Royal Commissions and Criminal Justice : Behind the Ideal

Royal commissions are approached not as exercises in legitimation and closure but as sites of struggle that are heavily traversed by power holders yet are open to the voices of alternative and unofficial social groups, social movements, and individuals. Three case studies are discussed that highlight the hegemony of the legal methodology and discourse that dominate many inquiries. The first case, involving a single-case miscarriage inquiry, involves a man who was accused, convicted, and served a prison sentence for the murder of his wife. Nineteen years following the murder another man confessed to the crime. The official inquiry found that nothing had gone wrong in the criminal justice process; it had operated as it should. Thus, in the face of evidence that the criminal justice process may be flawed, the discursive strategy became one of silence; no explanation was offered except for the declaration that nothing had gone wrong. The fallibility of the criminal justice system was thus hidden from public view. The second case study examines the Wood Royal Commission into corruption charges within the NSW Police Service. The royal commission revealed a bevy of police misconduct offenses including process corruption, improper associations, theft, and substance abuse, among others. The author discusses the ways in which the other criminal justice players, the judiciary and prosecuting attorneys, emerge only briefly as potential ethical agents in relation to police misconduct and corruption and then abruptly disappear again. Yet, these other players are absolved of any responsibility for police misconduct. The third case study involves a spin-off inquiry into the facts surrounding the Leigh Leigh rape and murder case. This case illustrates how official inquires can seek to exclude non-traditional viewpoints and methodologies; in this case, the views of a feminist criminologist. The third case also illustrates how the adversarial process within the legal system allows those with power to subjugate the viewpoints of others through the legitimate use of cross-examination. These three case studies reveal how official inquiries tend to speak from an “idealized conception of justice” and downplay any viewpoint that questions this idealized version of the truth.

Context-resonant systems perspectives in career theory

"The focus of this chapter is on context-resonant systems perspectives in career theory and their implications for practice in diverse cultural and contextual settings. For over two decades, the potential of systems theory to offer a context-resonant approach to career development has been acknowledged. Career development theory and practice, however, have been dominated for most of their history by more narrowly defined theories informed by a trait-and-factor tradition of matching the characteristics of individuals to occupations. In contrast, systems theory challenges this parts-in-isolation approach and offers a response that can accommodate the complexity of both the lives of individuals and the world of the 21st century by taking a more holistic approach that considers individuals in context. These differences in theory and practice may be attributed to the underlying philosophies that inform them. For example, the philosophy informing the trait-and-factor theoretical position, logical positivism, places value on: studying individuals in isolation from their environments; content over process; facts over feelings; objectivity over subjectivity; and views individual behavior as observable, measurable, and linear. In practice, this theory base manifests in expert-driven practices founded on the assessment of personal traits such as interests, personality, values, or beliefs which may be matched to particular occupations. The philosophy informing more recent theoretical positions, constructivism, places value on: studying individuals in their contexts; making meaning of experience through the use of subjective narrative accounts; and a belief in the capacity of individuals known as agency. In practice, this theory base manifests in practices founded on collaborative relationships with clients, narrative approaches, and a reduced emphasis on expert-driven linear processes. Thus, the tenets of constructivism which inform the systems perspectives in career theory are context-resonant. Systems theory stresses holism where the interconnectedness of all elements of a system is considered. Systems may be open or closed. Closed systems have no relationship with their external environment whereas open systems interact with their external environment and are open to external influence which is necessary for regeneration. Congruent with general systems theory, the systems perspectives emerging within career theory are based on open systems. Such systems are complex and dynamic and comprise many elements and subsystems which recursively interact with each other as well as with influences from the surrounding environment. As elements of a system should not be considered in isolation, a systems approach is holistic. Patterns of behavior are found in the relationships between the elements of dynamic systems. Because of the multiplicity of relationships within and between elements of subsystems, the possibility of linear causal explanations is reduced. Story is the mechanism through which the relationships and patterns within systems are recounted by individuals. Thus the career guidance practices emanating from theories informed by systems perspectives are inherently narrative in orientation. Narrative career counseling encourages career development to be understood from the subjective perspective of clients. The application of systemic thinking in practice takes greater account of context. In so doing, practices informed by systems theory may facilitate relevance to a diverse client group in diverse settings. In a world that has become increasingly global and diverse it seems that context-resonant systems perspectives in career theory are essential to ensure the future of career development. Translating context-resonant systems perspectives into practice offers important possibilities for methods and approaches that are respectful of diversity."--publisher website

Productivity differences, technology adoption and economic growth : the case of India

When the acronym of ëBRICí was coined in 2001 by Jim OíNeill of Goldman Sachs, it was expected that economic growth rates in India, Brazil and Russia would eventually catch up with that of China. However, China has continued to outperform the other economies in the group, even after it was renamed ëBRICSí to reflect the inclusion of South Africa in 2010. The focus of this chapter is on one of the BRICS economies, namely India. Its aim is to examine from an economic perspective, why Indiaís performance has not lived up to expectations, and comment on the key challenges it faces in meeting them. We begin with some descriptive statistics regarding the progress of the Indian economy since 1990. While it has been growing at a rapid rate since the reforms it introduced in the1990s, there has been a slowdown in its overall GDP growth rates since 2008. The rate of growth experienced in the period 2003ñ07 was an average of 10.5 per cent. However, since the recession following the Global Financial Crisis (GFC) of 2008, the growth rate has fallen. From the period 2008ñ12 it has only registered an average growth rate of 6.5 per cent (World Bank, 2013). This chapter suggests that one of the major factors underpinning this slowdown is the performance of Indiaís agricultural sector. The importance of the agricultural sector is highlighted by the following stylized facts.

Don't think but look : a Gestalt interactionist approach to legal thinking

We propose here a new approach to legal thinking that is based on principles of Gestalt perception. Using a Gestalt view of perception, which sees perception as the process of building a conceptual representation of the given stimulus, we articulate legal thinking as the process of building a representation for the given facts of a case. We propose a model in which top-down and bottom-up processes interact together to build arguments (or representations) in legal thinking. We discuss some implications of our approach, especially with respect to modeling precedential reasoning and creativity in legal thinking.

Probability and story-telling : normative and descriptive models of juridical proof

The operation of the law rests on the selection of an account of the facts. Whether this involves prediction or postdiction, it is not possible to achieve certainty. Any attempt to model the operation of the law completely will therefore raise questions of how to model the process of proof. In the selection of a model a crucial question will be whether the model is to be used normatively or descriptively. Focussing on postdiction, this paper presents and contrasts the mathematical model with the story model. The former carries the normative stamp of scientific approval, whereas the latter has been developed by experimental psychologists to describe how humans reason. Neil Cohen's attempt to use a mathematical model descriptively provides an illustration of the dangers in not clearly setting this parameter of the modelling process. It should be kept in mind that the labels 'normative' and 'descriptive' are not eternal. The mathematical model has its normative limits, beyond which we may need to critically assess models with descriptive origins.

Reconnecting theory and practice in a pluralistic organizing context : issues and Aristotelian considerations

The overall purpose of this paper is to contribute to the theory - practice gap debate in organization studies, especially in pluralistic contexts such as project organizing. We briefly outline some of the current debates, i.e. modernist and postmodernist proposals, and the prevalent dichotomous thinking stance assumptions to better move beyond it, anchoring our contribution in the Aristotelian ethical and practical philosophy. We introduce the current state of the debate, part of the broad question of “science that matters”, and the various discourses between practice and academia within social sciences and more specifically organizational studies. We briefly critically summarize some main features of the two main philosophical stances (modernism, postmodernism), before presenting some key aspects, for the purpose of this paper, of the Aristotelian pre-modern practical and ethical philosophy. Then, we build on the foundations above established, discussing propositions to reconnect theory and practice according the Aristotelian ethical and practical philosophy, and some key implications for research notably in the following areas: roles played by practitioners and scholars, emancipatory praxeological style of reasoning, for closing the “phronetic gap” and reconnecting means and ends, facts and values, relation between collective praxis, development of “good practice” (standards), ethics and politics. We conclude highlighting the role of the suggested shift to an Aristotelian emancipatory style of reasoning for reconciling theory and practice.

ACE research vignette 036 : SMEs, Growth, and Job Creation: Lessons from Systematic Research

This series of research vignettes is aimed at sharing current and interesting research findings from our team of international Entrepreneurship researchers. This vignette, written by Professor Per Davidsson, summarises some important, stylized facts about small and medium enterprises (SMEs), growth, and job creation. It was specially prepared for “The G20 Agenda for Growth: Opportunities for SMEs Conference” in Melbourne, June 20, 2014. For this reason its format deviates slightly from other vignettes in the series.

Pleadings

The Uniform Civil Procedure Rules have brought significant changes to the rules of pleading. The rules place a heavy emphasis on 'truth in pleading', and early identification of the true issues between the parties. There are now a number of pleading rules dealing with specific issues. The changes in the rules are most significant with respect to the level of particulars required for pleading damages, and the facts that must be pleaded in defences. In this article the rules of pleading are examined and contrasted with the rules applicable before the commencement of the UCPR.

Ethics in project management : some Aristotelian insights

Purpose My aim is to introduce, in the project management field, an Aristotelian ethics lens moving beyond the classical deontological and consequentialism approaches underlying the current ethical practices and codes of ethics and professional conducts. In doing so, I wish to pose the premises of a debate on the implications of a conscious ethical perspective for the structure and agency relationship within the project management field Design/methodology/approach Project management is a knowledge field on its own right. However the current perspectives applied to make sense and develop the field (modernism vs. postmodernism) leads to dichotomous thinking rather than recognizing the merits and contextual validity of both sides. I call for Aristotelian Ethics as a way of moving beyond this dichotomous thinking. I introduce briefly Aristotelian Ethics and its consequences in term of relation theory – practice, means and ends, facts and values, and finally politics (i.e. being part of a community of practitioners). Then I illustrate some consequences for the field taking PMI Code of Ethics and Professional Conduct and APM Code of Professional Conduct as supports for discussion Findings I suggest a need for revisiting and/or redesigning the codes of ethics and professional conducts for project management according to an Aristotelian perspective, in order to move beyond the normative limitations of classical deontological (conflict between competing duties, exemplified by PMI Code) or consequentialism (focusing on the "right" outcome to the detriment of duties, exemplified by APM Code) approaches (both, in fact, leading to a disconnection means and ends, and facts and values). This implicates shifting our view from the question "what is my duty?" to the questions "why should I undertake my duty?" and "how ought I act in this situation?" Practical implications Raising Professional Bodies, Industry and Education institutions awareness and consciousness and leading them to rethink about codes of ethics and the implications for the way they conceive practice and research, bodies of knowledge, credentialing, education... Originality/value To the best of my knowledge, this kind of discussion has not yet been conducted within the project management field, and considering the implication of project management in our life and for the well being of the society, an ethical debate may present some value(s)

Women and ADR

Alternative dispute resolution, or ‘ADR’, is defined by the National Alternative Dispute Resolution Advisory Council as: … an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. A broad range of ADR processes are used in legal practice contexts, including, for example, arbitration, conciliation, mediation, negotiation, conferencing, case appraisal and neutral evaluation. Hybrid processes are also used, such as med-arb in which the practitioner starts by using mediation, and then shifts to using arbitration. ADR processes generally fall into one of three general categories: facilitative, advisory or determinative. In a facilitative process, the ADR practitioner has the role of assisting the parties to reach a mutually agreeable outcome to the dispute by helping them to identify the issues in dispute, and to develop a range of options for resolving the dispute. Mediation and facilitated negotiation are examples of facilitative processes. ADR processes that are advisory involve the practitioner appraising the dispute, providing advice as to the facts of the dispute, the law and then, in some cases, articulating possible or appropriate outcomes and how they might be achieved. Case appraisal and neutral evaluation are examples of advisory processes. In a determinative ADR process, the practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Arbitration is an example of a determinative ADR process. The use of ADR processes has increased significantly in recent years. Indeed, in a range of contemporary legal contexts the use of an ADR process is now required before a party is able to file a matter in court. For example, Juliet Behrens discusses in Chapter 11 of this book how the Family Law Act 1975 (Cth) now effectively mandates attendance at pre-filing family dispute resolution in parenting disputes. At the state level, in Queensland, for example, attendance at a conciliation conference can be required in anti-discrimination matters, and is encouraged in residential tenancy matters, and in personal injuries matters the parties must attend a preliminary compulsory conference. Certain ADR processes are used more commonly in the resolution of particular disputes. For example, in family law contexts, mediation and conciliation are generally used because they provide the parties with flexibility in terms of process and outcome while still ensuring that the negotiations occur in a positive, structured and facilitated framework. In commercial contexts, arbitration and neutral evaluation are often used because they can provide the parties with a determination of the dispute that is factually and legally principled, but which is also private and more timely than if the parties went to court. Women, as legal personalities and citizens of society, can find themselves involved in any sort of legal dispute, and therefore all forms of ADR are relevant to women. Perhaps most commonly, however, women come into contact with facilitative ADR processes. For example, through involvement in family law disputes women will encounter family dispute resolution processes, such as mediation. In this chapter, therefore, the focus is on facilitative ADR processes and, particularly, issues for women in terms of their participation in such processes. The aim of this chapter is to provide legal practitioners with an understanding of issues for women in ADR to inform your approach to representing women clients in such processes, and to guide you in preparing women clients for their participation in ADR. The chapter begins with a consideration of the ways in which facilitative ADR processes are positive for women participants. Next, some of the disadvantages for women in ADR are explored. Finally, the chapter offers ways in which legal practitioners can effectively prepare women clients for participation in ADR. Before embarking on a discussion of issues for women in ADR, it is important to acknowledge that women’s experiences in these dispute resolution environments, whilst often sharing commonalities, are diverse and informed by a range of factors specific to each individual woman; for example, her race or socio-economic background. This discussion, therefore, addresses some common issues for women in ADR that are fundamentally gender based. It must be noted, however, that providing advice to women clients about participating in ADR processes requires legal practitioners to have a very good understanding of the client as an individual, and her particular needs and interests. Some sources of diversity are discussed in Chapters 13, 14 and 15.

The need for internal social marketing (ISM): extending the people focus to service employees

BreastScreen Queensland (BSQ) is a government-based health service that provides free breast cancer screening services to eligible women using digital mammography technology.' In 2007, BSQ launched its first social marketing campaign' aimed at achieving a 30 per cent increase in women's programme participation by addressing the barriers to regular screening and by dispelling myths about breast cancer (Tornabene 2010). 'The Facts' mass media social marketing campaign used a credible spokesperson, Australian journalist]ana Wendt, to deliver the call to action' Don't make excuses. Make an appointment'.

Lindquist and Pytel

The foremost event in the international architecture calendar is the Venice International Architecture Biennale. In 2012, Creative Directors Gerard Reinmuth and Anthony Burke with TOKO Concept Design, led the Australian Pavilion exhibition, entitled FORMATIONS: New Practices in Australian Architecture. The exhibition focus was to explore and celebrate “the nature of innovative configurations of architectural practice in Australia today and the desire for a renewed form of architectural agency which drives them”. The Australian Pavilion exhibition purposely chose to highlight the actions and processes behind contemporary architectural practice, focusing not on ‘starchitecture’ projects but those far reaching and socially-engaged “practitioners who are making a substantial and consequential impact in the field and well beyond it”. FORMATIONS had two overarching themes: (1) to stimulate critical disciplinary commentary on a range of new types of Australian practices and their potentialities and (2) exciting a public audience with a spatially dynamic and thought provoking exhibition of new forms of architectural practice, their spatial consequences and transformative potentials. Six projects were displayed in the Australian Pavilion in Venice, with the printed catalogue showcasing 33 ground-breaking examples of Australian practitioners addressing internationally relevant issues in their practice. Lindquist and Pytels collaborative practice is programmed between the demands of academia and commercial fashion practice. Their interests lie in exploring the relationship between the body, new materiality and its application within different facts of design production. The creative practice is underpinned by scholarly theory such as Heidegger’s "nearness and revealing" (1927-1954), Simondon’s "transduction theory" (1989) and the Burke's "sublime" (1757). Outcomes feedback into academic studio programs, scholarly research and material development for commercial, installation and speculative design production.

The defence of hardship to specific performance actions

The decision of Evans v Robcorp Pty Ltd[2014] QSC 26 is of interest as being an instance where the defence of hardship, in this case, financial hardship, was successfully pleaded in defence to a summary application for specific performance of a contract for the sale of land. Equity has always recognised the defence of hardship in response to an action for specific performance which, as an equitable remedy, might be refused in the discretion of the Court (Hewett v Court (1983) 149 CLR 639 at 664). However, whilst the remedy is discretionary, there are certain accepted principles which have guided the courts in their application of this defence to particular facts. It is not a blanket defence to a claim for specific performance where the buyer simply does not have the funds to complete the contract at the time when settlement is called for. Occasionally, a radical change in, say for instance, the health of the defendant between contract and completion, perhaps coupled with a long delay by a seller in calling for completion not being the fault of the buyer might enliven the defence (Patel v Ali [1984]1 Ch 283)

Is there such a thing as an “irrevocable authority”?

The Queensland Court of Appeal decision of FTV Holdings Cairns Pty Ltd v Smith [2014] QCA 217 analysed many issues concerning the enforceability of an “irrevocable authority” signed by clients directed to their solicitors regarding the payment of money to a third party. The action also drew those solicitors into the litigation as they acted contrary to that “irrevocable authority” by paying the money concerned directly to their clients but upon their clients’ later instructions. The result probably confirmed what many solicitors have believed to be the case for some time but which had never been considered in legal analysis in an appellate court. The facts of the case would be common to many day to day transactions.