Digital Commons Network^™

Can Animals Contract?, John Enman-Beech

Animal Studies Journal

Animals are, or are like persons, and so should not be treated as mere property. But persons are not just non-property; they are contractors. They interact with property and with other persons. This article analyses the possibilities for a range of animals to fit within market liberal society as contractors from a legal disciplinary perspective. Some animals are capable of contract-like relationships of reciprocal exchange, and can consent, in a certain sense, to parts of such relationships. However, the dangers of the contractual frame, which is used to legitimate exploitation, may exceed the benefits. Some scholars have begun to explore …

International Environmental Law Principles Relevant To Exploitation Activity In The Area, Robin M. Warner

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

The International Seabed Authority is responsible for providing effective protection for the marine environment from the harmful effects of activities in the Area under Article 145 of UNCLOS. To meet this challenge, it must determine the relevant environmental governance principles applicable to each stage of an exploration and exploitation activity and how they can be operationalized in practical terms. This article discusses some key principles of international environmental law and management which are potentially relevant to the exploitation process and in particular the approval of a plan of work for exploitation activities. It also examines the potential legal thresholds for …

Theatricalizing Law, Marett Leiboff

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

To theatricalize law is to ask lawyers to be aware and responsive to the world that creates them and to be conscious of worlds beyond words. For the theatrical reminds us that law has to see as well as to interpret, and that seeing occurs through the body, even more so than the intellect. Reviewing the work of some of the key scholars whose work engages with the concept of theatricalizing law, this article challenges the presumption of dramatic verities and certainties as the mark of an effective critical form in law. Instead, to think law theatrically challenges knowledge, expectations, …

The Law Of The Sea Convention And Sea Level Rise In The Light Of The South China Sea Arbitration, Stuart B. Kaye

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

Sea level rise from anthropogenic climate change is an increasing concern for the international community and especially for coastal States. The prospect of whole islands disappearing under rising waters raises serious questions as to the impact upon maritime jurisdiction and the ability of the United Nations Convention on the Law of the Sea to deal with the inundation of large areas of territory. The South China Sea Arbitration Tribunal recently considered these questions. Here, the Tribunal relied on a high standard for what constituted human habitability under Article 121 of the Law of the Sea Convention, which likely will have …

Divergent Evolution In The Law Of Torts: Jurisdictional Isolation, Jurisprudential Divergence And Explanatory Theories, James Goudkamp, John Murphy

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

Since the fi rst wave of law-and-economics scholarship in the United States in the early 1970s, scholars have spent a tremendous amount of time trying to come to grips with tort law from a theoretical perspective. Richard Posner was on the crest of that wave, and his voluminous writings 1 revolutionised how tort law is understood. He contended that tort law (as well as the law generally) is best explained on the ground that it maximises societal wealth. Posner, writing together with William Landes, asserted that ' the common law of torts ' should be accounted for ' as if …

The Definition And Significance Of 'Intoxication' In Australian Criminal Law: A Casestudy Of Queensland's 'Safe Night Out' Legislation, Julia Quilter, Luke J. Mcnamara, Kate Seear, Robin Room

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

Australian criminal law is being actively reconfigured in an effort to produce a more effective response to the problem of alcohol-related violence. This article uses the Safe Night Out Legislation Amendment Act 2014 (Qld) as a case study for two purposes: i) to introduce a set of conceptual tools and typologies that can be used to investigate the relationship between 'intoxication' and criminal law; and ii) to raise a number of concerns about how the effects of alcohol and other drugs are implicated in laws governing police powers, criminal responsibility and punishment. We draw attention to the different and sometimes …

"Bush Law 101": Realising Place And Conscious Pedagogy In The Law Curriculum, Amanda Kennedy, Trish Mundy, Jennifer Nielsen

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

In 2012, a team of academics from six universities worked on an OLT-funded project, ‘Rethinking Law Curriculum: developing strategies to prepare law graduates for practice in rural and regional Australia’. The project was motivated by the declining proportion of lawyers being attracted to and remaining in practice in rural and regional Australia. The main outcome of the project was an open education resource designed to sensitise students to the realities of the rural and regional legal practice context in the form of a customisable curriculum package that can be embedded as components within existing units of study, or developed as …

Capitalism, Regulation Theory And Australian Labour Law: Towards A New Theoretical Model, Brett Heino

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

This article employs the methodology of the Parisian regulation approach to periodise Australian capitalism into distinct models of development. Within such models, labour law plays a key role in articulating the abstract capitalist need to commodify labour-power with the concrete realities of class struggle. Given the differential ordering of social contradictions and the distinct relationship of social forces within the fabric of each model of development, such formations will crystallise distinct regimes of labour law. This is demonstrated by a study of the two successive models of development that have characterised Australian political economy since the post-Second World War era: …

The Refugee Limbo: Negotiating The Bar Of Australian Law, Benjamin Hightower

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

Often refugees and asylum seekers are said to be in some sort of limbo: physical, social, and/or legal. This article picks apart the limbo-concept through the expanded metaphor of the Limbo dance; a performance that illustrates an ‘inner history’ that evolved from the conditions aboard the slave ships of the Middle Passage. ‘Playing‘ the Limbo allows the experiences of the slaves to be reenacted: due to the limited space and terrible conditions, slaves had to arch their backs in order to fit inside the ship’s hulls. They had to remain limber or limba before they could re-emerge on the other …

Anti-Zionism In The Courts Is Not Kosher Law, Gregory L. Rose

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

A German court in Wuppertal held last month that an arson attack on a synagogue causing fire damage was not anti-Semitism but political expression. Also in February, five youths who vandalised 300 Jewish graves and a Holocaust monument in Alsace, France, claimed that the action was not motivated by anti-Semitism.

In general, an attack specifically targeting Chinese would be considered anti-Chinese. Only in an exceptional case, it might not be. Why is the exceptional case becoming the rule for Jews, so that targeting Jews as a group is generally not anti-Jewish but “political”?

Legal artifice is being constructed to make …

Institutional Influences On The Parameters Of Criminalisation: Parliamentary Scrutiny Of Criminal Law Bills In New South Wales, Luke J. Mcnamara, Julia Quilter

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

Within criminalisation scholarship, there has been little engagement with the work of ‘real-world’ mechanisms for promoting principled law-making, like the activities of parliamentary scrutiny committees. This article reports on an examination of the New South Wales (‘NSW’) Legislation Review Committee’s findings and recommendations in relation to all criminal law bills during the period 2010–12 and assesses the impact of the Committee’s recommendations on the passage of bills through the NSW Parliament. It considers whether the potential for scrutiny committees to play an effective role in delineating the legitimate boundaries of criminalisation is realised in practice.

Questioning Law’S Capacity, Fleur Beaupert, Linda Roslyn Steele

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

The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law.

Facilitating The Participation Of Children In Family Law Processes, Felicity Bell

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

This Discussion Paper was prepared as part of a larger research project, Facilitating the Participation of Children in Family Law Processes, being conducted by the Centre for Children and Young People at Southern Cross University in partnership with Legal Aid NSW.

The Rise Of The Global South, The Imf And The Future Of Law And Development, Gabriel Garcia

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

Following the onset of the Asian Financial Crisis the world has witnessed a re-accommodation of the global financial system. In the particular case of middle-income countries they have disentangled themselves from the conditionality of the IMF and grown into more assertive actors in international forums, proposing new alternative mechanisms to become more financially independent and for the provision of development assistance. This article critically reviews the new reality by assessing the strategies deployed by developing countries to reduce the IMF's influence, and explores the potential consequences of the rise of middle-income nations for Law and Development.

New Media, Censorship And Gender: Using Obscenity Law To Restrict Online Self-Expression In Japan And China, Mark J. Mclelland

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

The widespread take-up of Internet technologies from the mid-1990s has proven challenging to nation states that seek to limit access to ideas, information or images that the political class considers dangerous or inappropriate for the general population. As a largely deterritorialized technology, the Internet allows access to material that circumvents national legislatures and ignores local ratings systems and in so doing facilitates all kinds of inter-cultural and transnational flows of communication. Different countries have different sensitivities regarding the kinds of material that should not be freely available to their citizens and although the entry of such material is closely scrutinized …

The Moral Choice Of Infamous: Law And Morality In Video Games, Michael Barnett, Cassandra E. Sharp

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

With increasing capacity for real-life simulation, high definition graphics, and complex interactive narrativity, video games now offer a high level of sophisticated engagement for players, which contribute significantly to their widespread popular support. As an extremely prevalent sub-culture of new media, they also provoke jurisprudential investigations. This article acknowledges the culturally constructed nature of playing video games, and helps to explore the normative expectations of law that might be facilitated by the narrative structures inherent within the game itself. It does so by exploring one game series within this framework and asks what meaning can be transformed about issues of …

Through The Looking Glass: The Framing Of Law Through Popular Imagination, Cassandra E. Sharp

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

It has been 150 years since the first publication of Lewis Carroll’s acclaimed children’s fiction Alice’s Adventures in Wonderland,2 and it remains a book that is appreciated widely across culture for its unique representation of the world. Indeed, the enduring quality of both Alice’s Adventures in Wonderland and Through the Looking Glass,3 is evident in the way they have inspired creations of art, theatrical performances,4 judicial decision-making,5 cinematic portrayals,6 videogame plot development,7 and of course, the desire for adventure.

Regulation Theory And Australian Labour Law: From Antipodean Fordism To Liberal-Productivism, Brett Heino

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

This paper employs the methodology of the Parisian Regulation Approach to periodise Australian political economy into distinct models of development. Within such models, labour law plays a key role in articulating the abstract capitalist need to commodify labour-power with the concrete realities of class struggle. Given the differential ordering of social contradictions and the distinct relationship of social forces within the fabric of each model of development, such formations will crystallise distinct regimes of labour law. This is demonstrated by a study of the two successive models of development which characterised Australian political economy since the post-World War II era; …

Theatrical Jurisprudence And The Imaginary Lives Of Law In Pre-1945 Australia, Marett Leiboff

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

If there is anything like an imagined pre-1945 past in Australia, it is one steeped in an Anglophone legal ascendancy. But this is an imaginary past in so many ways. Non-British Europeans came to Australia long before 1945. These earlier Europeans were marked by differences of voice and face, but were eager British subjects, as likely to actively take advantage of law as they were to be subjected to its strictures. By theatricalising their ordinary and extraordinary legal lives through archive and memory, we are reminded that there is more to law of the South than formal accounts which have …

One-Punch Laws, Mandatory Minimums And 'Alcohol-Fuelled' As An Aggravating Factor: Implications For Nsw Criminal Law, Julia Quilter

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

This article critically examines the New South Wales State Government's latest policy response to the problem of alcohol-related violence and anxiety about 'one punch' killings: the recently enacted Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). Based on an analysis of both the circumstances out of which it emerged, and the terms in which the new offences of assault causing death and assault causing death while intoxicated have been defined, I argue that the Act represents another example of criminal law 'reform' that is devoid of principle, produces a lack of coherence in the criminal law and, …

Conserving Marine Biodiversity In The Global Marine Commons: Co-Evolution And Interaction With The Law Of The Sea, Robin Warner

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

As global shipping intensifies and technological advances provide more opportunities to access the resources of the high seas and the deep seabed beyond national jurisdiction (ABNJ), the catalogue of threats to the marine environment and its biodiversity increase commensurately. Beyond these threats, new and emerging uses of ABNJ including more intrusive marine scientific research, bio-prospecting, deep seabed mining and environmental modification activities to mitigate the effects of climate change have the potential to harm the highly interconnected and sensitive ecosystems of the open ocean and the deep seabed if not sustainably managed now and into the future. Modern conservation norms …

More Law And Order On The Run, Julia Quilter

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

After the July 2012 death of Thomas Kelly from a one-punch assault in Kings Cross, the NSW government engaged in a nuanced and multi-faceted response to alcohol-fuelled violence in Sydney’s major entertainment precinct. Unfortunately, the government’s latest response — the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) (‘the Act’) — is deserving of no such praise. Not only is the argument that a discrete ‘one punch’ law is necessary in NSW without foundation, but the legislation has been drafted in a legally complex and confusing way that is likely to result in operational difficulty.

Dispute Settlement In The Law Of The Sea Convention And Territorial And Maritime Disputes In Southeast Asia: Issues, Opportunities, And Challenges, Lowell Bautista

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

The 1982 United Nations Convention on the Law of the Sea (LOSC) provides for a dispute settlement regime that establishes a compulsory and binding framework for the peaceful settlement of all ocean-related disputes. In Southeast Asia, despite the long-standing myriad of territorial and maritime disputes, there appears to be a general reluctance to utilize the dispute settlement provisions of LOSC. The region has very little experience in international litigation involving territorial and maritime disputes, and a reluctance to utilize the dispute settlement provisions of LOSC.While the LOSC legal framework offers some options, the highly complicated nature of the disputes in …

The Law Of The Sea And Commercial Ships In The Search For Mh370, Stuart Kaye

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

The first ship to reach the area of Indian ocean being searched for the missing flight MH370 is the Norwegian commercial car carrier, the Höegh St Petersburg.

At the request of the Australian Maritime Safety Authority (AMSA), the ship diverted its voyage from Mauritius to Melbourne and searched for debris with spotlights overnight.

Customary international law has long recognised that all mariners have a duty to come to the assistance of individuals in distress on the sea.

While the duty is not absolute - in the sense an individual is not required to risk their own life - maritime law …

Planning For Offshore Co2 Storage: Law And Policy In The United Kingdom, Ben Milligan

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

‘Offshore CO2 storage’ refers to the injection of liquefied CO2 into deep geological formations beneath the seabed (e.g.depleted oil and gas reservoirs, and saline aquifers) for the purpose of storing it there on a permanent basis. The storage in this manner of captured CO2 emissions from industria linstallations and power plants has attracted considerable scientific and technical interest as a potential mitigation response to climate change. A key issue facing policymakers in several countries is how to reconcile policy commitments to develop offshore CO2 storage with other competing – and potentially conflicting – uses of the marine environment. With a …

Submission To United Nations Committee On The Rights Of Persons With Disabilities Draft General Comment On Article 12 – Equal Recognition Before The Law, Fleur Beaupert, Linda Roslyn Steele

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

We support the Draft General Comment on Article 12 – Equal Recognition Before the Law (‘Draft General Comment’). Our submission is primarily concerned with drawing the Committee’s attention to issues around mental capacity. We argue that despite the Committee’s urging in the Draft General Comment for a split between legal capacity and mental capacity, mental capacity (and the related disciplines, professions, institutions and practices of psychology, psychiatry and neuropsychology through which mental capacity is defined and assessed) will continue to have cultural and material significance to the realisation of article 12 and the human rights of people with disability generally. …

Educating Law Students For Rural And Regional Practice: Embedding Place Based Perspectives In Law Curricula, Amanda Kennedy, Trish Mundy, Jennifer Nielsen, Caroline Hart, Richard Coverdale, Reid Mortensen, Theresa Smith-Ruig, Claire Macken

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

The attraction and retention of professionals generally in rural and regional Australia is an on-going concern. Recent attention has focused upon the recruitment of lawyers and legal professionals to rural and regional areas, where the proportion of lawyers practising has steadily declined over the past twenty years. While the precise extent of the decline is difficult to assess, and the causes of recruitment and retention issues for lawyers in rural and regional areas are nuanced and can vary from region to region, it is clear that concern about attraction and retention is a national one. A national survey conducted in …

D.H. Lawrence's Plural Jurisprudence: An Enquiry Into Desmond Manderson's Post-Positivist 'Law And Literature', Luis Gomez Romero

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

The border means more than a customs house, a passport officer, a man with a gun. Over there everything is going to be different; life is never going to be quite the same again after your passport has been stamped and you find yourself speechless among the money-changers.

Graham Greene, The Lawless Roads

This article draws on Desmond Manderson's theorisation of ‘law and literature’ in order to undertake a jurisprudential reading of the last two ‘leadership novels’ that D.H. Lawrence published in the 1920s: Kangaroo and The Plumed Serpent. This reading demonstrates the strengths and weaknesses in Manderson's methodology while …

Book Review: Desmond Manderson: Kangaroo Courts And The Rule Of Law. The Legacy Of Modernism. Routledge, Abingdon 2012., Luis Gomez Romero

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

Kangaroo Courts represents the height of the recent work that Desmond Manderson has developed around the nexus between ‘law and literature’ and the rule of law. Manderson’s approach to this matter is unique in taking seriously both literary theory and the aesthetic aspects of literary texts—strange though it may seem, this is an authentic revolution in the field of law and literature. Manderson rightly observes that back to their very origins the discourses constructed around the conjunction of ‘law and literature’ have suffered from two structural weaknesses: first ‘a concentration on substance and plot’ and second ‘a salvific belief in …

Talkin ‘Bout Law’S Generations: Pop Culture, Intellectual Property And The Interpretation Of Case, Marett Leiboff

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

This article takes a very different path through which to explore the challenges affecting and shaping innovation and communications law. It reports on a facet of an empirical pilot study into generational differences in legal interpretation that revealed the porosity and friability of doctrine. The article focuses on one facet of the study apposite to this special issue: a fleeting reference by Finkelstein J to icons of pop culture in an otherwise unremarkable passing off I misleading and deceptive conduct case - Hansen v Bickfords - involving the marketing of an energy drink. As the responses of lawyer and law …