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Washington & Lee Law School
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  Alternative Law Journal   (Australia)
  Volume 31, Number 1, March 2006
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  • Opinion

  • Articles
  • Media, men and violence in Australian divorce
        Colin James
        This article begins to examine the response of the popular media in Australia to domestic violence by men against women and to male violence against the Family Court and its judges. The introduction of the Family Law Act in 1976 enabled many women to leave their abusive husbands and to apply for divorce without needing to prove matrimonial fault. Some men reacted violently to their wives' decisions to leave and it is argued this caused an increase in what we now call domestic violence. Some men also attacked the Family Court which they blamed for discriminating against them in children's matters, property settlement and child support. The article shows that some media reporting of domestic violence was 'neutral' as if domestic violence could be justified in some circumstances and should not be reported like other crimes. The author suggests the federal government has seized on the media reporting of the violence over the years to help create a false 'mainstream' conservative view and build a case for reversing some of the initiatives of the Family Law Act, for example by introducing joint custody in the guise of 'shared care'.
  • The framing of sex: evaluating judicial discourse on the 'unnatural offences'
        Andrew Davis
        The continued existence of s 377 of the Penal Code in a large number of former English colonial jurisdictions, a statutory provision criminalising sexual acts where courts consider those acts to be 'unnatural', coupled with the settled position in such jurisdictions that acts including oral and anal sex are 'unnatural', has meant that consensual sexual behaviours are subject to severe criminal penalties. A critical evaluation of the Singaporean decision in Public Prosecutor v Kwan Kwong Weng [1997] 1 SLR 697 in the light of positivism, post-structuralism and the findings of biological and behavioural scientists, yields the conclusion that it is impossible for judges to draw a line between 'natural' and 'unnatural' sexual acts. It is argued that for courts to make amends with groups and individuals marginalised by the discriminatory application of this legislation, judges should find that no consensual sexual act is contrary to nature.
  • Short skirts and the Sex Discrimination Act: 'What's wrong with being sexy?'
        Jonathon Hunyor
        This article critically analyses the decision in Zhang v Kanellos [2005] FMCA 111, in which it was held that a requirement to wear a short skirt to work as a bar attendant did not amount to sex discrimination. It is argued that the decision fails to consider adequately some difficult but important issues relating to women's sexuality in the context of employment and that the ability of women to assert their rights to equality in the workplace under the SDA may be limited in the event that the reasoning is uncritically applied in other cases.
  • Should Australian Bills of Rights protect property rights?
        Simon Evans
        One of the most controversial questions in drafting a Charter of Rights is whether or not to protect property rights. This article argues that a Charter should protect property rights. But it should do so in a way that respects the limited extent to which property rights are properly regarded as human rights. In particular, it should not guarantee compensation for expropriation or deprivation of property rights. It should protect property rights in a way that recognises the significant protections already afforded to property rights by the common law and by Parliament. And it should do so in a way that recognises the inappropriateness of the courts second-guessing the Parliament's decision that legislation strikes an appropriate balance between private rights and the public interest.
  • Removing voices from the voiceless: The Migration Litigation Reform Act 2005
        Michael Stanton
        The Migration Litigation Reform Act 2005 (Cth) has the potential to devastate pro bono advocacy in migration law. By demanding that courts consider making personal costs orders against legal practitioners, it provides a powerful disincentive to the pro bono advocate, and threatens to stultify the evolution of the common law. Contrary to its stated intention, the Act will only succeed in making migration law less efficient. The Act not only threatens to deny legal representation to those who might have merit in their claims, but also to those who are amongst the most powerless in our society.
  • Access to justice research in Australia
        Mary Anne Noone
        This article surveys recent research projects focusing on aspects of Australian legal aid services provision, access to justice and assessment of needs during the period 2000 to 2005. The large and small projects reveal hidden communities with special needs. It concludes with a call for greater dissemination of the results of these isolated projects and encourages nationwide coordination and consistency in the research.
  • The derogation of human rights for people with transsexualism since the 'Justice' Statement
        Karen Gurney
        This article discusses the failure of the Victorian government to properly comprehend and act on the breaches of human rights issues inherent in recent legislation impacting on members of arguably the most vulnerable sexual minority group within the Victorian community -- people with transsexualism. It does so in the context of the 2004 release of a 'Justice Statement' and establishment of a Human Rights Consultative Committee to consider issues associated with implementing a human rights charter.

  • Briefs
  • Judicial immunity -- right or wrong?
        Craig Burgess
        This article explores the issue of judicial immunity in the wake of the High Court decision to quash the criminal convictions against Queensland's Chief Magistrate for unlawful retaliation against a witness. In particular the author examines the history of judicial immunity and whether it should be re-examined in the light of community concern.
  • Security for costs: An overseas student advances her case
        Megumi Ogawa
        There are conflicting principles. The court often orders security for costs against a foreigner if they have no assets in Australia. However, the court normally does not make an order against a person who has no money. Will the court order security for costs against an impecunious foreigner? This brief pursues the logic of the Federal Court of Australia.
  • The establishment and role of the Human Rights Law Resource Centre
        Philip Lynch
        A new Centre in Melbourne will promote human rights in Victoria and Australia -- particularly those of people who are disadvantaged or living in poverty -- through the practice of law.

  • Column
  • Sport and the Law: Test cricket versus one-day cricket: regulations and rhythms
        Graeme Orr
        Cricket has always been a rule-laden enterprise. Tim Blair wrongly claimed that one-day cricket's laws are a socialist form of levelling, and test cricket like the laissez-faire marketplace. One-day cricket, as a fast food product, is tightly and artificially regulated. Test cricket is traditionally more open-textured, but no less rule-bound.

  • Letter
  • Response to article 'Homophobia Perpetuated: The Demise of the Inquiry into the Marriage Amendment Bill' by Sandra Berns and Alan Berman
        from Karen Gurney
        Karen Gurney contributes to discussions in the June 2005 issue of AltLJ on the effect of recent amendments to the Marriage Act 1961 by the Commonwealth Parliament. She explains that the rights of people with intersex conditions to heterosexual marriage in their affirmed sex -- rights established by the Family Court's decision in Re Kevin at first instance and on appeal -- have been preserved. The matter of appropriate terminology for people who have undergone a process of sex affirmation is also discussed.