Law & Justice

Publication Search Results

Now showing 1 - 10 of 318
  • (2005) Clarke, Tamsin
    Australian debates about racial vilification legislation have been dominated by mainstream American First Amendment jurisprudence and popular American notions of 'free speech' to the exclusion of alternative Europeans models. This can be seen from notions of Australian racial vilification legislation as inconsistent with 'free speech' rights as well as the influence of some of the basic assumptions of First Amendment jurisprudence on political speech cases in the Australian High Court. Despite the widespread existence of legislation that penalises racial vilification at State and Federal levels, there has been a rise in Australia over the past 10 years of divisive 'race' politics. Against that background, this thesis considers the scope and limits of racial vilification legislation in Australia. It is argued that First Amendment jurisprudence is inadequate in the Australian context, because it is heavily dependent upon economic metaphors, individualistic notions of identity and outdated theories of communication. It assumes that 'free speech' in terms of lack of government intervention is essential to 'democracy'. It ignores the content, context and effect of harmful speech, except in extreme cases, with the result that socially harmful speech is protected in the name of 'free speech'. This has narrowed the parameters within which racial vilification is understood and hindered the development of a broader discourse on the realities of racist harms, and the mechanisms necessary for their redress. The author calls for the development of an Australian jurisprudence of harmful speech. Failing an Australian Bill of Rights, that jurisprudence would be grounded upon the implied constitutional right of free political speech, informed by an awareness that modern structures of public speech favour a very limited range of speech and speakers. The jurisprudence would take advantage of the insights of Critical Race Theory into the connections between racial vilification and racist behaviour, as well as the personal and social harms of racial vilification. Finally, it is argued that the concepts of human dignity and equality, which underpin European discrimination legislation and notions of justice, provide a way forward for Australian jurisprudence in this area.

  • (2020) Blackmore, Holly
    Violent criminal victimisation (VCV) can have a substantial impact on victims. This impact is increasingly discussed through the concept of trauma and, more recently, well-being. Yet in criminal justice research the term well-being can be vague in usage or confounded with other outcomes. The focus is also primarily on negative changes and hence it provides limited guidance on pathways to victim well-being. Drawing on current insights in trauma research this thesis develops a holistic conception of post-traumatic well-being, which relates to VCV and recognises the potential for positive and negative changes. The thesis is based on a mixed methods study of a difficult to access population and documents the experience of 28 victims of violent crimes (specifically, homicide and/or sexual assault) in New South Wales, Australia. Participants were interviewed twice and completed self-report psychological measures three times across a 12-month period. The crimes occurred on average 11.5 years prior to the study and a trial/inquest had occurred, allowing participants to reflect on the trajectory of their well-being. The thesis shows that post-traumatic well-being is a useful concept for capturing the unique, fluid and multifaceted nature of the effects of VCV. The study attends to the factors that hindered or helped well-being and maps these across the post-crime journey. The in-depth and longer-term focus of the study reaffirms the complex and ongoing nature of the impact of VCV and contact with the criminal justice system. The findings suggest a holistic approach is needed to reduce the impact of VCV, highlight the importance of considering victims in their individual context, and confirm the emerging literature regarding the existence of post-traumatic growth after VCV. The opportunity to examine the convergence or divergence of qualitative and quantitative findings demonstrates the potential richness of the mixed methods approach. Qualitative findings often add nuance and complexity to quantitative results. Several policy and practice recommendations are outlined, particularly the importance of a trauma-informed approach for fostering victim well-being. This thesis adds to the limited empirical documentation of the experience of VCV in Australian criminal justice research, provides context and direction to victim well-being research, and supports the utility of a trauma lens for understanding the unique nature of VCV.

  • (2020) Blayden, Lynsey
    In recent decades Australian judicial review of administrative action has been characterised as having taken a different shape to review in countries with a similar common law heritage. One explanation given for this difference is an attachment to what has been called ‘formalism’ or ‘legalism’ in Australian judicial doctrine. This thesis argues that instead, the source of the difference lies in the different normative institutional values of the Australian system of law and government. This thesis is divided into two parts. Part I sketches the contemporary framework of judicial review of administrative action in Australia. It looks at three defining features of it, the constitutional separation of judicial power, the distinction between merits and legality and the concept of jurisdictional error. This part of the thesis draws out the ways in which these features can be recognised as the product of a notion of judicial power which is responsive to institutional context. Part II of the thesis turns to a consideration of the normative values that have shaped conceptions of institutional power in Australia. This part of the thesis argues that, owing to the period in which the Australian Constitution was adopted, and certain aspects of Australian history, the Australian conception of government is characterised by what can be termed ‘new liberalism’ or ‘progressivism’, giving what can be recognised as a ‘functionalist’ character to Australian public law. A key tenet of new liberalism was that freedom was to be achieved through the state. A further tenet was that the people should be ‘self-governing’. Both ideas can be distinguished from the classical conception of liberalism at the centre of the traditional Diceyan conception of constitutionalism. This thesis argues that the presence of these ideas in the decades before and after Federation can be regarded as having helped to shape a concept of judicial power, which operates to prevent arbitrary state action and protect the overall health of the constitutional system itself, but otherwise leave questions of public policy or morality for resolution by the people themselves through the political process.

  • (2011) Lu, Wenwen
    In order to prevent terrorist attacks, in 2005 Australia introduced a new division into the Criminal Code 1995 (Cth). This allows preventative detention of terrorism suspects who have not been charged with any offence and of even non-suspects, for up to 48 hours under federal law, with the possibility of extending the detention up to 14 days under complementary State and Territory legislation. In contrast, since September 11, both Malaysia and Singapore have adopted only minor changes to their existing anti-terrorism laws. The two states have long dealt with terrorism suspects by relying primarily on the detention without charge measures provided for under the Internal Security Act 1960 (Malaysia) and the Internal Security Act 1965 (Singapore). The two Acts give the executive sweeping powers, including the power to indefinitely detain persons without charge for the purpose of national security. This thesis examines and compares the preventative detention measures adopted by these three states from an international human rights perspective. Security-based preventative detention is a permissible deprivation of liberty under the International Covenant on Civil and Political Rights as long as it is lawful and proportionate, but any detention without charge must conform to the procedural constraints. Despite the fact that Australia's detention regime includes some safeguards, its provisions are highly problematic. In Malaysia and Singapore, both schemes have been consistently used to suppress political dissidents rather than to protect the state from threats of terrorist acts. Although Australia's new detention regime has a different maximum period of detention and grounds of detention, it has in common with its Malaysian and Singaporean counterparts a lack of sufficient and effective procedural safeguards. These include the absence of a detainee's rights to a substantive merits review of the detention grounds, to have regular contact with the outside world, and to have confidential lawyer-client communications. The thesis concludes that the normalisation of extraordinary emergency rules in Malaysia and Singapore is already against international human rights law, and there is a real danger that Australia’s preventative detention regime might damage the established rule of law and the criminal justice system.

  • (2011) Maurushat, Alana
    A botnet is a collection of remotely controlled and compromised computers that are controlled by a bot master. Botnets are the main crime tool used by cybercriminals. To use an analogy, many crimes may be committed with a gun ranging from murder to rape to armed robbery to assault to breaking and entering to theft. Likewise, a botnet may be used in many forms of cybercrime and civil wrong ranging from sending spam, to denial of service attacks, to child pornography distribution, to worm propagation, to click-fraud, to keylogging technology and traffic sniffing which captures passwords and credit card information, and to mass identity theft. Botnets are a major crime tool used on the internet in a similar fashion to how a gun is used on the street. This thesis explores the regulation of botnets and the role that botnets play as a tool to commit many forms of cybercrime. In exploring regulation of botnets, countermeasures against fighting this crime tool will be analysed, and policy options evaluated as to under what circumstances society should prioritise combating botnets at the expense of encroaching on civil liberties, in particular the values of privacy and freedom of expression. This thesis argues that Internet service providers, domain name service providers and self-organised security communities are best positioned to effectively combat botnets. In determining the most effective regulatory measures to combat botnets, this thesis has investigated, and at points discounted, a range of other measures such as data breach notification, Sarbanes-Oxley, banking law, user education and training, non-criminal legal remedies, the range of technologies that botnets utilise, economic models to disrupt profitability, national and international criminal law, and technologies non-essential to botnets. This thesis is the result of inter-disciplinary research on botnets, combining insights from the disciplines of computer security, information systems, risk management, economics, regulation and law. Based on this inter-disciplinary research, the thesis demonstrates how cybercrime laws both at the national and international levels are rendered impotent through modern obfuscation crime tools. Reforms to the law are necessary to offer security research exemptions, remote search and seizure by law enforcement and the introduction of unwanted software legislation. At the same time, more safeguards to preserve civil liberties must also be built into Australian regulatory practice. In the course of examining the most effective ways to regulate botnets, the thesis also provides a case study demonstrating weaknesses in Lessig's Internet regulatory theory. Internet regulatory theories have generally placed emphasis on civil liberties and the struggles between users and governments over control of the regulation of the Internet. These theories, however, ignored the complex issues that cybercrime would bring into the discussion. The regulation of botnets is used to evaluate the utility of Lawrence Lessig's theory of Internet regulation through four modalities (market, norms, law and code). It is argued that the levels and types of cybercrime which have occurred in the last decade and in the decades to come were not anticipated by these theories and poses new theoretical issues. This thesis will demonstrate that effective botnet regulation will involve some use of illegal means, and inevitably will challenge not only the mindset that the law plays an authoritative role in regulation, but also Lessig's theory that market, code, and norms are the only significant forms of regulation. Changes or developments of Lessig's model are required. For example, many of the actions by self-organised security groups to combat botnets may be conceived as effective and moral though, as will be demonstrated, clearly illegal. The work of self-help remedies by these groups does not fit well with Lessig's theory. Self-organised security communities do not fall within any of Lessig's modalities and yet, the efforts of such groups are the most important countermeasures in combating botnets, and possibly in combating many forms of cybercrime.

  • (2012) Libesman, Teresa
    The failure of contemporary child welfare systems with respect to Indigenous children and young people points to the need for change. This thesis looks at why bureaucratic and mainstream responses to Indigenous children's well being have not been successful and whether a human rights framework can respond to Indigenous children's needs in more just and effective ways. Consideration is given to why bureaucratic decision making structures inhibit, and what structures promote, moral and fair judgements with respect to Aboriginal and Torres Strait Islander children and young peoples’ welfare and well being. These questions are addressed from interdisciplinary perspectives, drawing on comparative national and international jurisprudential, empirical and doctrinal responses to Indigenous children's welfare and well being. The core thematic question being whether pluralisation of responses to Indigenous children and young peoples’ well being, within a cross-cultural post-colonial context, can provide better outcomes for Indigenous children and young people than they currently experience? The thesis argues that the conceptualisation of human rights as pluralised and inclusive, compared with understandings which are universal and standard setting, can and has contributed to the establishment of international and national human rights frameworks and processes for reforms to law and service delivery with respect to Indigenous children's welfare and well being. Further, the engagement with comparative legal and service delivery frameworks for Indigenous children's welfare and well being across Australia, Canada, the United States and New Zealand has contributed to the development of normative understandings with respect to the relationship between cultural care and Indigenous children's well being in the context of child welfare. This thesis suggests that the extension of a pluralised understanding of human rights from child welfare to structural reforms which underlie abuse and neglect, offers the scope to extend the benefits of a participatory approach from welfare to development style responses to Indigenous children's well being. Such an approach will not only improve Indigenous children's well being but will also strengthen democratic ideals by enlarging debate and democratic structures to incorporate Indigenous peoples’ experiences.

  • (2020) Cody, Anna
    This thesis explores the role of clinical legal education as a methodology for teaching law students to become more reflective, justice-focused lawyers. Specifically, it questions the significance of reflective skills in enabling law students to achieve their ethical duty to contribute to justice. The thesis includes an analysis of empirical research which measures the impact of a clinical component within an applied legal ethics course on students’ understandings of ethical issues. This empirical evidence reveals the ways in which a clinical component, where students interview real clients, can enrich students’ understandings of what constitutes ethical issues. It emphasises the importance of caring for clients as a facet of achieving justice. A clinical component changes students’ understandings of what constitutes ethical issues, from narrower ideas of ‘conflict of interest’ to broader understandings of the limitations of the legal system to provide solutions for people and the limitations of free legal services. The thesis finds that developing a reflective lawyer means teaching a lawyer the importance of thinking about what they do, how they do it, and whether there are other ways of doing the work of a lawyer. It includes an analysis of both self in lawyering and the ability to think analytically about the law and the legal system and their role in creating social justice. Reflection is the key to students learning and understanding concepts of justice and injustice in a broad sense. Having examined the central role of reflective skills in forming reflective and justice-focused lawyers, the thesis discusses the ways in which including a clinical component can also provide a means to build students’ confidence in their ability to complete their law studies, and also reinforce their commitment to using law as a tool to achieve justice. This can, in turn, build students’ mental health and connect them with their purpose for studying law. The thesis finds, furthermore, that reflection is central as a means to interrogate identity and privilege in students. Identity in the form of ability/disability is one aspect of identity. The thesis finds specific means to teach this through a clinical methodology. It finds that teaching students about the medical versus the social model of understanding disability, and the centrality of people with disability in teaching students about disability, are fundamental to effective teaching of these issues. Through the lens of ability/disability, a range of facets of identity is examined. These are essential for future lawyers to reflect on in order to be effective lawyers. Within methods of legal education, clinical legal education is a particularly effective way of teaching students how to be reflective and justice-focused. It provides a path to transform legal education.