Volume 2 Abstracts

SCU Law Review Volume 2 November 1998

Abstracts

Articles

The Koko Dilemma: A Challenge to Legal Personality
by Jane Noseworthy

The concept of legal personality has developed to embrace all human beings, as well as a variety of non-human entities. Can this concept evolve further in response to societal changes? Can legal personality be extended to animals? In the authors view, there is nothing inherent in the concept of legal personality which prevents its extension to animals. The author considers the past and present legal status of animals, and the possibility of altering animals' current status as legal 'non-persons', contending that not only is such change possible, but would be beneficial.

The Philosopher's Stone
by Sarah Moylan

This paper is a defence of deconstruction as a positive rather than negative strategy for talking about questions of legality and justice. The author evaluates how well two philosophical approaches deal with the tension between formalism and substantive justice, contrasting liberal theorist Ronald Dworkin with deconstructionists such as Jacques Derrida and Drucilla Cornell. The value of formalist approaches is assessed through a comparison of Robert Cover's analysis of ante-bellum judges in the USA, (men who were personally profoundly abolitionist, yet who embraced formalism and enforced the fugitive slave acts to the letter), and Richard Weisberg's work on the judges of Vichy France, (whose abandonment of formalism arguably enslaved them to Nazism).

The Things You Need: Racial Hatred, Pauline Hanson and the Limits of the Law
by Lawrence McNamara

The paper is concerned with the ability of the law to comprehend and combat racial hatred, particularly when it is expressed in liberal terms. In October 1997, the Human Rights and Equal Opportunity Commission found certain of Ms Hanson's statements were not capable of being discriminatory or vilificatory under the Racial Discrimination Act 1975 (Cth). It is suggested that an alternative interpretive framework, based in politics and culture, illuminates racist meanings which are denied by the Member for Oxley. It is argued that Pauline Hanson is speaking the language of hate, though shrouding it in the legitimising languages of liberalism and nationalism.

The United States Extraterritorial War on Drugs
by Andrew Mitchell

This paper argues that the United States has effectively controlled the conceptualisation of drug issues, and has played a major role in the development of the international law relating to drug trafficking. This has led to the United States practice of extraterritorially asserting its anti-drug trafficking criminal laws. To do this it has had to expand the traditional principles of extraterritorial jurisdiction. As a result of the United States' disregard for international law, other nations are increasingly willing to subordinate traditional thinking to the perceived necessities of fighting the international drug war. An essential feature of the drug trafficking problem is its internationalism. Therefore, the United States will ultimately advance its drug control policy further by upholding principles of international law, and relying on the co-operation of other nations to combat what is, after all, a global problem.

Regulatory Reform of the Australian Over-the-Counter Derivatives Market
by Rasiah Gengatharen
The Australian Companies and Securities Advisory Committee recently recommended a raft of changes to the regulation of derivatives in Australia. This article critically examines the proposal to extend statutory regulation to the over-the-counter derivatives markets. It explains why the introduction of statutory rules is not the most appropriate regulatory approach and suggests that a non-statutory regulatory regime be adopted instead.

Other content
Review Articles

The Incredible Woman: Power and Sexual Politics, Vols. 1 & 2, by Jocelynne Scutt
Review article by Anne Schillmoller

This is a comprehensive critical review of a two volume collation of articles, essays and speeches by feminist lawyer and activist, Jocelynne Scutt. The collection of Scutt's work, spanning a period of twenty five years, examines women's engagement with Anglo-Australian law, politics and the economy. The reviewer applauds Scutt's contribution to the various debates in which she has participated, as well as her tenacity, continuing productivity and activism. However, some difficulties with Scutt's project are also identified. The reviewer argues that law must be engaged with for purposes other than law reform, and with a clear insight into the problems of legitimising a mode of social regulation which is deeply antithetical to the myriad concerns and interests of women. If not, Scutt's demands for formal equality for self-legislating individuals is, for many women, rather like rearranging deck chairs on the Titanic.

Comments section

Underlying Rationales of Fair Use: Simplifying the Copyright Act
by Associate Professor Brian Fitzgerald, Head of School of Law and Justice, SCU

In early 1997 the Copyright Law Reform Committee (CLRC) released a discussion paper, titled, " Simplification of the Fair Dealing Provisions of the Copyright Act 1968 ". The core proposal of the issues paper was that the provisions of the Copyright Act relating to fair dealing could be simplified, by the adoption of a single provision along the lines of the section 107 of the US Copyright Act 1976 (17 USC). Professor Fitzgerald argues that the CLRC should look much more closely at the fundamental principles which inform s 107 (17 USC), and then reflect upon the suitability of the section for Australian conditions, particularly as these underlying rationales are not as strongly evidenced in the Australian legal system as they are in the USA.

Four Native Title Poems and a Colonial Document
By Kathy Stavrou

Stavrou's poetry is presented alongside an 1839 notice from Colonial Secretary's Office. This notice was an exhortation from the Governor to the colonists to treat Aboriginal people justly and humanely, and, above all, in accordance with the law. History, and the images of loss, imprisonment, and dispossession evoked by Stavrou's poems, show the extent to which the Governor's instructions were, and are currently, complied with.

Rising of the Court: Use and Abuse
By David Heilpern

The author describes the practice of a Lismore Magistrate of sentencing individuals to the rising of the court, and then decreeing that for such purposes the court will not rise until the end of that day. This is in contrast to the conventional wording, usually "You are sentenced to the rising of the court and for that purpose the court has now risen". When done conventionally , the rising of the court is a nominal sentence of only a few seconds duration. The author argues that the practice adopted at Lismore is not legal, is inappropriate, and gives examples of some better alternatives.