilities despite water restrictions. After all, these facilities provide benefit to spectators and participants, as well as businesses that rely on visitors to Geelong for sport and recreation events.

Due to such pressures, from 2007, the CoGG and Barwon Water agreed to provide the sport and recreation sector with water allocations rather than to be denied of all water under the water restriction regimes in place in the municipality. During 2007 summer sport season, this allowed the CoGG to keep 16 of its 120 sporting ovals open for participation through allocating all available water to these fields in order to keep them safe and playable. However, CoGG and Barwon Water were required to devise a rating scale to determine which sports (and sport facilities) were to share the allocated water, and which were not. These decisions also had knock on effects through sports. In order to ensure the safety of the playing surfaces, the CoGG and Barwon Water also restricted use of fields to competition only, therefore sport participants were forced to train on local beaches and other parkland areas-transferring issues of safety and public liability to other locations and facilities in the community. Further, it was reported that scheduling of competition seasons and individual matches; as well as the allocation of "home ground" gate receipts and concessions profits were required to be governed by the CoGG and Barwon Water as the competing sports were unable to agree. Perhaps more importantly, the rating scale developed for water allocation also resulted in some sports being rated as ineligible for water and as a result were unable to stage their entire competitions.

Clearly, the water allocation rating scale, and approach taken in this municipality to the continued delivery of sport and recreation has provided a workable solution. However, this study also signals that new stakeholders have entered the arena for the governance of sport. Governance structures in sport and recreation are being impacted as a result of the water crisis.

Those making decisions about which sport and recreation activities and/or facilities will be assisted with water resources are being made by local councils and water corporations. Sport managers are being required to understand existing areas of knowledge (such as turf management) in different ways, to gain knowledge in new areas (such as sustainable water management), and to lobby new stakeholder groups (such as water corporations) in order to secure their futures. The continued existence of some sports is no longer in the hands of governing bodies, but in the hands of local councils, and water corporations.

Clearly, any of the solutions implemented as discussed above, require multiple stakeholders to interact, and to reach agreement in order to assist in sustainable management of water in sport and recreation. In this sense, the management of water in sport (and all other industries) is more than a rational decision about policy, legislation, restrictions and resource allocations. It is a social and political process requiring scholarly attention for practical solutions.

Freedom of political communication, public officials and the emerging right to personal privacy in Australia

In recent times Australian courts have demonstrated a willingness to fashion a right to personal privacy at common law. The Australian Law Reform Commission has noted this impOt1ant development and said it was likely to continue in the absence of legislative action in the area. The aim of this article is to outline a theoretical framework to underpin and inform the development of this emerging right - howsoever framed - and the extent to which it is possible for the law to provide meaningful privacy protection to public officials under the Constitution.

'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.