https://hdl.handle.net/2123/6404 Sun, 07 Jun 2026 10:58:29 GMT 2026-06-07T10:58:29Z https://hdl.handle.net/2123/35393 Polish Constitutional Tribunal Under PiS: From an Activist Court to a Paralysed Tribunal, to a Governmental Enabler Sadurski, Wojciech After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinise laws for their unconstitutional ity, into a powerless institution paralysed by consecutive bills rendering it unable to review new PiS laws, and then into a positive supporter of the enhanced majoritarian powers. In a fundamental reversal of the traditional role of a constitutional court, it is now being used to protect the government from laws enacted long before PiS rule. Whatever else constitutional courts around the world are expected to do, there is no doubt that their first and primary function is to ensure adherence to a constitution and its protection against legislative majorities. In Poland, the Tribunal became a defender and protector of the legislative majority. This changed role, combined with general distrust of the CT and concerns about legitimacy of its judgments, explains also the extraordinary drop in the number of its judgments. For all practical purposes, the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliamentary majority has been born. Tue, 01 Jan 2019 00:00:00 GMT https://hdl.handle.net/2123/35393 2019-01-01T00:00:00Z https://hdl.handle.net/2123/35392 Constitutions: Breaches, Abuses and Literal Democracy Sadurski, Wojciech This is Chapter 3 of Wojciech Sadurski's book "A Pandemic of Populists". It shows how modern authoritarian populists misuse and abuse their countries' constitutions, by breaching them, and by disregarding unwritten constitutional norms. Sat, 01 Jan 2022 00:00:00 GMT https://hdl.handle.net/2123/35392 2022-01-01T00:00:00Z https://hdl.handle.net/2123/35390 Judicial Review versus Populist Authoritarianism Sadurski, Wojciech The arricle reviews several strategies available to the judiciary to counter the emergenve of populist authoritarianism. Populist authoritarianism is a common form of democratic backsliding these days. Can courts do anything to prevent or minimize the damage produced by the growth of such political regimes? The awareness that democracy requires judges (among other institutions) to focus on protecting democratic institutions and procedures has been advocated keenly by many comparative constitutional scholars who identify and diagnose democratic backsliding around the world. This article highlights the possibilities for courts to act as protectors of rather than threats to democracy in this age of elected authoritarians. It traces constitutional developments that suggest the need for judges to develop and implement certain skills that hold significant potential for upholding the principles of democracy. The article provides a non-exhaustive catalogue of typical populist violations of liberal constitutionalism and corresponding judicial strategies for dealing with them. These strategies include enforcing unwritten democratic norms, invalidating non-democratic constitutional amendments, insisting on proper legislative (parliamentary) procedures, and protecting democratic standards against majoritarian assaults, especially as far as free and fair elections are concerned (judicial ‘militant democracy’). In the concluding section, the article briefly reflects upon strategies of self-defence available to judiciaries and some unexpected consequences for populist executives of capturing the judicial branch Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/35390 2024-01-01T00:00:00Z https://hdl.handle.net/2123/35128 Environmental Litigation by Asia Pacific States at the International Court of Justice Stephens, Tim States in the Asia Pacific region have been applicants and respondents in a substantial proportion of contentious cases in the International Court of Justice (‘ICJ’), with Australia, Cambodia, Indonesia, Japan, Malaysia, Marshall Islands, Nauru, New Zealand, Singapore, Thailand and Timor-Leste all appearing before the ICJ. Also noteworthy is that most of the cases in which these states have been parties have concerned environmental or natural resource management issues, ranging in subject matters from nuclear testing to whaling. This article contends that Asia Pacificstates are among the most active users of the Court in cases of this type for several reasons, including the relatively high degree of regional concern in relation to environmental issues (particularly among South Pacific states). It argues that although encounters by Asia Pacific states with the ICJ have not always been straightforward, they have, in sum, made a constructive contribution to the development and functioning of key norms of international law relating to the environment and to resolving disputes over natural resources. Fri, 01 Jan 2021 00:00:00 GMT https://hdl.handle.net/2123/35128 2021-01-01T00:00:00Z https://hdl.handle.net/2123/35127 The Big Thaw: who governs Antarctica’s ice? Stephens, Tim Antarctica, like all places on Earth, is being transformed by human activities. The volume and area of Antarctica’s ice are declining, with flow-on effects for Antarctic ecosystems, for regional and global climate systems, and for sea level rise. Australia has a special interest in preserving Antarctica, not only because of what it means for the Australian Antarctic Territory, but also because changes both to Antarctica’s ice cover and to deep ocean currents in the Southern Ocean influence temperature and rainfall patterns in Australia, affecting communities, ecosystems and agriculture. We can agree it is important that we pay attention to Antarctica’s ice, and hold on to as much of it as we can. But how can this be achieved? How is Antarctica’s ice governed? Wed, 01 Jan 2025 00:00:00 GMT https://hdl.handle.net/2123/35127 2025-01-01T00:00:00Z https://hdl.handle.net/2123/35064 Rethinking the ‘Carceral Creep’ in Water Governance: Enforcement, Accountability and Restorative Possibilities in Australia’s Murray-Darling Basin Killean, Rachel; Erin, O'Donnell; Clark, Cristy This paper interrogates water theft in Australia as a lens through which to explore the 'carceral creep' in environmental governance. Situating its analysis in the context of growing international reliance on punitive responses to environmental harm, it examines the deliberate choice to frame unlawful water use as 'theft', arguing that this language shapes governance responses, constructs water as property, and both illuminates and obscures the victims of water misuse. Comparing responses to water theft in New South Wales and Victoria within Australia's Murray-Darling Basin, where market-based governance has created strong financial incentives for non-compliance, it contrasts New South Wales's dedicated compliance body and use of enforceable undertakings with Victoria's more conventional enforcement model. Situating these practices within broader critiques of carceral logic and environmental restorative justice, the paper argues that criminal and restorative approaches may be more complementary than oppositional, with institutional design playing a critical enabling role. Thu, 01 Jan 2026 00:00:00 GMT https://hdl.handle.net/2123/35064 2026-01-01T00:00:00Z https://hdl.handle.net/2123/34984 Unfair trading practices: Submission in response to February 2026 Exposure draft Weatherall, Kimberlee; Zeng, Jacky Australians were promised that the government would act “to stop businesses ripping off Australians by banning unfair trading practices under the Australian Consumer Law”. The National AI Plan asserts that Australia’s existing regulatory frameworks – including the Australian Consumer Law (ACL) – are sufficient to protect Australians’ rights and safety even in the context of rapidly developing technology, including Artificial Intelligence (AI), and states that regulatory gaps will be addressed. The Treasury has assured the Australian public– that “[t]he principles-based protections provided under the ACL are generally well adapted to address the potential consumer law risks of AI enabled goods and services”. Australians have been told that Australia’s existing and expert regulators will be empowered to act to ensure AI is used safely and responsibly. Mon, 16 Mar 2026 00:00:00 GMT https://hdl.handle.net/2123/34984 2026-03-16T00:00:00Z https://hdl.handle.net/2123/34398 Analysis of Risk levels and use of AI in Automated Decision-Making systems in NSW Bello Villarino, José-Miguel; Sinclair, Alexandra Dataset of human evaluations of risk level and use of AI. Using data from on https://cmsassets.ombo.nsw.gov.au/assets/Reports/Compendium-of-ADM-Systems.pdf. Methodological explanations in article ARE WE REGULATING THE RIGHT DIGITAL SYSTEMS? TESTING EMERGING ARTIFICIAL INTELLIGENCE FRAMEWORKS AGAINST REAL-WORLD PUBLIC SECTOR SYSTEMS - JOSE-MIGUEL BELLO Y VILLARINO,* KIMBERLEE WEATHERALL,** TERRY CARNEY,*** ALEXANDRA SINCLAIR, **** AND SCARLET WILCOCK in UNSW Law Journal Vol 48, issue 4. Tue, 14 Oct 2025 00:00:00 GMT https://hdl.handle.net/2123/34398 2025-10-14T00:00:00Z https://hdl.handle.net/2123/34319 Careers in Criminology and Criminal Justice in Australia Clancey, Garner This book provides an overview of the many potential roles open to a criminology graduate. Working through different agencies and roles shows just some of the career opportunities awaiting criminology graduates. This illuminates the types of skills and knowledge required for diverse roles, which will help criminology students (and those in related disciplines) to make the most of their time at university and to prepare for future work. Wed, 24 Sep 2025 00:00:00 GMT https://hdl.handle.net/2123/34319 2025-09-24T00:00:00Z https://hdl.handle.net/2123/34180 Book Review: The American Law Institute: A Centenary History (Oxford University Press, 2023) by Andrew S Gold and Robert W Gordon (eds) Mohseni, Aryan Corbin’s reflections on his Restatement of the Law of Contracts began with a resigned note: “In undertaking to draft a formal Restatement of any branch of the law, there is involved an assumption that a common law exists”. That was no mere modesty topos. It identified the raison d’être of the American Law Institute and the occasion for its Restatements – the need to identify uniformity in a system that denies any national common law and admits of no less than fifty-one ‘common laws’. This book celebrates the centenary of an institution dedicated to that feat. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/34180 2024-01-01T00:00:00Z https://hdl.handle.net/2123/34172 Knowing Receipt and "Equitable Proprietary Rights": Byers v Saudi National Bank Mohseni, Aryan In Byers v Saudi National Bank, the Supreme Court of the United Kingdom delivered judgment in perhaps the last episode in the Akers v Samba saga. While the conclusion might be sound, the path to the conclusion is questionable. The reasoning proves too much, and there is a danger that some labels-particularly of "equitable proprietary claims" - might lead unsuspecting counsel into error in later cases. What emerges from Byers is a view of knowing receipt as contingent on the equity to obtain specific restitution of an asset - a conclusion which could have more readily been reached through the construction of the statute at hand, and which sits ill with the Australian preference to see knowing receipt as fault-based, rather than as a vindication of pre-existing "property rights" and without sufficient interrogation of what we mean by "trust property" for the purposes of Barnes v Addy liability. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/34172 2024-01-01T00:00:00Z https://hdl.handle.net/2123/34171 Convergence and Divergence: The Influence of American Constitutionalism on Sir Owen Dixon Mohseni, Aryan Sir Owen Dixon’s increasing disillusionment with the state of the English judiciary during his tenure as Justice, and later Chief Justice, of the High Court of Australia is well known. What is less well known is his admiration for early American constitutional law scholarship. This article explores that theme with particular reference to Dixon’s friendship with Justice Felix Frankfurter of the US Supreme Court, both of whom had a similar judicial cast of mind and were fascinated by the unique analytical complexities posed by a federal system. It will be seen that Dixon’s treatment of three constitutional issues – the common law and the Constitution, intergovernmental immunities, and federal judicial power – bore all the hallmarks of American thought in these areas. But Dixon’s disillusionment with the composition of the US Supreme Court, and his aversion to the growing prominence of “Due Process”, tempered this enthusiasm with scepticism in his later years. Sun, 01 Jan 2023 00:00:00 GMT https://hdl.handle.net/2123/34171 2023-01-01T00:00:00Z https://hdl.handle.net/2123/34169 The Nature and Function of the Constitutional Injunction Mohseni, Aryan The inclusion of the injunction in s 75(v) of the Constitution has been the source of confusion since Federation. What is its purpose, historical basis, and continuing function? What has been its process of development? This article explores these questions by reference to United States authority. It argues that the constitutional injunction is sui generis, and was so conceived in the United States before Australian Federation. To characterise the injunction in s 75(v) as "ordinary", as was done in Smethurst, overlooks the remarkable practice in America at the time of Federation of recasting the equitable remedy into a device simply to interrogate the legality of official conduct, as well as the imperative, long recognised in America, to make old remedial limitations in Chancery yield to constitutional exigencies. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/34169 2024-01-01T00:00:00Z https://hdl.handle.net/2123/34168 Resolving Statutory Overlap in the Superannuation System Mohseni, Aryan; Donald, Scott Australia's national superannuation system enlivens a complex collage of Commonwealth and State laws and regulatory regimes. It therefore provides an opportunity to explore the operation of legislative devices designed to resolve issues of overlap in a practical setting of considerable consequence. This article assesses two of these devices: s 350 of the Superannuation Industry (Supervision) Act 1993 (Cth) and s 5E of the Corporations Act 2001 (Cth), and identifies the crucial role played by s 109 of the Australian Constitution in the curatorial process governed by those provisions. The article is also concerned with the potential for less obvious examples of regulatory overlap to go unnoticed, and examines specific examples that illustrate this potential. Wed, 01 Jan 2025 00:00:00 GMT https://hdl.handle.net/2123/34168 2025-01-01T00:00:00Z https://hdl.handle.net/2123/34145 Does a successor trustee owe a fiduciary obligation to the former trustee not to frustrate their indemnity? Mohseni, Aryan The nature of a trustee's indemnity has been the subject of recent appellate judicial treatment in the United Kingdom and in Australia. Owing to the prevalence of the trading trust in Australia, the High Court of Australia has recently had occasion to consider whether a successor trustee owes a fiduciary duty to not frustrate a former trustee's indemnity over trust assets. That decision has addressed divergences between Australia and the United Kingdom on the nature of the indemnity and reminds us of fundamental starting points about the law of trusts that are often forgotten. Wed, 01 Jan 2025 00:00:00 GMT https://hdl.handle.net/2123/34145 2025-01-01T00:00:00Z https://hdl.handle.net/2123/34059 Voice Referendum Arcioni, Elisa; Ozies, Cornel; Cavdarovski, Tom A medium length video account of the historical context for the 2023 Voice referendum proposal, its intended operation and interaction with the existing constitutional system of government in Australia. Sun, 01 Jan 2023 00:00:00 GMT https://hdl.handle.net/2123/34059 2023-01-01T00:00:00Z https://hdl.handle.net/2123/33970 A Code of Conduct for Best Practice in Nuclear Command, Control, and Communication (NC3): The Role of International Law and Lessons from Informal International Law-Making Crawford, Emily This study examines the current situation regarding State nuclear command, control and communication (NC3). Nuclear command, control, and communication is the framework that governs the process that, as its ultimate end product, results in the launch of a nuclear weapon. This study explores how each nuclear weapons State structures its NC3 (if such structures are publicly known) and what international law governs nuclear operations. Given the lack of international law regarding NC3, this study explores whether it would be beneficial to adopt a code of conduct or other non-binding instrument outlining any lex lata or regarding nuclear weapons operations, including any best recommended practice regarding how States should structure their NC3 systems, given the strategic and policy objectives of NC3 systems. In proposing a model code of conduct, this study will examine the extant literature and practice on the adoption and implementation of non-binding instruments in the international law of armed conflict, to better understand how and why non-binding instruments gain traction in State practice. This study will then apply those conclusions to a draft code of conduct for State NC3. Fri, 06 Jun 2025 00:00:00 GMT https://hdl.handle.net/2123/33970 2025-06-06T00:00:00Z https://hdl.handle.net/2123/33801 On hope, unintended consequences, and risks: Shedding the Rome Statute’s definition of ‘gender’ in the Crimes Against Humanity Convention Grey, Rosemary In the past twenty-five years, the 1998 Rome Statute’s definition of ‘gender’ has been scrutinized in academic circles, in policies and practice of the International Criminal Court (ICC), and more recently in the United Nations headquarters in New York, where states have committed to negotiating a convention to prevent and punish crimes against humanity. However, these ‘gender’ conversations in The Hague and New York have moved in divergent directions. In the ICC, the prevailing view is that the Rome Statute defines ‘gender’ in social terms. In New York, views are mixed: some states recognize that it accommodates a social conception of gender, others seem convinced that it conflates ‘gender’ with ‘biological sex’. This article seeks to bring these two legal processes into conversation; to correct an enduring misperception that the Rome Statute defines ‘gender’ in biological terms; and to sound a cautionary note about how that definition is represented in the Crimes Against Humanity Convention’s travaux préparatoires. Particular attention is paid to the ICC’s 2024 Al Hassan judgment, being the ICC’s first trial judgment on gender-based persecution, and 2025 Afghanistan arrest warrants, which include the Court’s first charges for gender-based persecution against LGBTIQ+ people. Tue, 08 Apr 2025 00:00:00 GMT https://hdl.handle.net/2123/33801 2025-04-08T00:00:00Z https://hdl.handle.net/2123/33658 Bred ‘Like Cattle’ : Forced Procreation in the Extraordinary Chambers in the Courts of Cambodia Grey, Rosemary The Extraordinary Chambers in the Courts of Cambodia (ECCC) serves as a compelling case study to extend current thinking about reproductive violence in international criminal law beyond the crime of ‘forced pregnancy’. In particular, the cases and evidence from the ECCC illustrate a broader concept of forced procreation, associated with the Khmer Rouge regime’s role in forcing or coercing its citizens to produce children for the nation. Although this type of forced procreation was potentially prosecutable in the ECCC using the crimes against humanity of ‘other inhumane acts’ or ‘enslavement’, no such charges were laid. This article considers that apparent gap in the ECCC charges, drawing on Sellers’ concept of ‘absent jurisprudence’. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/33658 2024-01-01T00:00:00Z https://hdl.handle.net/2123/33637 The Selection of a Defective Major Premise Mohseni, Aryan; Gummow, William In a common law system of reasoning, there is no definitive method to identify the correct legal rule, or major premise, from which there proceeds the reasoning to the result. At a more fundamental level, there are also no a priori rules to determine the correct level of generality at which to pitch the scope of that premise. Both remain selective processes which may lead to unsatisfactory outcomes. This is illustrated by our consideration of three recent decisions of courts of final appeal. Sun, 01 Jan 2023 00:00:00 GMT https://hdl.handle.net/2123/33637 2023-01-01T00:00:00Z https://hdl.handle.net/2123/33636 Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd Mohseni, Aryan The High Court of Australia appeal in Naaman v Jaken Properties raises the question whether a successor trustee owes a ‘fiduciary duty’ to the former trustee to not destroy, jeopardise or diminish the former trustee’s right of indemnity over trust assets. That question arises to determine whether third parties are liable to account in equity as knowing recipients of property dissipated to frustrate the former trustee’s indemnity. It is argued in the appeal that the successor trustee holds the trust assets on express trust for the former trustee to the extent of the former trustee’s indemnity. That conclusion does not account for the variety of equitable interests. Three main points emerge. First, a current trustee has a ‘beneficial interest’ in trust assets only in a superficial sense. Second, upon transfer, that ‘beneficial interest’ is not ‘retained’ by the former trustee; the entitlement of a former trustee over the trust fund changes, and becomes analogous to a charge over a fund. The language of ‘beneficial interest’ in each case is misleading and should be eschewed. Third, it is unnecessary to ask, for the purposes of Barnes v Addy liability, whether any ‘duty’ owed by a successor to a former trustee is a ‘fiduciary duty’. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/33636 2024-01-01T00:00:00Z https://hdl.handle.net/2123/33505 Transnational peer review for regulating financial stability Svetiev, Yane The article examines the role of transnational peer review in shaping financial market regulation in Australia in pursuit of financial stability. Transnational regulatory networks have become an important source of standards and enforcement practices in financial regulation. In the aftermath of the financial crises of the 2000s, global initiatives to strengthen financial supervision have reinforced peer review mechanisms to monitor the national implementation of transnational standards. Through such peer review, regulatory networks can influence domestic rules and practices, as well as the exercise of discretion by national regulatory authorities. The article studies the interaction between transnational peer review and regulatory choices in Australian financial supervision through three case studies. Notwithstanding concerns in the literature about the efficacy and legitimacy of regulatory networks, the case studies demonstrate the scope for productive dialogue between the transnational and national level in making regulatory choices. Sun, 01 Jan 2023 00:00:00 GMT https://hdl.handle.net/2123/33505 2023-01-01T00:00:00Z https://hdl.handle.net/2123/33504 An alternative republic proposal Twomey, Anne The recent revival of discussion of an Australian republic has not yet addressed the fundamental contradictions at the core of the debate, which stymied success in 1999 and which will continue to divide republicans unless resolved. They are that on the one hand, the people want to directly elect their head of state, but on the other hand they do not want to create political instability or end up with a head of state who is a politician or celebrity. Those who oppose direct election of the head of state express legitimate concerns that it will lead to political conflict between the Prime Minister and a head of state who has a direct mandate from the people. They also note that an election will inevitably give rise to a politician as head of state, with political parties funding and supporting candidates. The well-respected people who have in the past accepted the offices of Governor-General or Governor, such as Sir William Deane and Dame Marie Bashir, would be most unlikely to ever nominate for a direct election. Thu, 01 Jan 2015 00:00:00 GMT https://hdl.handle.net/2123/33504 2015-01-01T00:00:00Z https://hdl.handle.net/2123/33503 Implied limitations on legislative power in the United Kingdom Twomey, Anne The ban on fox-hunting in the United Kingdom provoked large protests and a number of legal challenges. The English Court of Appeal and the House of Lords, while upholding the validity of the Hunting Act 2004 (UK), added to the controversy by accepting that the courts could determine the validity of an Act of Parliament, contrary to the accepted principle of parliamentary supremacy, and that there were implied limitations on the power of the Westminster Parliament to enact laws under the Parliament Act 1911 (UK). For good measure, the courts added warnings about the use of the Parliament Act to push through "undemocratic" measures. This article examines the judgments and draws parallels with the position in Australia. Sun, 01 Jan 2006 00:00:00 GMT https://hdl.handle.net/2123/33503 2006-01-01T00:00:00Z https://hdl.handle.net/2123/33502 The Fijian coup cases: The Constitution, reserve powers and the doctrine of necessity Twomey, Anne If a coup d'état, of necessity, overturns the rule of law, then it is both unusual and potentially self-defeating for a court to rule on its legality. That is why cases on coups are both rare and the object of fascination. How does a court, in those circumstances, accommodate the strict application of the law with recognition of the reality of a new governing regime and the serious risk to public safety that might flow from its judgment? This was the dilemma facing the Fijian Court of Appeal in April 2009. Thu, 01 Jan 2009 00:00:00 GMT https://hdl.handle.net/2123/33502 2009-01-01T00:00:00Z https://hdl.handle.net/2123/33501 Recent constitutional reforms in the United Kingdom Twomey, Anne While Australia struggles with constitutional reform concerning the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution, the United Kingdom has been quietly making significant constitutional reforms, through the enactment of ordinary legislation and the making of regulations and standing orders. The extent of this reform, its excessive complexity and the almost casual way in which it has been made, would appear surprising to most Australian eyes. Fri, 01 Jan 2016 00:00:00 GMT https://hdl.handle.net/2123/33501 2016-01-01T00:00:00Z https://hdl.handle.net/2123/33500 Cross-examination and remote access technologies: a changing calculus? McKay, Carolyn Ever since audio and audiovisual link (AVL) technologies were first introduced into Australian courtrooms in the 1990s, the courts have had broad discretionary powers regarding directions for taking evidence by AVL. In exercising such discretion, the courts have had to contend with balancing the efficiencies afforded by witnesses appearing remotely with other considerations such as fairness and the loss of traditional forensic benefits, which is said to accompany in- person cross-examination. These forensic benefits are often described in terms of a chemistry, solemnity, formality, or some other intangible atmospheric of the live, co-present courtroom environment. Of course, what has transpired since the beginning of the COVID-19 pandemic in 2020 has profoundly challenged these courtroom balancing acts. Sat, 01 Jan 2022 00:00:00 GMT https://hdl.handle.net/2123/33500 2022-01-01T00:00:00Z https://hdl.handle.net/2123/33492 Virtual criminal courts and remote advocacy McKay, Carolyn How does the increasing use of audiovisual links (‘AVL’) impact advocacy? Given the developing significance of AVL and special measures in criminal courts, such as the use of pre-recorded out-of-court statements and remote witness suites, this article provides an overview of new empirical data regarding how advocacy is transformed by remote modes. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/33492 2024-01-01T00:00:00Z https://hdl.handle.net/2123/33484 Remote criminal justice and vulnerable individuals: Blunting emotion and empathy? Mckay, Carolyn; Macintosh, Kristin In this article, we examine the effects of remote criminal justice on expressions and perceptions of emotion. We draw on original interview data from the Australian Research Council funded study 'The Digital Criminal Justice Project: Vulnerability and the Digital Subject' DE210100586 (2021–2024). This project focuses on the benefits and challenges of vulnerable individuals' use of remote communication technologies from the perspective of 85 Australian judicial officers, lawyers and affiliated professionals. During the fieldwork interviews, several judicial officers and lawyers raised concerns regarding the perceived 'blunting of the emotional impact' (defence lawyer DL26) of this mode of evidence and appearance. For instance, one Supreme Court Judge (SCJ3) felt that a plea from a remote prisoner lacked emotion, impacting the engagement between the court and that individual, and devaluing their role in proceedings. This is significant because: 'criminal trials are all about people and emotions' (SCJ3). The foregrounding of emotion and empathy by judges and lawyers during the interviews was particularly interesting as none of the interview questions directly raised that specific issue. In this article, we analyse these new empirical data in the context of relevant literature concerning the effects of remote criminal justice on emotion and empathy. While we find indications that emotion and empathy may potentially be 'blunted' by technologies, there remain cogent reasons for vulnerable witnesses to use the remote mode. However, regarding remote people-in-prison, we find that the technology can diminish empathetic engagement during both legal conferencing and court appearances. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/33484 2024-01-01T00:00:00Z https://hdl.handle.net/2123/33483 Digital justice and video links: Connecting and conflating courtroom and carceral space Mckay, Carolyn With a focus on the criminal justice system, this chapter scrutinises the uptake of digital technologies in criminal procedure and the resulting shift in the spatial relationships involved in legal adjudication. Concentrating specifically on the increasing use of audiovisual link technologies (also known as video links, live links, or videoconferencing) that connect public courtrooms with non-public sites of custody or detention, this chapter examines how courtroom space is in the process of being delocalised, dispersed, distributed, or dematerialised to prison video link studios and other remote sites. What are the implications for the administration of justice when the courtroom becomes virtual or fully digitised and the physical presence of certain key actors is no longer required? This chapter seeks to enhance understandings of the profound transformation that is occurring in court space and the implications for the delivery of justice as the system shifts from the terrestrial realm to the digital. The coronavirus pandemic has distilled the significance of closely examining the emergence of digital justice. Fri, 01 Jan 2021 00:00:00 GMT https://hdl.handle.net/2123/33483 2021-01-01T00:00:00Z https://hdl.handle.net/2123/33473 The carceral automaton: Digital prisons and technologies of detention Mckay, Carolyn Prisons are on the cusp of a technological transformation as twenty-first-century digital connectivity in 'free' society permeates prison design and offender management. This article will begin with an overview of the digital technologies in 'smart' prisons. Two limbs are emerging: technologies that are embedded into the infrastructure of prisons to benefit authorities through heightened security, and technologies that may benefit prisoners by providing them with positive opportunities to access justice, maintain family relationships and engage in programs aimed at optimising their post-release circumstances and rehabilitation. However, recent case law paints a picture of prison life devoid of human contact during the COVID-19 pandemic, bringing isolation and heightened anxiety. Through the lens of emergent conceptions of digital criminology, this article will analyse Australian case law to examine whether the automated, smart or digital prison offers a utopian vision of safe detention and rehabilitation or a dehumanised and punitive dystopia. Sat, 01 Jan 2022 00:00:00 GMT https://hdl.handle.net/2123/33473 2022-01-01T00:00:00Z https://hdl.handle.net/2123/33453 Health complaints and regulatory reform: Implications for vulnerable populations? Carney, Terry; Beaupert, Fleur; Chiarella, Mary; Bennett, Belinda; Walton, Merrilyn; Kelly, Patrick; Satchell, Claudette Complaints and disciplinary processes play a significant role in health professional regulation. Many countries are transitioning from models of self-regulation to greater external oversight through systems including meta-regulation, responsive (risk-based) regulation, and "networked governance". Such systems harness, in differing ways, public, private, professional and non-governmental bodies to exert influence over the conduct of health professionals and services. Interesting literature is emerging regarding complainants' motivations and experiences, the impact of complaints processes on health professionals, and identification of features such as complainant and health professional profiles, types of complaints and outcomes. This article concentrates on studies identifying vulnerable groups and their participation in health care regulatory systems. Fri, 01 Jan 2016 00:00:00 GMT https://hdl.handle.net/2123/33453 2016-01-01T00:00:00Z https://hdl.handle.net/2123/33452 From guardianship to supported decision-making: Still searching for true north? Carney, Terry This article argues that asking whether guardianship has changed is the wrong question. It is the wrong question because guardianship does not exist in isolation from other institutions and legal instruments, such as enduring powers and nominee powers, or informal community arrangements of support or substituted decision-making. It is the wrong question because archetypical purity of guardianship as substitution and support as autonomy does not reflect real world experience of it as it is always a mixture of both, changing over time and decision type; and because change is very hard to pin down. In place of arid debates about whether guardianship should be modified or abolished, the better question to ask is where guardianship and its associated institutions fit within an ideally configured holistic package of formal and informal measures, and whether there are any indications of progress towards its realisation, or how that might be achieved. Sun, 01 Jan 2023 00:00:00 GMT https://hdl.handle.net/2123/33452 2023-01-01T00:00:00Z https://hdl.handle.net/2123/33451 The ghosts of Levene and Lysaght still haunting 90 years on: Australia's 'great age' of residence litigation? Dirkis, Michael Between 2010 and 2016 there were 34 cases litigated in Australia relating to the residence status of individual taxpayers compared with only 25 cases in the prior 79 years. This article: (1) after briefly setting out Australia's statutory residence rules in the context of their history, underlying policy and origins; and (2) highlighting the continuing impact of UK decisions, such as Levene and Lysaght have upon Australian law through four key observations explores the impact, if any, that this litigation has had upon the understanding of the concept of "residence" in the Australian context. The article concludes that this large volume of recent litigation was in many cases unnecessary as it has merely reinforced the scope of the existing rules. Further, the fact that there were a large number of cases does not of itself provide any rational impetus for major reform. As such, the ghosts of the common law residency test may continue to haunt Australian law for another 80 years. Mon, 01 Jan 2018 00:00:00 GMT https://hdl.handle.net/2123/33451 2018-01-01T00:00:00Z https://hdl.handle.net/2123/33450 A new direction for assistance in international tax debt collection? Dirkis, Michael After having obtained the relevant information from a registered taxpayer to raise an assessment, a key pillar of tax administration is the collection of any resultant debt. There has been an internationalisation of the relationships between revenue authorities over the last 20 years. This has enabled major changes in domestic taxation legislation and the implementation of bilateral and multilateral treaties which have increased international collaboration in respect of the gathering and sharing of taxation information. However, similar advances in respect of tax debt collection appear not to have occurred to the same scale, despite the implementation of bilateral and multilateral treaties aimed at overcoming the domestic law impediments to assistance in tax debt collection. In fact, there appears to be a shift from a focus on co-operation between tax authorities to a focus on encouraging enhanced domestic tax collection processes, as illustrated by the December 2020 OECD Forum on Tax Administration's Enhancing International Tax Debt Management report. This article explores these developments principally from an Australian perspective. Sat, 01 Jan 2022 00:00:00 GMT https://hdl.handle.net/2123/33450 2022-01-01T00:00:00Z https://hdl.handle.net/2123/33444 Pandemic planning as risk management: How fared the Australian federation? Carney, Terry; Bailey, Richard; Bennett, Belinda The role of law in managing public health challenges such as influenza pandemics poses special challenges. This article reviews Australian plans in the context of the H1N1 09 experience to assess whether risk management was facilitated or inhibited by the "number" of levels or phases of management, the degree of prescriptive detail for particular phases, the number of plans, the clarity of the relationship between them, and the role of the media. Despite differences in the content and form of the plans at the time of the H1N1 09 emerging pandemic, the article argues that in practice, the plans proved to be responsive and robust bases for managing pandemic risks. It is suggested that this was because the plans proved to be frameworks for coordination rather than prescriptive straitjackets, to be only one component of the regulatory response, and to offer the varied tool box of possible responses, as called for by the theory of responsive regulation. Consistent with the principle of subsidiarity, it is argued that the plans did not inhibit localised responses such as selective school closures or rapid responses to selected populations such as cruise ship passengers. Sun, 01 Jan 2012 00:00:00 GMT https://hdl.handle.net/2123/33444 2012-01-01T00:00:00Z https://hdl.handle.net/2123/33443 Mental health tribunals: 'TJ' implications of weighing fairness, freedom, protection and treatment Carney, Terry; Tait, David; Chappell, Duncan; Beaupert, Fleur People with a serious mental illness warranting possible compulsory care and treatment are vulnerable and disempowered. Mental health tribunal hearings must balance the rights to freedom, public protection and need for treatment when making decisions about mental health care and treatment. Therapeutic jurisprudence principles, and other precepts, suggest that participants should be treated with dignity and fairness, be fully engaged, and be helped to recover. Overseas research has found that these aspirations are often not realised. This article reports findings from an ongoing Australian Research Council funded collaborative study (2005-2008) of the practice of tribunals in Victoria, New South Wales and the Australian Capital Territory. In particular, it highlights the challenge of giving concrete meaning to concepts such as "fairness" or "the most therapeutic outcome" when assessing the variety of practices found in different jurisdictions. The article argues that information and data about the socio-legal context in which mental health tribunals operate are vital to answering these questions. Mon, 01 Jan 2007 00:00:00 GMT https://hdl.handle.net/2123/33443 2007-01-01T00:00:00Z https://hdl.handle.net/2123/33442 Transforming governance and technology in civil and administrative justice Carney, Terry; Tait, David How can technology provide better access to civil and administrative justice? This article argues that reforming the organisational design of justice is an essential first step, by developing a graduated set of procedures that filter disputes and complaints, managing them in a consistent and, where appropriate, systemic way. Such a system requires online (or telephone) filing of matters, tracking software to follow individual cases and reporting systems to detect patterns. Australian jurisdictions have proceeded a long way down this path, offering a sharp contrast to litigation-prone justice processes in some other common law systems, although perhaps less systematic and orderly than some civil law systems. The ombudsman model provides a mechanism for handling complaints against large agencies, whether in the public or private sector; tribunals provide an accessible forum for most disputes; and accident and disability claims are increasingly decided through administrative processes based on professional assessments of need. While new technologies can allow greater centralisation of justice procedures, the authors argue that such technologies can also promote more localised and dispersed justice procedures, taking as an example the "tribunal in a box" model developed by the Victorian tribunal system. Tue, 01 Jan 2013 00:00:00 GMT https://hdl.handle.net/2123/33442 2013-01-01T00:00:00Z https://hdl.handle.net/2123/33441 From citizenship to contractualism: The transition from unemployment benefits to employment services in Australia Ramia, Gaby; Carney, Terry Contractualism in public administration is running apace. As part of this trend, unemployment assistance has been radically restructured over the 1990s. This article identifies seven stages in the transition from an approach to the delivery of unemployment benefits based on citizenship to one grounded in contractualism and "employment services". The article argues that this process of evolution has partially de-legalised the system, delegitimised the rights of its beneficiaries, and added to the socio-economic marginalisation of the unemployed. Fri, 01 Jan 1999 00:00:00 GMT https://hdl.handle.net/2123/33441 1999-01-01T00:00:00Z https://hdl.handle.net/2123/33440 Rights in collateral under the PPSA: A minimalist response McCracken, Sheelagh; Loxton, Diccon; Boxall, Andrew This note responds to the recent article Rights in Collateral under the PPSA: Rebutting the Minimalist Approach, (the Unitarist Article) which critiques the interpretation of the Personal Property Securities Act 2009 (Cth) (PPSA) under the "minimalist model". That model was advanced by us in a series of articles in 2018. Under the name "possessory model" it was referred to in the Whittaker Report in 2015 as an alternative to the "unitary model" outlined in it. With the review and reform of the PPSA expected to enter a new phase in 2020 with an exposure Bill, debate is to be encouraged. Tue, 01 Jan 2019 00:00:00 GMT https://hdl.handle.net/2123/33440 2019-01-01T00:00:00Z https://hdl.handle.net/2123/33435 Welfare appeals and the ARC report to SSAT or not to SSAT: Is that the question? Carney, Terry An Australian Administrative Review Council (ARC) report proposes that two-tier external merits review of social security appeals be reduced to a single tier of review (by the Administrative Appeals Tribunal). At the same time, income security payments for people of workforce age have been transformed from a status entitlement, into a form of contractual bargain (under "casemanagement"). This article reviews the performance of the two-tier appeal system against its British and other counterparts, and finds that it achieves best practice. It is argued that more radical reforms canvassed in a July 1996 British Green Paper are poorly conceived, and risk compromising the principle of external review of administrative action. Single tier review may also be inappropriate. On the other hand, the challenge posed by "contractual welfare" may lend support to ARC proposals to extend alternative dispute resolution avenues, though adjudication is to be preferred for review of traditional (non-contractual) forms of welfare provision. Mon, 01 Jan 1996 00:00:00 GMT https://hdl.handle.net/2123/33435 1996-01-01T00:00:00Z https://hdl.handle.net/2123/33434 Fringe benefits tax and the company car : aligning the tax with environmental policy Black, Celeste Increasingly, environmental taxes have been seen as a legitimate means to address environmental issues, specifically global warming, but opportunities also exist to reform current tax frameworks to align them more closely with environmental objectives. The current regime for the taxation of the company car as a fringe benefit is a clear target for such reform. This article sets out in some detail the operation of the fringe benefits tax with respect to the company car and then identifies the numerous calls for the reform of this regime, coming from both tax and environmental perspectives. The article then describes recent reform initiatives in the United Kingdom and Canada which have incorporated reductions in greenhouse gas emissions as an objective of the taxation regime. The article concludes with suggestions of a way forward in the reform of the Australian regime. Tue, 01 Jan 2008 00:00:00 GMT https://hdl.handle.net/2123/33434 2008-01-01T00:00:00Z https://hdl.handle.net/2123/33433 Considering the taxation implications of Australia’s carbon pricing mechanism Black, Celeste With the commencement of the carbon price on 1 July 2012, new Division 420 operates with respect to transactions involving Registered Emissions Units. Although the carbon price will initially only apply to approximately 500 entities based on Government estimates, Division 420 also covers units issued under the Carbon Farming Initiative and, once trading in Australian carbon units commences in 2015, investors will also be subject to these rules. This article provides an analysis of the new provisions and highlights practical aspects of their operation in light of the features of the carbon pricing mechanism and the industry assistance measures provided under the Clean Energy Plan. Sun, 01 Jan 2012 00:00:00 GMT https://hdl.handle.net/2123/33433 2012-01-01T00:00:00Z https://hdl.handle.net/2123/33432 Combatting serious tax non-compliance: Tax fraud and money laundering Black, Celeste As illustrated by recent successful prosecutions, pursuing money laundering offences in tax cases can be an effective mechanism to penalise individuals involved in serious tax non-compliance. These cases suggest that tax fraud can have the effect of transforming otherwise legitimate business receipts into proceeds of crime such that subsequent transactions in relation to those proceeds may constitute money laundering. This article considers two recent tax scheme cases in the broader context of money laundering and proceeds of crime forfeiture laws in order to examine how the necessary physical elements of the money laundering offence may be shown in a tax case. This analysis suggests that this avenue of prosecution may have significant potential as revenue authorities continue to work closely with law enforcement agencies to combat the most egregious instances of tax evasion. Fri, 01 Jan 2016 00:00:00 GMT https://hdl.handle.net/2123/33432 2016-01-01T00:00:00Z https://hdl.handle.net/2123/33429 Digitalisation and broadcasting: Evaluating the application of royalty withholding tax to digitalised business models Black, Celeste The digital economy and, more specifically, highly digitalised business models are putting pressure on domestic and international tax systems. As potential responses are being explored by individual governments and the OECD Inclusive Framework, one alternative that has been raised is to more effectively utilise the royalty withholding tax mechanism. In order to evaluate this option in relation to a digitalised business, this article considers the application of withholding tax to payments made to an overseas supplier for access to a live transmission. The article analyses Australia's domestic law and tax treaty network, revealing three patterns in the treaty definition of royalties that can lead to substantively different outcomes in relation to live transmissions. This analysis shows that the royalty withholding tax frameworks developed for traditional over-the-air broadcasting are under increasing strain as the technologies of media and communications converge. The degree of variability and uncertainty in tax outcomes that this analysis evidences is inconsistent with establishing a level playing field between traditional and more highly digitalised broadcasting businesses. Tue, 01 Jan 2019 00:00:00 GMT https://hdl.handle.net/2123/33429 2019-01-01T00:00:00Z https://hdl.handle.net/2123/33428 The floating charge under the PPSA: The current state of play McCracken, Sheelagh Since its recognition by 19th-century English courts, the floating charge has been a form of security favoured by lenders and corporate borrowers. Although the Personal Property Securities Act 2009 (Cth) (PPSA) is generally acknowledged as modifying this charge when taken over personal property (as defined), both the manner and the extent of modification are controversial. This article contends that the floating charge over personal property is absorbed into the statutory regime as a security interest over present and after-acquired property, thereby attracting statutory attributes. It thus challenges judicial dicta recharacterising the floating charge (and other property interests constituting security interests) as a new statutory generic interest. As a matter of statutory construction, the property interest created by the parties operates under s 19 of the PPSA as a fixed, rather than floating, security interest. Consequently, the article further contends that the PPSA necessarily addresses the grantor's ability to deal with the collateral differently from the general law, and infers that additional statutory rules may be required to address commercial demands. Tue, 01 Jan 2019 00:00:00 GMT https://hdl.handle.net/2123/33428 2019-01-01T00:00:00Z https://hdl.handle.net/2123/33369 Unperfected PPSA security interests in insolvency part I: The commercial significance and costs of the vesting provisions Waldman, Adam This is the first of two articles which critically examine the "vesting provisions" in relation to the Personal Property Securities Act 2009 (Cth) (PPSA). These are s 267 of the PPSA, which provides that a security interest "'vests in the grantor'" if it is unperfected at the time of one of several specified events indicating the grantor's insolvency, and s 588FL of the Corporations Act 2001 (Cth), which provides that a security interest "vests in the company" if it is perfected by registration and no other means, the grantor is a company, and the registration time is outside of one of several specified time periods. This article focuses on the commercial significance and costs of these provisions. Part II explores their operation. Part III explores their commercial significance by identifying when they lead to different outcomes than those which would have been generated anyway under other provisions of the PPSA. Part IV explores the costs of the provisions, including why they cannot be addressed through more discrete amendments to the PPSA. This raises the question of whether these provisions are necessary at all, which is explored in the second article. Mon, 01 Jan 2024 00:00:00 GMT https://hdl.handle.net/2123/33369 2024-01-01T00:00:00Z https://hdl.handle.net/2123/33361 Split Deposits - Again Lane, Patricia One of the most effective remedies for vendors on termination for the purchaser's default is to forfeit the 10% deposit paid on exchange. It is not unusual, though, to encounter contracts where the vendor has agreed to accept less than the full 10% on exchange of contracts, and to defer the payment on the balance of the deposit until the time the contract is completed. In several recent cases the Court of Appeal has considered whether such arrangements permit the vendor to recover the full 10% deposit when the contract is terminated for the purchaser's default. The latest of these is Iannello v Sharpe [2007] NSWCA 61. Mon, 01 Jan 2007 00:00:00 GMT https://hdl.handle.net/2123/33361 2007-01-01T00:00:00Z https://hdl.handle.net/2123/33359 The changing landscape of corporate fundraising Harris, Jason Corporate fundraising for both debt and equity securities is regulated under Ch 6D of the Corporations Act 2001 (Cth). That chapter imposes a detailed regime of rules for issuing securities to the public that centre on issuing a prospectus (or other "disclosure document" as prescribed by Ch 6D), along with a variety of both general and specific exceptions. Each year, companies raise large amounts of capital under these provisions. For example, even if we only look at companies in the ASX-listed category, in calendar year 2018 over A$46 billion was raised in initial public offerings (IPOs) and over A$57 billion was raised in secondary issues on the ASX. The marketplace for corporate funding is changing though, with new forms of crowdfunding and crypto funding becoming more popular. In recent years, there have been several major changes to corporate fundraising laws, which will be discussed in this note. Tue, 01 Jan 2019 00:00:00 GMT https://hdl.handle.net/2123/33359 2019-01-01T00:00:00Z https://hdl.handle.net/2123/33358 Conceptual models of the PPSA security interest: Moving beyond the unitary/minimalist dichotomy Waldman, Adam This article explores the existing conceptual models of the "security interest" under the Personal Property Securities Act 2009 (Cth) – the "unitary model" and the "minimalist model". It reviews the elements of and rationales for the models, and their consequences which have been explored in the literature thus far. It then examines the potential variants of, and uncertainties within, the models. In light of these uncertainties, it is contended that the contents of the security interest cannot be reduced to a dichotomy; rather, each of the issues touched upon by the models of the security interest should be viewed as discrete albeit interconnected constructional questions. Consequently, the models should be restricted to the core issue in response to which they were developed, being whether (or not) certain parties are deemed to be owners for the purposes of holding "rights in the collateral" under s 19. It is further contended that, instead of adopting the proposed solution of expressing a preference for one of the models in the Explanatory Memorandum, the government should directly amend the legislation to address the key issues that flow from them. Wed, 01 Jan 2020 00:00:00 GMT https://hdl.handle.net/2123/33358 2020-01-01T00:00:00Z