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Washington & Lee Law School
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  Alternative Law Journal   (Australia)
  Volume 32, Number 3, September 2007
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  • Articles
  • The disenfranchisement of prisoners: Roach v Electoral Commissioner & Anor - modernity v feudalism
        David Brown
                                                                                               +cite        
        David Brown takes a road trip to Canberra for the Roach fixture at the High Court where modernity is attempting a fight-back against the resurrection of civil death. With echoes of Hunter S Thompson as rugby league follower, the recounts a trip to Canberra to observe a case in which Vickie Lee Roach, an Indigenous woman prisoner, challenged (successfully as it later turns out) the Howard government's 2006 legislation disenfranchising all serving prisoners.
  • Fighting phantoms: A democratic defence of human rights legislation
        Michael Stanton
                                                                                               +cite        
        The recent enactment of the Charter of Human Rights and Responsibilities Act 2006 (Vic) has attracted similar criticisms to those directed towards the Human Rights Act 1998 (UK). These critiques typically contend that such legislation is undemocratic because it confers too much power on judges, and leads to judicial policy choices by reference to incommensurable principles. In light of the British experience, this article considers the tradition of judicial development of the common law, the methodology of human rights jurisprudence and the concept of parliamentary sovereignty, and concludes that the enactment of human rights legislation facilitates rather than hinders democracy.
  • Sentencing, and the psychology of justice
        Julia Davis
                                                                                               +cite        
        Studies by social psychologists have shown that human beings adopt three non-rational interpretive techniques to convince themselves that the world is a just place. These strategies include reinterpreting the causes and the consequences of an event and reassessing the character of the persons concerned in the event. This article shows how this research can provide us with a useful three part analytical tool that reveals the occasions when sentencing judges may have used these perverse interpretive strategies in the criminal courts.
  • When silence means acceptance: Understanding the right to silence as a linquistic phenomenon
        Georgina Heydon
                                                                                               +cite        
        This article presents a linguistic analysis of police-suspect interviews with a focus on the right to silence. The author, a linguist, seeks to introduce the legal community to a linguistic understanding of the way that a person might invoke their right to silence and explain how the rules of conversation will have a critical impact on the potential for adverse inference. Extracts from police interviews are analysed using a Conversation Analysis framework, drawing on the notion of 'preference' and adjacency pair structures in particular. The analysis finds that a preference for denials following accusations will problematise any attempts by the suspect to offer a non-response to a police accusation and that, in accordance with conversational rules governing preference, non-response will be interpreted by participants and future audiences as an acceptance of the accusation.
  • Bringing war criminals to justice in Australia: Upholding international criminal law and the principle of non-refoulemente
        David MacGregor
                                                                                               +cite        
        This article examines Australia's positive obligation under international law to identify and prosecute war criminals through its domestic criminal justice systems. The discusses the interplay between these and other obligations, such as those related to non-refoulement, to contend that Australia must do more do demonstrate its practical commitment to meeting these international expectations, despite its fears of creating potential refugees sur place as a result of such actions. The argues that, with recent amendments to the Criminal Code 1995 (Cth), Australia should increase its efforts to bring war criminals to justice and should no longer dwell on its past failings in this capacity.
  • Guilt by association: The 'anti-terrorism' case of Regina v Lodhi
        Sarah Sorial
                                                                                               +cite        
        This article examines the problem of association in the case of Regina v Lodhi. It was contended by the Crown, and accepted by the Supreme Court, that Lodhi's association with Willie Brigitte, currently standing trial in France on charges of terrorist activity, was sufficient to prove intent on the part of the accused to commit a terrorist act. An examination of the case suggests that there were no legal grounds or justifications for making this inference, that it constituted an unjustifiable extension of criminal liability and that it has problematic implications for the status of freedom of association in the Australian context.
  • A multidisciplinary approach to community law
        Martin Clutterbuck
                                                                                               +cite        
        Many migrants to Australia have compelling humanitarian reasons for wishing to remain in Australia, including those based on health, welfare, familial linkages and reluctance to return to situations of civil conflict or other human rights abuses. The proper articulation of such claims requires a combination of human rights based legal argumentation and expert welfare and medical assessments. The Asylum Seeker Resource Centre in Melbourne has attempted to develop a multi-disciplinary approach to such humanitarian advocacy in which legal and welfare professionals work together with clients in-house to assist them to present their claims to remain.

  • Briefs
  • Human Rights. A right to legal aid: the Kyiv Declaration
        Simon Rice
                                                                                               +cite        
        In March 2007, 115 delegates from twenty-five countries met in Kyiv, Ukraine to discuss and identify best practices in the protection and promotion of human rights through the provision of legal services, resulting in the Kyiv Declaration on the Right to Legal Aid.
  • Homelessness. Homes for homeless children
        Mia Dambach
                                                                                               +cite        
        NSW children, charged with criminal offences and released on bail, may need accommodation provided by the Department of Community Services. But without a suitable alternative, the child may remain in detention by default. Non-custodial options such as community-based accommodation should be considered.
  • Travelling Brief. Philippine 'elections'? Democracy subverted
        Gill Boehringer
                                                                                               +cite        
        During the mid-term elections held in the Philippines in May 2007, international observers found fraud and vote manipulation, state violence - by the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) - as well as massive harassment, intimidation, and political surveillance by the AFT.
  • Law Reform. Remembering Tim McCoy: 20 years on
        Simon Smith
                                                                                               +cite        
        A retrospective on prisions, privacy and the national community legal centre movement - key policy arenas of interest to the CLC 'legend' Tim McCoy - published to mark the 20th anniversary of Tim's death.
  • CLCs. 30th anniversary of Redfern Legal Centre: 9 March 2007
        Meredith Burgmann
                                                                                               +cite        
        Meredith Burgmann's speech in March this year celebrated 30 years of access to justice in Redfern.