Iraq and the case for Australian war crimes trials

This article presents the case for Australian war crimes trials, following Australian participation in the invasion of Iraq and the subsequent deaths of as many as a million Iraqi civilians. It focuses on jus in bello (war crimes) rather than jus ad bellum (just war). The article sets out the argument and rationale that Australian war crimes trials are needed. Having established the necessity, the article identifies two of the principal alleged atrocities for which Australian officials should be held criminally accountable. It details Australian military support for the use of cluster bombs against civilians during the 2003 invasion, and senior Australian military commanders’ responsibility for planning and carrying out multiple purported war crimes during the attack on Fallujah in late 2004. The article recognises that, in order for Australian officials to be prosecuted under the International Criminal Court (ICC), all domestic remedies must be first exhausted. It therefore specifically addresses which Australian laws can be used, with particular emphasis on anti-terrorist legislation passed in 2002 under the Howard Government and the introduction into Australia’s domestic federal criminal legislation offences equivalent to the ICC Statute offences of genocide, crimes against humanity and war crimes. These provide the most applicable legal tools for prosecuting senior Australian officials for war crimes in Iraq.     

Using financial intelligence to target online fraud victimisation: applying a tertiary prevention perspective

Abstract

It is well established that policing in an online environment is fraught with challenges. To combat losses attributed to online fraud, Australia has seen the emergence of a victim-oriented approach, which uses financial intelligence to identify potential victims and deliberately intervenes through the sending of a letter. This approach predominantly targets victims of advance fee fraud and romance fraud who are sending money to West African countries. The current article presents three Australian case studies: Project Sunbird (West Australian Police and West Australian Department of Commerce); Operation Disrepair (South Australian Police); and the National Scams Disruption Project (Australian Competition and Consumer Commission). The article locates these cases within existing theory on crime prevention, using available data to document initial positive outcomes. Overall, this article supports the use of a victim-oriented tertiary approach to online fraud, and advocates its potential to reduce both repeat victimisation and the harm incurred through online fraud.     

Innovation in the Australian legal profession

Over the next decades, advances in technology and new business practices will challenge a traditionally conservative legal profession. With a focus on the Australian legal profession, this article explores the nature of the challenges and, in particular, considers whether the challenges pose a threat of disruptive innovation. The article aims to add to understanding of how Australian law firms are responding to the challenges by drawing on empirical data that examines the drivers and inhibitors of innovation in Australian law firms, the areas where Australian legal firms are innovating, and the outcomes of their innovation. The article concludes that there is limited evidence of incumbent displacement and that, gradually, the profession is rising to the challenges.     

Sudanese refugees in Victoria: An analysis of their treatment by the Australian Government

Following a brief historical account documenting developments in Australian Immigration politics and refugee and asylum seeker policies, this paper seeks to explain why Sudanese refugees in Victoria have recently been implicated in an increased involvement in crime by politicians and the media. It will be argued that the alleged increase involvement in crime has been constructed by the Government and the media – in order to justify the Australian Government's policy responses to the refugee crisis, to create public acceptance of such policies, and additionally for political gain. These policies were part of the Australian Government's wider policies on maintaining a homogenous Australian identity and have negatively impacted minority groups. Ultimately such policies encouraged racism and segregation in local communities, thus tarnishing Australia's multicultural standing.     

The International Law Commission's Draft Code of Crimes against the Peace and Cecurity of Mankind: An appraisal of the substantive provisions

This article is an expanded and updated version of a paper delivered at the annual meeting of the Australian and New Zealand Society of International Law in Canberra, Australia, May 28–30, 1993.The authors served as International Legal Consultants to the Australian Department of Foreign Affairs and Trade on the International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind. The opinions expressed in this article are those of the authors and not of the Australian government.     

'Failed Sociologists' in the Market Place: Law Schools in Australia

This paper traces the stunted evolution of Australian law faculties from 'trade schools' to liberal law schools. Higher education funding cuts and increased accountability to a government that is throwing the universities onto the competition of the market now combine with the traditional influence of a conservative profession to put Australian law schools in a precarious position. We argue that Australian law schools should transform themselves by embracing the contradictory position they inhabit, and using it to develop a broader concept of the legal knowledge they pass on and the legal practice for which they prepare their students.     

Crime in a Convict Republic

'It is much easier to extirpate than to amend Mankind.'
Sir William Blackstone
Five stages in the history of regulation are derived from the literature as a starting framework for this essay. These stages are outlined in the first section. This five-stage model is then confronted and revised in light of the neglected case of the Australian penal colony. It is juxtaposed throughout the paper with the history of the regulation of crime in the US. Australian convict society is found to be brutal yet forgiving. We conclude that surprisingly high levels of procedural justice and reintegration in Australian convict society drive down crime rates at a remarkable rate in the nineteenth century. In contrast American slave society is characterised by procedural injustice, exclusion and stigmatisation, which delivers high crime rates. Following Heimer and Staffen's theory, reintegration and procedural fairness are found to arise in conditions where the powerful are dependent on the deviant. Acute labour shortage is the basis of a reintegrative assignment system for Australian convicts to work in the free community. While convicts change Australia in very Australian ways, we find that many of these developments are not uniquely Australian and so a revision of the five-phase model is proposed. The revision also implies that Foucault's distinction between governing the body versus governing the soul (corporal/capital punishment versus the penitentiary) is less central than exclusion versus inclusion (banishment versus restorative justice) to understanding all stages of the history of regulation.     

Non-voluntary licensing of antivirals under patent: options the Australian Government should consider in light of a potential bird flu pandemic

In the face of a potential bird flu pandemic, Australian Federal Health Minister, Tony Abbott, has recently dismissed expert advice that the government should begin, or even publicly consider, authorising generic manufacturers to produce antivirals, such as Tamiflu and Relenza, under patent via non-voluntary licensing methods. This is despite the fact that the demand for antivirals in Australia, and throughout the world, cannot be met by manufacturers under the control of limited patent owners alone. This article proposes that Australian patent law, which allows for non-voluntary licensing when it comes to important public health issues that affect Australian citizens, is relevant in meeting the demand for increased antiviral treatments during a possible bird flu pandemic, domestically and abroad. It argues that the Australian Government must go beyond what is currently being done and investigate and pursue such options.     

Intensive teaching in law subjects

The use of intensive teaching is increasing in Australian law schools. For some Australian law schools, most of their masters subjects are now taught on an intensive basis. This article reviews the literature on intensive teaching. The observation is made that there has been little discussion in the literature of the merits of such teaching in law schools. The article also reports the results of a statistical analysis comparing the student evaluations of a subject in the masters program of an Australian law school that was taught on an intensive basis with the student evaluations of the same subject taught by the same teacher across a full semester. Finally, the article reports the results of interviews with teachers at one Australian law school that makes extensive use of intensive teaching in its masters program. The teachers identify successful teaching techniques and they also identify some challenges with intensive teaching.     

One size fits all? Australian regulation of nanoparticle exposure in the workplace

Nanoparticles (NPs) are a relative newcomer to the Australian workplace. Available scientific data suggest that exposure to some NPs may have serious health consequences, in at least one case being similar to the effects of asbestos. This article explains what NPs are and the possible health effects of exposure to them. The adequacy of Australian regulation of NP exposure in the workplace is then examined. It finds that current Australian regulation of workplace dangers from chemical exposure based on size is inappropriate for NPs: in this instance at least, one size does not fit all.     

澳大利亚联邦法院对专家证据的采纳

I. Introduction
The opinion evidence of experts is an exception to the general rule that witnesses can only give evidence of that which they have seen or heard and may not give evidence of inferences which arise from their observations and from that which they have heard.     

The place of law in a business studies curriculum

Abstract

LEGAL ETHICS are the values that inform the practice of law. This article establishes what and how Australian law schools teach about legal ethics and suggests what and how Australian law schools should teach about legal ethics.

First, the article establishes that Australian law schools tend to teach legal ethics as if it were only concerned with the law of lawyering. It also establishes that Australian law schools tend to teach legal ethics discretely over the course of one subject out of the whole undergraduate curriculum.

Secondly, this article suggests the adoption of a new approach to legal ethics as the ability to exercise legal ethical judgment. It also suggests a pervasive method of instruction that integrates issues of legal ethics and the process of legal ethical judgment into every subject in the undergraduate curriculum in combination with discrete subjects on the context and substance of the law of lawyering.     

Retribution or restoration? Anglo–Australian's views towards domestic violence involving Muslim and Anglo–Australian victims and offenders

Abstract

The current study explored how gender, group membership and different emotional reactions to the crime of domestic violence predict attitudes and endorsement of restorative or retributive justice practices. The experiment consisted of a 2 (victim group membership: Muslim- or Anglo–Australian)×2 (offender group membership: Muslim- or Anglo–Australian)×2 (Sex of participant) between-participants factorial design. Anglo–Australian participants (43 men; 50 women) were randomly assigned to one of the four manipulated conditions, and completed an online questionnaire that involved viewing a short video clip of a woman describing her experience as a domestic violence victim. Results revealed strong preferences for restorative justice in dealing with domestic violence, with women supporting this practice more than men. The crime was perceived as most severe and retribution was endorsed most strongly when the victim was Anglo–Australian (i.e. an in-group member). Intra-group violence was also perceived to be a greater breach of shared Australian values than inter-group (i.e. cross-cultural) domestic violence. Emotional reactions further predicted participants' responses, with hatred predicting stronger support of retributive ideals and sympathy for the victim predicting greater endorsement of restoration.     

Frauds and fakes in the Australian aboriginal art market

This article examines the topic of problematic art in the Australian Aboriginal art market. For Aboriginal people art plays an important social, economic and political role. It has also become a major source of income for many. Thus when the integrity of that art is challenged by allegations of fraud and deception it is imperative to explore the veracity of these claims and the responses made to them. In the article particular attention is devoted to those responses made through both the Australian criminal and civil systems of justice. This analysis shows that there are special problems associated with establishing the authenticity of Aboriginal works of art which tend to hamper the prosecution of fraud cases while a dearth of expertise and interest in art fraud at large among Australian law enforcement bodies is a further barrier to effective action. The conclusion is reached that at present the Australian legal system is poorly equipped to deal with frauds and fakes in the Indigenous art market—a situation which will take time and more imaginative solutions to remedy.     

INTERNATIONAL ABDUCTION OF CHILDREN

Justice Kay discusses the abduction of children and the application of the Hague Convention from the Australian perspective. The article begins with an outline of the common law and the appropriate legislation. Signatory nations to the Hague Convention are listed and Australian case law reviewed. Statistics are also given regarding children who have been taken to what nations.     

Explicating the Australian Senate

This article is a revised version of a paper outlining the role and performance of the Australian Senate originally prepared for the seminar in March 2002 on House of Lords Reform organised by the Constitution Unit, University College London and the Centre for Legislative Studies, University of Hull. For the most part, the article follows the original conference form of brief answers to questions identified by the conference organisers. The article argues that the Senate provides an important working model of an elective upper house in a Westminster-derived parliamentary system. It does not pretend to be a comprehensive account of the Australian Senate. Rather, the main aim is to examine the Senate's evolving place in the Australian system of responsible parliamentary government.     

Australia's National Broadband Network – A cybersecure critical infrastructure?

In 2009 the Australian National Broadband Network (NBN) began to be rolled out across Australia. The Australian NBN is the largest infrastructure project in Australia's history since the Snowy Mountains Hydro-Electric Scheme from 1949 to 1972 and it has a projected cost of between AU$37 billion and AU$43 billion. Its purposes are to provide high speed broadband connectivity to 93% of Australia's homes and businesses, to enhance productivity, to improve the delivery of education, tele-medicine and regional connectivity and to form the basis of the Australian telecommunications network for the 21st Century. However, the project does not have bi-partisan support and has been affected by high-level management changes and anticipated cost over-runs.     

Conferencing in aboriginal communities in Canada: Finding middle ground in criminal justice?

This essay was written while the author was a Visiting Fellow, Law Program, Research School of Social Science, Australian National University, Canberra, Australia. The outline for this essay was first presented at a seminar convened jointly by the Law Program and the Centre for Aboriginal Economic Policy Research, Australian National University, March 22, 1995.     

Pre-parliamentary backgrounds of Australian major party MPs: effects on representation

Legislative recruitment patterns are an important study in the field of political science, given their consequences for the practice of parliamentary government. The Australian parliament is a bicameral legislature, including a powerful elected upper chamber. This article details the pre-parliamentary party backgrounds of Australia's two major parties, the Australian Labor Party (ALP) and the Liberal/National Party coalition (LNP) in the 39th Australian Parliament (1998–2001). It is hypothesised that the pre-parliamentary backgrounds of Upper House major party MPs are dominated by central party experience, while the party experience of Lower House MPs is more significantly localised. It is further hypothesised that these differences in pre-parliamentary backgrounds will remain constant when the respective parties are evaluated individually. This appears something of a paradox given that one would expect central party activists to prefer a legislative career in the lower house, affording them greater ministerial opportunities. The causes of such deviations from expected background distributions amongst legislators is explored. Contrary to traditional findings, upper house MPs are highly partisan, performing functionary roles to assist their lower house colleagues secure re-election. Strong senator partisanship is reflected in the non-parliamentary practice of major party senators. Such partisanship is a consequence of party selection methods, the electoral system and pre-parliamentary party backgrounds, not necessarily the uniquely powerful Australian Senate. It is therefore significant in the Australian polity and may have consequences for less powerful and/or unelected upper chambers in other bicameral parliaments.     

Obesity,Body Mass Index,and Homicide

The body mass indexes (BMIs) of 100 randomly selected homicide cases from the files of Forensic Science SA were compared to the Australian and South Australian populations. There were 70 males and 30 females (M:F = 2.3:1; age range 18–84 years; mean 42.3 years). There was a substantially lower proportion of obese individuals in the homicide population compared to the general Australian and South Australian populations (19% [vs.] 27.9% and 30%, respectively). A second group of 144 randomly selected autopsy cases where the BMI was ≥40 kg/m² was analyzed. There were 77 males and 67 females (M:F = 1.2:1; age range 23–78 years; mean 46.7 years). The majority of deaths were natural (N = 108), with no homicides. A negative association between obesity and homicide has, therefore, been demonstrated. Reasons for the lower numbers of obese/morbidly obese individuals among homicide victims are unclear, but may include physical protection afforded by fat padding from sharp force injuries, and relative sociodemographic isolation.