Suing "the welfare": the diminishing immunity for child protection authorities

Until recently, child protection authorities enjoyed significant levels of immunity in respect of civil actions arising from their action or inaction. However, the tide has turned in Australia, New Zealand and the United Kingdom. The decision of Redlich J of the Victorian Supreme Court in the complex case of SB v New South Wales (2004) 13 VR 527; [2004] VSC 513 consolidates the trend in Australia with a further repudiation of the assertion that child welfare authorities should be specially advantaged. It appears that henceforth actions will regularly be able to be brought against the state by persons who have been harmed by the negligent discharge of child protection duties. In the future, plaintiffs' biggest impediment will lie in the evidentiary challenge of establishing the extent of the harm flowing from the breach of the state's duty as against the harm wrought by previous and supervening events.     

Heterodoxy, iconoclasm and spuriousness: the limits of novel expert evidence

A difficult issue arises for courts' decision-making at common law and under statutory evidentiary regimes when expert opinions are significantly unorthodox, iconoclastic or methodologically flawed. This editorial analyses the relevant evidentiary principles and the Australian jurisprudence on the subject, giving particular attention to the decisions of the South Australian Supreme Court in R v Parenzee [2007] SASC 143 and R v Parenzee [2007] SASC 316 in which expert opinions about the existence, identifiability and transmissibility of HIV and its relationship to AIDS adduced on behalf of the defence in a criminal trial were found to be seriously wanting. A variety of factors indicative of low probative value in expert opinions are distilled.     

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.     

One Nation's Electoral Support: Economic Insecurity versus Attitudes to Immigration

Goot and Watson's article on One Nation 1 represents a considerable advance on other studies of One Nation, its electoral support and its social foundations. They correctly identify the importance of conservative social attitudes amongst One Nation supporters. However, we take issue with the strong conclusion reached by the authors, which more or less rejects the argument that One Nation has emerged out of the growing economic insecurity of its supporters.2 We do not agree that this conclusion is either the unambiguous finding of their own analysis or a conclusion that can be reached without considering a wider range of factors. Our criticisms fall into four areas:     

Legitimacy through Partnership? EU Policy Diffusion in Britain and Sweden

Partnership has become a central principle of European Union (EU) policies, particularly in relation to the structural funds. This article considers the diffusion of the partnership principle in the EU, focusing on Britain and Sweden. It is concerned with two questions. First, has the partnership principle led to a process of harmonisation across states or to national resistance? Second, to what extent has the partnership principle enhanced the legitimacy of EU decision making? The evidence presented here suggests that though there has not been significant resistance to the partnership principle within Britain and Sweden, the EU’s requirements have been interpreted and implemented differently in the two states. Thus it is more appropriate to speak of ‘adaptation’ to partnership rather than ‘adoption’. This is explained by what we summarise as ‘national democratic traditions’. In terms of democratic legitimacy, the Swedish adaptation to partnership was nominally more democratic in that local politicians were readily involved from the outset, whereas in Britain they were not. However, the importance of this inclusion should not be overstated in relation to substantive democratic legitimacy. The Swedish model was not supported by well‐articulated democratic strategies or principles. Despite the limitations of the Swedish model, recent developments suggest that Britain is following a similar path.     

Raising local authority district revenues through direct taxation in a low-income developing country: evaluating Uganda's GPT

Uganda's graduated personal tax represents a rather unusual attempt at applying a local income tax as a means of financing local authority operations in a predominantly informal, rural economy. Statistical and other analysis and comment reveal it to have serious deficiencies in terms of standard tax criteria and as a result of associated social costs, despite which local authorities have been led to increase rather than to decrease their reliance on it. Some alternative revenue-raising instruments which could serve to reduce this reliance are indicated. Copyright © 1998 John Wiley & Sons, Ltd.     

Centralisation versus regionalisation: Designing the Sixth National Mental Health Plan

In response to the recent Productivity Commission report into mental health, the previous Federal Government announced its intention to produce a new national agreement that lays the platform for Australia's sixth national mental health plan. It has been recommended mental health move to a more regional model of governance and planning, away from a centralised, top-down approach, partly in response to broader reforms affecting health care, and partly in direct response to consistent inquiry evidence that the mental health system remains in crisis. The past 30 years of mental health planning have been centralised. Successive national plans set a broad framework, with real decisions about mental health funding and service allocation made in the health departments of our capital cities. Will the next plan sponsor or inhibit regionality in mental health planning? This paper assesses Australia's historical approach to health planning particularly as it affected mental health and the costs arising. In learning these lessons, we propose the necessary ingredients to facilitate a regional, innovative, and effective approach to decentralised planning, for better mental health outcomes. We cannot afford to replicate the failed planning approaches of the past.