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Washington & Lee Law School
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  Alternative Law Journal   (Australia)
  Volume 30, Number 5, October 2005
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  • Just Wars

  • Articles
  • Orwell's Nineteen Eighty Four 20 years on: 'The war on terrorism', 'doublethink' and 'Big Brother'?
        Michael Head
                                                                                               +cite        
        Twenty 20 years on from 1984, the year immortalised by George Orwell, his dystopian vision has proven prescient. There is no other way to adequately describe the indefinite 'war on terror' proclaimed by the Bush administration, and joined by many governments in the world, other than as Orwellian. Features conjured up by Orwell -- doublethink, thought crimes, guilt by association and Big Brother is watching -- seem to be present. The concerns raised in this article have been heightened by the outcome of the 27 September 2005 Council of Australian Governments 'counter-terrorism summit'. The eight State and Territory leaders agreed with Prime Minister John Howard on a package of legislation that goes well beyond the already deep inroads made into essential civil liberties under the fraudulent banner of combatting terrorism.
  • Torture, criminality and the war on terror
        Rodney Allen
                                                                                               +cite        
        Ever since September 11 the US and its key allies have been enacting harsh new security laws that threaten established civil liberties. But at least these new laws are laws (although of course subject to judicial review). Ever since the post-September 11 invasion of Afghanistan, the US has also been torturing foreigners, in clear violation of its own laws, military rules and codes, and the provisions of international treaties it has signed. This article discusses the moral contours of the crime of torture.
  • Two justifications for terrorism: A moral legal response
        Ben Saul
                                                                                               +cite        
        This article pauses to take seriously two specific claims of justification for terrorist violence: first, that some civilians are not 'innocent' and deserve to be killed; and second, that suicide bombing is excused by the defence of necessity. It unravels each of these claims and subjects them to the scrutiny of existing international legal principles (particularly international humanitarian law) and the moral framework underlying those principles. While there is a range of different justifications presented for terrorism, this article concludes that neither of these two specific claims is legally sustainable.
  • Darfur, Sudan: As the cat naps the mice wreak havoc
        Ronli Sifris
                                                                                               +cite        
        This article considers violations of international law committed by government sponsored militiamen in Darfur, Sudan. It also examines the response of the international community to the atrocities committed in Darfur. In particular, this article stresses that it was not until March 2005 that the United Nations Security Council established a Mission in Sudan, authorised UN personnel to take the necessary action to protect civilians, and referred the matter to the International Criminal Court. In the author's view, such action is too little too late.
  • The silence is deafening: Access to education for deaf children
        Ben Fogarty
                                                                                               +cite        
        The Federal Court of Australia disability discrimination case of Hurst and Devlin v Education Queensland [2005] FCA 405 had the potential to set a systemic and definitive precedent for the rights of access to education in Australia for deaf children. Regrettably, however, the judgment of Justice Bruce Lander sounds but a cautionary peal to educational institutions on their obligation to educate hearing and non-hearing children alike. Some of the salient findings in the case appear to encroach into the family lives of deaf children and effectively punish a deaf child who has been fortunate enough to have had accessible communication from a young age and who managed to keep up with her hearing peers, in spite of the many barriers confronting her in an education system largely devoid of Australian Sign Language (Auslan).
  • Styles of judging: How magistrates deal with applications for intervention orders
        Rosemary Hunter
                                                                                               +cite        
        The notion that how judges judge is at least as important for litigants as the ultimate outcome of their case is now widely acknowledged. This article discusses two North American studies which produced typologies of judicial styles, and then applies those typologies to data from a research project on intervention order proceedings in Magistrates Courts in Melbourne. It finds that magistrates' attitudes towards litigants varied accorded to the type of proceeding and whether or not the litigant was legally represented. Overall, however, magistrates tended to be abstracted and disengaged, and did not provide a supportive process for intervention order applicants.
  • The verdict on Kennon: Failings of a contribution-based approach to domestic violence in Family Court property proceedings
        Sarah Middleton
                                                                                               +cite        
        This article deals with the issue of domestic violence in Family Court property proceedings. The author describes the two ways in which the Family Court may take domestic violence into account. She argues that the approach which views domestic violence as an aspect of the victim's contribution to the welfare of the family is fraught with difficulty and impracticalities. She proposes instead that the Court and legal profession should focus on the approach which takes account of the financial consequences of violence, and that there should be legislative change to encourage this.

  • Briefs
  • Cluster bombs and International Humanitarian Law
        Jessica Latimer, Felicity James, James May and Amy Barry-Macauley
                                                                                               +cite        
        This article discusses the use of cluster bombs and issues associated with deployment. The authors consider the contrasting positions of the International Committee of the Red Cross and military forces. The authors also examine International Humanitarian Law and the legal status of cluster bombs.

  • Columns
  • Sport and the law: Rugby and race in New Zealand
        Paul Hamer
                                                                                               +cite        
        Maori involvement in rugby is an important aspect of New Zealand's national fabric. It has boosted myths of mutual respect and racial harmony, and seemingly confirmed the stereotype of the naturally talented, hot-headed, ill-displined and yet ultimately civilised and 'saved' Maori savage. In many ways the Maori place in rugby has served and continues to serve in the story of the nation's making.
  • Asia-Pacific: The movement to save the River Narmada
        Dipti Bhatnagar
                                                                                               +cite        
        The Movement to Save the River Narmada (NBA) is a movement of people affected by the Sardar Sarovar Dam in India. Besides maintaining vocal opposition to the building of the dam, the movement has fought to gain information for those affected, and particularly in latter years, about rehabilitation plans. Construction began in 1987 but rehabilitation has not kept up.