Towards equalisation of the impact of the penal fine : why the wealth of the offender was taken into account

Important changes in the legal regulation of the fine culminated in the implementation of the day‐fine system in many European countries during the twentieth century. These changes resulted from various late nineteenth century rationalities that considered the fine a justifiable punishment. Therefore, they supported extending its application by making it affordable for people on low incomes, which meant imprisonment for fine default could mostly be avoided without undermining the end of punishment. In this paper I investigate the historical development of the penal fine as well as the changing forms of this penalty in Western European criminal systems from the end of the eighteenth century until the late nineteenth century.

Is climate change litigation an effective strategy for promoting greater action to address climate change? What other legal mechanisms might be appropriate?

In recent times a widespread consensus on the reality and gravity of anthropogenic climate change has emerged. Perceived inadequacies in the Australian government’s legal and policy responses to climate change issues have resulted in environmental activists increasingly turning to the courts as a strategy to promote greater action to address adverse climate impacts. The efficacy of this strategy for achieving climate goals is limited by the time and expense of litigating, the restrictions inherent in environmental law administrative challenges, and the possibility that judicial decisions may be overruled by the legislature. To date, climate change litigation in Australia has met with varied success, yet its significance extends beyond the court room as an important mechanism for raising public, political and commercial awareness about climate change issues. Ultimately, however, the types of far-reaching changes needed to mitigate and manage adverse climate impacts require strong regulatory backing. The most effective approach to addressing the complex challenges posed by climate change is a coordinated suite of regulatory measures spearheaded by the Federal Government.

Antisocial personality disorder and therapeutic justice court programs

It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have Anti Social Personality Disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the well-being of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing Drug Courts, or implemented separately by courts to aid with reforming offenders with ASPD and in managing the re-entry of offenders into the community as part of their sentence. For the success of this initiative on the part of the court, ASPD will need to be specifically diagnosed and treated. Close co-operation between courts and psychologists is required to improve the effectiveness of court programs to treat people with ASPD and to evaluate their success.

Social media(tion) and the reshaping of public/private boundaries in employment relations

Tensions surrounding social media in the employment relationship are increasingly evident in the media, public rhetoric, and courts and employment tribunals. Yet the underlying causes and dimensions of these tensions have remained largely unexplored. This article firstly reviews the available literature addressing social media and employment, outlining three primary sources of contestation: profiling, disparaging posts and blogs, and private use of social media during work time. In each area, the key dynamics and underlying concerns of the central actors involved are identified. The article then seeks to canvas explanations for these forms of contestation associated with social media at work. It is argued that the architecture of social media disrupts traditional relations in organisational life by driving employer and employee actions that (re)shape and (re)constitute the boundaries between public and private spheres. Although employers and employees are using the same social technologies, their respective concerns about and points of entry to these technologies, in contrast to traditional manifestations of conflict and resistance, are asymmetric. The article concludes with a representational summary of the relative legitimacy of concerns for organisational actors and outlines areas for future research.

Legal Theories : Contexts and Practices [2nd ed.]

Legal Theories: Contexts and Practices presents legal theory as a living and evolving entity. The reader is brought into its story as an active participant who is challenged to think about where they sit within the history and traditions of legal theory and jurisprudence. This second edition explores how lawyers and the courts adopt theoretical and jurisprudential positions and how they are influenced by the historical, social, cultural, and legal conditions characteristic of the time in which they live. It considers how legal theories, too, are influenced by those conditions, and how these combined forces influence and continue to affect contemporary legal thinking and legal interpretation.

Biomechanics of transfemoral amputees fitted with osseointegrated fixation: Loading data for evidence-based practice

This presentation will provide an overview of the load applied on the residuum of transfemoral amputees fitted with an osseointegrated fixation during (A) rehabilitation, including static and dynamic load bearing exercises (e.g., rowing, adduction, abduction, squat, cycling, walking with aids), and (B) activities of daily living including standardized activities (e.g., level walking in straight line and around a circle, ascending and descending slopes and stairs) and activities in real world environments.

When coroners care too much: Therapeutic jurisprudence and suicide findings

In common law countries such as England and Australia, violent and otherwise unnatural deaths are investigated by coroners who make findings as to the “manner of death”. This includes determining whether the deceased person intentionally caused their own death. Previous research (Tait and Carpenter 2013a, 2013b, 2014) has suggested that coroners are reluctant to reach such determinations, citing the stigma of suicide and a need for sensitivity to grieving and traumatized families. Based on interviews with both English and Australian coroners, this paper explores whether an ‘ethic of care’ evident in English and Australian coronial suicide determinations, can be understood as an application of the ‘practices and techniques’ of therapeutic jurisprudence. Based on the ways in which coroners position the law as a potential therapeutic agent, we investigate how they understand their role and position as legal actors, and the effects of their decision making in the context of suspected suicides.

Unspeakably present: The (un)acknowledgment of diverse sexuality and gender human rights in Australian youth justice systems

A number of international human rights frameworks protect the rights of young people in contact with the criminal justice system in states parties, including Australia. These frameworks inform youth justice policy in Australia’s jurisdictions. While the frameworks protect young people’s right to non-discrimination on the grounds of ‘race’, religion and political opinion, the rights of young people to non-discrimination on the grounds of sexuality and gender diversity are not explicitly protected. This is problematic given that lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ) young people appear over-represented in youth justice systems. This article argues that the exclusion of this group from human rights frameworks has an important flow-on effect: the marginalisation of the right of LGBTIQ young people to non-discrimination in policy and discourse that is informed by international human rights frameworks. After outlining the relevant frameworks, this article examines the evidence about LGBTIQ young people’s interactions with youth justice agencies, particularly police. The evidence indicates that the human rights of LGBTIQ young people are frequently breached in these interactions. We conclude by arguing that it is timely to consider how best to protect the human rights of LBGTIQ young people and keep their rights on the agenda.

The ghost in the machine: Legal challenges of neural interface devices

Neural interface devices and the melding of mind and machine, challenge the law in determining where civil liability for injury, damage or loss should lie. The ability of the human mind to instruct and control these devices means that in a negligence action against a person with a neural interface device, determining the standard of care owed by him or her will be of paramount importance. This article considers some of the factors that may influence the court’s determination of the appropriate standard of care to be applied in this situation, leading to the conclusion that a new standard of care might evolve.

Empirical reference points for Bernstein’s model of pedagogic rights: Recontextualising the reconciliation agenda to Australian schooling

In this chapter we use Bernstein’s (2000) model of pedagogic rights to examine the learning experiences for non-Indigenous teachers in two reconciliation projects. In the context within which we write, reconciliation is the process of establishing a culture of mutual respect between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians. In 1991, the Royal Commission into Aboriginal Deaths in Custody linked the continuation of racism in Australian society to the weak coverage of Aboriginal and Torres Strait Islander content in the school curriculum (Reconciliation Australia 2010). Nearly two decades later, the Melbourne Declaration on Educational Goals for Young Australians issued by the council of Federal, State and Territory Ministers of Education proclaimed that curriculum should enable all students to ‘understand and acknowledge the value of Indigenous cultures and possess the knowledge, skills and understanding to contribute to, and benefit from reconciliation between Indigenous and non-Indigenous Australians’ (MCEETYA 2008, 9). Education holds out promise not only of better life chances for Indigenous young people, but also of replacing myths with understanding and tackling prejudice and racism within the non-Indigenous population. Bernstein’s (2000) model of pedagogic rights promises some purchase on this pedagogic work by providing concepts for looking systematically at the participation of non-Indigenous teachers in education. As observed by Frandji and Vitale (Chapter 2, this volume), the model is not sufficient to achieve a democratic reality, ‘but simply provides a basis for problematizing reality and considering possibilities’.

Putting the 'Personal' back into injury: An interpretation of Pt 3-5 of the ACL

There is an ongoing debate in relation to Part 3-5 of the ACL, particularly over its use in relation to other civil liability remedies. This article looks more closely at ss 138 and 139. It argues that, because of a possible design flaw in the statutory construction of s 138, it can be interpreted much more broadly than it has been to date. Also, the paper discusses the effect on an interpretation of s 139 ACL of both the High Court’s decision in Marks v GIO Australia Holdings Ltd, and a small but significant amendment to s 139 when the ACL was enacted. It argues that s 139 can now be interpreted broadly to include claims not just for loss of financial support or services but for all loss or damage or injury caused.

Striving for a better world: Lessons from Freire in Grenada, Jamaica and Australia

The author of this paper considers the influence of Paulo Freire’s pedagogical philosophy on educational practice in three different geographical/political settings. She begins with reflections on her experience as a facilitator at Freire’s seminar, held in Grenada in 1980 for teachers and community educators, on the integration of work and study. This case demonstrates how Freire’s method of dialogic education achieved outcomes for the group of thoughtful collaboration leading to conscientisation in terms of deep reflection on their lives as teachers in Grenada and strategies for decolonising education and society. The second case under consideration is the arts-based pedagogy shaping the work of the Area Youth Foundation (AYF) in Kingston, Jamaica. Young participants, many of them from tough socio-economic backgrounds, are empowered by learning how to articulate their own experiences and relate these to social change. They express this conscientisation by creating stage performances, murals, photo-novella booklets and other artistic products. The third case study describes and evaluates the Honey Ant Reader project in Alice Springs, Australia. Aboriginal children, as well as the adults in their community, learn to read in their local language as well as Australian Standard English, using booklets created from indigenous stories told by community Elders, featuring local customs and traditions. The author analyses how the “Freirean” pedagogy in all three cases exemplifies the process of encouraging the creation of knowledge for progressive social change, rather than teaching preconceived knowledge. This supports her discussion of the extent to which this is authentic to the spirit of the scholar/teacher Paulo Freire, who maintained that in our search for a better society, the world has to be made and remade. Her second, related aim is to raise questions about how education aligned with Freirean pedagogy can contribute to moving social change from the culture circle to the public sphere.

It might be yours there but it’s not down here: Issues arising under the PPSA in cross-border transactions

As a relatively new piece of legislation, the Personal Property Securities Act 2009 (Cth) (PPSA) is yet to be the subject of much significant judicial consideration. Whilst the position of the Australian courts is becoming clearer in relation to domestic disputes, parties to cross-border transactions continue to encounter an alarming number of uncertainties with respect to the enforcement and maintenance of their security interests. This article considers the relevant problematic provisions of the PPSA and considers them in light of the authorities dealing with corresponding legislation in other jurisdictions. It then attempts to provide some guidance and suggestions as to the best means of protecting security interests in cross-border transactions.

Free Sherlock: The copyright battle of Baker Street

Sherlock Holmes faces his greatest challenge – since his fight to the death with Professor James Moriarty at Reichenbach Falls. Who owns Sherlock Holmes, the world’s greatest detective? Is it the estate of Sir Arthur Conan Doyle? Or the mysterious socialite Andrea Plunket? Or does Sherlock Holmes belong to the public? This is the question currently being debated in copyright litigation in the United States courts, raising larger questions about copyright law and the public domain, the ownership of literary characters, and the role of sequels, adaptations, and mash-ups.

The High Court of Australia and the Marlboro Man: The Battle Over the Plain Packaging of Tobacco Products

In 2012, the High Court of Australia handed down a landmark decision on the plain packaging of tobacco products. This chapter considers the historic ruling in the case of JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth. This chapter explores several themes in the decision. First, it highlights the historical work by the High Court of Australia on the role of health regulation, the use of health warnings, and tobacco control. Second, the chapter considers the High Court of Australia's view that intellectual property law promotes the public interest.Third, it explores the High Court of Australia’s analysis of the constitutional law on acquisition of property on just terms. Finally, this chapter contends that the High Court of Australia's ruling on plain packaging of tobacco products will spark an 'Olive Revolution' — and will encourage superior courts and policy-makers to follow suit.