The problematic relationship between customary international law and the domestic courts

The relationship between international law and domestic law has long been problematic. This article considers in particular the enforcement of customary international law through an analysis of judicial practice in England and Australia. The examination of the jurisprudence suggests that domestic judges often feel uncomfortable when asked to apply international law in the domestic courts and struggle to somehow justify its use. This has led to an inconsistency in judicial practice in the application of international law in jurisdictions such as Australia. However, ultimately the monist theory that recognizes that customary international law automatically flows into the domestic law appears to be reflected in an emerging trend in judicial practice in the common law judicial systems under consideration. However, the article suggests that the English courts now see international crimes as an exception to that theory and require domestic legislative transformation. Ultimately the article concludes that the municipal courts provide an important forum for the enforceability of customary international law, including human rights norms.

The emergence and development of specialist courts : lessons for juvenile justice from the history of the children’s court in South Australia?

To illustrate how specialist courts have developed to manage juvenile offenders, this paper provides an overview of the history and development of the youth court in one jurisdiction, South Australia. Drawing on interviews conducted with judicial officers, the paper seeks to highlight some of the changes that have taken place since the Court’s inception, as well as how the Court currently understands its role and positioning within the broader justice and welfare systems. Key discussion points of these interviews included the Youth Court’s guiding principles and how they impact on court procedures and responses to young people in the system, as well as the challenges that limit, or create difficulties for, the effective operation of the Youth Court. It is concluded that the Youth Court system attempts to balance both welfare and justice approaches to dealing with young people, but are sometimes hindered by inadequate procedural, structural and resource-related factors – some of which exist externally to the Youth Court itself.

Mental health diversion courts : some directions for further development

Recent years have seen a growth in the number of specialist courts operating in Australia, including those which aim to address the needs of mentally disordered offenders. This article describes some of the key characteristics of mental health courts, using case studies from the most established court in Australia, the South Australian Magistrates Court Diversion Program (MCDP). This is followed by a consideration of some factors that may affect the future development of this type of program. It is concluded that there is a need to pay careful attention to issues of risk assessment and risk management if the dual goals of improving both the health of individual and the safety of the community are to be realised.

The pillory effect : media, the courts and the punitive role of public shaming in Australia

Public shaming and humiliation have been used across cultures for centuries to punish offenders and define the boundaries of acceptable behaviour for communities. This article argues that since court-imposed shaming sanctions were phased out in Australia, the news media has assumed responsibility for performing this cultural practice. Through critical engagement with some of the research literature on shaming, the historical shift to the media as the modern pillory is explored. This article looks beyond the doctrine of open justice, which assigns the news media a dual role as a watchdog against injustice and a conduit between the courts and the public, to consider its role in shaming and suggest this role continues to evolve in a changing media landscape.

Mental health diversion courts: a two year recidivism study of a South Australian mental health court program.

The need to develop specialized judicial processes to deal with offenders with mental illnesses is now widely recognized and has led to the introduction of mental health court diversion programs around the world. At present, however, there is only limited evidence from which to assess the impact of these initiatives. This paper describes the South Australian model of diversion, with specific reference to the relationship between identified participant characteristics, program compliance rates, and re-offending outcomes. The results of a two-year recidivism study suggest that involvement with the program has a positive impact on recidivism, but that this is independent from the individual's level of success in the program. Lower risk offenders were more likely to achieve successful outcomes than those in the higher risk categories. The implications of these results, as well the factors that might inform the ongoing development of mental health court programs, are discussed.

Multiplicity of International Courts and Tribunals

This work comprehensively explores the implications of multiplicty of international judicial bodies on the coherent application of public international law. It carried out an in-depth analysis of the underlying reasons for the multiplicity, a thorough discussion of the benefits and the challenges presented by this development, its theoretical dimensions and solutions suggested to mitigate the challenges. The work locates the root causes of these challenges in the normative and institutional expansions of international law without a corresponding coordination of the activities of the ¿proliferating¿ judicial bodies. The challanges are systemic in nature. Clearly, because of their systemic nature, the impacts of these challenges are not limited to the specific courts, cases and parties implicated, but have a ripple effect that reverberates throughout the system. Therefore, the mitigation of the impacts of these challenges is of a paramount importance for the credibility, predictability, legitimacy and overall integrity of the international legal system and the eventual augmentation of the ¿compliance pull¿ garnered as a result.