Digital Commons Network^™

Unhcr As A Subsidiary Organ Of The Un: Plurality, Complexity And Accountability, Niamh H. Kinchin

Faculty of Law, Humanities and the Arts - Papers (Archive)

The global space is a place where decision-making and regulation involve diverse actors who act outside of State control yet who affect the rights and obligations of individuals and groups. Its innate plurality speaks against the temptation to understand accountability as a predetermined concept. Instead, it is argued that accountability within the global context should be reconceptualised through the relationships of global decision-making bodies. The United Nations High Commissioner for Refugees (UNHCR) is a subsidiary organ of the UN. If an enquiry into what UNHCR is accountable for is undertaken through an examination of its relationship with the UN according …

Not For Punishment: We Need To Understand Bail, Not Review It, Julia Quilter

Faculty of Law, Humanities and the Arts - Papers (Archive)

Courts make hundreds of bail decisions every week but we rarely hear about them. In the past month in New South Wales, however, we have heard much about three high-profile decisions granting bail to: Steven Fesus, accused of murdering his wife 17 years ago; Hassan “Sam” Ibrahim, charged with selling illegal firearms across western Sydney (bail was revoked on appeal); and Mahmoud Hawi, charged with the murder of Peter Zervas during a brawl at Sydney Airport in 2009.

Each was granted bail under the Bail Act 2013, which came into force on May 20 this year. The allegations these men …

Justice With A Vengeance: Retributive Desire In Popular Imagination, Cassandra Sharp

Faculty of Law, Humanities and the Arts - Papers (Archive)

The punishment of criminal behaviour has always been a hot topic in popular culture. Whether in fictional crime dramas or in mainstream news coverage, issues of law, justice, and punishment are constantly being refracted and reframed in a myriad of ways. We seem to like watching criminals not only being caught but also receiving the punishment they deserve. We love it when Sherlock Holmes or Patrick Jayne solves the crime on fictional television, and too often we hear stories in the media of a victim’s family that is indignant and angry that the perpetrator is seemingly “getting away” with a …

Preventing Violence Against Women And Girls, Michael Flood

Faculty of Law, Humanities and the Arts - Papers (Archive)

Men’s violence against women and girls is a blunt expression of the pervasive gender inequalities that characterize countries across the globe. Men’s violence against women both expresses and maintains men’s power over women. Indeed, rape, domestic violence and other forms of violence have been seen as paradigmatic expressions of the operation of male power over women (Miller and Biele 1993, p. 53). Whether in workplaces or elsewhere, efforts to build gender equality must reckon with men’s violence against women.

Dowry In Bangladesh: A Search From An International Perspective For An Effective Legal Approach To Mitigate Women’S Experiences, Afroza Begum

Faculty of Law, Humanities and the Arts - Papers (Archive)

For some 40 years, Bangladesh has fought a losing battle against the existence of dowries and their associated abuse with no indication of even a minimal impact as dowry demands inflate and violence increases. In one year alone, dowry related violence claimed the lives of 325 women and contributed to 66.7 per cent of the violent incidents against women. This article aims to investigate the appropriateness and effectiveness of legal approaches to dowry and propose a different standard for redressing women’s disadvantaged situation in the traditional culture of Bangladesh.

Disability At The Periphery: Legal Theory, Disability And Criminal Law, Linda Roslyn Steele, Stuart Dm Thomas

Faculty of Law, Humanities and the Arts - Papers (Archive)

This special issue of the Griffith Law Review is dedicated to an examination of the relationships and intersections between disability, criminal law and legal theory. Despite the centrality of disability to the doctrines, operation and reform of criminal law, disability continues to inhabit a marginal location in legal theoretical engagement with criminal law. This special issue proceeds from a contestation of disability as an individual, medical condition and instead explores disability's social, political and cultural contexts. This kind of approach directs critical attention to questioning many aspects of the relationships between disability and criminal law which have otherwise been taken …

Speaking Too Soon: The Sabotage Of Bail Reform In New South Wales, D. Brown, Julia Quilter

Faculty of Law, Humanities and the Arts - Papers (Archive)

Within just over one month of coming into operation in May 2014, the new Bail Act 2013 (NSW), a product of long-term law reform consideration, was reviewed and then amended after talk-back radio ‘shock jock’ and tabloid newspaper outcry over three cases. This article examines the media triggers, the main arguments of the review conducted by former New South Wales (NSW) Attorney General John Hatzistergos, and the amendments, with our analysis of the judicial interpretation of the Act thus far providing relevant background. We argue that the amendments are premature, unnecessary, create complexity and confusion, and, quite possibly, will have …

Developments In The Right To Defence For Juvenile Offenders Since Vietnam’S Ratification Of The Convention On The Rights Of The Child, Thi Thanh Nga Pham

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article examines Vietnam’s legal changes and law enforcement practices in regards to the right to defence of juvenile offenders since Vietnam ratified the United Nations Convention on the Rights of the Child in 1990. A combination of research methods is employed, including document analysis, statistical analysis, and selected case studies. The findings of the research indicate that Vietnam has demonstrated considerable improvement in acknowledging the right to defence of juvenile offenders in its law. The contemporary Vietnamese regulations are similar to the CRC’s requirements about legal assistance for juvenile offenders. The implementation of the law, however, confronts difficulties as …

Thực Thi Công Ước Quyền Trẻ Em Ở Việt Nam:Tuổi Chịu Trách Nhiệm Hình Sự Và Chế Tài Đối Với Người Chưa Thành Niên Phạm Tội, Thi Thanh Nga Pham

Faculty of Law, Humanities and the Arts - Papers (Archive)

Giới thiệu chung

Tuổi chịu trách nhiệm hình sự (TNHS) và chế tài hình sự hay hình phạt là những vấn đề cơ bản và không thể thiếu trong cả hệ thống pháp luật quốc gia và quốc tế, thể hiện quan điểm và cách thức xử lý người phạm tội, cũng như các biện pháp bảo vệ trật tự xã hội, an toàn công cộng và quyền con người. Việc xác định những giới hạn độ tuổi chịu TNHS thích hợp, đặc biệt là tuổi tối thiểu luôn là vấn đề khó khăn khi xây dựng chính sách hình …

Applying The Critical Lens To Judicial Officers And Legal Practitioners Involved In Sentencing Indigenous Offenders: Will Anyone Or Anything Do?, Elena Marchetti, Janet Ransley

Faculty of Law, Humanities and the Arts - Papers (Archive)

In recent years there have been many attempts aimed at transforming the relationship between Indigenous people and the criminal justice system in Australia. Some of these attempts have been directed at policing relationships, including such measures as community and night patrols. Others have focused on prisons, including attempts at greater cultural accommodation, and even the building of Aboriginal prisons. The focus of this article, however, is on the relationship between Indigenous people and court processes, especially in regards to sentencing. In particular, the article explores innovative sentencing courts, practices and principles introduced across the Australian jurisdictions specifically aimed at Indigenous …

The Establishment Of Juvenile Courts And The Fulfilment Of Vietnam's Obligations Under The Convention On The Rights Of The Child, Thi Thanh Nga Pham

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article situates child protection by Vietnam’s judicial bodies in relation to the requirements of the Convention on the Rights of the Child and other international instruments in juvenile justice. It demonstrates that Vietnam’s legislation and practices do not fully comply with international standards and that there remains a significant gap between the letter of the law and its implementation. Party-government policy on judicial reform, however, creates the potential for establishing juvenile courts in Vietnam. The feasibility of such juvenile courts, and the implications for Vietnam meeting its obligations under the Convention, are also surveyed.

Official Discourses Of The Australian 'Welfare Cheat', Scarlet I. Wilcock

Faculty of Law, Humanities and the Arts - Papers (Archive)

Using critical discourse analysis, this article argues that contemporary discourses of the 'welfare cheat' promulgated by Centrelink and Australian Government officials since 1997 are highly gendered, and serve to legitimise the prosecution of women for welfare fraud offences. Across this timeframe, 'welfare cheats' have been disproportionately identified as female, and are frequently inscribed with the characteristics of selfishness, greed and deceit. This discursive construction of the 'welfare cheat' accords with both neoliberal individualist understandings of crime, in which the 'rational' perpetrator is wholly responsible for his or her wrongdoing, along with deep-seated sexist characterisations of 'bad women' as deceitful, calculated …

The Prosecution Of Pirates In National Courts, Robin M. Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

The substantial rise in piracy incidents off the Horn of Africa since 2008 has exposed significant gaps in the international law framework for investigation and prosecution of piracy offences and its implementation in national criminal justice systems. This article examines the principal elements of this framework including the definition of piracy and associated obligations in the 1982 United Nations Convention on the Law of the Sea (LOSC). It reviews progress towards criminalisation of piracy offences in national legislative systems and distinctive trends in piracy legislation around the world. It also examines key features of the jurisprudence emerging from the regional …

'The Books Don't Talk To Me!': Postgraduate Student Groups And Research Student Identity Formation, Felicity Bell, Rita Shackel, Linda Roslyn Steele

Faculty of Law, Humanities and the Arts - Papers (Archive)

This paper explores alternative spaces for learning amongst postgraduate research (PGR) students in the form of research-related groups such as reading and discussion groups, writing groups, seminar series or social groups. Our research with PGR students and academics explores the pedagogy and role of such groups in student learning and identity formation. In this paper, we discuss our findings related to PGR student needs and the factors prompting the formation of research-related groups. A survey of 36 PGR students revealed that students were reasonably satisfied with the formal components of their research degrees such as supervision and mandatory units of …

'Section 32: A Report On The Human Service And Criminal Pathways Of People Diagnosed With Mental Health Disorder And Cognitive Disability In The Criminal Justice System Who Have Received Orders Under The Mental Health (Forensic Provisions) Act 1990 (Nsw)', Linda Roslyn Steele, Leanne Dowse, Julian Trofimovs

Faculty of Law, Humanities and the Arts - Papers (Archive)

A brief discussion of the MHDCD Project is appropriate in order to contextualise the Section 32 MHDCD Project. The MHDCD Project concerns a cohort of 2,731 men and women, both Indigenous and non-Indigenous, who have been in prison in New South Wales and whose mental health disorder and cognitive disability diagnoses are known (the 'MHDCD cohort'). The cohort was drawn from the 2001 NSW Inmate Health Survey (IHS) and from the NSW Department of Corrective Services State-wide Disability Service Database (SDD). Ethics approval was obtained from all of the relevant ethics bodies, including from the University of New South Wales …

Euthanasia Tactics: Patterns Of Injustice And Outrage, Brian Martin

Faculty of Law, Humanities and the Arts - Papers (Archive)

Struggles over euthanasia can be examined in terms of tactics used by players on each side of the issue to reduce outrage from actions potentially perceived as unjust. From one perspective, the key injustice is euthanasia itself, especially when the person or relatives oppose death. From a different perspective, the key injustice is denial of euthanasia, seen as a person's right to die. Five types of methods are commonly used to reduce outrage from something potentially seen as unjust: covering up the action; devaluing the target; reinterpreting the action, including using lying, minimising consequences, blaming others and benign framing; using …

Taking Hints From Hogwarts: Uow's First Year Law Immersion Program, Cassandra E. Sharp, Margaret A. Bond, Trish Mundy, Karina Murray, Julia Quilter

Faculty of Law, Humanities and the Arts - Papers (Archive)

The first year of law school is a challenging time: adapting to new surroundings; making new friends; absorbing new ideas, and developing new ways of learning, thinking, speaking and performing – all with the added pressure of high academic achievement. This paper explores the important role of modern law teachers as guides and mentors for the students’ transformative journey.

As experienced first year teachers in the LLB program, the authors have devoted considerable efforts to developing a program that facilitates s smooth transition for law students. We believe law teachers have a unique opportunity as well as a responsibility to …

Camera Journalism - Ethical And Legal Hazards, David Blackall

Faculty of Law, Humanities and the Arts - Papers (Archive)

There are many legal and ethical obstacles that film-based journalists must consider before moving their product to completion.

Sometimes restraint on broadcast is beyond the control of producers, when a program is restrained unexpectedly due to the likelihood of it prejudicing court proceedings. While producers have no control over suppression orders, disastrous outcomes can be minimised and the chance of legal action decreased, through ongoing dialogue and informed consent with camera subjects. Where a situation justifies reduced informed consent, or when deceit is overwhelmingly in the public interest, producers need an ethical forum, an ethics committee, to discuss and document …

Justice And The Identities Of Women: The Case Of Indonesian Women Victims Of Domestic Violence Who Have Access To Family Court, Rika Saraswati

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Family Court is the most important institution for Indonesian women who have experienced domestic violence. The institution becomes their last resort to end the violence and to obtain their rights as wives when the performance of criminal justice system is not satisfying. The women’s rights as wives are basically regulated in the Marriage Act 1974 and other implementing regulations of the Act. In reality, the rights of the women in this study, that they expected to be fulfilled, were different for each individual woman victim of domestic violence because of the diverse implementation of regulations in the Family Courts …

Universalising Jurisdiction Over Marine Living Resources Crime, Gregory L. Rose, Ben Tsamenyi

Faculty of Law, Humanities and the Arts - Papers (Archive)

WWF is one of the world’s largest and most experienced independent conservation organizations, with over 5 million supporters and a global network active in more than 100 countries.

WWF’s mission is to stop the degradation of the planet’s natural environment and to build a future in which humans live in harmony with nature, by conserving the world’s biological diversity, ensuring that the use of renewable natural resources is sustainable, and promoting the reduction of pollution and wasteful consumption.

The Australian National Centre for Ocean Resources and Security (ANCORS) is a leading provider of research, education and training, and authoritative policy-related …

Il Ruolo Della Mediazione Nei Casi Di Violenza Familiare: L’Esperienza Delle Corti Indigene, Elena Marchetti, Riley Downie

Faculty of Law, Humanities and the Arts - Papers (Archive)

In the past 15 years, Australian family law has placed an emphasis on alternative methods of resolving disputes before resorting to litigation, particularly when children are involved. This change in practice has seen an increase in the number of couples who use alternative dispute resolution, which is referred to in federal family law legislation as ‘family dispute resolution’ (FDR). This chapter considers the appropriateness of using FDR for couples that are engaged in a relationship that is impacted by family and domestic violence. The most common form of family and domestic violence is Intimate Partner Violence (IPV), and as such, …

Time To Define 'The Cornerstone Of Public Order Legislation': The Elements Of Offensive Conduct And Language Under The Summary Offences Act 1988 (Nsw), Julia Ann Quilter, Luke J. Mcnamara

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article addresses a contradiction that has long been at the heart of the criminal law concerned with ‘public order’. Although crimes such as offensive conduct and offensive language are amongst the most frequently prosecuted offences in Australia, their legal nature is poorly understood and rarely the subject of judicial scrutiny or academic explanation. In the context of ongoing controversy over whether such offences have a legitimate place on the statute books, we confront this oversight. This article draws on the High Court of Australia’s decision in He Kaw Teh v The Queen1 to lay out a methodology for construing …

Responses To The Death Of Thomas Kelly: Taking Populism Seriously, Julia Ann Quilter

Faculty of Law, Humanities and the Arts - Papers (Archive)

This comment explores the range of responses to Thomas Kelly’s death. Mr Kelly suffered fatal head injuries after being king-hit in the face when walking down the street in Kings Cross, Sydney, in July 2012. It is argued that these responses form a populist and far more nuanced response than the more typical ‘law and order’ reactions of state governments witnessed in the past, making us think about taking populism more seriously.

Access To Justice For Aboriginal And Torres Strait Islander People, Elena Marchetti

Faculty of Law, Humanities and the Arts - Papers (Archive)

I would firstly like to pay respect to the traditional and original owners of this land the Mouheneenner people - to pay respect to those that have passed before us and to acknowledge today’s Tasmanian Aboriginal community who are the custodians of this land.

There is a preference these days for Aboriginal and Torres Strait Islander peoples to be referred to separately rather than under the umbrella term of ‘Indigenous’ and I will try and honour that preference as much as I can. However, in some circumstances I will be using the term ‘Indigenous’ because it better suits the content …

Review Of Ct Legislation: Submission On Federal Criminal Code Ct Provisions, Gregory L. Rose

Faculty of Law, Humanities and the Arts - Papers (Archive)

This submission relates to only selected federal Criminal Code counter-terrorism (CT) laws, although recognising that national CT criminal laws form merely part a small part of the national effort required to combat extremist political violence. It suggests several of the CT provisions in which clarity could be improved.

Assessment of the federal CT laws against the criterion of necessity indicates that, although the CT criminal offences update or extend prior legislation, most prior legislation remains on the books, and overlap occurs. Yet, in another respect, they do not overlap with other extant crimes of violence. The intention of terrorism perpetrators, …

The Importance Of The Local In A Global Age: A Comparative Analysis Of Networking Strategies In Postgraduate Law Research Teaching, Linda Roslyn Steele, Rita Shackel, Felicity Bell

Faculty of Law, Humanities and the Arts - Papers (Archive)

Research indicates that postgraduate research students, and particularly those researching in law, feel isolated socially and academically from one another, and from scholarly life. Postgraduate research students are now more globally connected because of technology. Yet opportunities to connect with colleagues locally, to share and reflect on research findings, methods and experiences are insufficient. This paper reports on the preliminary stages of a project led by legal and criminological scholars to establish a postgraduate student network that is interdisciplinary, interfaculty and cross institutional in structure with a specific focus on ‘crim*’ related studies including criminology, criminal law and criminal justice. …

Detention Of Non-State Actors Engaged In Hostilities: The Future Law – Summary Report, Gregory L. Rose

Faculty of Law, Humanities and the Arts - Papers (Archive)

On 15 and 16 December 2011 a conference and workshop were held at the Institute for Transnational and Maritime Security in the Faculty of Law at the University of Wollongong. The conference and workshop were funded by the Australian Civil–Military Centre under a research grant to the university, and the aim was to explore emerging law relating to the detention of non-state actors engaged in hostilities. Discussion centred on legal aspects of the power to detain, processes for transferring a detainee to either another armed force or the local law enforcement authorities, and the legal regimes applicable to this category …

Life Before Somerville, Andrew Whelan

Faculty of Law, Humanities and the Arts - Papers (Archive)

Life before Somerville: certainly there must have been such a thing, though it seems a foreign country. My background is perhaps 'unconventional', although at the stage where my trajectory towards Somerville began to sediment, oddly representative of the time. I was born in 1974 in Dublin, a second child with a brother 4 years senior. There was a younger brother to come, 8 years later. My parents met at Oxford. My father was working for a BPhil in International Law at Pembroke and my mother was doing English at Somerville: there is rather a long line of Somervillians in my …

Gaps In The Implementation Of Environmental Law At The National, Regional And Global Level, Gregory L. Rose

Faculty of Law, Humanities and the Arts - Papers (Archive)

Networked integrated and adaptive approaches to implementation and compliance may be the signature of the emerging generation of environmental law.

The first generation of environmental law saw the creation of specialist environmental administrations and the introduction of a suite of laws for them to administer on environmental impact assessment, pollution control, wilderness conservation and threatened species conservation. This was the generation of the 1972 Stockholm Conference on the Human Environment.

The second generation of environmental law saw a shift in focus to sustainable development, reflecting the increased participation of developing countries in international diplomatic initiatives on the environment. It signified …

Making Sausages And Law: The Failure Of Animal Welfare Laws To Protect Both Animals And Fundamental Tenets Of Australia's Legal System, Elizabeth J. Ellis

Faculty of Law, Humanities and the Arts - Papers (Archive)

Laws are like sausages. It is better not to see them being made.

The above aphorism, attributed to Bismarck, was quoted by Philip Ruddock when addressing lawyers in 2007 on the subject of law reform. Interestingly, Mr Ruddock also referred to the rule of law in the same speech. Apparently the juxtaposition of the rule of law with a preference for secret law-making did not strike the (then) federal Attorney-General as odd. Perhaps this is unsurprising: the rule of law is commonly invoked for effect and may be used for a multitude of purposes. For this, and other reasons, the …