This article examines a 2020 NSW Supreme Court judgment upholding the legality of English-only rules for communications by ‘extreme high risk restricted’ prison inmates. The article focuses on the reasoning regarding claims to human rights to freedom of expression and from racial discrimination. It explains that the decision provides a rare insight into problematic Australian judicial thinking about

In a sexual offence case, jurors may have misconceptions that inappropriately affect their evaluation of a complainant’s evidence, for example, where the complainant has not complained at the first reasonable opportunity to do so. In Victoria, a judge may assist jurors to understand why a complainant may not have complained earlier by providing examples that are not drawn from the evidence. The Victorian

Social justice lawyers work to address social phenomena such as inequality, disadvantage, discrimination, marginalisation, oppression and abuse, addressing the immediate needs of a client, or the structural causes of those needs, or both. But social justice lawyers are rarely explicit about the specific knowledge and qualities that their lawyering demands, and that they demonstrate. Across doctrine

If you’re ready to dive into the fantasy world of our cover artist, Nicola Gower Wallis, then hold your breath and suspend disbelief.

Large technology platform companies have created data centres, filled with banks of data storage and processing equipment to collect, store and process the data created in the last two decades. These consume vast amounts of electricity and emit proportional amounts of heat as waste. This article considers the power of the big technology platforms to direct attention away from these by-products. The

In late April 2021, the Commonwealth government determined to prohibit overseas travellers who had been in India from returning to Australia, subjecting them to heavy penalties for breach. This measure was controversial and unprecedented in Australia’s response to COVID-19, drawing sharp criticism for breaching human rights. This article analyses the human rights issues arising under the Health Minister’s

This article explores the implementation of the right to bail for prisoners during COVID-19. Using data from a sample of 50 advocates collected through a face-to-face questionnaire, the article probes lawyers’ perceptions of the functioning of the mechanism of bail in the pandemic. The article also evaluates the efficacy of measures taken to decongest prisons by critically reviewing the criteria identified

This article considers how postmodernist thought can illuminate the doctrine of judicial notice. Specifically, it considers how postmodernist critiques of empiricism have challenged the idea of ‘indisputable’ facts which inform judicial decision-making. It argues that, while the practical realities of judicial administration must be borne in mind, increased sensitivity to the arbitrary nature of notorious

This article sets out the background to what has occurred since the issuing of the Uluru Statement from the Heart and provides an overview of the Indigenous Voice Co-Design Interim Report and its Voice design options. In doing so, we discuss the possible progression of Local and Regional Voices and other sub-national legislation on First Nations issues. We analyse how those efforts might be limited

The Extinction Rebellion protests of 2019 and 2020 resulted in peaceful protesters being charged for a range of minor, non-violent criminal offences. The defence to those charges is necessity, a defence tightly restricted in its use by the courts. This article argues that in the specific context of minor criminal offences committed during anthropogenic global warming (AGW) protests, necessity must

This article explores the barriers experienced by Indigenous Australians that prevent adequate engagement with the coronial system in New South Wales. The findings presented here are the result of a qualitative study involving key legal professionals and advocates in the coronial jurisdiction. A number of significant shortcomings are identified, including inadequate funding, a lack of information and

This article analyses how current Freedom of Information (FOI) laws apply to automated decision-making systems. The authors argue that while current law may extend to automated systems, its application is unclear, both to practitioners and government. Instead, amendments to the FOI Act 1982 (Cth) could clarify how the law operates with respect to automated systems and better balance the underpinning

This article presents an exploratory discussion of Antony Anghie’s history of the making of international law. It provides an accessible introduction to the text and some of the debates surrounding its key arguments. The article goes on to explore Anghie’s arguments in the context of Article 6 of the Paris Agreement. Anghie’s arguments are used to foreground the colonial encounter in carbon market

This article examines dousing threats as criminal conduct and a form of domestic and family violence. It points to recent cases of dousing and highlights concerns that the low penalties of applicable offences in Queensland may not reflect the gravity of the harm caused nor the culpability of offenders. The article analyses the current legal framework and argues that a new dousing offence in Queensland

The recent deployment of ‘the Rule of Law’ by the Prime Minister and Attorney-General relies upon a shared notion that the Rule of Law is a good thing. While everyone is in favour of it, do we really know what it is? Even if we do, is it the case that we take it to mean the same thing as other people? By adopting a critical view of Rule of Law conceptions that are accepted as constituting the meaning

Whatever else may have been their shortcoming with respect to coloured people, the founding fathers clearly did not view Indigenous peoples as aliens. They made it clear that Indigenous peoples were a state issue and that their regulation was to be local. The founding fathers also did not (or probably could not) ethnically cleanse the continent and did not appear to attempt to do so. In seeking to

This article considers the legal status of protest rights in Australia during the COVID-19 public health crisis. It discusses jurisprudence of the New South Wales Supreme Court regarding the legality of mass gatherings for the purpose of protest during the COVID pandemic. Balancing protest rights with risks to community safety posed by possible coronavirus transmission at public assemblies, the Court

It's been 30 years since the tabling of the Royal Commission into Aboriginal Deaths in Custody and for Indigenous people things are worse than they have ever been when dealing with the justice industry.

For over 20 years Australia has provided assistance to Papua New Guinea in the development of their law and justice sector. The Justice Services and Stability for Development program is the most recent of such law and justice development assistance programs. Much like its predecessors, while it made some achievements, efforts have ultimately underperformed due to an inadequate and donor-centric monitoring

In 2017, the Uluru Statement from the Heart provided a consensus position on constitutional reform derived from Regional Dialogues drawing on experiences, views and aspirations of First Nations people. Among its recommendations is a constitutionally entrenched Voice to Parliament. While the government supports a watered-down Voice, this article identifies the key features of constitutional enshrinement

In a year of challenges from the novel coronavirus, the new Queensland Human Rights Act was applied in unexpected ways. Its new complaints process was particularly tested by hotel quarantine restrictions. Nonetheless, geographic and demographic differences between Queensland and other human rights jurisdictions are also emerging as especially relevant to how human rights protection will be applied

The economic and political empowerment of Indigenous people are linked although the issue of economic empowerment is often overlooked. This Brief analyses the corporate governance model and business structures used by Māori in New Zealand along with some developments in Canadian Indigenous businesses. Based on this, the Brief makes suggestions for proving the regulatory support and options available

Regulatory oversight is crucial to ensure human rights are protected in closed environments. In Victoria, evidence continues to surface that suggests oversight of the public mental health system is failing consumers. There are, however, several lessons for regulators on how to ensure consumers enjoy equal protection of the law.

This article reports on a qualitative study aimed at understanding how LGBTQI+ law students and recent graduates perceive and experience the legal profession. While we found that several participants self-censor in interactions with the profession, others considered their LGBTQI+ identity as advantageous, enabling them to benefit from ‘diversity hiring’. Despite this, many participants regarded the

This article considers how a First Nations Voice to Parliament, if carefully designed, could strengthen the land-based sovereignty and autonomy of First Peoples in Australia. It critiques the proposals presented in the Indigenous Voice Co-design Process' Interim Report released January 2021 for its emphasis on the role of government and existing structures. It responds to Indigenous critiques of the

The concept of ‘the people' in the Australian Constitution is at the heart of our system of representative government. The Voice proposal in the Uluru Statement from the Heart is consistent with the way in which ‘the people’ have been understood by the High Court – both their identity and their political roles under the Constitution. This consistency is one of the many reasons to support constitutional

This article argues that prison art programs are central to the human rights of Indigenous detainees. It examines how these programs are most commonly understood in terms of their rehabilitative value, an approach which fails to fully capture the right of Indigenous detainees to participation in them. It argues that a human rights framework should be applied to prison art programs. This recognises

Investigative Genetic Genealogy (IGG) has opened up new frontiers in the search for the perpetrators of serious crimes. The pool of data held by consumer DNA databases has enabled law enforcement agencies to undertake database matching to find biological relatives of an unknown perpetrator. This relatively new forensic practice is not, however, without concerns when benchmarked against established

Research shows that memory for conversation is poor. People generally remember gist rather than verbatim and recalled memories of specific sentences are reconstructed to reflect gist memories. Memories of specific sentences that are reconstructed from gist memory are almost certainly not accurate. This study explores a case in which the court nevertheless considers verbatim memories to hold more weight

This article critically engages with the concept and practice of ‘wellbeing’. Over the last decade, managerial practices have broadly introduced ‘wellbeing’ policies into the workplace, including the legal workplace. While these practices, in principle, can offer important forms of support for staff under professional stress, they can also be counterproductive, and have the effect of escalating stress

This article explores the practice of the media to unreasonably intrude on victims' privacy in Australia by reference to three women whose sexual harassment grievances were published by the media without their consent. This article argues that the protection of a victim’s privacy is a fundamental human right which should trump competing public interest considerations in the Australian context. In the

More and more young Australians are undertaking periods of work experience as a part of their study or independently to facilitate their transition into employment. They are often subject to a significant power disparity compared to others in the workplace, and need the placement to finish a course, and/or to get practical experience, connections and industry references. This makes them vulnerable

Many local councils in Australia commence their meetings with prayer. Case law in the United Kingdom holds that English local councils do not have power to commence their meetings with prayer. This article argues that the reasoning of the UK case law applies with equal force in Australia with the result that the practice of many Australian local councils of incorporating prayers into their formal meetings

We examine the effect of vicarious trauma on various stakeholders in the legal profession. Criminal lawyers are likely to experience higher levels of vicarious trauma than other lawyers. Additionally, lawyers are at a heightened risk of vicarious trauma compared to other helping professionals such as mental health workers. We identify a range of strategies that can be implemented at an organisational

After prolonged periods of criminalisation, 20th and 21st century law reform has now moved abortion care closer to being regulated as health care in all Australian jurisdictions. However, no jurisdiction has yet tested the proposition that specific laws for abortion care are unnecessary. This article analyses the capability of health law, policy and ethics to regulate abortion comprehensively, without

This article critically assesses a key question raised repeatedly during the tenure of US President Donald Trump – could (or should) the 25th Amendment to the US Constitution have been invoked to suspend him from office? Although moot in a practical sense following the 2020 US presidential election, exploring this question from an Australian perspective provides the opportunity to reflect on fundamental

Before the COVID-19 pandemic, Australia was facing an incipient eviction crisis, the gravity of which had been obscured by inadequate data and the gradual mounting of systemic problems of unaffordability and insecurity. This article reviews the legal framework around tenancies and evictions and the sparse data it produces. Tribunal data obtained by the author shows that Australia’s two largest jurisdictions

Australia’s National Plan to Reduce Violence against Women and their Children, launched in 2010, has emphasised the need for integrated responses across government agencies, specialist domestic and family violence services and the justice system. This article presents an evaluation of an integrated, community-based domestic and family violence response service that uses a rare model of co-location

Recently, interest in ‘bush tucker’ foods has surged. Indigenous Australians should be empowered to determine how their knowledge is used when these products are commercialised. To exercise control over the development of the native foods industry, Indigenous Australians could establish a certification regime to ensure that their knowledge is appropriately converted into commercial products. This could

The upward trend of incarceration rates persists among women in Victoria, with increasingly punitive sentencing and onerous new bail laws. At the same time, the complex needs of women in the criminal justice system are becoming the focus of greater study and documentation. This article presents the case for a specialist women’s list under the Magistrates’ Court of Victoria jurisdiction, based in principles

This article considers key non-disclosure cases in the United Kingdom and Australia and the potential for prosecution disclosure failings to lead to miscarriages of justice. The authors discuss disclosure obligations in the context of the police–prosecution relationship and aspects of police culture that may facilitate practices of non-disclosure. They note that cultures of non-disclosure can place

Discussions about the human rights of LGBTIQ people tend to centre around two vastly different issues, namely, marriage equality and the criminalisation of same-sex sexual conduct. However, looking only at these two high-profile issues ignores the many pressing concerns facing LGBTIQ people around the world. This article identifies and analyses eight other human rights issues that urgently need addressing

Long before fantasy fiction was ‘a thing’, and The Hobbit and Game of Thrones popularised mythical beasts on screens around the world, Argentinian writer Jorge Luis Borges compiled his own bestiary, The Book of Imaginary Beings, brimful with fabulous animals. They were ‘fabulous’, of course, because they were the stuff of fables – often based on tales from long ago and far away. Mythical creatures

The Northern Territory’s Burial and Cremation Bill 2019 has been criticised as a gross form of disrespect to traditional Aboriginal law, with Indigenous people arguing that the Bill criminalises th...

Both ‘women in law’ and ‘women and law’ have assumed great significance over the last century. Women have not only struggled to be admitted to the legal profession and to be accepted as members of the jurisprudential community, but they have also sought to change the myriad laws relegating women to subordinate status within the broader society. Substantive equality for women nevertheless remains elusive

During the COVID-19 pandemic, courts around the world have introduced a range of technologies to cope with social distancing requirements. Jury trials have been largely delayed, although some juris...

In 2018, the Corrective Services Administrators’ Council updated the Standard Guidelines for Corrections in Australia (2012), renaming them the Guiding Principles for Corrections in Australia. This...

This article examines compassionate sentencing as a model of therapeutic jurisprudence. More specifically, it makes the case for the use of compassionate sentencing as a method for the criminal jus...

This article suggests a cohesive articulation of the shared basis upon which the interdisciplinary research field of law and linguistics is developing, organising the research around the familiar t...

Biodiversity loss continues to be one of the greatest issues for this generation despite the development of International Environmental Law (IEL). By examining the anthropocentric nature of the Con...

This article examines the Australian Competition and Consumer Commission’s proposal that privacy laws be amended to provide individuals with a right of ‘erasure’ (Digital Platforms Inquiry, rec 16(...

In the recent case of Pell v The Queen, the High Court quashed the jury’s verdict and reversed the decision of the Court of Appeal (majority) in Victoria. This article analyses the High Court’s approach to determining the facts that were open to the jury and to determining whether the jury erred in finding Cardinal Pell guilty. The High Court’s decision raises important issues about the jury as Australia’s

This article uses the experiences of professional soccer player Abdelhak ‘Appie’ Nouri, who suffered a cardiac arrhythmia at 20 years of age during a pre-season friendly in 2017, as the stepping off point for examining the use and regulation of genetic testing in sport and the human rights implications of genetic testing child athletes for the purposes of talent identification and performance enhancement

Objects have social lives like humans and are invested with the properties of social relations. We restore performativity to the journeying objects of the Maseit street magicians by drawing on our ...

Before COVID we happily took a train to our workplace without wearing a mask, leaving our computer at home. We used email and the phone to link to people. With relative abandon, we vacuumed up a vast range of digital technology from frivolous fitness apps to multiple office screen processes likes Microsoft Teams and Zoom. We often failed to distinguish between what was simply playful and what was actually

When the coronavirus pandemic (COVID-19) struck in early 2020, the Commonwealth government eased reporting deadlines and extended the date for firms required to submit modern slavery statements under Australia’s Modern Slavery Act 2018 (Cth). The economic recession caused by COVID-19 has produced the necessary conditions for further exploitation and enslavement of vulnerable individuals. This article

This article provides an overview of the response of Australian courts to the COVID-19 crisis, and critically examines a number of structures and systemic issues that arise from the shift to the online deliver of justice. It places the current responses in the context of the emerging literature regarding online dispute resolution, and draws upon that literature to consider issues including open justice

This article identifies tensions between the human rights central to a return to classroom-based education during the COVID-19 pandemic. It notes the complexity of balancing rights to health, education and work for students, teachers and school staff, including for the most vulnerable in those groups. The authors argue that Australia would be well served by a comprehensive human rights framework to

There is a growing literature on wellness for law in Australia and elsewhere. Significant uncertainty exists, however, about what exactly wellness means in this context. I argue that wellness is not best understood either as the absence of psychological distress or as the presence of life satisfaction or positive affect. I propose an alternative understanding of wellness that centres around the role

Australia’s system of law and government contains a range of mechanisms through which the executive branch is held to account for its actions. However, in emergencies, these accountability mechanisms are often significantly eroded in a range of ways. This article examines how the forms and types of powers that Australian governments have relied on to respond to the COVID-19 pandemic have avoided many