Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
an index to legal periodicals
Alternative Law Journal
Volume 33, Number 4, 2008
Living on the Edge
What price democracy? Blue Wedges and the hurdles to public interest environmental litigation
Anne Kallies and Lee Godden
Challenges by community organisations, such as Blue Wedges Inc, to government decision-making on major infrastructure and development projects, highlights the importance of access to justice for public interest environmental litigants. Yet the trajectory of legal actions in the Blue Wedges campaign to prevent dredging of Port Phillip Bay demonstrates that significant hurdles still exist for groups acting in the public interest. This article examines those legal hurdles, specifically the need to provide an undertaking as to damages, and the effect of adverse costs awards in litigation. It concludes that behind the accepted rhetoric of transparency and open government, still lie central issues about the capacity of public interest environmental groups to challenge executive decision-making, or the actions of major corporations, where their resources are stretched, and where financial and legal barriers exist.
Activism and the academy
In this article, I consider the question of how academics can incorporate activism into their professional and personal lives. Drawing on my experiences as an academic and an activist, I argue that teaching about activism, teaching as activism, and engaging in activism are ways in which academics can bridge the gap between thinking and doing.
The prostitution debate: breaking down barriers
This article examines the characterisation of prostitution as a legitimate work choice and the contract theory approach — some of the major arguments in the debate surrounding the legalisation of prostitution. In the context of human rights and justice, it is argued that ‘merely respecting the choice to be a prostitute does nothing to protect sexual freedom’.
Red light on sex work in Western Australia
Thomas Crofts and Tracey Summerfield
After several failed attempts the Labor government in WA was finally able to enact the Prostitution Amendment Act 2008 which would introduce a minimalist licensing system for sex work. Against a backdrop of emotive rhetoric, the incoming Liberal-National government, in its ‘Plan for the First 100 Days of Government’, has promised to repeal the Act. This article argues the merits of a simplified licensing system when compared to criminalisation or more complex licensing models and urges Liberal-National members to engage in an informed consideration of the regulation of the industry.
Accommodating Shariah law in Australia's legal system: can we? should we?
Early in 2008, the Archbishop of Canterbury asked the legal fraternity in Britain to consider how accommodating the law of the land can, and should be, to religious minorities possessing their own legal and moral codes. This article poses the same question in regard to Australia and responds by exploring existing strategies used by Muslim Australians to navigate through two sets of laws, together with the case for and against official recognition of Shariah law in this country.
The ballot behind bars after Roach: why disenfranchise prisoners?
Cornelia Koch and Lisa Hill
This article explores and critiques the rationales for disenfranchising prisoners advanced by politicians and relied on by the majority of the High Court in the recent case of Roach v Electoral Commissioner. It also refers to relevant overseas cases. It is argued that none of the arguments for removal of the right to vote from prison inmates are persuasive. While Australian constitutional history makes it probably inevitable that some bans on prisoner voting are constitutionally valid, the onus is on the Australian Parliament to demonstrate leadership and give all prisoners the right to vote.
Counter-terrorism laws: how neutral laws create fear and anxiety in Australia's Muslim communities
Andrew Lynch and Nicola McGarrity
Australia’s counter-terrorism laws are expressed in ethnically and religious neutral terms. Yet there is a perception amongst Australia’s Muslim communities that they are targeted by these laws and by those who apply them. This perception is problematic because the creation of a diverse, yet harmonious and inclusive, society is critical to the prevention of terrorism in Australia. This article seeks to explain the source of this perception by examining the nature and scope of the terrorism offences in the Criminal Code Act 1995 (Cth), as well as the manner in which these offences have been applied by the Commonwealth authorities. It then makes recommendations as to how best to allay the fears of Australia’s Muslim communities that the operation of the counter-terrorism laws is politically motivated, ranging from reform of the laws themselves to community education to the establishment of an office of Independent Reviewer of Terrorism Laws.
Design and children's courts
Penny Crofts, Subhaga Amarasekara, Phillip Briffa, Rebecca Makari, Meryl Remedios
The physical environment of a court, both within the courtroom itself and the courthouse as a whole, can greatly shape a young person’s ability to understand and participate in proceedings. This article presents some of the findings of our primary research undertaken to gain insight into how the design of children’s courts encourages or undermines participation. This research highlights the need to articulate design principles to ensure that existing children’s courts are improved and that future courts facilitate participation.
Above the law
In June 2008, the Full Court of the Federal Court handed down a decision with potentially alarming consequences for the State tribunal system. In a 2:3 majority decision, the Court held that the Commonwealth was not subjected to the jurisdiction of the Tasmanian Anti-Discrimination Tribunal. One judge agreed with the constitutional arguments put forward by the Commonwealth that it could never be subjected to State judicial power in a tribunal not correctly characterised as a ‘court’ for the purposes of ss 71 and 77(iii) of the Constitution. This could potentially mean that any matter vested as federal jurisdiction by the Constitution is removed from the ambit of state jurisdiction. Therefore such jurisdiction can only be vested in bodies correctly characterised as ‘courts’ pursuant to the Constitution. This comment explores these constitutional arguments and the potential ramifications for the State tribunal system.
Privacy invasion under the guise of changes
This article criticises the recent changes to the way in which property auctions are to be conducted in South Australia. Specifically the author takes issue with the collection and retention of information concerning bids and compares and contrasts the South Australian approach with other state jurisdictions.
Victoria's Abortion Law Reform Act
Victoria’s landmark Abortion Law Reform allows women to obtain an abortion at any time during the first 24 weeks of pregnancy, and later with the agreement of two doctors. The Act gives rise to two issues of contention: the availability of abortion services and the legal obligations of medical practitioners who hold a conscientious objection to abortion.
Asia-Pacific: Mabo - Whistle blowing the State government on native title in Malaysia
This article looks into the issues surrounding the concept of land ownership by the indigenous people in Malaysia. The policies of Commonwealth and state governments in Australia which were once influenced and constrained by cases like Mabo No 2 now act to sideline Aboriginal customary interests in land. This is in contrast to the position in Malaysia, in which the courts have continued to develop the law of Indigenous land rights extrapolating from Mabo No 2. The article outlines the development of the law in the controversial case of Sagong bin Tasi which is pending appeal in the Malaysian Federal Court. The scope and application of ‘sui generis’ Indigenous rights will be tested in this case.
Sport and the Law: 'C'est pour toi, Williams'
Sonny Bill Williams was sued for defecting from The Bulldogs Rugby League club to Toulon Rugby Union club, mid-contract, for a higher salary. Employment law came down hard on Williams; but Williams' contract was bought out. The moral of this cause celebre is the a-moral, that money trumps all.