ABSTRACT Suspended sentences have been the subject of recent or current review in several Australian jurisdictions. This article presents findings from a recent review of suspended sentences in the ACT conducted on behalf of the ACT Law... more
ABSTRACT Suspended sentences have been the subject of recent or current review in several Australian jurisdictions. This article presents findings from a recent review of suspended sentences in the ACT conducted on behalf of the ACT Law Reform Advisory Council, and the ACT Government’s response to that review. The article reports on recent trends in the use of suspended sentences in the ACT, and observes on the quality of publicly available sentencing data. Supreme Court data are presented on the age, gender, plea and prior record of offenders receiving wholly suspended sentences in the ACT, as well as data on the length of sentences and operational periods imposed, the conditions of sentence and the mitigating factors cited by the court. The policy implications for further inquiry and human rights implications are also considered.
Anecdote and impression in Australia is that it is race discrimination complaints in particular that consistently fail because complainants cannot discharge this burden of proof. Based on a text analysis of all reported decisions, since... more
Anecdote and impression in Australia is that it is race discrimination complaints in particular that consistently fail because complainants cannot discharge this burden of proof. Based on a text analysis of all reported decisions, since 2000, on race discrimination complaints under the NSW Anti-Discrimination Act, and under the Racial Discrimination Act (Cth), my research will provide an empirical answer to the question: 'To what extent do race discrimination complaints fail in courts and tribunals because of this challenging burden of proof?'. The focus is on matters where a complaint is dismissed because the court cannot say what the basis for the other person's conduct was, or says that the basis for the other person's conduct was a ground other than race. This leads to deliberation on the difference it would make to require an alleged discriminator to show they did not discriminate, that is, to shift the burden of proof to the respondent if and when the complainant can establish that there was less favourable treatment. The possibility and permissibility of shifting the burden during a hearing has not been canvassed in recent reviews of anti-discrimination legislation, but is established in the European Union by way of Directive 2000/43/EC, and is being implemented across Europe, including in the UK the Race Relations Act 1976.
ABSTRACT If legal aid means nothing more than legal representation in court, then to that extent there is a right to legal aid, although of limited availability. It is a right that has been found to be implicit, in various legal systems... more
ABSTRACT If legal aid means nothing more than legal representation in court, then to that extent there is a right to legal aid, although of limited availability. It is a right that has been found to be implicit, in various legal systems and in human rights instruments. But a right to legal aid could mean so much more than a limited right to legal representation. I argue for legal aid in its broadest sense as a fundamental human right, guaranteeing public access not only to legal institutions and legal representation, but as well to legal information, legal advice, and legal education and knowledge. The key to establishing a right to a broader idea of legal aid lies in understanding the role of the state from a human rights perspective rather than a welfarist one. After reviewing cases and human rights treaties that describe a right to legal representation, I conclude that even that right is available only in limited circumstances. I then outline a new argument for a fundamental human right not only to legal representation, but to 'legal aid' more broadly understood.
Learning from clinical method is readily assessable. Legal practice skills – however broadly defined, from drafting and office management to client interviewing and problem solving, from active listening to reflective ethical practice –... more
Learning from clinical method is readily assessable. Legal practice skills – however broadly defined, from drafting and office management to client interviewing and problem solving, from active listening to reflective ethical practice – can be, and are, broken down into component parts, into graduated parcels of competencies, or interlocking pieces of knowledge. Assessment tasks are designed to suit the learning objectives, and we report to students on our opinion of their competencies in identifiable skills and as well in conceptual matters such as lawyers’ duties, ethics, and access to justice. Even with reflective journals, when students lay bare their thoughts, their fears and apprehensions, their hopes and revelations, in their, we tell them how well we think they do it. I do not challenge that there will and should be assessment of the clinical experience. What I do challenge is that we take for granted that the assessment will be graded. By graded I mean we do not only tell our students that they seem to know what we want them to know, but we tell them how well we think they know it. We give them a grade for the extent to which we say they have attained the learning objectives. The alternative is to assess but not grade: a system of pass/fail, also known as ‘satisfactory completion’ ‘credit only etc’. Even if a law degree must be graded – and I doubt even that – there is at least one learning objective within a law degree for which for which clinical education is the best method, and which ought not to be graded, and should be assessed pass/fail.
This report was produced for the ACT Law Reform Advisory Council in order to investigate the use of suspended sentences in the ACT. Firstly, it explores the current regime for suspended sentences in the ACT. Secondly, it analyses recent... more
This report was produced for the ACT Law Reform Advisory Council in order to investigate the use of suspended sentences in the ACT. Firstly, it explores the current regime for suspended sentences in the ACT. Secondly, it analyses recent trends in the imposition of suspended sentences in the ACT. Thirdly, it compares the use of suspended sentences in the ACT in the context of suspended sentences in Australia. Fourthly, it examines the effect of reforms in 2005 to suspended sentences in the ACT. Finally, it makes recommendations and observations about the data collection and reporting of suspended sentences in the ACT, as well as observations on suspended sentences before and after the reforms.
Contracts for the export of defence technology from the USA are subject to US laws that prevent the disclosure of the technology to a person whose nationality is not of the USA or the contracting party. This is said in US Federal... more
Contracts for the export of defence technology from the USA are subject to US laws that prevent the disclosure of the technology to a person whose nationality is not of the USA or the contracting party. This is said in US Federal Regulations to be "in furtherance of world peace and the security and foreign policy of the United States". Australian defence manufacturers are party to such contracts. To comply with contracts and US law, the Australian manufacturers are obliged to discriminate against their employees on the ground of their nationality. Australian provincial laws proscribe discrimination in employment on the ground of nationality (as an aspect of "race"), giving effect to Australia's non-discrimination obligations under ICCPR, ICESCR and CERD. The US has not ratified ICCPR and ICESCR, and has entered a reservation for CERD with respect to private conduct. The Australian manufacturers have obtained exemptions from anti-discrimination laws in Australia, ostensibly on a "public interest" ground. This allows them to comply with the contracts by discriminating among their employees on the ground of race, badging their employees according to their nationality. Of the many issues that are raised (eg, illegal conduct required by contract; grounds for exempting conduct from anti-discrimination law), this paper invite discussion of whether a state's claimed defence interest a sufficient justification - in fact and in international law - for imposing a condition on private conduct that requires a breach of both the law and the human rights obligations of another state.
ABSTRACT Suspended sentences have been the subject of recent or current review in several Australian jurisdictions. This article presents findings from a recent review of suspended sentences in the ACT conducted on behalf of the ACT Law... more
ABSTRACT Suspended sentences have been the subject of recent or current review in several Australian jurisdictions. This article presents findings from a recent review of suspended sentences in the ACT conducted on behalf of the ACT Law Reform Advisory Council, and the ACT Government’s response to that review. The article reports on recent trends in the use of suspended sentences in the ACT, and observes on the quality of publicly available sentencing data. Supreme Court data are presented on the age, gender, plea and prior record of offenders receiving wholly suspended sentences in the ACT, as well as data on the length of sentences and operational periods imposed, the conditions of sentence and the mitigating factors cited by the court. The policy implications for further inquiry and human rights implications are also considered.
Standard workplace conditions that are commonly perceived as neutral and reasonable can discriminate against people who find conforming to them difficult or impossible because of innate differences in neuronal and cognitive functioning.... more
Standard workplace conditions that are commonly perceived as neutral and reasonable can discriminate against people who find conforming to them difficult or impossible because of innate differences in neuronal and cognitive functioning. We use the example of Attention Deficit Hyperactivity Disorder to show that it is necessary for people with cognitive differences to seek legal protection from discrimination within a disability framework. This approach can be problematic because of the stigma that attaches to disability and because of the way that provisions of the Disability Discrimination Act 1992 (Cth) are interpreted. An alternative approach is to treat cognitive and behavioural attributes within a framework that recognises different abilities, rather than starting from a presumptive provision of disability, in much the same way that gender or religious beliefs are treated.
ABSTRACT At first glance, Part 3–1 of the Fair Work Act 2009 (Cth) seems to overlap with long-established anti-discrimination laws, offering protection against adverse, attribute-based conduct in employment. On close analysis, however, it... more
ABSTRACT At first glance, Part 3–1 of the Fair Work Act 2009 (Cth) seems to overlap with long-established anti-discrimination laws, offering protection against adverse, attribute-based conduct in employment. On close analysis, however, it turns out to be a new and quite different regime. Although the Fair Work Act offers a simple alternative to dated and complicated anti-discrimination laws, its provisions are at times overly-simple, raising uncertainty about how they will operate. Our analysis leads us to conclude that the approach to discrimination protection in the Fair Work Act, while an important addition to the remedies available to Australian workers, is compromised by failing to take account of lessons learned in the long history of anti-discrimination law.
Clinical legal education (CLE) is a significant method of learning and teaching in law. It is intensive, often one-on-one in nature and exhibits a justified expectation that students, who are commonly self-selecting, will ‘do well’ as... more
Clinical legal education (CLE) is a significant method of learning and teaching in law. It is intensive, often one-on-one in nature and exhibits a justified expectation that students, who are commonly self-selecting, will ‘do well’ as they apply legal theory and develop lawyering skills to solve simulated and real-client legal problems. Clinical pedagogy involves a system of self-critique and supervisory feedback so that law students learn how to learn from their experience. The high staff-student ratio and collaborative learning environments support a climate in which each student is motivated to improve and perform at their best. In its common focus on real clients, students are motivated by the inescapable personal responsibility of working with and being accountable to those clients, to perform to the best of their ability. The result for participating students is a profound consolidation of substantive legal knowledge with the practicalities, compromises and successes of contemporary legal practice. This project has involved an in-depth 27-month investigation of all identifiable Australian CLE programs. The project has confirmed to team members that, while there is a growing consciousness of the advantages of CLE to law schools and law students, there is still only a very limited awareness in conventional academia of the transforming potential of CLE – a long-term strategy to lift the reputation and hence the international ranking of many law schools. In a globalising legal education environment where clinical methods are increasingly becoming integral to the high-quality legal education landscape, it is a matter of regret that the funding of Australian legal education does not prioritise clinical approaches within law curricula, let alone seek the integration of clinical methodology into those curricula. In the expectation that this state of affairs must change (and in order to provoke that change), this project has galvanised clinical supervisors’ opinions around Australia and identified an extensive number of best practices for Australian CLE. These best practices constitute the recommendations arising from the project, and are organised under seven themes comprising Course Design, Law in Context in a Clinical Setting, Reflective Student Learning, Assessment, Supervision, Staff and Infrastructure.
Australia needs to have an open, honest, confident racism discussion. Such a discussion needs leadership. We, and those who lead us, need to face up to subtle and unconscious racism, to the fact that just because we know not to demean a... more
Australia needs to have an open, honest, confident racism discussion. Such a discussion needs leadership. We, and those who lead us, need to face up to subtle and unconscious racism, to the fact that just because we know not to demean a person with a slang reference to their race doesn’t mean that we don’t still feel and act on an irrational sense of difference. Until we do that, we will continue to fool ourselves, thinking that discrimination and vilification laws are sufficient to guarantee a truly equal society, that if we do not say racist things we are not racist. We need to address this comfortable truth if we are ever to earn our democracy.
Persistently conscious, specific and deliberate recognition of disadvantage and marginalisation is only the beginning of what we need to do, if we are truly committed to equality in Australia. Perhaps we are not, and never will be, truly... more
Persistently conscious, specific and deliberate recognition of disadvantage and marginalisation is only the beginning of what we need to do, if we are truly committed to equality in Australia. Perhaps we are not, and never will be, truly committed to equality.
Given the complexities of our time, it is not surprising that criminological models, theories and perspectives often fall short of providing complete and satisfactory explanations of complex phenomena. Organised crime and terrorism, and... more
Given the complexities of our time, it is not surprising that criminological models, theories and perspectives often fall short of providing complete and satisfactory explanations of complex phenomena. Organised crime and terrorism, and the emerging crime-terror nexus, are examples of such phenomena. If they were simple, they would be easy to understand and prevent, but they are not. Complexity science (‘complexity’) studies complex phenomena. Given the nature of organised crime, terrorism and the crime-terror nexus, one would expect that the family of complexity, including chaos theory, might lend itself to furthering our understanding and knowledge of these phenomena. Drawing on the natural and social sciences, this thesis explores the notion. In doing so, a new complexity model, using borrowed science, is developed to apply complexity in a criminological context, and to critically examine organised crime, terrorism and the crime-terror nexus through a complexity lens. The new complexity model is tested using the case study method and considers whether the new model furthers our understanding and knowledge of these complex phenomena, together with practical and policy implications. The thesis also considers whether the new complexity model adds a new tool to the criminologist’s toolbox to provide fresh and novel insights into complex problems.
