University of Western Sydney Law Review

Articles

Vol. 17, Annual

University of Western Sydney Law Alumni Occasional Address: 8 November 2013, Doltone House, Sydney
I INTRODUCTION A few months ago, when I received a letter from the Dean of Law and the President of the Alumni Association inviting me to speak at this dinner, I accepted with delight. I then put the letter onto one of the piles of papers on my...
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Should Aboriginal Peoples Be Recognised in the Australian Constitution?
WHITLAM INSTITUTE AND UNIVERSITY OF WESTERN SYDNEY LAW ADDRESS 20 AUGUST 2013, UNIVERSITY OF WESTERN SYDNEY I INTRODUCTION The idea of recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution has been championed...
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Tinkering with the Right to Silence: The Evidence Amendment (Evidence of Silence) Act 2013 (NSW)
ABSTRACT In March 2013, the New South Wales ('NSW') Parliament passed the Evidence Amendment (Evidence of Silence) Act 2013 (NSW) ('Evidence Amendment Act'), qualifying the long-standing absolute right to silence. This paper seeks to analyse this...
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Forensic Use of DNA Information V. Human Rights and Privacy Challenges
I INTRODUCTION The use of scientific genetic-based evidence (DNA profiling) (1) in legal case investigation processes brings into collaboration the disciplines of science and law, which have their own institutional needs, standards and imperatives....
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Towards a New Framework in the Law of War: Incorporating Transnational Organised Crime
This article will focus on why transnational organised criminal groups need to be incorporated into the law of war paradigm. States work under the continued assumption that wars are fought only between two parties. This 'us versus them' mentality obscures...
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The Devil in the Detail: Tarkine National Coalition Inc V Minister for Sustainability, Environment, Water, Population and Communities
I INTRODUCTION In this case, a judge of the Federal Court of Australia declared the decision of the respondent Minister to approve the development and operation of a mine in north west Tasmania invalid on the ground that the Minister had not considered...
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The Conscience of the King: Kakavas V Crown Melbourne Ltd
I INTRODUCTION In the case of Kakavas v Crown Melbourne Ltd [2013] HCA 25 (5 June 2013) ('Kakavas'), the Full Bench of the High Court considered the application of equitable principles relating to unconscionable conduct to the situation of a 'problem'...
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Vol. 16, Annual

Editor's Note
I am pleased to present Volume 16 of the University of Western Sydney Law Review. This edition presents topics drawn from a wide range of legal concerns which demonstrates the breadth of contemporary legal debate. I am pleased that the University...
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The Keys to Opportunity-Education, Persistence and Hard Work
UNIVERSITY OF WESTERN SYDNEY LAW ALUMNI OCCASIONAL ADDRESS 2 NOVEMBER 2012, HILTON HOTEL SYDNEY Growing up and attending a state high school in outer western Sydney in the 1960s, I barely knew what judges did, much less that I would one day become...
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Developing National Civil Commitment Laws for the Mentally Ill
I INTRODUCTION This paper argues that Australia should develop national civil commitment laws (1) for the mentally ill, or, as a second preference, develop a model Australian legal approach that could be adopted by individual Australian jurisdictions....
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The 'Day Fine'-Improving Equality before the Law in Australian Sentencing
ABSTRACT In sentencing offenders in Australia to a fine it has long been considered uncontroversial that the principle of equality before the law is upheld. This is because similar sanctions are imposed on offenders convicted of the same offence...
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Australian Statutory Labour Law and the near Death Experience of the Doctrine of Managerial Prerogatives
I INTRODUCTION The study of how the different arms of the state apparatus operate is a fascinating and politically important aspect of a capitalist democracy. One of the key state apparatuses is the judiciary. Law exercises its authority in a number...
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Educating Culturally Sensible Lawyers: A Study of Student Attitudes about the Role Culture Plays in the Lawyering Process
ABSTRACT Lawyers' cultural experiences, biases, and perspectives may differ from those of clients, colleagues, and judges. Awareness of such differences is critical to effective representation because cultural perspectives may affect numerous aspects...
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Enforcing Human Rights Incrementally: Review of Jeff King, Judging Social Rights (Cambridge University Press, 2012)
In Australia, discussion of Bills of Rights has tended to focus on the human rights statutes adopted in Victoria and the Australian Capital Territory, and the broader question of whether Australia should adopt a national Bill of Rights. However, it...
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Judicial Review for the Convicted Felon in Australia-A Consideration of Statutory Context and the Doctrine of Attainder
ABSTRACT The decision of Patsalis v State of New South Wales [2012] NSWCA 307 represents a fundamental development in the common law of Australia. The extent to which the Felons (Civil Proceedings) Act 1981 (NSW) applied to applications for judicial...
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Board of Bendigo Regional Institute of Technical and Further Education V Barclay
I INTRODUCTION On 7 September 2012, the High Court of Australia unanimously allowed an appeal by the Bendigo Regional Institute of Technical and Further Education ('BRIT') from the Full Court of the Federal Court of Australia. (1) The High Court...
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Fees? Not So Simple: Andrews and ORS V Australia New Zealand Banking Group Ltd [2012] HCA 30 (6 September 2012)
I INTRODUCTION On 22 September 2010 the appellants commenced representative proceedings in the Federal Court of Australia against the Australia New Zealand Banking Group ('ANZ') pursuant to Part IV of the Federal Court of Australia Act 1976 (Cth)....
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Vol. 15, Annual

The Common Law: Whither or Wither? Occasional Address to Australian Lawyers Alliance Act Branch Conference, 24th June 2011
Every year, and normally between Christmas and New Year, I find myself asking, sometimes family members, sometimes friends, whether they happen to have caught that year's broadcast of the Queen's Christmas message. The forms of the answers vary from...
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The First Generation of Muslim Intellectuals and the 'Rights of Man'
Generally speaking, men are influenced by books which clarify their own thought, which express their own notions well, or which suggest to them ideas which their minds are already predisposed to accept. Carl Becker (1) I. INTRODUCTION Long before...
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Abolitionist or Relativist?: Australia's Legislative and International Responses to Its International Human Rights Death Penalty Abolition Obligations
ABSTRACT The Commonwealth Parliament has enacted human rights amendments to the Death Penalty Abolition Act 1973 (Cth), extending the existing prohibition against reintroduction of the death penalty to State laws. This legislation is most fully...
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Nurturing Multiple Intelligences through Clinical Legal Education
ABSTRACT Legal pedagogy needs to take into account many of the theories of intelligence and creativity which have been proposed by educators in the last few decades, such as Gardner's theory of multiple intelligences, Wechsler and Thorndike's concepts...
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US Power and Transnational Governance
I. INTRODUCTION A number of commentators have followed Levi-Faur and Jordana, in identifying recent years as a 'golden era of regulation', with the 'proliferation of regulatory activities, actions, networks or constellations' leading to 'an explosion...
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Limits to State Parliamentary Power and the Protection of Judicial Integrity: A Principled Approach?
I. BACKGROUND The case of Wainohu v New South Wales (2011) ('Wainohu') was a challenge by Derek Wainohu, a member and former president of the Sydney Branch of the Hells Angels Motorcycle Club, against the constitutional validity of the Crimes (Criminal...
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Back to the Future: Retrogression and the High Court's Decision in Byrnes V Kendle
I. INTRODUCTION Byrnes v Kendle (1) ('Byrnes') is an interesting and arguably contentious decision regarding the law of trusts in Australia. On the one hand, the case clarifies the duties of a trustee when no duties have been provided in the trust...
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The Fair Work Australia Decision on Qantas: Entrenching the Imbalance of Power between Employees and Employers?
I. INTRODUCTION Although it is unusual to see a case note written on a decision by Fair Work Australia (FWA), the recent decision by FWA on the disputes between Qantas and their employees was unusual as it was initiated by the Minister for Tertiary...
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Vol. 14, Annual

Provocation: A Totally Flawed Defence That Has No Place in Australian Criminal Law Irrespective of Sentencing Regime
ABSTRACT Why another article on provocation when this partial defence to murder is already the subject of widespread criticism in the literature? The answer is because the defence is still available in five Australian jurisdictions. Furthermore,...
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Not Seen and Not Heard: Protecting Elder Human Rights in Aged Care
I. INTRODUCTION This article argues that there are significant shortfalls in the care and treatment of the elderly in aged care facilities in Australia and in the protection of their human rights. Moreover, elderly people have special vulnerabilities...
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Conspiracy, a Jury, the Constitution and a Swiss Bank Account: The Queen V. LK; the Queen V. RK (2010) HCA 17
I. INTRODUCTION The Queen v LK; The Queen v RK (1) has all the ingredients of a John Grisham best seller. There is an alleged conspiracy, large sums of money, a jury, the Constitution (2) and a Swiss bank account. What of the twist? The indictment...
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Copyright Infringement and ISPs: Roadshow Films Pty Limited V. iiNet Limited (2011) F.C.A.F.C. 23
I. BACKGROUND iiNet Limited ("iiNet') is an internet service provider that provides an internet connection to thousands of computer users within Australia. In 2009, 34 major motion picture studios ("Copyright Owners") brought an action against iiNet...
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A Progressive Court and a Balancing Test: Rowe V. Electoral Commissioner (2010) H.C.A. 46
I. INTRODUCTION Rowe v Electoral Commissioner (1) ("Rowe") is a case about the legislative curtailment of a right. It demonstrates how the French Court intends to deal with constitutional interpretation as well as how it will determine whether a...
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Vol. 13, Annual

Some Reflections on Legal Professional Ethics: Plus Ca Change
The issue for the week 23-29 January 2010 of The Economist carries a major article with the heading 'Laid-off Lawyers, Cast-off Consultants'. The general thrust of the article is stated sufficiently for present purposes in the sub-heading: 'The downturn...
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The Role of Victims in NSW Forensic Patient Proceedings
CONTENTS I INTRODUCTION II OUTLINE OF NSW FORENSIC PATIENTS SCHEME III NSW FORENSIC PROVISIONS RELATING TO VICTIMS IV OTHER AUSTRALIAN JURISDICTIONS' APPROACHES V KEY ISSUES AND COMMENTARY VI CONCLUSION I INTRODUCTION While victims of crime...
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Remedying the Past or Losing International Human Rights in Translation? 'Comprehensive' Responses to Australian National Security Legislation Reviews
CONTENTS I INTRODUCTION II ASSESSING THE 'COMPREHENSIVENESS' OF RESPONSES TO REVIEWS: THE LANGUAGE OF 'BALANCE' AND THE ROLE OF INTERNATIONAL HUMAN RIGHTS LAW IN THAT 'BALANCE' III INTERNATIONAL HUMAN RIGHTS LAW PRINCIPLES COMPREHENSIVELY ...
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The Application of the Defence of Non Est Factum: An Exploration of Its Limits and Boundaries
CONTENTS I INTRODUCTION II THE NATURE OF THE DOCTRINE OF NON EST FACTUM III NON EST FACTUM 1N THE CONTEXT OF GUARANTEES--A CRITICAL ANALYSIS IV APPLICATION OF NON EST FACTUM IN GUARANTEE CASES: RESTRICTIONS AND LIMITATIONS V THE PLEA OF...
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More Than Hot Air: Reflections on the Relationship between Climate Change and Human Rights
CONTENTS I INTRODUCTION II ACTION TO PREVENT FUTURE VIOLATIONS OF THESE HUMAN RIGHTS III LEGAL PROTECTION OF HUMAN RIGHTS IV SOVEREIGNTY V UNITED NATIONS SECURITY COUNCIL VI HUMAN RIGHTS COUNCIL VII AVENUES FOR POSSIBLE INTERNATIONAL LEGAL...
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Evil Regimes of Law: Challenges for Legal Theory and for International Law
CONTENTS I INTRODUCTION II HART'S GUNMAN AND THE NATURE OF LEGAL OBLIGATION III APOLOGY, UTOPIA, AND PHILOSOPHY OF INTERNATIONAL LAW IV PEREMPTORY NORMS AND THE FIDUCIARY STATE V CONCLUSIONS I INTRODUCTION This paper is concerned with the...
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The Fair Work Act 2009 (Cth): A New Model?
CONTENTS I INTRODUCTION II A NEW NATIONAL SYSTEM OF WORKPLACE RELATIONS? III GOOD FAITH BARGAINING IV NATIONAL EMPLOYMENT STANDARDS AND MODERN AWARDS V CONCLUSION I INTRODUCTION The Fair Work Act 2009 (Cth) ('FWA'), most of the provisions...
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Vol. 12, Annual

The Uncomfortable Demand for Civic Equality
Contents I. A New Lecture Series II. John Marsden--The Man III. John Marsden's Values IV. Epilogue I. A New Lecture Series I congratulate Rights Australia, a national human rights advocacy group, for inaugurating a new lecture series...
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Navigating 'Muddied Waters': The Regulation of Mass Marketing and Advertising by Section 52 of the Trade Practices Act
Contents I. The Criterion Issue II. Analysis III. Conclusion This article is concerned with the regulation of mass marketing by the Trade Practices Act 1974 (Cth), in particular s 52, which prohibits conduct that is 'misleading or deceptive',...
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Houldsworth: An Obsolete Piece in the Legislative Puzzle
Contents I. Introduction II. Brief Analysis of the Main Arguments in Houldsworth III The Impact of Houldsworth on Australian Law IV. Conclusion I. Introduction Modern Australian companies operate within a complex matrix of legislation,...
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Relief from Liability for Company Directors: Recent Developments and Their Implications
Contents I. Introduction II. The scope of director and officer liability III. Relief from liability IV. Expanding the scope for relief? V. Conclusion I. Introduction One feature of the recent turbulent economic times has been an ongoing...
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The New South Wales Representative Proceeding: A Class Action Half-Way House
If class actions of the kind now available in the Federal Court are to be permitted in New South Wales ... then this should only be done with the backing of appropriate legislation or rules of court, adequate to the complexity of the problem, and...
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Rethinking Consensual Harm-Doing
Contents I. Introduction II. Consenting to Grave Harm III. The Moral Limitations of Consent in R v Konzani IV. The Moral Limitations of Consent in R v Brown V. The Wider Normative Implications of Limiting Consent VI. Conclusion I. Introduction...
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Evaluating the Judicial Interpretation of Civil Commitment Schemes for Serious Sex Offenders
Contents I. Introduction II. Nature of Sexual Offender Civil Commitment Schemes III. State Court Interpretations and Decision Making IV. Procedural Fairness Issues V. Rehabilitation Issues VI. Post Detention Rehabilitation: The Lack of Adequate...
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Emerging Consumer Credit Issues for Older Australians
Contents I. Older People in Australia II. Financial Issues: Income and expenditure III. Financial literacy IV. Economic crimes V. consumer credit VI. Conclusion The capacity of older persons (1) to enjoy a reasonable quality of life in...
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Vol. 11, Annual

The High Court and Recognition of Native Title: Distinguishing between the Doctrines of Terra Nullius and 'Desert and Uncultivated'
Contents I. Introduction II. Part I: The Doctrine of Terra Nullius and the 'Desert and Uncultivated' Doctrine Pre-Mabo: Precluding Common Law Recognition of Non-Feudal Rights in Land III. Part II: The Doctrine of Terra Nullius and the 'Desert and Uncultivated'...
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Enforceable Undertakings: A New Form of Settlement to Resolve Alleged Breaches of the Law
Contents I. Introduction II. Origins of the Sanction III. ASIC's Policy IV. The Target V. Promises Given in an Enforceable Undertaking VI. Consequence of a Breach of an Enforceable Undertaking VII. Conclusion I. INTRODUCTION A 'court-enforceable...
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Rethinking Limited Liability
Contents I. Introduction II. Arguments For the Limited Liability Company III. Argument Against Limited Liability: Undermine Personal Responsibility IV. The Flawed Arguments that Sustain the Limited Liability Company V. Need for the Large...
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Arguments for Inequality: Why They Don't Work
Contents I. Neoliberalism and Inequality II. Free Markets III. The Neoliberal Approach to Human Rights.. IV. Corporations V. Issues in Economic Theory VI. Conflict of Rights VII. Physical Capital VIII. Risks IX. Executive Salaries X....
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Psychological and Ethical Issues in the Relationship between Lawyers and Mentally Ill Clients
Contents I. Introduction II. Psychological and Safety Issues III. Ethical and Other Duties IV. General Strategies to Deal Effectively and Fairly With Mentally Ill Clients V. Conclusion Appendix 1: Examples of Ethical Problems Appendix...
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Vol. 10, Annual

The Challenge of Corporate Law Enforcement: Future Directions for Corporations Law in Australia
Introduction Much progress has been achieved in modernising Australian corporations law statutes over the last half century. (1) However, despite some impressive advances, much less has been achieved in enforcing or implementing corporations laws...
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Mind Your Language - Interpreters in Australian Immigration Proceedings
Introduction This paper deals with the role of interpreters in Australian immigration proceedings before the Refugee Review Tribunal (RRT) and the Migration Review Tribunal (MRT). The paper adopts a socio-legal analysis in that it considers both...
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Autonomy and Vulnerability at the Death Bed
The principle of autonomy is central to arguments in favour of voluntary euthanasia and physician-assisted suicide. (1) This is underscored by the most recent effort to legalise these practices. In November 2005 Lord Joffe tabled his third private...
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Evaluating Law Reform
There has sometimes been a naive confidence that better law can be a panacea, ameliorating social and other ills. Law reform, particularly legislative reform, has been touted as a means of facilitating progressive change. Liberal feminists, for example,...
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The High Court and Australia's New Electoral Laws: Mulholland V. Australian Electoral Commission
In Mulholland v Australian Electoral Commission (1) the High Court unanimously dismissed a challenge to federal electoral laws denying registration to political parties that refuse or fail to satisfy the 500-member rule. Under the Commonwealth Electoral...
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The Floating Charge as a Security Device
Introduction The 'floating charge' had its origins in a series of decisions in the English Courts of Chancery in the 1870s. (1) As noted by Hoffman J in Re Brightlife Ltd (2) '(t)he floating charge was invented...to enable manufacturing and trading...
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Just Wars and Criminal Laws
The end of the cold war did not bring the peace that many hoped for. Instead, the post-cold war period has been characterised by continuous warfare around the world. Much of this warfare has included direct involvement or support from the leadership...
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Censoring Internet Pornography in Australia: A Call for a Civil Rights Approach to Address Pornographic Harms
The internet makes pornography readily available, with the majority of Australians having internet access in their homes and businesses. (1) Whilst pornography in general contributes to women's unequal position in society through the use of gendered...
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Vol. 9, Annual

An Unlawful Non-Citizen Is Being Detained or (White) Citizens Are Saving the Nation from (Non White) Non-Citizens
The refugee is the representative of total otherness and the symbol of our own exile ... Her arrival reminds us that we too, in our safe houses are never at home ... (1) The title of this paper is prompted by Gayatri Spivak's construction of the...
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Mental Illness and Indefinite Detention at the Minister's Pleasure
Introduction This article is an analysis of immigration detention in Australia as the worst form of detention without trial. It is based on a border-control, anti-terrorist policy fortified by unconfined, unstructured and unchecked discretion by...
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Detention and the Anti-Terrorism Legislation
This special edition of the University of Western Sydney Law Review on detention without trial has proven timely. As we entered the final stages of production, the Australian federal, state and territory governments were in the process of pushing through...
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In the Matter of Constitutional Issues concerning Preventative Detention in the Australian Capital Territory
Introduction 1. On 27 September 2005 the Council of Australian Governments (COAG) issued a communique in the following terms: COAG agreed to the Commonwealth Criminal Code being amended to enable Australia better to deter and prevent potential...
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Detention without Trial-A Threat to Democratic Rights
Introduction A series of decisions by the High Court of Australia upholding, and arguably considerably extending, the power of the executive government to detain people without trial has generated serious concerns about the impact of these rulings...
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Liberty, Terrorism and the Courts
An address delivered at the University of Western Sydney, Campbelltown Campus, 15 March 2005 Return to the University of Western Sydney Thank you Professor Sappideen (Head, UWS School of Law) and thank you Deputy Chancellor (Mr Geoffrey Roberson)...
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Anti-Terrorism Bill 2005 (Cth) and the Human Rights Act (2004) ACT
1. We are briefed by the ACT Government Solicitor who acts for the Acting Chief Executive of the Department of Justice and Community Safety. We are asked to advise on the following question: If the Anti-Terrorism Bill 2005 (Cth) was ACT legislation,...
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