O governo da justiça : o Conselho Superior da Magistratura

O Conselho Superior da Magistratura (CSM), enquanto instituição de governo do poder judicial, desempenha um papel central na democracia portuguesa. Estudado maioritariamente sob a perspectiva jurídica, este Conselho, tal como todo o sistema de justiça, reclama hoje um olhar atento da ciência política. Nesta Dissertação principia-se com um estudo comparativo entra as diferentes soluções de governo da justiça europeias. Procurando isolar variáveis foram analisados os sistemas de Espanha, França, Alemanha e Inglaterra. Seguidamente, e tendo em conta o momento crítico da transição para a democracia, analisa-­se o lugar do CSM na constituição daí resultante, acompanhando a sua evolução até aos dias de hoje. Finalmente, procede-­se à caraterização prosopográfica da elite de juízas e juízes que ocuparam os lugares do CSM ao longo destes 40 anos. Os resultados obtidos no estudo comparado, vêm confirmar que estando garantida a liberdade individual de cada juíza ou juiz no ato de julgar, a forma de governo da justiça parece definitivamente configurar um campo em aberto. Mais do que um modelo ideal, estes órgãos são o resultado de autênticas complementaridades institucionais. A análise histórica demonstra que no poder judicial, a transição decorreu de forma pacífica e consensual, traduzindo-se num ganho progressivo de autonomia externa da magistratura ao longo destes 40 anos. O estudo da elite judicial pertencente ao CSM veio revelar uma uniformidade com poucas variações. Neste momento, os membros do conselho privilegiam o princípio da independência, verificando-­se uma certa desconfiança entre o poder político e o poder judicial.

Contemporary issues in Australian family law: Do we need a more unified and interventionist judicial model

Recent decisions of the Family Court of Australian reflect concerns over the adversarial nature of the legal process. The processes and procedures of the judicial system militate against a detailed examination of the issues and rights of the parties in dispute. The limitations of the family law framework are particularly demonstrated in disputes over the custody of children where the Court has tended to neglect the rights and interests of the primary carer. An alternative "unified family court" framework will be examined in which the Court pursues a more active and interventionist approach in the determination of family law disputes.

Organizational rhetoric in the prospectuses of elite private schools : unpacking strategies of persuasion

Schools have seldom been examined by scholars in studies of organizational sites. Yet schools and the educational context in which they operate, offer potentially important insights into how organizations use rhetoric in their communications to persuade audiences and leverage advantage in the marketplace. This study, which utilises rhetorical analysis to examine the persuasive, yet ambiguous strategies used in 65 school prospectuses in Australia, revealed six strategies consistently used by schools to leverage competitive advantage and persuade internal and external audiences: identification, juxtapositioning, bolstering or self-promotion, partial reporting, selfexpansion and reframing or reversal. As well as illustrating how schools operate in the context of marketisation and privatization discourses in 21st century education, the organizational theory and methods utilised for the research demonstrates how rhetorical strategies draw on, as well as reproduce, socio-political and cultural discourses around economic and social privilege.

Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

Meniscal repair in the elite athlete : results of 45 repairs with a minimum 5-year follow-up

Background The preservation of meniscal tissue is important to protect joint surfaces. Purpose We have an aggressive approach to meniscal repair, including repairing tears other than those classically suited to repair. Here we present the medium- to long-term outcome of meniscal repair (inside-out) in elite athletes. Study Design Case series; Level of evidence, 4. Methods Forty-two elite athletes underwent 45 meniscal repairs. All repairs were performed using an arthroscopically assisted inside-out technique. Eighty-three percent of these athletes had ACL reconstruction at the same time. Patients returned a completed questionnaire (including Lysholm and International Knee Documentation Committee [IKDC] scores). Mean follow-up was 8.5 years. Failure was defined by patients developing symptoms of joint line pain and/or locking or swelling requiring repeat arthroscopy and partial meniscectomy. Results The average Lysholm and subjective IKDC scores were 89.6 and 85.4, respectively. Eighty-one percent of patients returned to their main sport and most to a similar level at a mean time of 10.4 months after repair, reflecting the high level of ACL reconstruction in this group. We identified 11 definite failures, 10 medial and 1 lateral meniscus, that required excision; this represents a 24% failure rate. We identified 1 further patient who had possible failed repairs, giving a worst-case failure rate of 26.7% at a mean of 42 months after surgery. However, 7 of these failures were associated with a further injury. Therefore, the atraumatic failure rate was 11%. Age and size and location of the tears were not associated with a higher failure rate. Medial meniscal repairs were significantly more likely to fail than lateral meniscal repairs, with a failure rate of 36.4% and 5.6%, respectively (P < .05). Conclusion Meniscal repair and healing are possible, and most elite athletes can return to their preinjury level of activity.

Outrage management in cases of sexual harassment as revealed in judicial decisions

Sexual harassment can be conceptualized as a series of interactions between harassers and targets that either inhibit or increase outrage by third parties. The outrage management model predicts the kinds of actions likely to be used by perpetrators to minimize outrage, predicts the consequences of failing to use these tactics—namely backfire, and recommends countertactics to increase outrage. Using this framework, our archival study examined outrage-management tactics reported as evidence in 23 judicial decisions of sexual harassment cases in Australia. The decisions contained precise, detailed information about the circumstances leading to the claim; the events which transpired in the courtroom, including direct quotations; and the judges' interpretations and findings. We found evidence that harassers minimize outrage by covering up the actions, devaluing the target, reinterpreting the events, using official channels to give an appearance of justice, and intimidating or bribing people involved. Targets can respond using countertactics of exposure, validation, reframing, mobilization of support, and resistance. Although there are limitations to using judicial decisions as a source of information, our study points to the value of studying tactics and the importance to harassers of minimizing outrage from their actions. The findings also highlight that, given the limitations of statutory and organizational protections in reducing the incidence and severity of sexual harassment in the community, individual responses may be effective as part of a multilevel response in reducing the incidence and impact of workplace sexual harassment as a gendered harm.

Throwing frame and performance of elite male seated shot-putters

Seated shot-putters rely on a customized assistive device called a throwing frame. Currently, the construction of each individual throwing frame is mainly driven by an empirical approach. One way to refine the conception is to improve the basic understanding of performance of seated shot-putters. The relationship between performance and throwing technique has been well described. Remarkably, the relationship between performance and throwing frame characteristics has received limited attention. The primary objective of this study was to present a cataloguing of characteristics of throwing frames used by seated shot-putters. This cataloguing consisted of defining and grouping 26 characteristics into three main categories (i.e., whole body, foot and upper limb specific characteristics) and seven sub-categories. The secondary objective of this study was to provide raw characterisations of the throwing frames for a group of athletes who participated in a world-class event. The characterisation consisted of describing the characteristics of each throwing frame. Potential relationships between characteristics, performance and classification were also identified. The cataloguing was achieved using a 6-step heuristic approach, involving expert opinions and the analysis of 215 attempts produced by 55 male athletes during the 2006 IPC Athletics World Championships. The distribution of samples across characteristics suggested a relevant level of comprehensiveness for the proposed cataloguing. The raw data, the profile of best athletes and the frequency of characteristics provided key benchmark information for construction of a throwing frame as well as coaching, classification and officiating. Analysis of data sets relating to characteristics, performance and classification were inconclusive.

Indigeneity and the judicial decision to imprison : a study of Western Australia’s higher courts

Internationally, sentencing research has largely neglected the impact of Indigeneity on sentencing outcomes. Using data from Western Australia’s higher courts for the years 2003–05, we investigate the direct and interactive effects of Indigenous status on the judicial decision to imprison. Unlike prior research on race/ethnicity in which minority offenders are often found to be more harshly treated by sentencing courts, we find that Indigenous status has no direct effect on the decision to imprison,after adjusting for other sentencing factors (especially past and current criminality).However, there are sub-group differences: Indigenous males are more likely to receive a prison sentence compared to non-Indigenous females. We draw on the focal concerns perspective of judicial decision making in interpreting our findings.

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.