Briefs:
Columns:
Literature and the judicial role: why judges should read novels and mandatory sentencing should be rejected
by Rodney Allen
Drawing on the work of prominent philosopher, Martha Nussbaum, the author argues that judges need to consider and take in to account the benefits literature can provide.
Law's truth and other lies: women, sexual assault and the criminal justice system
by Julia Grix
Through the dramatic devices of literature the author presents the experiences of a rape victim in court.
Anzac heritage or Anzac history: truth or fiction?
by George Couvalis and Cheryl Simpson
In this article, the authors criticise the use of cultural heritage legislation to make military medals crucial items of Australian heritage. Using an argument from David Lowenthal that heritage typically distorts history, they argue that heritage legislation should be used to problematise Australia's role in various wars and not to celebrate it. They draw parallels between the current role of the Anzac myth and its role in Australia's past. We argue that John Anderson's claim that war memorials and related items can function to block proper critical discussion is as pertinent today as it was in 1931.
Legal aid and family law in Ireland
by Jenny Burley
Legal aid in Ireland is in a state of perpetual chaos. While Australia and the rest of the western world were restricting access to civil legal aid for family matters in the 1990s, Ireland was expanding its legal aid for family law. The reasons for this are interesting and complex and need to be understood in terms of Ireland's history, politics and culture.
Under attack: civil legal aid services in the USA
by Frances Gibson
Civil legal aid services in the USA have had a significant impact for poor people through test cases, education and lobbying. In recent years lobbying by conservative groups has resulted in decreased funding and increased government restrictions on the types of matters taken on, the types of clients that may be assisted and the types of activities legal aid lawyers may engage in to help their clients. In Australia, legal aid workers need to be vigilant in recognising and opposing cuts to funding and government restrictions that decrease access to legal services for particularly disadvantaged members of the community and in politically sensitive areas of law.
Of war crimes and humanitarian intervention
by James McConvill and Darryl Smith
In line with the recent expansion of international humanitarian law, this article explores the avenues that may be utilised to attribute responsibility to individuals who have committed war crimes in East Timor and Kosovo. The authors contend that the humanitarian intervention doctrine, in line with contemporary support for the expansion of this doctrine, is the best method.
Worse decisions? The Administrative Review Tribunal
by Margaret Castles
The long anticipated Commonwealth Administrative Review Tribunal Bill was introduced into federal parliament on 28 June 2000. Described as a step forward in the efficiency and informalism of the review of administrative decisions in the Commonwealth arena, it is based on the 1995 Better Decisions report of the Administrative Review Council, which recommended incorporating existing Commonwealth merits review tribunals into one ‘super’ tribunal. However, the proposals set out in the Bill go far further than structural reorganisation. The Bill proposes significant changes to appeal rights, to the opportunity of parties to be heard and to be represented, and potentially to the independence and autonomy of Tribunal members and processes. This article focuses on the diminution in the quality and availability of review, and on the impact of limiting rights to legal or other representation.
Practice Pointers: piloting a Youth Drug Court Program
Kerry Graham
Recommendations put forward by the NSW Wales drug Summit have led to the establishment of a Youth Drug Court (YDC) Program Pilot in western Sydney. The article provides a best practice guide for referral to the YDC in terms of submission to Children’s Courts on the satisfaction of legal eligibility and suitability of potential participants. The author stresses that practitioners play a critical role in the success of the pilot by ensuring that only the most appropriate young people are referred.
Aboriginal art: what is authorship?
by Christine Nicholls
This article focuses on the question of what constitutes authorship in relation to traditionally-orientated Indigenous Australian art. It is argued that a mismatch exists between the concept of 'authorship' in the traditionally oriented Centralian Indigenous context and what is recognised as 'authorship' by Australia's dominant legal system. That this continues to be so, it is further argued, is exemplified by a case heard relatively recently in Darwin in the Federal Court of Australia, by Justice Von Doussa (George Milpurrurru v R&T Textiles Pty Ltd & Minister for Aboriginal and Torres Strait Islander Affairs and Another, 3 September 1998. It is asserted in the article that while using the notion of a 'fiduciary relationship' may be a temporary and useful stopgap measure to address, or rather, to circumvent or work around, the cultural specificity of the Copyright Act 1968, the mismatch between the 'two laws' is too great for this to be applied universally. Ultimately a far better option would be to create a new, different legislative framework which has the capacity to reflect Indigenous 'ways of owning' and differing concepts of authorship. If this does not happen, the author concludes on a warning note, the entire Aboriginal art industry could become dangerously destabilised by future allegations against Indigenous artists, in cases where market forces militate against anything but a single signature. In fact this has already happened to the detriment of the careers of some practising Indigenous artists. Therefore, it behoves all interested parties to be working towards law reform in this area.
Intellectual property: arts for money's sake
by Terry Janke
This is a report on a seminar on Indigenous intellectual and cultural property rights. The author discusses the Copyright Amendment (Moral Rights) Bill 1999 that proposes to amend the Copyright Act 1968 to provide protection for the moral rights of authors, artists, playwrights, composers, screenwriters, directors and producers. In its current form the Bill falls short of protecting Indigenous cultural interests. The Brief also discusses resale royalties, the development of a code of ethics, individual vs communal rights, native title, a label of authenticity, and numerous other issues for Indigenous arts practice.
Free speech: Mr Coleman is not entitled to be an agitator
by John Chesterman
On 6 March 2000 Pat Coleman was convicted in Townsville Magistrates’ Court of over 20 breaches of local Townsville by-laws. His crime was to voice his political views before passers-by at an open-air market without first having obtained a permit from the local council. In this article, Coleman’s case is discussed and analysed both for its legal significance as a ‘free speech’ test case, and for its place as a commentary on a noticeable trend in the way dissident opinions are dealt with in North Queensland.
Olympics security: Sydney Olympics used as ‘catalyst’ for permanent military powers over civilian unrest
by Michael Head
Without any initial publicity whatsoever, the Howard government is using the Olympics to enact legislation allowing the military to be called out against domestic unrest. Innocuously titled the Defence Legislation Amendment (Aid to Civilian Authorities) Bill, the law seeks to pave the way, politically and legally, for the use of troops to suppress political disturbances, repudiating a centuries-old principle of English law that the armed forces should not be mobilised against civilians.
Status of women: Beijing plus five or Beijing minus five?
by Sabina Lauber
The author describes a Special Session of the UN Assembly to review the outcome of the 1995 Beijing Conference on Women which she attended as an adviser to the Australian government delegation. A lack of commitment to women's rights on the part of governments was clearly indicated at the meeting. Despite setbacks such as a watered down final outcomes document this was an important process for reviewing international standards for women, exposing deficiencies and working towards improvements.
Youth Affairs: school days are not happy days
by Louis Schetzer
The author highlights events at secondary schools in NSW and Victoria in the last year where students have faced barriers to expressing their opinions or have experienced concern about invasions of their bodily integrity. He concludes that we should ensure that schools are vehicles to imbue a sense of civic responsibility and understanding of human rights and not oppressive outposts immune form the obligation to respect basic human rights and civil liberties.