Law & Justice

Publication Search Results

Now showing 1 - 10 of 11
  • (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.

  • (2011) Brennan, Patricia; Berle, I.; Gall, John; Payne-James, Jason
    Book Chapter
    This 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.

  • (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.

  • (2011) Indaimo, Joseph
    This 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.

  • (2011) Carter, David
    Recently, 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.

  • (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) Guglyuvatyy, Evgeny
    The 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.

  • (2011) Sunga, Ricardo III Ancheta
    This thesis asks the question: What is the nature of the violation that a denial of the truth about disappeared and missing persons constitutes and how has international law responded to it? The thesis describes this nature in psychological and sociological terms and critically examines the extent to which international treaty law and case law captures it. Though existing treaty provisions embody elements of the right to know the truth, they fail to detail the nature and scope of this right, clarify its different dimensions and provide for measures of protection to address the harms that the families of the disappeared and missing have experienced. Furthermore, while jurisprudence gives effect to the right to know the truth in spite of the absence of an explicit guarantee, the less than full recognition of this right has led to a lack of uniformity in the case law and has given an exceedingly wide discretion to the courts and tribunals to give effect to the right, or not to do so. The limitations in international law explain the need for the explicit guarantee of the right to know the truth in the International Convention for the Protection of All Persons from Enforced Disappearance. Despite the advance in international human rights law that this Convention represents and the potential role of the Committee on Enforced Disappearance in the promotion of the right to know the truth through its monitoring procedures, it is imperative for the law to continue to capture more fully the experiences of the families of the disappeared and missing.

  • (2011) Brasch, Jacoba
    The Australian military justice system has been reviewed by six separate inquiries since 1997, with each one recommending the adoption of fair trial standards of independent and impartial adjudication, as accepted in the civilian criminal justice system and required by the norms of public international law. Yet, despite the numerous recommendations for civilianising reform, the Australian military has resisted change, consistently arguing that its separate system of justice was not only fair, but should remain in-house. Nevertheless, reform has occurred. Thus, two competing propositions emerge: on one hand, the military is resistant to civilianising reform, yet, on the other, reform has and is occurring. The question then is, why. Accordingly, the argument advanced in this thesis is: because of the nature of the military as a total institution, civilianising reforms to the Australian military justice system only occur when the military is coerced to do so by external forces. This hypothesis is examined in a number of ways: 1. critically assessing the bodies of literature which argue for, or against the separate military justice system, as well as literature which assesses military justice from a human rights, fair trial perspective. 2. applying two separate sociological theories: ‘total institutions’, which assists in understanding why the military is resistant to civilianising reform of its justice system. ‘Isomorphism’ assists in understanding how reform occurs to an otherwise resistant entity. 3. identifying the fair trial flaws of the Australian military justice system, with particular emphasis on the right to an independent and impartial trial. 4. analysing the Australian military’s response to the six inquiries held between 1997 and 2005, 5. identifying the motivators for civilianizing reform in comparative jurisdictions. Consequently, the thesis draws upon these themes to identify the legal, social, and political contexts in which reform has occurred. The recognition of these factors also allows for the development of a predictive framework to identify the conditions precedent to fair trial civilianisation of the Australian military justice system.

  • (2011) Ghori, Umair Hafeez
    The textiles & clothing (T&C) sector has been one of the most regulated and protected sectors in global trade. Even though T&C occupies a lesser share of international trade than other sectors, it remains crucial to developing countries and least developed countries (LDCs). Issues in T&C trade revolve around the trade flow of T&C products from developing countries/LDCs to the prime markets of the EU, US and other developed countries. Developing countries compete for greater market access, which is often manipulated by developed countries to meet goals other than economics and trade. One of the key instruments in this manipulation were quantitative restrictions (better known as quotas). Quotas violated fundamental obligations under GATT. Adoption of the quota system meant that T&C was treated as an exception to the GATT framework. Quotas regulated global T&C trade from post-World War II through to 31 December 2004. From 1 January 2005, quotas were abolished in international T&C trade. This thesis examines the impact of quota elimination on international T&C trade. The objective of the thesis is to estimate the future direction of T&C trade after quota expiration. The thesis begins with a historical analysis of the quota system. The main observation from history is that T&C production always eventually moves to new countries which have comparative advantage. Imposing restrictions on trade in T&C merely postpones the day that production will shift to poorer nations. As such, measures which guarantee market access to specified developing countries are merely postponing the time when even poorer developing countries or LDCs will have the opportunity to produce and export T&C. The thesis analyses pre-expiration predictions and the conflicting interests on trade liberalisation amongst third world countries. These conflicting interests continue to this day. The thesis also examines major issues that affect global T&C trade and conducts case studies on major Asian T&C manufacturers, with a special focus on China and Pakistan. The underlying objective of the case studies is to analyse the pre-elimination estimates in order to predict the future direction of global T&C trade. Additionally, the thesis also assesses the efficacy of safeguards and anti-dumping measures as instruments of trade regulation after quota expiry.