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  Alternative Law Journal   (Australia)
  Volume 31, Number 4, December 2006
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  • Articles
  • 'I lost it' - rage and other excuses: Rethinking loss of self-control in provocation
        Warren J Brookbanks
        This article explores the notion of self-control as an element of the defence of provocation. The heuristic nature of the loss self-control as a legal construct is considered. The suggestion is made that closer attention be given to the psychological causes of loss of self-control in order to establish the defence on a more transparent and scientificaly plausible foundation.
  • On the edge of justice: Accessing justice for people with a mental illness in NSW
        Emily McCarron, Abigail Gray, Maria Karras
        This article looks at the legal issues facing people with a mental illness in NSW, their capacity to obtain legal assistance for their issues, and their capacity to participate effectively in the legal system. It also examines the role of non-legal service providers in assisting people with a mental illness to identify and address legal problems.
  • Time, delay and nonfeasance: The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
        Patrick Keyzer and Suzanne O'Toole
        This article critically analyses the practical effect of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and argues that delay in producing originating applications under the Act not only undermines procedural fairness but also subverts the purpose of the legislation. The article analyses the cases in which the issue of delay has been raised as a basis for objecting to an application under the Act by the Attorney-General. It then proposes improvements to the practices of Queensland government departments that will help ensure proceedings under the Act reflect the principles of procedural fairness. While the article focuses on Queensland, some of these issues are likely to arise in the preventive detention regimes in New South Wales and Western Australia.
  • Wilful murderers in Western Australia: Soon to get away with murder?
        Thomas Crofts
        Western Australia is unique among Australian criminal jurisdictions in distinguishing between wilful murder requiring an intention to kill and murder where the offender intends to do grievous bodily harm. In light ot the WA Law Reform Commission examining the need for reform tothe homicide laws of WA this article questions whether the distinction is merely an historical relic which it is time to change or whether there are valid reasons for retaining the distinct offences of wilful murder and murder.
  • Open justice in the balance
        Bill Swannie
        Should the media have access to proceeding files in the Anti-Discrimination List at the Victorian Civil and Administrative Tribunal? This article examines a recent decision of the Victorian Court of Appeal, in which a 'right' to access proceeding files was declared. This decision is analysed in the context of other recent Australian decisions regarding media access to court files, court rules in other jurisdictions governing non-party access, and a recent report of the NSW Law Reform Commission. This topic raises important issues, such as the role of the media in informing the public about legal proceedings and thereby keeping the courts accountable, and the right of parties to have disputes resolved confidentially.
  • Who's listening? Intercepting the telephone calls, emails and SMS's of innocent people
        David Hume and George Williams
        The recently-introduced Telecommunications (Interception) Amendment Act 2006 (Cth) allows the government to intercept the communications of people who are not suspected of a crime, as long as they speak to someone who is a suspect. The Act also grants new powers to access stored communications, such as emails and SMS's. In this article, the authors argue that the new powers substantially exceed what is necessary to achieve the government's purpose. These powers, therefore, impermissibly violate rights and may be applied arbitrarily. Additionally, the Act was expedited through Parliament with minimal public scrutiny even though the government was aware that there were problems of substance in the Bill. The authors conclude that the Act needs major revisions so that it properly balances the goals of security and protecting individual rights.
  • The marriage of family law and animal rights: How should Australian family law approach the rise of 'pet custody' disputes?
        Tony Bogdanoski
        This article examines the problem of 'pet custody', an issue arguably at the forefront of recent international developments in family law, especially in North America. Family pets enjoy a complicated position under Australian family law. On the one hand, their welfare is protected by state animal protection laws. On the other hand, they are inconsistently treated as mere chattels by the family law system when it comes to the disposition of assets following relationship breakdown. It is submitted that the interests of companion animals, and those of their human guardians, would be better served by removing this inconsistency, but not on the basis of a blanket implementation of a 'best interests' model analogous to that used in the resolution of partenting disputes.
  • The future of consumer advocacy in Victoria: A reply to 'Consumer Advocacy in Victoria' by Chris Field
        Andrea Sharam
        This article responds to the discussion paper 'Consumer Advocacy in Victoria', commissined by Consumer Affairs Victoria and written by Chris Field. It challenges many of Field's contentions regarding the foundations on which contemporary consumer advocacy is based in Victoria, and highlights the need to include understandings of democratic participation in assessments of effectiveness of consumer advocacy.

  • Briefs
  • Animal law: Peering over the gap or daring to close it?
        Brian Sherman
  • Animal law: An emerging field
        Katrina Sharman

  • Columns
  • Asia-Pacific: Picking up the pace over rights of the child in Kiribati?
        Sarah Bassiuoni
        In Kiribati there is no specific legislation that comprehensively protects children, despite the government ratifying the Convention on the Rights of the Child in 1995. There are serious gaps in the law governing the sexual exploitation of children, in particular pornography and illicit transfer. There is no alternative care system. Corporal punishment in schools is not sanctioned nor is it prohibited. There is a lack of understanding by medical staff, law enforcement agencies and the general public of the operation of duty of care laws. The difficulties in enforcing the rights of the child on this central pacific nation of atolls are vivid and the consequences can be dire.