Law & Justice

Publication Search Results

Now showing 1 - 10 of 111
  • (2011) Muir, Kristy; Goldblatt, Beth
    Journal Article
    United 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.

  • (2018) Omran, Ayah
    Honour-based violence is deemed to be an extreme manifestation of women s rights violations throughout the Arab world including Palestine. The connection between the honour phenomenon and Islamic shari a, along with Arab conservative tradition, raises controversy surrounding the genuine origin of this phenomenon and how to combat it. Understanding the phenomenon and how to combat it require taking into account two considerations. First, honour-based violence is a form of gender-based violence that must be combated with the principles of gender equality. Accordingly, the thesis illustrates the prominent approaches to gender equality in the legal process. Highlighting the shortcomings of these approaches shows that both the sameness and differences approaches provide for solutions, rather than providing frameworks to analyse the causes of the problem. However, many contemporary feminist scholars, such as post-colonial feminist scholars, emphasize the universal sisterhood while understanding the specific cultural context of each group of women. Second, it is essential to understand the unique conditions of Palestinian society and the role of honour in the Palestinian social structure. This can be achieved through an intersectionality approach. This approach focuses on intersecting specific social divisions (mainly gender, class, and ethnicity); and the impact of this intersection on the specific phenomenon of gender-based violence. The legitimization of honour violence in the legal process is studied through understanding the intersection of gender, age, ethnicity, and class within the political agendas of the various nationalism projects. The main nationalism projects subject to analysis are the ones which have shaped the legal process in the West Bank: the Jordanian nationalism project that shaped the applied Penal Code No. (16) of 1960 and represents a post-colonial nationalism project, the Palestinian Liberation Organization s nationalism project and the Israeli nationalism project which represent conflict nationalism projects; and the Palestinian state nationalism project which represents a post-conflict nationalism project. The Palestinian and the Israeli projects have shaped the Palestinian draft of the Penal Code of 2011. In other words, understanding the reasons why honour violence is entrenched in the Palestinian legal process comes through analysing the intersection of gender, class, age and ethnicity within post-colonial, conflict and post-conflict nationalism projects. This thesis seeks to answer the main research question which is: How does the legal system in Palestine incorporate principles of gender equality into the Penal Code to combat honour-based violence? The following sub-questions are designed to help answering the main research question: What are the legal dimensions of the problem of honour-based violence? What is the meaning of gender equality in the context of combating honour-based violence in Palestine? What are the manifestations of intersectionality in the Palestinian social structure that are relevant to understanding and addressing honour-based violence? Why and how is the Palestinian legislative process affected by the intersectionality of specific social divisions? What are the stages of the evolution of the concept of honour as a sign of loyalty in the legislative process? Why and how is the Palestinian judicial process affected by the intersectionality of specific social divisions? What is the nature of the relationship between the judiciary and the legislator in entrenching honour-based violence? What legal reforms can contribute to a solution? Answering these questions highlights the stages of honour s evolution as a sign of loyalty that persists in the legal process and reflect the complicit relationship between judges and legislators to entrench honour-based violence in the Palestinian legal system. This understanding is the basis of the suggested reform mechanisms.

  • (2019) Manwaring, Kayleen
    A third wave of computing is emerging, based on widespread use of processors with data handling and communications capabilities embedded in a variety of objects and environments not previously computerised, such as refrigerators, buildings, cars, fitness trackers and hairbrushes. With the ensuing sociotechnical change the possibility arises of a regulatory disconnection between current consumer protection law and new things, activities and relationships brought about by the third wave. This third wave has had many names, including ubiquitous and pervasive computing, ambient intelligence and the Internet of Things. However, significant definitional inconsistencies and incoherencies exist, necessitating the development in this dissertation of a technical research framework. This framework involves abstracting and analysing the attributes of, and interactions among, the technologies, and defining a unifying concept for the central technological element, the eObject . The dissertation proceeds to outline the categories of legal problems that can arise in the context of sociotechnical change, emphasising that not every instance of sociotechnical change operates outside the scope of existing legal rules. Therefore, new things, activities and relationships enabled by new technologies should first be judged against existing rules and their goals. The attributes and interactions of eObjects are then interrogated to identify where sociotechnical change associated with eObjects might lead to challenges for consumers. The challenges identified are ones whose outcomes are in conflict with the goals of Australian consumer protection law, potentially giving rise to legal problems. One of those identified challenges is examined in depth. Widespread digitisation of commerce has arguably given firms an enhanced ability not only to compile detailed customer profiles, but also to exploit consumers individual biases and vulnerabilities. This dissertation argues that 0pportunities for such digital consumer manipulation will be substantially increased by the widespread use of eObjects. Provisions of the Australian Consumer Law (ACL) and related cases are examined to evaluate the effectiveness of Australian consumer protection law in the face of digital consumer manipulation facilitated by eObjects. Legal problems with the ACL are identified; and some mechanisms for reconnection of consumer law with its goals and purposes are outlined and analysed. This examination allows for a reflecting back on the utility of particular concepts and frameworks used in law and technology research.

  • (2019) Hamilton, Mark
    Simply defined, restorative justice conferencing is a facilitated dialogue between relevant stakeholders to an offence. This dissertation explores the applicability of such conferencing as part of the prosecution of pollution offending in New South Wales, Australia (and by extension, comparable jurisdictions). Analysis of 175 Land and Environment Court pollution offending judgments, coupled with interviews with those involved in the prosecution of such offending, reveals that prosecution achieves a binary conceptualisation of justice; justice as procedure and justice as outcome. This binary conceptualisation of justice is being achieved with minimal to no offender and victim input, voice and interaction. Drawing on approaches within green criminology a further conceptualisation of justice was formulated. That being justice as meaningful involvement, which recognises the wide range of victims of pollution offending and seeks inclusion of those victims in the aftermath of crime to ensure the continued functioning of those victims. Justice as meaningful involvement is the antithesis of the minimal to no offender and victim input, voice and interaction afforded by prosecution of pollution offending. Interviews and a documentary analysis of restorative justice conferencing in an Aboriginal cultural heritage context in New South Wales, Australia, and a New Zealand environment and planning offending context demonstrates when and how restorative justice conferencing can achieve justice as meaningful involvement without displacing justice as procedure and justice as outcome. This dissertation adds to the existing literature on the use of restorative justice conferencing in an environmental and planning offending context, and, Aboriginal cultural heritage offending context. Its originality is in the proffering of such conferencing as a vehicle through which to achieve justice as meaningful involvement.

  • (2019) Hadley, Marie
    This thesis is about cultural appropriation, copyright law, and tattoos. It explores in depth the argument for law reform to prevent the cultural appropriation of Māori and Aboriginal and Torres Strait Islander culture, with a particular focus on the protection of cultural imagery and arts styles. First, the thesis unpacks the nature of cultural appropriation claims as possessive claims, identity claims, and performative utterances. Second, it analyses the ambiguities and contradictions that sit behind cultural appropriation claims, as identified through law reform scholarship and an empirical study of how law interacts with and governs cultural life and artistic practice, with respect to tattoo subculture. Third, it teases out the political stakes of alleging cultural appropriation through a close consideration of historical constructions of cultural difference and intercultural dealings in tattoo in the Pacific region. Three analytical frameworks of performativity , law and society , and desire for the Other help frame the inquiry. Doctrinal analysis is utilised to explore private property claims over imagery and arts styles, and contextualise discussion of legal exclusion and inclusion of Indigenous peoples and their artforms. Fieldwork exposes how meaning is made outside of the formal legal frame in the everyday lives of artists, and the dynamism and contest that marks cultural production. Historical analysis provides a deeper understanding of cultural appropriation allegations as performances that construct a very specific relationship between appropriation and the colonial past. In exploring the intersection of cultural appropriation and law from above, from below, and in historical context this thesis exposes the dynamism of cultural appropriation claims, the challenges of transplanting new legal norms within artistic subcultures, and the politics that is engaged, resisted, and produced by claims of cultural appropriation in the domain of copyright law. Ultimately, it is argued that the justification for, and utility of, legal intervention in local sites that already order creativity, appropriation, and conflict resolution in the shadow of the law is neither as straightforward nor as persuasive as is assumed in reform scholarship.

  • (2019) McElhone, Megan
    People of Middle Eastern background and appearance have been over-policed by the New South Wales Police Force since the 1990s. This over-policing has involved an assemblage of policies, practices, and institutional units. Police work has also coalesced with law-and-order police, political, and media rhetoric to produce public discourses about the criminal capacities of ‘Middle Eastern’ people, as captured in the neologism ‘Middle Eastern organised crime’. These developments have been subject to little academic scrutiny. This thesis reduces the gap in the literature by examining the Police Force’s approaches to policing people of Middle Eastern background and appearance, for non-terrorism-related matters, between 1998 and 2018. The conceptual tool used to examine the over-policing of people of Middle Eastern background and appearance is the ‘suspect community thesis’. The suspect community thesis draws attention to institutionalised policies and practices that render members of racialised groups collectively subject to extraordinary policing and surveillance because of their status, identity, or associations, rather than their conduct. This study does not merely apply the suspect community thesis but also develops it in specific ways, thereby making both empirical and conceptual contributions. It draws on data from interviews with lawyers, community workers, members of the Police Multicultural Advisory Council, former police officers, and a range of documents. This thesis contends that the Police Force’s over-policing of people of Middle Eastern background and appearance has created and maintained a ‘Middle Eastern suspect community’ in New South Wales. Key themes traced in this regime of over-policing include the creation of police squads; the territorial policing of localities racialised as Middle Eastern; the targeted use of legal powers; and the extension of surveillance and regulation through community-based policing. The thesis also explores how institutional censorship and image-maintenance practices have allowed the police organisation to insulate its public knowledge claims about the suspect community. The policing of the Middle Eastern suspect community has been animated by proactive, intelligence-led, and pre-emptive rationalities and methodologies, which have also taken root in other jurisdictions. Accordingly, the findings of this thesis may be useful in conceptualising the over-policing of racialised communities in other contexts.

  • (2010) Coorey, Pornsakol Panikabutara
    The 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.

  • (2010) Trichardt, Anton Petrus
    Over 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.

  • (2017) Wang, Chenxi
    The Chinese term 'local protectionism', refers to China's uncooperative local governments and pertains to the study of China's central-local relations. This internal issue of China's state structure has attracted the attention of WTO scholars with China's WTO accession. At the time China joined the WTO, many scholars expressed their concern that China's compliance with WTO obligations might be hindered by hard-to-control local governments. However, this research topic of the interface between China's local governments and China's WTO obligations has not been followed up by scholars due to the lack of research data. This thesis looks outside the box and develops an innovative approach to study how WTO disputes prompt the Chinese central government to discipline uncooperative local governments and combat local protectionism. In conducting such an innovative research approach, this thesis combines two domains of study: China's interactions with the WTO Dispute Settlement System (DSS) and China's central-local relations. The first study domain finds that China has extensively reformed its domestic governance to implement WTO judicial rulings. This background view reveals that China's domestic governance is subject to WTO's influence, and builds the foundation for understanding China's internal central-local governance change under the impact of WTO disputes. The second study domain reviews how the Chinese central government combats local protectionism. This domain of study identifies that, China's central-local dynamics are informal and political, rather than formal and legal. Within China's vague constitutional framework, the Chinese central government primarily checks local protectionism through political interaction with provincial governments. This innovative combination of two domains of study, China's interactions with the WTO DSS and China's central-local relations, mutually establishes a pattern of international-national-subnational governance impact chain in China. The finding of this pattern develops the research topic on the interface between China's local governments and China's WTO obligations from a unique perspective. By identifying central-provincial political dynamics in selected WTO case studies, this study analyses Chinese central government's voluntary decision to combat local protectionism under pressure arising from WTO disputes, and demonstrates WTO's far-reaching influence on China's internal governance repercussion.

  • (2018) Lloyd-Jones, Susanne
    After 11 September 2001, the protection of national security became a high-stakes issue in Australia and internationally. The Australian Government commenced a far-reaching legislative agenda to update its national security laws. Described by a former attorney-general as ‘an unfinished canvas’, the national security legislative framework included communications–sector specific legislation, directed at the national interest obligations of communications industry stakeholders. This thesis examines the governance of national security in the Australian communications sector, with the aim of contributing to legal knowledge by examining the entrenched governance networks, structures and processes for coordinating national security law and policy in the Australian communications sector and accurately characterising the compact—some might call it the ‘accord’—between industry and government. A normative concern relating to the fate of democratic scrutiny in the specified context is investigated. The thesis draws on a governance theory perspective and uses a multiple case study approach. The thesis concludes that the coordination of national security law and policy in the Australian communications sector is best understood as corporatist governance. The research reimagines the Australian industrial relations Accord of the 1990s by framing the relationship between the state and industry as corporatist. The implications, both practical and abstract, of this relationship for liberal democratic institutions and democratic scrutiny are considered. The thesis concludes that, whereas co-regulatory and self-regulatory mechanisms may be efficient and effective, corporatist governance poses a threat to democratic scrutiny when the accord between industry and government is wholly functional and operating in its natural state of exclusivity, confidentiality and secrecy, under the cloak of national security. Corporatist governance is least risky to democratic scrutiny when the accord is not fully formed, or is easily broken—then, the strong democratic traditions of the ‘fourth estate’, the rule of law, parliamentary scrutiny and judicial oversight, may play a role in the coordination of national security law and policy in the Australian communications sector.