Law Commons^™

Updating International Humanitarian Law And The Laws Of Armed Conflict For The Wars Of The 21st Century, G. L. Rose

Faculty of Law - Papers (Archive)

Aspects of international humanitarian law (IHL) and the international law of armed conflict (LOAC) are out-dated because they are ill-adapted to new battlefields. Some innovation is needed in them to address thc complexities of the networked insurgencies that we see today. War between states has declined in prev alence and importance relative to armed conflicts across societal groups, both within states and acro ss nat ional borders. Private organisation s are likely to dominate armed conflicts for the foreseeable future, including those in the Asia- Pacific and beyond, where Australian expeditiona ry forces are engaged. Often called 'non-state actors' in …

Australian Counter-Terrorism Offences: Necessity And Clarity In Federal Criminal Law Reforms, G. L. Rose, D. Nestorovska

Faculty of Law - Papers (Archive)

This article analyses the wide-ranging reform of Australian criminal law related to terrorism. It compares the definition of terrorism utilised in recent legislation to the emerging international standard and tests the new federal crimes against the criteria of legislative necessity and clarity. It concludes that the reforms were in fact necessary in the sense of filling prior gaps and inadequacies in the criminal law but that some of the new provisions lack clarity and will pose conundrums for law enforcement.

Identity Crisis: Judgment And The Hollow Legal Subject, Richard Mohr

Faculty of Law - Papers (Archive)

modern legal subject. There is something missing, a gap in the middle of that subjectivity, which clouds our judgment. This split had its origin in the Enlightenment, its first effect being the separation of knowing from doing. Our experience of the world could only be mediated through self-conscious sense data and thought, without our being in direct contact with the satisfaction of our needs or the consequences of our actions. This new conception of subjectivity has become an impediment to judgment, since splitting the actor from the spectator, and the judge from the life of the community, results in a …

Judicial Evaluation In Context: Principles, Practices And Promise In Nine European Countries, Richard Mohr, F. Contini

Faculty of Law - Papers (Archive)

The evaluation of judges’ performance takes place in many ways. Traditionally, there are avenues of appeal and legal accountability mechanisms. More recently, ministries of justice and judicial councils across Europe have introduced a range of complaints mechanisms, quality assessment procedures and other managerial methods of judging judges and the courts within which they operate. This paper reports on a study of these mechanisms in nine member countries of the European Union. Our purpose is to survey the possible ways in which the judiciary can be evaluated, with a view to improving those practices and, ultimately, contributing to a better functioning …

Local Court Reforms And 'Global' Law, Richard Mohr

Faculty of Law - Papers (Archive)

Discussions of globailisation arose in the late twentieth century out of economic discourse about market liberalisation and the scale and global reach of transnational corporations. Legal discussions of the subject have tended to follow in the wake of these economic and geopolitical trends.

Litigation Privilege: Transient Or Timeless? Blank V Canada (Minister Of Justice), James Goudkamp

Faculty of Law - Papers (Archive)

Litigation privilege has become unfashionable. It is under attack on multiple fronts throughout the common law world! In the United Kingdom, perhaps the most notable inroad on the privilege is that made by the House of Lords in Re L (A Minor) (Police Investigation: Privilege).2 In that case it was held that the privilege is an incident of adversarial proceedings and that, consequently, it did not obtain in respect of material generated for the purposes of proceedings that were not predominantly adversarial in nature. There are signs that more radical restrictions are to come. In Three Rivers District Council v …

The Delimitation Of Maritime Boundaries: A Matter Of Life Or Death For East Timor?, Clive Schofield, I Made Andi Arsana

Faculty of Law - Papers (Archive)

As a newly independent country, East Timor is faced with a number of significant challenges and opportunities—including the delimitation of international boundaries. Although it is the case that the majority of maritime boundaries around the world remain undelimited, where they are defined they provide jurisdictional clarity and certainty (Prescott & Schofield 2005:216-18). This can have multifaceted benefits, for instance in terms of facilitating the sustainable and effective management of the ocean environment and enhancing maritime security. Perhaps of more pressing importance for a developing country, agreement on the limits of maritime jurisdiction serves to secure coastal state rights to access …

Enforcing Australian Law In Antarctica: The Hsi Litigation, Ruth A. Davis

Faculty of Law - Papers (Archive)

Law enforcement in Antarctica is complicated by uncertainties regarding sovereignty and jurisdiction. In line with the usual practice of the Antarctic Treaty parties, Australia has generally refrained from enforcing its legislation for the Australian Antarctic Territory against foreigners. Recent litigation that attempts to enforce Australian whale protection laws against Japanese whalers in Antarctica represents a challenge to this traditional approach. The HIS Litigation highlights the ongoing difficulties faced by Australia in trying to effectively manage the Australian Antarctic Territory within the constraints of the Antarctic Treaty System. Using fisheries regulation and continental shelf delimitation as comparative examples, this commentary highlights …

Rethinking The Special Equity Rule For Wives: Post Garcia, Quo Vadis, Where To From Here?, Charles Chew

Faculty of Law - Papers (Archive)

The operation of the special equity principle can be seen where a wife does not understand the nature and effect of the guarantee she is induced to sign by the husband whereupon the transaction may be set aside. It should be remembered that women often become involved in these guarantees because of the existence of a personal relationship rather than because of any real appreciation of the legal relationship created. Credit providers such as banks involve women in this kind of ‘sexually transmitted debt’, ‘emotional debt’ or ‘relationship debt’ as a means of countering debtor default or to compensate for …

Jury Misconduct Or Irregularity, Donna Spears

Faculty of Law - Papers (Archive)

Types of jury irregularities identified through case law - examines the way in which existing law and processes operate to ensure a fair trial.

Indigenous Sentencing Courts: Towards A Theoretical And Jurisprudential Model, Elena M. Marchetti, Kathleen Daly

Faculty of Law - Papers (Archive)

Since 1999, a number of Indigenous sentencing courts have been established in Australia that use Indigenous community representatives to talk to a defendant about their offending and to assist a judicial officer in sentencing. The courts are often portrayed as having emerged to reduce the over-representation of Indigenous people in the criminal justice system and to address key recommendations made by the Royal Commission into Aboriginal Deaths in Custody, in particular, those centred on reducing Indigenous incarceration, and on increasing the participation of Indigenous people in the justice system as court staff or advisors. They are also said to reflect …

Migrant Workers As Political Agents—Analysis Of Migrant Labourers’ ‘Production Of Everyday Spaces’ In Japan, Hironori Onuki

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

While specifically focusing on the context of Japan (one of the major destinations of Asian as well as other migrant workers), my research investigates the concrete, contingent and situated practices of global labour migration. the primary research question of my project is: how far and in what ways are global labour migrations implicated in as well as resisting the neoliberal restructing of global political economy? The central hypothesis is that migrant worders, as political subjects, and their everyday social practices not only participate in and depend on but also contest and negotiate the neo-liberal re-configurations of labour-capital relation in the …

The Electric Thinking House - Artwork Exhibited In The Exhibition Twenty Twenty, Madeleine T. Kelly

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

No abstract provided.

Toward Inclusive Citizenship: Analysing Morality Within Citizenship Participation, Jane M. Lymer

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

The problem of attaining citizenship expansion has always been a question of how does one intervene in the political domain when one is not recognized as a political subject with a concomitant capacity for political participation. Historically, progress has been achieved by refiguring political agency as based on performance rather than entitlement. As such, many theorists concerned with attaining political citizenship for oppressed groups of people evoke protest and enactment as a means of citizenship expansion. While there is no doubt that such enactments and protests have been formative to highly developed civil rights, the ability to enact those rights …

Slash As Queer Utopia, Ika Willis

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

In Text, John Mowitt writes that textuality can be understood “in terms of the interplay between what takes place within a cultural production… and what, as yet, has no place within the social”. In this paper I will be trying to tease out the complicated topography produced by this interplay between what takes place and what has no place, in its specific relation to the utopic and queer spaces produced by slash fan fiction. I argue that Mowitt’s understanding of the text allows us to interrogate and to reframe the relationship between textuality and historical/social context (often metaphorized as ‘situatedness’, …

Reconciling Independence And Accountability In Judicial Systems, F. Contini, Richard Mohr

Faculty of Law - Papers (Archive)

Since the mid 1990s, the contraction of available resources and the spread of ‘new public management’ approaches have presented new challenges to European judicial systems, expecting them to improve simultaneously their efficiency, quality of service delivery and accountability mechanisms, in line with the expectations on other branches of the public sector. Through an analysis of some of the findings of several research projects financed by different institutions, this article considers ways in which these expectations, and the projects to which they give rise, play off against the very different traditions of the law and the judiciary. In various countries these …

The Regime Of The Exclusive Economic Zone: Military Activities And The Need For Compromise?, Sam Bateman

Faculty of Law - Papers (Archive)

Military activities in the an exclusive economic zone (EEZ) were a controversial issue at the Third UN Conference on the Law of the Sea (UNCLOS III) and remain so in State practice. Some coastal States claim that other States cannot carry out military activities, including naval exercises and military surveying, in their EEZ without their consent, and have sought to apply restrictions on navigation and overflight in this zone. This “thickening” of jurisdiction over activities in the EEZ is strongly opposed by other States, particularly the major maritime powers. This contribution addresses some of the practical considerations associated with this …

Taking On Japanese Whalers: The Humane Society International Litigation, Ruth A. Davis

Faculty of Law - Papers (Archive)

On 14 July 2006 the Full Federal Court declared that Humane Society International ('HSI') could commence proceedings against Japanese whalers for alleged violations of the Australian Whale Sanctuary in Antarctica. 1 The decision was a significant victory for the public interest organisation, which had originally been denied leave to serve originating process on the Japanese defendant on the grounds that the action could be contrary to Australia's national interests. 2 In its amended statement of claim3 HSI alleged that between February 2001 and March 2005, the respondent Kyodo Senpaku Kaisha Ltd ('Kyodo') had unlawfully killed or interfered with around 385 …

Assessing The Terrorist Threat To Singapore's Land Transportation Infrastructure, Adam Dolnik

Faculty of Law - Papers (Archive)

The highly lethal attacks against land transportation targets in Madrid and London have sparked considerable amount of debate in Singapore about the terrorist threat to the local land transportation infrastructure. How real is this threat and what can be done to counter it? This is the central question addressed in this paper. While transportation targets in general have always been a terrorist favorite, in recent years there has been an increased emphasis on attacking soft transportation targets such as mass transit. There are several distinct reasons for this development, including the increasing difficulty of successfully striking other targets, the ease …

Preserving A Balanced Ocean: Regulating Climate Change Mitigation Activities In Marine Areas Beyond National Jurisdiction, Robin M. Warner

Faculty of Law - Papers (Archive)

The damaging effects of anthropogenically induced climate change on both the terrestrial and marine environments have been acknowledged by a succession of expert reports commissioned by global and national bodies. This recognition has spawned heightened levels of activity by scientists, engineers and entrepreneurs to mitigate the adverse effects of climate change. Multiple schemes have been suggested to ameliorate the adverse effects of climate change on the environment caused by the burning of fossil fuels and other greenhouse gas emissions including enhanced schemes to remove carbon dioxide from the atmosphere. The ability of the ocean to absorb rising levels of carbon …

Update: Japanese Whaling Litigation, Ruth Davis

Faculty of Law - Papers (Archive)

Recently the University of Tasmania Law Review reported on the ongoing litigation by the Humane Society International Inc ('HSI') against Japanese whaling in Australian Antarctic waters. On 15 January 2008, HSI was finally successful: the Federal Court declared that the whalers were in breach of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') and issued an injunction against them.

Patents And Access To Antiretroviral Medicines In Vietnam After World Trade Organization Accession, Jakkrit Kuanpoth

Faculty of Law - Papers (Archive)

Antiretroviral (ARV) drugs, where they are accessible, have been shown to prolong the lives and increase the health and well-being of people living with human immunodeficiency virus/acquired immunodeficiency syndrome. In general terms, whether a country is able to provide affordable ARVs to people in need is determined by the pricing structure of the drugs, whichis in turn based on the patent environment that regulates them. Increasing access in many developing countries, including Vietnam, requires a thorough understanding of the patent environment and of the legal options that will allow the production and/or importation of affordable treatments. This article provides an …

Photography, Cinema And Time In Jane Campion's The Piano And Gail Jones' Sixty Lights, Sukhmani Khorana

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

Using the logic of the absence-presence of light (through mimicking shadows and remnant ghosts) in the images/time-images of Gail Jones’ Sixty Lights and Jane Campion’s The Piano, this paper attempts to frame time such that the over-exposed past becomes the blank page of the future. I propose that history, when viewed in the light of the present, enables a truly open future for female and postcolonial subjects. It is important, therefore, to think of the blank page emerging from the over-exposed image not as symbolic of a psychoanalytic lack of the phallus, but as an open response in the wake …

La Maravilla Ensombrecida: Notas Sobre La Influencia Del Cuento De Hadas En La Literatura Distópica, Luis Gomez Romero

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

Según refiere Salman Rushdie, en el lejano país de Alifbay existe una ciudad sin nombre donde se fabrica y reparte la tristeza destinada al resto de la humanidad. No obstante, aún aquella ciudad innominada de vez en cuando recibe los beneplácitos de la Fortuna, de modo que en ella habita Rashid Khalifa, célebre cuenta-cuentos cuyas alegres historias le han granjeado no uno, sino dos sobrenombres. Sus admiradores le llaman Océano de Pensamientos porque su sesera se encuentra tan repleta de historias felices como lo está el mar de peces taciturnos. Para sus celosos rivales, en cambio, es el Sha de …

Narrative And Understanding Persons, Daniel Hutto

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

Our world is replete with narratives—narratives of our making that are uniquely appreciated by us. This can hardly be denied, certainly if by ‘narratives’ we have in mind only those of the purely discursive variety—i.e. those complex representations that relate and describe the course of some unique series of events, however humble, in a coherent but selective arrangement.1 Our capacity to create, enjoy and benefit from narratives so defined—be they factual or fictive—surely sets us apart from other creatures. Some, impressed by the prominence of this phenomenon in the traffic of human life, have been tempted to deploy that famous …

Bioprospecting Or Biopiracy: Does The Trips Agreement Undermine The Interests Of Developing Countries?, Lowell Bautista

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

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) created within the framework of the World Trade Organization (WIO) poses a contentious discord between developed and developing nations. The criticism that TRIPS is nothing more than a modern vehicle of western imperialism encapsulates the perception that the TRIPS is inimical to the interests of developing countries.

The ostensible failure of the wro regime to raise the living standards of developing countries, a centerpiece putative effect of economic liberalization heralded in the Uruguay Round, miserably highlighted the fundamental social, cultural and widening economic differences between the two bipolarized camps.

Thinking Outside The Box: The South China Sea Issue And The United Nations Convention On The Law Of The Sea (Options, Limitations And Prospects), Lowell Bautista

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

The South China Sea issue is a geopolitical tinder box waiting to explode.2 It is clear that the primary reason for the claims is based on its strategic location and its hydrocarbon potential,3 However, this is more than a simple conflict over resources.4 The issue goes beyond the question of territorial sovereignty and natural resource jurisdiction.s This 1S more than a legalquestion of ownership.

The Narrative Practice Hypothesis: Origins And Applications Of Folk Psychology, Daniel Hutto

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

Psychologically normal adult humans make sense of intentional actions by trying to decide for which reason they were performed. This is a datum that requires our understanding. Although there have been interesting recent debates about how we should understand ‘reasons’, I will follow a long tradition and assume that, at a bare minimum, to act for a reason involves having appropriately interrelated beliefs and desires.

Review: Rethinking Commonsense Psychology: A Critique Of Folk Psychology, Theory Of Mind And Simulation, Daniel Hutto

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

Ask nearly any analytic philosopher of mind how we understand intentional actions performed for reasons and you are bound to be told that we do so by deploying mental concepts, such as beliefs and desires, in systematic ways. This way of making sense of actions is known as commonsense or folk psychology (or CSP or FP for short). There have been many interesting debates about CSP over the years. These have focused on questions including: How fundamental and universal is this practice? Which species engage in it? What mechanisms underwrite the competence? How is the ability acquired? And, what exactly …

Indigenous Women And The Rciadic Part Ii, E Marchetti

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

In the previous issue of the Indigenous Law Bulletin, I discussed the extent to which the official reports of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) addressed the problems of Indigenous women.1 I concluded that although the official RCIADIC reports did not completely ignore Indigenous women, they did not sufficiently discuss the topics that had the most harmful impact on Indigenous women, namely family violence and police treatment of Indigenous women.