Migration and refugee law in Australia

Immigration is expected to be one of the most important issues facing Australia this century. The book analyses the policy and moral considerations underpinning migration law and suggests an overarching framework for developing migration law and critiquing existing policies and practices.

Euthanasia, morality and the law

"This book assesses the desirability of legalising euthanasia. From the ethical perspective, euthanasia raises many important issues including the right to life, the right to liberty, the avoidance of unnecessary pain, the appropriate allocation of medical resources, and the rights and duties of doctors. Other relevant considerations include the improving standard of palliative care and the "slippery slope" argument. The central arguments for and against euthanasia are evaluated against the background of the leading contemporary moral theories. The book seeks to cut through the rhetoric that has become a feature of the debate and asks whether there is a sound reason for denying the wishes of individuals who express their wish to die."

Tolling for the luckless, the abandoned and forsaked : therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti-therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology.

Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required.

Conclusion. As duty-bearers, forensic psychologists need to address the core values of freedom and well-being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in-turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.

'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.

Public space : its mythopoetic foundations and the limits of the law

Drawing on William Dawes' unpublished notebooks on the Indigenous languages spoken around Sydney Cove at the time of white settlement, this article hopes to provoke critical reflection on the limits of the law. Dawes' record of communication with Patyegarang documents a transaction that was both political and erotic, both about the law and in defiance of it. In performances that were gestural as well as verbal, they marked out a middle ground where the laws governing both of them were placed in parentheses and new, provisional, rules of exchange improvised. This article notices the existence of this middle ground, and marks its disappearance in subsequent legal discourse about the status of Indigenous people. Ultimately, it offers a reflection on the laws that govern the meeting place which the middle ground underwrites. That is, before public space became fixed for the legally binding discourse of politics, it was mobile and self-constituting. Is this simply a myth or is it a mythopoetic mechanism for rethinking the grounding of law in Australia? If it is the latter, then the next step will be to establish a middle ground of exchange with Indigenous law-giving systems.

Against settlement? Owen Fiss, ADR and Australian discrimination law

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.

Traditional knowledge, traditional cultural expressions and intellectual property law in the Asia-Pacific region

Contents

* The international debate about traditional knowledge and approaches in the Asia-Pacific region / Christoph Antons
* How are the different views of traditional knowledge linked by international law and global governance? / Christopher Arup
* Protection of traditional knowledge by geographical indications / Michael Blakeney
* An analysis of WIPO's latest proposal and the Model Law 2002 of the Pacific Community for the Protection of Traditional Cultural Expressions / Silke von Lewinski
* The role of customary law and practice in the protection of traditional knowledge related to biological diversity / Brendan Tobin
* Can modern law safeguard archaic cultural expressions? : observations from a legal sociology perspective / Christoph Beat Graber
* Branding identity and copyrighting culture : orientations towards the customary in traditional knowledge discourse / Martin Chanock
* Being indigenous' in Indonesia and the Philippines / Gerard A. Persoon
* Indigenous heritage and the digital commons / Eric Kansa
* Traditional cultural expression and the internet world / Brian Fitzgerald and Susan Hedge
* Cultural property and "the public domain" : case studies from New Zealand and Australia / Susy Frankel and Megan Richardson
* The recognition of traditional knowledge under Australian biodiscovery regimes : why bother with intellectual property rights? / Natalie Stoianoff
* Protection of traditional knowledge in the SAARC region and India's efforts / S.K. Verma
* The protection of expressions of folklore in Sri Lanka / Indunil Abeyesekere
* Traditional medicine and intellectual property rights : a case study of the Indonesian jamu industry / Christoph Antons and Rosy Antons-Sutanto.

The aftermath of provocation : homicide law reform in Victoria, New South Wales and England.

Over the past decade, homicide law reform surrounding the partial defences to murder has animated debate among criminological scholars and legal stakeholders in Australia and the United Kingdom. In response to these debates, criminal jurisdictions have conducted reviews of the partial defences to murder and implemented reforms targeted at reducing gender bias in the law which has played out through the operation of the partial defence of provocation. This research examines the different approaches taken to addressing the problem posed by provocation in Victoria, New South Wales and England. In doing so, it explores questions around the need for reform to the law of homicide, the effects of these reforms in practice, and the influential role of sentencing in questions surrounding homicide law reform. Throughout the analysis key frameworks of criminological thought in relation to feminist engagements with the law, the conceptualisation of denial and the influence of law and order politics upon the development of criminal justice policy are applied. By drawing on 81 in-depth interviews conducted with legal stakeholders across the three jurisdictions under study, and an analysis of relevant case law, this research concludes that reforms implemented to counter gender bias in the operation of homicide law have produced mixed results in practice, particularly in connection to the law’s response to three key categories of person in the courtroom: the jealous man, the female victim of homicide, and the battered woman.

Journalism ethics and law: stories of media practice

Journalism Ethics and Law ignites the conversation about journalism ethics and the function of the law in today’s media. Emphasising a practical work-based approach to develop best practice multimedia journalism; this book presents a combined ethics and law experience for journalism students and uses stories and case studies to highlight the most significant questions for the practice of law and ethics today.

Journalism Ethics and Law offers readers a new way about thinking about journalism ethics and empowers future journalists to make good and ethical decisions in the field.

Law, governance and risk: deconstructing the public-private divide in climate change adaptation

The article focuses on the public–private divide in law and which organizes principles for and governance. It analyzes the governance model of public–private divide regarding for climate change adaptation in context to a case study of water governance and flood risk. It compares the relationship between state and individual laws which helps in policy setting.

Law, Theology, and Morality: Conceptions of the Rights to Relief of the Poor in the Twelfth and Thirteenth Centuries

This article presents an analysis of certain ways of thinking about law and its relationship to the poor, in particular the rights and entitlements of the poor to the basic necessities of life and the obligations of society to provide those necessities. It focuses on the works of Peter the Chanter and his “circle” at Paris in the late twelfth and early thirteenth centuries. Significant in their writings on the quandary between respect for private property and the need to allow those in need to take a share of this private property in order to survive is their negotiation of the intellectual boundaries and understandings between law, theology, and morality. In addition, an understanding of their discussions in light of canonistic and theological works of the time reveal a hitherto under-appreciated contribution to the “subjective rights” language in Peter the Chanter.

Tracks to advocacy: journalism studies, animal rights and Australian media law

This article considers the role of animal rights-based journalism and its connection to teaching media law and ethics to undergraduate students in an Australian university arts faculty. An anecdotal discussion of a reflective practice informing the teaching of an undergraduate course in a journalism major relates questions of ethics and law to broader considerations of the role of advocacy in and around journalism, and media practice. It is argued that animal rights-related stories have a role in training media professionals, and also in inspiring journalists to envision their own work as part of the democratic mechanisms of social and legal reform in Australia.

Migration and refugee law: principles and practice in Australia

Migration and refugee law and policy is fundamentally concerned with the choices that we as a nation make regarding the people that we allow into our community and to share our resources. Migration and Refugee Law: Principles and Practice in Australia 2nd Edition provides an overview of the legal principles governing the entry of people into Australia. The 2nd edition encompasses legislative amendments and significant judicial decisions to 2007. As well as dealing with migration and refugee law today, the book analyses the policy and moral considerations underpinning this area of law. This is especially so in relation to refugee law, which is one of the most divisive social issues of our time. The book suggests proposals for change and how this area of law can be made more coherent and principled. This book is written for all people who have an interest in migration and refugee law.