Measuring risk and blameworthiness in the sentencing of criminal defendants : an exploratory study in Western Australia's Higher Courts

The focal concern perspective dominates quantitative explorations of judicial sentencing. A critical argument underlying this perspective is the role of judicial assessments of risk and blameworthiness. Prior research has not generally explored how these two concepts fit together. This study provides an empirical test of the focal concerns perspective by examining the latent structure among the measures traditionally used in sentencing research, and investigates the extent to which focal concerns can be applied in a non-US jurisdiction. Using factor analysis (as suggested by prior research), we find evidence of distinct factors of risk and blameworthiness, with separate and independent effects on sentencing outcomes. We also identify the need for further development of the focal concerns perspective, especially around the role of perceptual shorthand.

Is there a physicality requirement at Common Law? : a survey of the Pre-NRDC cases discussing ‘Manufacture’

One of the fundamental issues that remains unresolved in patent law today, both in Australia and in other jurisdictions, is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether Australian patent law contains a physicality requirement. Despite being recently considered by the Federal Court, this is arguably an issue that has yet to be satisfactorily resolved in Australia. In its 2006 decision in Grant v Commissioner of Patents, the Full Court of the Federal Court of Australia found that the patentable subject matter standard is rooted in the physical, when it held that an invention must involve a physical effect or transformation to be patent eligible. That decision, however, has been the subject of scrutiny in the academic literature. This article seeks to add to the existing literature written in response to the Grant decision by examining in detail the key common law cases decided prior to the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, which is the undisputed authoritative statement of principle in regards to the patentable subject matter standard in Australia. This article, in conjunction with others written by the author, questions the Federal Court’s assertion in Grant that the physicality requirement it established is consistent with existing law.

Juveniles’ contact with the criminal justice system in Australia

This report presents the first collection of data on juveniles’ contact with the criminal justice system as both alleged/convicted offenders and complainants/victims in New South Wales, the Australian Capital Territory, Victoria, Queensland, Western Australia, South Australia and the Northern Territory. Its primary objectives are to outline data from each of these jurisdictions on juveniles’ contact with the policing, courts and correctional systems and to determine what we do and do not know about juveniles’ contact with the criminal justice system.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

Global rules on conflict-of-laws matters in international insolvency law cases: An Australian perspective

The 2012 Report “Transnational Insolvency: Global Principles for Co-operation in International Insolvency Cases” – commissioned by The American Law Institute in conjunction with The International Insolvency Institute – annexed 23 “Global Rules on Conflict-of-Laws Matters in International Insolvency Cases”. These proposed “Global Rules” are intended to “serve as legislative recommendations” to (inter alia) promote uniformity and greater certainty in the unpredictable area of conflict of laws. This article provides a brief commentary upon the 23 proposed Global Rules from an Australian perspective (comparing the effect and intent of each rule with the current Australian conflict-of-laws position) and offers some conclusions as to the merits of the “Global Rules” initiative.

Estate contestation in Australia: An empirical study of a year of case law

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

Arson-associated homicide in Australia: A five year follow-up

Arson homicides are rare, representing only two percent of all homicides in Australia each year. In this study, data was collected from the AIC’s National Homicide Monitoring Program (NHMP) to build on previous research undertaken into arson-associated homicides (Davies & Mouzos 2007) and to provide more detailed analysis of cases and offenders. Over the period 1989 to 2010, there were 123 incidents of arson-associated homicide, involving 170 unique victims and 131 offenders. The majority of incidents (63%) occurred in the victim’s home and more than half (57%) of all victims were male. It was found that there has been a 44 percent increase in the number of incidents in the past decade. It is evident that a considerable proportion of the identified arson homicides involved a high degree of premeditation and planning. These homicides were commonly committed by an offender who was well known to the victim, with over half of the victims (56%) specifically targeted by the offender. This paper therefore provides a valuable insight into the nature of arson homicides and signposts areas for further investigation.

[Book review] Complex Cases: Perspectives on the Netherlands Criminal Justice System

Review of: Complex Cases: Perspectives on the Netherlands Criminal Justice System. (Eds.) M. Malsch & J.F. Nijboer. Thela Thesis Publishers (2000)

Privacy law in Australia

This book begins by examining the nature and scope of the right to privacy and the moral basis and status: What is privacy? What interests does it affect and protect? Is there a justification for the right?
It discusses the relevant legal regime in all Australian jurisdictions. It covers the extent to which privacy has been protected under common law and equity and then weaves these principles into the statutory discussion of privacy. It focusses specifically on the most important areas of privacy protection - medical records, communications, criminal investigations and DNA, employment, territory, etc. Finally, it examines how the law may develop in the future.

Homicide law reform in Victoria, Australia from provocation to defensive homicide and beyond

Homicide law reform surrounding the partial defences to murder currently animates legal stakeholders in Australia and the United Kingdom, particularly in relation to cases of lethal intimate partner violence. In 2005, the Victorian Government implemented a series of homicide law reforms, central to which was the abolition of the partial defence of provocation and the instatement of an offence of defensive homicide. This article, based on a larger qualitative research study with British, Victorian and New South Wales legal stakeholders, explores experiences and perceptions of reforms in Victoria. An analysis of the impact of homicide law reform, using Hudson's principles of discursiveness and reflectiveness as a framework for analysis, reveals some dissonance between the intent and outcomes of these legal reforms. This study concludes that reforms crafted to counter gender bias in the operation of homicide law have produced mixed results for female victims of intimate partner homicide and related case law.

Supplier integrity due diligence in public procurement: limiting the criminal risk to Australia

The potential for criminals and terrorism financiers to secure lucrativegovernment contracts poses a risk to Australia’s anti-money laundering,anti-corruption and counter-terrorism financing objectives. This articlecompares the customer due diligence measures that banks are required to implement to prevent money laundering and terrorism financing with the general supplier due diligence practices and processes of key Australian government departments and agencies. It identifies various weaknesses in current procurement practices relating to standard contracts and argues that these render Australian public procurement vulnerable to criminal abuse, threaten compliance with its sanctions regime and potentially undermine the crime combating objectives of its money laundering and terrorism financinglaws. The article recommends that the national interest calls for awhole-of-government approach to improve supplier due diligence in public procurement.

Punitive damages in Brazilian law and the boundaries between criminal and civil liabilities

This article demonstrates the existence of civil responsibility with punitive purposes in Brazilian Law, explaining how it was introduced by jurisdictional activity in cases involving moral damages. Next, it points out main problems this situation represents to Brazilian Law from the standpoint of our juridical dogmatics and public policies. Additionally, it proposes the execution of an empirical research for comprehension of the structure and fundamentals of jurisprudence on the punitive character of civil responsibility for moral damages and establishes criteria for use in this research based on theories of punishment. Finally, it positions the problem of punitive function of civil responsibility in the broader ambit of relationships and boundaries between civil and criminal responsibility.