When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia

In Australia, prostitution regulation has taken a very different path from many other countries. Law reform has led to the opening of some significant new spaces for legal sex work, including the (very different) regulatory regimes established in two Australian states – Queensland (brothels legal if their owners are licensed) and New South Wales (most commercial sex businesses and some street prostitution decriminalized; no licensing regime). The main research question is: how has regulation impacted on the positive rights of sex workers? I argue that law reform has engaged a mix of neo-liberal and other approaches – not to increase personal or corporate freedom but as part of a practical strategy designed to control a range of social problems, such as police corruption and organized crime. Neo-liberal regulation of prostitution in Australia has always been deployed in tandem with other modes of regulation – including new criminal law and policing strategies, planning law, health regulations, and (of course) moral regulation.     

Theorizing Criminal Law Reform

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture.     

Human Rights Law: Australia and Slovenia

The human rights legal framework of Australia and Slovenia are vastly different. This article explores the evolution of human rights laws of Slovenia and Australia. While the study and comparison of Australia and Slovenia is uncommon, and not often used as an example to highlight aspects of human rights, both states have a long history of cooperation. The first Slovenian reportedly arrived in Australian in 1855. Since then, and particularly following World War Two, there has been a steady stream of Slovenian’s migrating to Australia. Slovenia upon independence prepared a new constitution that reflected the democratic human rights of the European Union, in 1991, and ratified the European Convention on Human rights in 1994. This article highlights how the opportunity Slovenia had to develop a new constitution, they were able to include many human rights that are often found in legislation. Australia’s constitution came into effect in 1901. Being more than 100 years old, there has been no attempts to revise the Australian constitution and expand the current express human rights. This article will determine whether the European Union’s human rights laws have not only influenced Slovenia’s human rights laws, but also Australia’s. This article suggests that Australia has much to learn from the Slovene experience, but is constrained by its constitution and region. This article highlights how a state formed in recent times, has had the opportunity to develop a constitution that reflects modern day human rights while an older state with longer established democracy has fallen behind in its protection of human rights.     

依法治国与金融法改革

进人新世纪以来,我国在政治、经济、社会体制等方面的改革稳步推进,取得了卓有成效的长足进步。我国正处於社会转型阶段。面临转型期的复杂经济形势,必须牢固深化经济体制改革的决心,紧紧围绕使市场在资源配置中起决定性作用来推进改革,坚持和完善基本经济制度,加快完善现代市场体系、宏观调控体系、开放型经济体系。当中尤其要不断建立健全完善、成熟的现代金融体系和配套的法律规律体系,并紧跟互联网时代的技术发展做出适时调整。     

论刑法国际化下我国刑法的发展

伴随着经济的全球化发展,法律制度的国际化步伐也在加快。基于对人权保护重要性的共识,刑法国际化已经是全球化背景下各国刑法完善的一个非常重要的方向。我国作为法治后发型国家,其刑法现代化的进程应该顺应当今世界的刑法趋势,在刑法国际化的背景下,应立足于中国已有的刑法国际化立法,积极合理地吸收国外有益的立法经验,在注重我国刑法本土化发展的同时,注重刑法理念的更新和现有刑事制度的完善,减少我国刑法国际化进程中的差异性,以便促进我国刑法的长足发展,实现刑法应有的机能。     

‘Payback’, Customary Law and Criminal Law in Colonised Australia

‘Payback’ is an Australian Aboriginal English term (also known in Melanesia) commonly understood to refer to a vendetta. Satisfaction of a grievance, such as a death or wife-stealing, may be sought through ritual ceremony, gift-giving, corporal punishment and ordeal, or even killing. Such phenomena, often characterised as vendetta or feud, have been noted by non-Aboriginal observers during most of the period of European colonisation (from 1788). In spite of the presumption of sovereignty that recognises only one law, it is shown that the criminal law in Australia has conceded limits to its reach in dealing with payback. More recently we observe that judicial attitudes have tended to recognise the positive functions of certain forms of payback in resolving conflict and upset in communities. Far from being eradicated by colonisation, payback retains a rationality in Aboriginal communities in a country that is subject to white man's law.     

澳大利亚、新西兰、香港、加拿大传闻法律改革及酝酿中的改革——以"先前不一致陈述"为重要视角

本文概览了澳大利亚、加拿大、新西兰、香港等四个主要的环太平洋普通法系国家和地区的传闻法律改革，尤其关注与先前不一致陈述相关的改革。指出先前不一致陈述事关“被告人获得公平对待”以及“证人的人权”等基本原则．因此，如何对待先前不一致陈述将成为一项有效的指标，通过该指标。我们得以评价传闻法律改革中的关键原则以及个人权利在大多数严重犯罪的起诉、审判过程中的境况。认为无论借助成文法还是借助先例．公正的传闻法改革应当适用某些相互一致的基本原则。包括放宽采纳传闻的条件决不能以错案数量增长或不公正审判为代价，将传闻改革与保护被告人、证人的基本权利紧密联系起来，保护证人不受任何形式的强迫或不当侦查行为的干扰．辩护律师必须能够无拘束地对陈述可采性加以质疑，通过充分、及时地开示证据来分析有争议的证据的可采性等。     

'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.     

Just So: “The Law Which Governs Australia is Australian Law”

This essay provides a gloss on the relationship between the common law and the ‘law of the land’. It does so by turning attention to the technologies and identifications that continue to give Australian jurisdiction its place. These relations repeat the long pattern of the common law ordering of colonisation. They also provide the governmental conditions of legal responsibility for settlement. This revised version was published online in July 2006 with corrections to the Cover Date.     

论公司法改革中商法思维的引入和运用

当前,在以法治思维和法治方式推动改革的背景下,商法思维得到理论和实务界的极大重视。我国于2013年12月28日完成的公司法改革,仅仅对公司资本缴纳制度进行了宽缓化处理,不具有结构性的突破。公司法再次修改的呼声渐隆。未来公司法改革,该如何引入和运用商法思维,目前尚缺乏深入系统的研究。以公司担保规范适用在理论和实践中存在的争点为视角切入,对商法思维的意义、内容体系及关键点等问题进行释疑和厘清,在此基础上就公司法改革中引入商法思维的功效及具体运用问题进行系统的阐释和论述,并对公司法改革引入和运用商法思维的留意点予以探讨,有重要价值。     

英国公司法的新近改革——英国"2006年公司法"评介

2006年11月8日,英国公司法修正案获得了王室批准并正式发布.这次公司法改革内容涉及强化中小企业地位、倡导股东在公司治理中的积极作用、重述衡平法及判例法董事义务与责任,以及改革公司设立与运营法律制度等多个方面.改革始终以服务经济为主线,以保持并继续强化英国的国际竞争力为目标,采用成本效益的分析方法,并通过充分的公开咨询、广泛听取市场各方意见的方式稳步推进.这其中的理念和方法值得我们借鉴.     

《森林法》基本概念重构

《森林法》领域存在着林地、林木、森林、森林资源等基本概念,这些概念之间的混乱关系已成为理论和实践工作者的一大诟病,不仅严重干扰了《森林法》的正确运行,而且造成与上位法的冲突。基于对这些概念文义上和法律上的解析,探寻出概念间关系混乱的根本原因,包括《森林法》名称本身与其调整范围的冲突,过于强调概念的技术界定,缺少与法律体系中相关概念的互动等等,进而提出重构这些概念的基本思路。