Laws to detain individuals with substance dependency: breaching human rights or restoring health?

At the turn of the 20th century in the United Kingdom and Australia, legislation was introduced to detain and treat "inebriates". Since that time, variations of such laws have continued to exist. This column examines current laws in Australia and New Zealand with a particular focus on recent law reform efforts in New South Wales and Victoria. The column raises some of the issues with these laws in relation to breaching human rights for the purpose of treatment.     

Judicial responses to the protected confidential communications legislation in Australia

The article examines the background, aims and scope of recent legislation enacted in New South Wales, Victoria and South Australia to protect from disclosure in court of "confidential communications" generated in the context of counselling persons who allege that they were victims of sexual offenses. In drafting the "confidential communications" legislation, the legislators undertook a difficult task of balancing the public interest in therapeutic confidentiality that would encourage victims of sexual assaults to report these offenses and seek psychological and psychiatric care on the one hand, and the public interest in fairness of the trial, which may be prejudiced by exclusion of evidence pertinent to the forensic process on the other. In South Australia this task was fulfilled with greater success than in New South Wales and Victoria.     

Compensation: problems with the concept of disability and the use of American Medical Association Guides

The Western Australia Liberal Government made radical changes to the Workers Compensation and Rehabilitation Act 1981 (WA) in 1993. One of the significant changes was the greater application of the American Medical Association Guides to the assessment of permanent injury. In 1999 further amendments to the same legislation required the application of the Guides to workers who wished to proceed with common law claims for negligence against their employers. Recent cases have shown the difficult in reconciling the language of the law with commonly used medical terms. This article surveys the use of the American Medical Association Guides in compensation legislation in Australia with some specific comments on the Western Australian system. It makes some suggestions for reform of the Western Australian system.     

The introduction of data breach notification legislation in Australia: A comparative view

This article argues that Australia's recently-passed data breach notification legislation, the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), and its coming into force in 2018, makes an internationally important, yet imperfect, contribution to data breach notification law. Against the backdrop of data breach legislation in the United States and European Union, a comparative analysis is undertaken between these jurisdictions and the Australian scheme to elucidate this argument. Firstly, some context to data breach notification provisions is offered, which are designed to address some of the problems data breaches cause for data privacy and information security. There have been various prominent data breaches affecting Australians over the last few years, which have led to discussion of what can be done to deal with their negative effects. The international context of data breach notification legislation will be discussed, with a focus on the United States and European Union jurisdictions, which have already adopted similar laws. The background to the adoption of the Australia legislation will be examined, including the general context of data privacy and security protection in Australia. The reform itself will be then be considered, along with the extent to which this law is fit for purpose and some outstanding concerns about its application. While data breach notification requirements are likely to be a positive step for data security, further reform is probably necessary to ensure strong cybersecurity. However, such reform should be cognisant of the international trends towards the adoption of data security measures including data breach notification, but lack of alignment in standards, which may be burdensome for entities operating in the transnational data economy.     

新中国农村宅基地立法的历史沿革研究

宅基地立法是宅基地法制建设的重要组成部分。根据土地制度演变与土地管理体制演变,可将宅基地立法分为宅基地私有时期的立法、人民公社时期的宅基地立法、改革开放初期的宅基地立法、城乡土地统管阶段的宅基地立法、城乡土地管理体制转轨阶段的宅基地立法等5个阶段。不同的发展阶段具有不同的立法内容,不同的立法内容具有不同的特点。     

Professional self-regulation and guidelines in assisted reproduction

Australia's scientific expertise in ART has not been matched by similar standards in national regulation. Scientific breakthroughs in the early 1980s were followed by cohorts of State and national inquiries. Early guidelines by the National Health and Medical Research Council were followed by status of children legislation clarifying their parentage where donated gametes were used. The practice and procedure of ART was legislatively regulated in Victoria, Western Australia and South Australia but left to guidelines and accreditation of the Fertility Society of Australia in the remaining States and Territories. The article examines the consequences of an absence of national regulation in dealing with embryo experimentation now that debates have shifted to human cloning and stem cell technology. The article also considers arguments for and against regulation in areas of parental procreative decision-making and embryo experimentation.     

The growing role of carers in the administration of medications

The roles of registered nurses, enrolled nurses, nurse practitioners and midwives in the administration of medications are subject to the legislation and regulation in their respective States and Territories in Australia. Underpinning this regulatory framework is a presumption that health professionals who come under the relevant legislation and regulations have attained the levels of competency, skill and knowledge consistent with professional standards and the protection of the public. This column considers the provisions of the Health (Drugs and Poisons) Regulation 1996 (Qld) addressing the administration of controlled and restricted drugs in light of a recent Queensland Civil and Administrative Tribunal decision.     

寻求法律与社会的平衡——论民国时期亲属法、继承法对家族制度的变革

南京国民政府时期,家族制度变革从政治、社会、立法、司法等层面全面展开,直接效果就是《中华民国民法》"亲属编"、"继承编"的制定颁布及司法上的实际运作。政治层面上,近代中国面临的收回治外法权的压力,资产阶级民主革命的需要,迫使中国不得不创制新型法律,改革传统家族制度;社会层面上,传统家族观念及习惯仍普遍存在,但业已高涨的废除家族制度的呼声及新型社会阶层的出现,为家族制度的变革创造了一定的社会基础;立法层面上,在1929～1930年两年的时间内,国民政府即推出完整的民法典,效率之高,速度之快,世所罕见,超前性明显;司法层面上,司法主体既要遵循依法定案的原则,又要兼顾历史因素及社会实际,尽其所能,调和情、理、法的关系,实现法律与社会平衡。尽管民国时期家族制度的变革还存在诸多不平衡性或差异性,总体趋势则是渐进改革,全面推进。家族制度的变革特征体现为:政治引领风气,社会缓慢跟进,立法实施保障,司法调和新旧。     

医疗立法探讨

医疗立法是保障公民健康权的重要途径，是我国卫生法制建设的重要内容，是保证新医改关于医疗服务体系健全和公立医院改革顺利进行的重要保障之一，是依法卫生行政的内在要求。在分析医疗法立法的依据和-原则后，借鉴Et本、德国、台湾医疗立法经验，建议以总则、医疗法人制度、医疗安全保障、病人权益保护、信息公开制度、监督管理体制、法律责任作为医疗法的基本框架，并就我国医疗立法的相关问题进行探讨。     

问题与变革：宪法学视域中的中国社团立法

中国社团立法对于加强社团的登记管理起到了积极作用,但总体来讲还不能完全适应社会发展的需要。现行的社团立法在指导思想、法律位阶、双重管理体制、社团设立的法律制度等方面存在一些问题,对结社自由限制过于严格。为了更有效地保障宪法的结社自由权利,维护社会秩序,需要对现行的社团立法进行变革,在结社自由的保障与限制之间实现平衡。     

Regulation of donor conception and the "time to tell" campaign

The first jurisdictions in the world to introduce legislation regulating donor conception were Victoria (Australia) and Sweden in the 1980s. Under the Infertility (Medical Procedures) Act 1984 (Vic), donor-conceived people (aged 18 years and over), their parents (if children were under 18 years) and donors gained the right to apply for identifying information about each other. Information can only be given with the consent of each party. To date, over 3,500 donor-conceived children have been born in Victoria since the 1984 Victorian legislation was introduced (and enacted in 1988). The first 106 donor-conceived children under this legislation turned 18 in 2006 and many of them may not know that they are donor-conceived. The Infertility Treatment Authority, Victoria, conducted a public education campaign to provide information and support to people affected by the legislation. The campaign and services associated with donor registers have had a significant initial impact.     

Detention and treatment down under: human rights and mental health laws in Australia and New Zealand

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.     

南非体育法制介评

尽管被国际体育界制裁了相当长的时间,但在南非种族隔离政策结束后,南非的体育运动还是得到了一定程度的发展,与此有关的法律问题也得到了促进和完善.南非体育委员会一度起到了很大的作用,后来取而代之的民间组织SASCOC则具有管理高水平体育运动的立法和执行权;上个世纪末的南非反兴奋剂立法已不适应新形势的发展,急需修改;对于体育争议的解决,司法部门的介入是有限的,有关的体育争议由SASCOC、国际体育仲裁院以及南非法院共同行使管辖权.     

Rape reform in Canada: Public knowledge and opinion

Rape reform legislation in Canada was designed to change: 1) the way sexual assault cases were processed by the criminal justice system and 2) public opinion about crimes of sexual aggression. This article reports findings from a representative survey of the Canadian public and an experimental analysis of the effects of the legislation on public knowledge and attitudes. Results from the nation-wide survey indicated that most people are unaware of the semantic shift (from the old language of rape and indecent assault to the new crimes of sexual assault). However, there is awareness of the substantive legal changes introduced by the rape reform legislation (such as the fact that husbands are no longer immune from criminal changes involving their wives). It is clear that rape reform legislation has affected public knowledge of statutory reforms regarding crimes of sexual aggression. Results from the experimental component of this research show that the new sexual assault label has not achieved one of the important goals, namely of changing public perceptions of the nature of crimes of sexual aggression. Indeed, one negative effect predicted by feminist writers seems to have emerged: sentencing decisions made by the public for the offense of rape were less severe when the incident was described as a sexual assault.     

行政立法公众参与研究

在西方法治国家,公众参与在行政立法中发挥了重要作用。在我国,行政立法公众参与程度普遍过低,行政民主化进程受到制约,强调公众参与在行政立法中的积极作用,通过制度改革确保公众参与行政立法,实现行政立法民主化。     

培养法律信仰 促进东北振兴

良好的法治环境是东北振兴的前提,法律信仰的缺失是东北法治建设步履维艰的症结所在。东北法治环境落后于南方的根本原因在于由计划经济体制向市场经济体制转变缓慢,也就是市场化改革滞后即制度变革滞后。经济市场化是保证权力信仰、政策信仰不可逆转地为规则信仰、法律信仰所取代的物质基础。国家工作人员对法律采取的是肯定还是否定的态度直接影响到一般公民对法律的看法,这就要求严格控制和监督国家机关的行为,确保立法民主科学,行政法治和司法公正。     

依法改革,立法先行

正2014年3月9日上午,張德江委員長在全國人大常委會工作報告中鄭重指出:「堅持把立法決策與改革決策更好結合起來,抓緊制定和修改同全面深化改革相關的法律,從法律制度上推動和落實改革舉措,充分發揮立法在引領、推動和保障改革方面的重要作用」。這與習近平總書記所強調的「凡屬重大改革都要於法有據、先立後破、有序進行」前後呼應、一脈相承,進一步展示了執政黨堅持依法執政、建設法治     

Justice for victims of human trafficking in Australia? Issues associated with Australia’s criminal justice response to trafficking in persons

Australia has witnessed an increase in human trafficking cases in recent years, most of which have involved women trafficked for sexual exploitation. In response, and within the framework of the United Nations Protocol to Prevent and Suppress Trafficking in Persons, especially Women and Children, Australia has introduced legislation to combat human trafficking and punish traffickers. However, the number of prosecutions of human trafficking offences in Australia has, to date, been low. Drawing on the available literature, this article sets out to explore the reasons for this, which the paper argues have largely centered on Australia’s previously restrictive visa framework for trafficking victims. The paper also explores other obstacles and barriers to successful prosecutions, such as issues associated with discrediting and attacking vulnerable witnesses, and lengthy and complex trials. The paper argues that Australia needs to increase its efforts to meet the obligations set out by the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, and to balance its priorities regarding prosecution and victim protection.     

完善政府环境责任的若干思考

政府环境责任不完善是环境立法存在的根本问题。完善政府环境责任的根本之举是落实环境民主,重点是公众参与环境立法;完善政府环境责任需要环境理念的改变,从管理走向治理,实现环境善治;完善政府环境责任还需要改革现行的环境立法体制,由行政主导变为立法主导。     

Polygraph testing for deception in Australia: effective aid to crime investigation and adjudication?

Polygraph testing--or the monitoring and analysing of selected physiological measures of an individual who is being interviewed, for the purpose of detecting deception--is controversial in Australia. Considerable mythology surrounds this method of detecting deception. Embedded in popular perceptions of crime fighting and utilised in high-profile criminal cases in Western Australia, Victoria and Queensland, polygraph testing is also explicitly prohibited from being used in crime investigation in New South Wales. Unlike in the United States, polygraph testing has not hitherto routinely been used by government departments and authorities as a preemployment screening tool, but is increasingly being offered in the private sector in Australia. This article examines the current scope of polygraph testing in Australia, describes different approaches to testing, briefly reviews recent information relating to validity and evaluates State legislation prohibiting the use of polygraph testing for specified purposes in New South Wales. Consequent to the continuing controversy regarding the accuracy of polygraph testing in detecting deception (and, conversely, truth-telling), it is argued that the emerging use of polygraph testing is problematic and common law principles rendering the results of such testing inadmissible in court do not constitute sufficient safeguard against inappropriate and intrusive testing. Future research should identify specific polygraph testing techniques and consider the most socially beneficial way of regulating this emerging area of practice.