Volume 1 Abstracts

SCU Law Review Volume 1 September 1997

Abstracts

A Review of Western Australia's New Censorship Laws in Light of Recent North American Pronouncements on Pornographic Harm: Some Thoughts on Immorality and How Not to Achieve Systemic Equality
by Christopher Kendall and Lisa Roche

The government of Western Australia has recently amended its censorship laws. The authors argue that the state's new Censorship Act stands as a rather unfortunate example of how not to address the individual and systemic harms that result from the production and distribution of pornography. The authors argue that by focusing solely on the need to protect against moral corruption, as opposed to seeing pornography for what it really is (a form of sex discrimination resulting in systemic equality), the legislation fails to ensure that those most in need of protection from porbographic harm are protected. The author concludes that what is needed is legislation which redifens pornography as a threat to social equality and which adopts enforcement measures which ensure that this threat is curtailed.

Birthrights: Why We Should Begin a Rational Debate on Neonatal Euthanasia
by Daniel Sinclair

For a society that is ostensibly against neonatal euthanasia, even where, it is submitted, it would be the most compassionate and reasonable thing to apply in certain circumstances; society and its institutions have, in other circumstances,strangely taken for granted and enforced a status on the neonate's life that is lesser than the rest of the population. However, there is no clear and consistent reason why there is a lack of concern for the life of a neonate in one situation and not the other. It is submitted that the lack of full and open discourse has allowed the whole area to be confused and illogical in the law and medical practice. The corollary of this state of affairs is that we have been denied the opportunity of having a more consistent and appropriate body of jurisprudence in this area. This essay attempts to deconstruct and expose some of the law and practice surrounding the issue of how the life of a neonate is actually treated and valued; and to suggest that it is dishonest, hypocritical and irresponsible to continue the official sanction against neonatal euthenasia, particularly in circumstances where the neonate, or newly born, is severely retarded mentally or severely damaged physically.

Community Policing as Femme Fatale
by Jeff Smith

Revelations before the NSW Police Royal Commission have cast a long shadow over the practice of community policing in NSW. Consistent with the naval-gazing which has accompanied the Royal Commission, this paper steps back and looks at whether the idea of community policing is still worth pursuing. The paper examines various aspects of community policing and concludes that its deficiences go deeper than merely flawed policing practice and extend to the very root of the idea. Communcity policing has largely escaped critical analysis and thus seems to operate as a femme fatale in policing debates.

The Criminal Injuries Compensation Acts: Do They Discriminate against Female Victims of Violence?
by Karen Whitney

Using the Western Australian Criminal Injuries Compensation Act 1985 by way of example, in this article I argue that the remedies provided by the state and territory Criminal Injuries Compensation Acts discriminate against female victims of intentionally inflicted physical violence in two interrelated ways. First,the central paradigms upon which the Acts are founded fail to reflect womens experiences as victims of violence. Second, the Western Australian Act grants the Assessor of Criminal InjuriesCompensation unfettered discretion to deny or reduce awards of compensation with virtually no public accountability. This discretion is not infrequently used to discriminate against claims made by female victims of violence.

Summary Sanitation: The Extension of Police Powers over Children in New South Wales
by Warwick Fisher, Sam Garkawe and David Heilpern

The article considers various aspects of the Children (Parental Responsibility) Act 1994 (NSW), and argues that the act was impractical, possibly racist in its application, did not protect children, and breached international human rights standards. The authors argue the 1997 Act is an improvement, but still has many of the same problems as the 1994 Act, and that repeal of legislation is preferable.

Developments in International Law: Indigenous Inherent Rights
by Peter Grose

Recent decades have witnessed at the international level an increasing articulation from indigenous peoples for recognition and accomodation for post-colonial government of their inherent rights as indigineous peoples. Broad based international organisations such as the World Council of Indigenous Peoples (WCIP) and the Working Group on Indigenous Populations (WGIP) have raised international awarenes of fundamental issues of indigenous peoples' dispossession and subsequent marginalisation within their own lands. A comparison of the underlying premises of International Labour Organisation (ILO) Conventions 107 (1959) and 169 (1989) provide a view of international perceptions moving from those supportive of indigenous self-determination. This article gives insights into international developments of the past few decades which both advance and retard indigenous aspirations for the recognition of inherent indigenous rights.

The Rise and Fall of Proportionality in Public International Law
by Paul Loftus

In 1992 the Australian High Court handed down two ground breaking decisions: ACTV v The Commonwealth and Nationwide News v Wills. Within those decisions was the foundations of a new principle for determining legal validity, that of proportionality. Proportionality is the concept that a law cannot be excessive in the means it employs to achieve desired ends.

This article asks whether this notion of proportionality can be transferred to the international sphere as an ethic of customary international law. That is, can proportionality be seen as a guiding principle in the international action of or between the nation states.

The argument is that yes, it can be viewed in such a light. Evidence for this is drawn primarily from the role of proportionality in the use of force and in the law of the sea. The article also discussed proportionality in the evolving European Community law and in laws on internation human rights.

Evidence from these areas demonstrates that proportionality is indeed and emerging ethic in international law. Tha article argues that on this basis its development and furtherance as a guiding principle should be encouraged and formally recognised as an internation policy and activity.

Auditor's Liability and the Public Sector Auditor
by Catherine Munro

Courts in ther various jurisdictions have struggled with defing the duty of care owed by auditors in the performance of their work and to whom that duty is owed. Australian Courts have not, hpwever, had the opportunity to specifically examine the duty of care owed by auditors in the public sector.

This paper examines the findings of the New Zealand High Court in Dairy Containers Ltd v Auditor-General, and in doing so examines the differing roles and duties of public and private sector auditors in the detection of fraud. The impact of the New Zealand case and increased commercialism of public sector entities on Australian Auditors-General will also be examined.

Revamping the Law Tutorial
by Nadja Spegel and Ann Black

The Lecture tutorial format is the dominant structure through which law is taught in Australia. This article examines the learning environment of the tutorial, and suggests approaches aimed at maximising the learning experience for students, on the basis of students learning preferences. The discussion utilises Golay's learning pattern assessment in developing an understanding of the different learning styles of students. Based on this analysis, activities are advanced which advocate and implement joint tutor-student responsibility for learning within tutorials. It is argued that students will learn more effectively, and expand their learning experience when involved directly in the structure, format and content of the tutorial itself.

Building an Accessible Law School - The Early Years: 1990-1996
by Jim Jackson

In 1993 a Law Faculty was established at what is now Southern Cross University. The Law School was quite different from traditional law schools in Australia and in most other countries. Its mission was much wider, it was not to concentrate only on Batchelor of Laws students, but was to develop a very extensive paralegal programme for students previously ignored in universities in Australia. The School also had very strong connections to the New South Wales Department of Corrective Services and these were to prove also significant in the access, equity and articlutaion pathways that apply across all its programmes.

The Wik People v The State of Queensland & Ors; The Thayore People v The State of Queensland & Ors
by Rick Kalowski and Daniel Gal