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(2011)Journal ArticleUnited Nation’s conventions exist to help facilitate and protect vulnerable people’s human rights: including people with disabilities (Convention on the Rights of Persons with Disabilities, 2006) and children (Convention on the Rights of the Child, 1989). However, for some families where a family member has a disability, there may be inherent conflicts in meeting stand-alone human rights’ conventions. These conventions should work together to ensure that young people with disabilities and challenging behaviour and their parents and siblings all have equal rights to full participation in social, economic and civic life. Yet service system deficits mean that this is not always the case. This paper argues that governments need to provide a whole of family and community support approach to ensure the human rights of all family members are met. This is a complex ethical, moral and human rights issue that needs addressing by disability scholars and the disability community.
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(2010)ThesisThe primary objective of this thesis is to develop and use a new framework to examine the existence of the rule of law in Thailand. Many writers believe that Thailand is a nation which lacks sufficient constraint on the exercise of arbitrary power. These writers often blame the judiciary and other key institutions for not curbing corruption and other forms of abuses of power. While each writer adopts a different approach in analysing the rule of law, their views are almost always taken out of context and do not tell the entire story. This is considered as inadequate, as these views often fail to appreciate the core sociological aspects of the rule of law. It is these core sociological aspects which are considered as essential to understanding the way the rule of law operates in Thailand. Without a proper understanding of the traditions and culture of Thailand, it is misguiding to simply transplant the classic view of the rule of law and compare its key institutions in an ad hoc way. History has shown that more often than not the process generally does not work. A more rigorous analysis is required. This thesis explains and adopts the new approach in examining the rule of law in Thailand. This approach examines the key influences of the rule of law in light of its sociological context. It looks beyond the judiciary and other independent institutions and into various areas of social science. Particularly, the level of independence and performance of each major court in Thailand is examined, followed by a comprehensive evaluation of selected independent constitutional institutions. These institutions are then considered in light of other sociological influences on the rule of law in Thailand. Such influences include: social values, political culture, religion, the King and the military. Other external influences such as Asian values and globalisation are also considered. These influences are something that has never been explored before. In saying this, the new approach – the sociological methodology differs considerably from past attempts to analyse the existence of the rule of law in Thailand and concludes contrary to popular belief.
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(2010)ThesisOver the last few decades, banks throughout the world have found it increasingly difficult to obtain outright guarantees from companies to cover loan or other financial facilities to subsidiaries. Consequently, various third party credit support devices or comfort instruments, generally known as letters of comfort, have developed to provide an alternative to traditional forms of security. It is necessary for a proper understanding of these instruments to investigate their origin, to delineate them, and to consider their use in corporate group and banking practice. The typical comfort letter transaction involves the parent‐subsidiary‐lender trinity and at least three different, but inter‐related relationships which may be regulated by different legal regimes – first, between a lender and the subsidiary; secondly, between a lender and the parent company; and thirdly, between the parent company and the subsidiary. When the relationship between a lender and the subsidiary breaks down or the latter becomes insolvent, the courts are usually asked to determine the contractual effect of the letter of comfort as between the lender and the parent company. Letters of comfort are predominantly used in international business transactions. The issue of comfort letter enforceability is considerably more complex within an international context than in one’s own legal system. Courts in different jurisdictions and in disparate legal systems have adopted distinct approaches to determine the contractual enforceability of letters of comfort. Accordingly, a trans‐systemic view of the contractual effect of letters of comfort is necessary to be aware of the way in which such letters are treated in other legal systems, and to facilitate a consistent treatment of an instrument of international use in one’s domestic law. Over the years, letters of comfort have become more detailed in content. The result is more litigation about the enforceability of letters of comfort and, because of courts undertaking more contractual analysis of such letters, a doctrinal foundation for the assessment of liability against a parent company has started to be developed by courts in some jurisdictions. Legal liability based on a letter of comfort is a real possibility. Like a boomerang, a letter of comfort is potentially a dangerous instrument when it returns to its unsuspecting originator.
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(2010)Journal ArticleThe Commonwealth Legal Information Institute (CommonLII – www.commonlii.org – pronounced ‘Common-lee’), is a non-profit and free access website for legal information from all countries that are members of the Commonwealth and their territories (more than 60). CommonLII also covers a small number of significant non-Commonwealth countries and territories that have a legal system based on the common law. The main purpose of CommonLII is to provide a comparative law facility by which the laws of all common law countries can be searched and compared. In relation to case law, CommonLII assists in making the ideal of an international common law a reality, by providing the case law collection with the broadest geographical scope, and the only free access international citator (LawCite). In relation to legislation, CommonLII makes it easier to compare legislative developments in the same subject-areas across Commonwealth countries, and can therefore assist in the process of law reform, as well as increasing the transparency of each country’s legal system. CommonLII also makes it easier to find commentaries on the law from Commonwealth and common law countries, including law reform reports and some law journals. This paper explains CommonLII’s development since its launch in 2005 (its partners, scope and supporters; the range of content from each country; and technical features, illustrated by searches), emphasising the significance of the addition of the English Reports 1220-1873 and the LawCite international citator. It concludes with an outline of likely future developments due to funding provided for 2010-11 by the Australian Research Council, Commonwealth Secretariat and Australian Attorney-General’s Department.
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(2011)Book ChapterThis chapter aims to explore the history of imaging in medicine, the evolution of the photodocumentation of genital injury and the medical and ethical issues involved as they affect adult cases as opposed to child cases. Both the reticence of doctors to photodocument genital injury on ethical grounds, and the medical and legal consequences of this for both complainants and defendants in rape cases, is of particular interest to both authors of this chapter.
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(2011)ThesisA 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.
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(2011)ThesisThis thesis explores the impact of the conceptualisation of human identity upon our understanding and animation of human rights and how the notion of human identity informs the ethical goals of human justice in such rights. Beginning from the position that our contemporary human rights’ discourse emerges from the epistemological shift in Western history from pre-modernity to modernity, our contemporary understanding and articulations of modern rights stem from the liberal philosophy of Western humanism and the rights of man thesis. With these influences there is the philosophical and political focus in modern human rights on the individual subject and the ontological signification of its (potential) presence of being and autonomous powers of being, expressed and exercised through the so-called universal traits of human identity — the individual’s independent conscious capacities of reasoned intentionality and self-will. Yet since the mid-twentieth century, post discourses (such a poststructuralism, postmodernism and more generally, post-humanism) have challenged such liberal notions of human identity, with its prioritisation of the presence-of-self in a commune of the Same. Such post discourses focus on the radical quality of alterity within human identity — the very trait of distinction and otherness. In this thesis I argue that with alterity, rather than promote the atomised individual of autonomous powers of being and its ontological presence of self, postmodern ethics brings human identity under the subjugation of the “beyondness of the other.” It is the distinction of the other, rather than its reduced Sameness to the self, which animates a potential post-humanist ethical inter-subjectivity. Two such post-humanist thinkers of ethical alterity which I explore in this thesis are Jacques Lacan and Emmanuel Levinas. Lacan focuses on the other of unconscious desire and the loss of human fulfilment, while Levinas explores the face of the other human subject. In both cases, it is the alterity of the other which institutionalises a pre-foundational, prevenient inter-subjectivity between self and other, which always already marks human identity with an openness towards otherness which is beyond being. In this way, I argue that such ethics of alterity contains the transformative potential of re-orientating the conceptualisation of human identity and the architectural aspect of our contemporary human rights. Rather than a right of the individual self and the hegemonic processes of social homogeneity, alterity animates a human rights of otherness, in which the ethical integrity of human identity and human rights rests upon a responsibility for-the-other and a critical vigilance towards alterity and its affective impact upon the subject and society.
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(2011)ThesisRecently, the HIV sector in New South Wales has developed a strong interest in HIV-related criminal offences which have been vigorously contested in policy and public health literature. This research attempts to move beyond specific issues of public policy or doctrinal development and situates the imposition of HIV-related criminal offences as a part of a broader question of the nature of law itself, its place in contemporary approaches to regulation and understandings of power and importantly its relationship with other techniques of governance such as the disciplines of public health and health promotion in particular. The central argument of this research is that law is mischaracterised in current debates about the governance of HIV. In characterising the nature of law itself and the interplay between legal-juridical power on the one hand and bio- and disciplinary power on the other, an anaemic characterisation of the law has led to a kind of knee-jerk antinomianism which risks embedding or simply re-creating the problems which the entire law reform and public health project sets out to solve. I undertake the review of HIV-related criminal law through the work of Foucault. I use Foucault in an exegetical mode rather than the more traditional methodological application of Foucault s various methods. By reading Foucault s substantive statements on law we see that rather than Foucault "refus[ing] to accord any major role to legal regulation in creating the distinctive features of modernity, a revised characterisation of the governance of HIV requires that we cease portraying HIV-related law and public health approaches as mutually exclusive. We must reorient our understanding towards one where law and public health are understood to exist in a relationship of mutual co-constitution through processes of strategic withdrawal and conflict. This position provides a new contribution to a literature which has generally underplayed the dynamic interrelation of HIV-related law and public health, which has tended to call for decriminalisation and other discrete modes of law reform, reflective of a view which sees law and its disciplinary other as separately constituted domains and a law which prohibits rather than adapts to resistance and transgression.
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(2011)ThesisIn 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.
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(2011)ThesisThe primary question explored by this thesis is what alternative, carbon tax or emissions trading, would be an optimal policy for climate change mitigation in Australia. This thesis focuses on assessing carbon tax and emissions trading policy options on the basis of multiple criteria related to climate change policy in the Australian context. The study analyses the issues of environmental degradation, policy responses to the climate change issue, carbon taxation and emissions trading as a theoretical foundation for addressing the research question. The weaknesses of common evaluation methods and practices in dealing with climate change policy are also critiqued. After reviewing policy evaluation methods, the study builds a methodological framework to assess the climate change policy options based on the multi-criteria and Delphi methods. To facilitate the evaluation procedure, the criteria necessary for the climate change policy evaluation are identified. This study employs the Delphi method to verify the evaluation criteria in the Australian context and to assess the relative importance of these criteria. The thesis also attempts to construct carbon tax and emissions trading policies for Australia using a combination of theoretical and practical considerations. Further, these two contrasting policies are qualitatively analysed with reference to the identified criteria to assess potential performance of the proposed carbon tax and emissions trading. The resultant evaluation criteria and performance ranks of each proposed policy option allows building a decision matrix which facilitates the final evaluation and selection of an optimal policy. The evaluation results reveal that the carbon tax policy constructed by this study outperforms the designed emissions trading in terms of many criteria. As a result, the carbon tax is identified as an optimal climate change mitigation policy for Australia. The results of this study also indicate that the emissions trading proposed by the Australian Government might be a misleading policy founded on biased assumptions. Based on these findings it is recommended that Australia reconsider carbon tax and emissions trading policies on the basis of well developed multiple criteria to obtain a justified and sustained policy solution.