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Washington & Lee Law School
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  Alternative Law Journal   (Australia)
  Volume 32, Number 2, June 2007
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  • Articles
  • Safe to go home? The implications of the High Court decision for Afghan and Iraqi temporary refugees: MIMIA v QAAH of 2004
        Hossein Esmaeili and Suzanne Carlton
                                                                                               +cite        
        This article reviews the background leading to the High Court's decision in MIMA v QAAH of 2004 and analyses the decision of the majority and the dissenting opinion. Discussing the implication of the decision on Iraqi and Afghan temporary visa holders, the article provides an expert analysis of the country situations both in Iraq and Afghanistan and concludes that the current volatile situation in those countries does not support the return of temporary visa holders.
  • Beating a SLAPP suit
        Greg Ogle
                                                                                               +cite        
        Strategic Litigation Against Public Participation is an increasing problem for freedom of speech in Australia. Although law reform is ultimately necessary, other strategies are required to enable community activists to continue to campaign in the face of the threat of litigation. In one recent case, the key lay in being prepared to learn the rules and play the legal games, while continuing to view the case with a political rather than legal mindset.
  • Order 62A of the Federal Court Rules
        Joanna Shulman
                                                                                               +cite        
        This article addresses a major impediment to public interest litigation—the potential for substantial adverse costs orders in the event a complainant is unsuccessful. Order 62A of the Federal Court Rules is an order made by the court specifying the costs that may be recovered if a party is unsuccessful. The author discusses the jurisprudence around this provision, makes suggestions for the law reform, and encourages its use as a means of removing some of the costs uncertainty involved in public interest litigation.
  • Being seventeen in Queensland
        Terry Hutchinson
                                                                                               +cite        
        The Queensland criminal justice system has come under the international spotlight in relation to its policy on the treatment of 17-year-old offenders. In Queensland, offenders of this age are treated as adults. Queensland is now the only state or territory in Australia where this occurs. This article examines the legislative background to the present situation. The human rights implications are highlighted, in particular through the observations of the United Nations Committee on the Rights of the Child. There are substantive differences in treatment which results when an offender is classified as an adult rather than a child. This article argues that the Queensland government should be encouraged to change its stance on the issue.
  • Trial by jury: time for a re-evaluation
        Fergal F Davis
                                                                                               +cite        
        Trial by jury for federal offences appears to be guaranteed by s 80 of the Constitution. Case law, however, leads to the conclusion that this guarantee is far from watertight. As Australia adopts more and more anti-terrorism legislation, two questions must be addressed: can the right to trial by jury be constitutionally interfered with; and how important is it anyway? As an Irish scholar working in the UK and visiting Australia I have decided to tackle these questions.
  • What can mainstream courts learn from problem-solving courts?
        Michael King
                                                                                               +cite        
        Problem-solving courts work with parties and communities to resolve legal problems and their underlying issues, without compromising traditional judicial values of independence and impartiality. Research supports their efficacy. Mainstream courts can apply these principles to promote justice system goals—such as offender rehabilitation and respect for courts and the law—and help dispel perceptions that courts are remote from community concerns.
  • Federalism, unification and continuity: Labor, the Constitution and Industrial Relations
        Michael Lyons and Tommy Khoshaba
                                                                                               +cite        
        The High Court challenge to the Howard government's 'Work Choices' laws in 2006 by ALP state governments and the ALP's 2007 National Conference policy endorsing a 'national industrial relations system' appear contradictory. However, both have continuity with the party's policies on federalism, unification and industrial relations.
  • Denying administrative justice to prisoners in Queensland
        Chris Butler and Paulette Dupuy
                                                                                               +cite        
        This article discusses the dramatic changes to prisoners' rights to access information about administrative decisions which affect them and their ability to judicially review those decisions, introduced by the Corrective Services Act 2006 (Qld). The authors describe the impact of these changes on prisoners who are subject to flawed and improper decision-making and provide a critical analysis of the Government's rationale in introducing them. It is argued that the privative clause provisions of the new Act can be best explained as a contribution to the narrow and counter-productive politics of 'law and order' in Queensland.

  • Briefs
  • Law reform: Therapeutic jurisprudence, restorative justice and the law
        Kathy Douglas
                                                                                               +cite        
        The Neighbourhood Justice Centre in Victoria is a recent court initiative that incorporates the philosophies of therapeutic jurisprudence and restorative justice. The court is multi-disciplinary in personnel and multi-jurisdictional, arguably allowing for a holistic approach to the problems of court-users.
  • Poverty in Australia: Poverty and the criminal justice system
        Tamara Walsh
                                                                                               +cite        
        A recent Queensland study looks at the affect of criminal law, and the workings of the criminal justice system, on people living in poverty. Preliminary results imply the need for a wide-scale inquiry, similar to the Henderson Inquiry of 1975, to ensure equality before the law and access to justice for people living in poverty.
  • Law reform: Elections to the House of Lords
        Heather Lardy
                                                                                               +cite        
        Proposals for an elected House of Lords, using proportional representation, will not only confer some democratic legitimacy on that body, but have consequences for the legitimacy of the Commons and the relationship between the two Houses.

  • Columns
  • Asia-Pacific: Law and order: Finding legal solutions to civil insecurity
        Rebecca Monson
                                                                                               +cite        
        While the causes of recent civil conflicts and violence in Fiji, Papua New Guinea, Solomon Islands, and now Vanuatu are complex, each involves a common issue—namely the difficulties involved in recognising customary land law in the context of rapid urbanisation and the modern cash economy.