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Analysis and Comment (34)

A grand jury decision not to indict a police officer over the shooting death of Michael Brown has sparked protests and questions over the system’s efficacy. EPA/Michael Reynolds

Only in America: why Australia is right not to have grand juries

The idea of the grand jury is already familiar to many Australians through American television legal drama. But its profile just skyrocketed with a grand jury deciding not to indict policeman Darren Wilson…
Those who’ve had their digital privacy violated should have legal rights too. Reid Rosenberg/Flickr

It’s time for privacy invasion to be a legal wrong

The Australian Law Reform Commission (ALRC) yesterday recommended introducing new laws that would give a legal remedy for serious invasions of privacy. Unfortunately, the federal government has already…
Journalists face long jail terms for reporting information relating to ‘special intelligence operations’, as declared by ASIO, under the government’s proposed reforms. AAP/Lukas Coch

National security bills compound existing threats to media freedom

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) will publish its report on the National Security Legislation Amendment Bill (No. 1) 2014 (Cth) sometime during this sitting of parliament…
For acting on a NSW Law Reform Commission review of bail laws, Greg Smith was pilloried for having gone from ‘Rambo’ in opposition to ‘marshmallow soft’ on crime as attorney-general. Daily Telegraph

Is rational law reform still possible in a shock-jock tabloid world?

The New South Wales government’s decision to “review” and amend the new Bail Act after only one month in operation illustrates worrying trends in public policymaking relevant to all jurisdictions. It raises…
Debate surrounding the law’s response to lethal domestic violence has led to significant law reform activity over the last 20 years. AAP/Dave Hunt

Laws on lethal domestic violence should be reviewed – nationally

The law’s response to lethal domestic violence in Australia raises complex issues. It requires a delicate balance to be struck between ensuring a just response to those who kill in response to prolonged…
Whatever else motivates Julian Assange’s Wikileaks to use online media to break a court suppression order, it isn’t a respect for justice. AAP/Joe Castro

Not mad, bad or unusual: WikiLeaks and suppression orders

Contrary to twittering by the digerati, the Victorian Supreme Court suppression order revealed by WikiLeaks this week isn’t unprecedented. It isn’t futile, dangerous or an egregious restriction on a supposedly…
Tabloid media invite readers to ‘be the judge’ but when acquainted with all the facts of a case the public actually leans towards lighter sentences than the judges impose. Herald Sun

Tabloid-driven sentencing policies waste public money and lives

There are fault lines in all forms of government. Democracies are as vulnerable as any other to one of them: the charm of the easy and emotionally attractive answer to multi-faceted problems. This is not…
The 153 intercepted asylum seekers are reportedly being detained at sea aboard the ACV Ocean Protector, pictured here in Hobart. Flickr/Grahame Bowland

Court to rule on intercepting and transferring asylum seekers at sea

Lawyers for 153 Sri Lankan asylum seekers on a boat intercepted by the Australian government applied for a full bench of the High Court to hear its case on August 5 at a directions hearing on Friday. Whereas…
Lawyers like George Newhouse deserve praise, not abuse, when they go to court to ensure people are protected by the rule of law. AAP/Paul Miller

Lawyers who help people protect their rights aren’t the problem here

Australia’s courts serve us well, acting independently in their application of the law. However, that doesn’t protect them from attacks for performing their legal and constitutional duties. Similarly…
In its asylum policy, Australia takes advantage of the fact that international law is not automatically absorbed into its domestic legal system. AAP/Lukas Coch

Australia’s global reputation at stake in High Court asylum case

The Australian government gave an undertaking to the High Court on Wednesday that it would not surrender or deliver the asylum seekers detained on an Australian customs vessel on the high seas to Sri Lankan…
Being arrested does not make a person guilty and deserving of punishment; that’s what a trial determines. AAP/NSW Police

Not for punishment: we need to understand bail, not review it

Courts make hundreds of bail decisions every week but we rarely hear about them. In the past month in New South Wales, however, we have heard much about three high-profile decisions granting bail to: Steven…
Reforming Victorian homicide law has been a long process, but a bill introduced today is a significant step forward. AAP/Dave Hunt

Victorian homicide law reforms ensure just responses to violence

Victorian attorney-general Robert Clark today introduced a bill into parliament that repeals the offence of defensive homicide. The bill signifies a significant step forward in ensuring just responses…
Victims of crime may feel offenders get off too lightly, but being represented at sentencing isn’t necessarily the solution. AAP/Dan Peled

Lawyers for victims of crime won’t guarantee better results

The South Australian Commissioner for Victims’ Rights, Michael O’Connell, recently called for victims of crime to have their own lawyers at the time that criminal defendants are sentenced. O’Connell’s…
The Queensland government is playing brinkmanship with the state’s legal fraternity over the appointment of Tim Carmody (centre) to Chief Justice of the Supreme Court. AAP/Dan Peled

History of unchecked executive haunts Queensland in judge fight

The Queensland government’s appointment of Tim Carmody as Chief Justice of that state’s Supreme Court is, without doubt, the most controversial judicial appointment in the nation’s history. This is because…
Detainees protest in the Woomera centre in 2002: ‘Animals in Australia have more rights than we have!’ one wrote. AAP/Tom Miletic

In Australia, animals have better rights than asylum seekers

Several years ago an asylum seeker wrote a letter about his experiences at the now-decommissioned Woomera Detention Centre. This is an extract: I have been in this cage for 13 months … Why should all these…
A judgment on whether voters in Western Australia will return to the polls to re-elect their senators is due on Monday. What’s the legal background to it all? AAP/Paul Miller

In whose interest? The High Court and the WA Senate vote

This week, a lone High Court judge faced a table of 13 barristers to begin resolving the Western Australian Senate election quandary. The hearing took two days and a judgment is likely sooner or later…
Changing ways educational organisations use film content in learning environments could see major changes in the way film producers are paid for their copyright. Public Record Office Victoria

Copyrights and copywrongs: reforming educational film rights

At the end of November, after 18 months of deliberations, the Australian Law Reform Commission will hand down its report on the appropriateness of existing copyright laws in the new digital environment…
Uganda is among 76 countries in the world - and 41 Commonwealth states - that criminalise homosexuality. Should Australia get involved? EPA/Dai Kurokawa.

Decriminalising homosexuality worldwide: should Australia get involved?

In Australia, there is an ongoing debate around the right for same-sex couples to marry. The majority of laws discriminating against lesbian, gay, bisexual and transgender (LGBT) people were repealed in…
Studying law can be confronting and can lead some students to depression or anxiety. But what can be done about it? Law school graduate image from www.shutterstock.com

Law school too hard? Why the struggle could be a good one

As law teachers, we have plenty of hopes for our students. Upon graduating, we want them to have a good grounding in legal knowledge and to be creative thinkers. We also hope they will come out of law…
Whilst there are only a few instances of jurors taking to social media to discuss court cases, experts argue it is ‘the elephant in the room’. Shutterstock

Jurors and social media: is there a solution?

actually excited for jury duty tomorrow…it’s gonna be fun to tell the defendant they’re GUILTY :P - Facebook post, 2010 Guilty guilty…I will not be swayed. Practicing [sic] for jury duty. - Twitter post…
New legislation, if passed next week, will be an important step towards better protection for whistelblowers. Whistle image from www.shutterstock.com

Whistleblowing law now an acid test for federal politicians

After six different parliamentary committees over 20 years, and commitments from all sides of politics, the test is now on for the final week of the current federal parliament. Federal leaders have certainly…
There is no legislation in place that specifically addresses elder abuse with family or carer circles. EPA/Diego Azubel

The mistreatment of older people: is it time to legislate against abuse?

The tragic case of 88 year-old Cynthia Thoresen recently made headlines in Queensland. Mrs Thoresen’s sad decline and the extent of her injuries have been comprehensively documented. Despite shocking neglect…
Recent polling suggests a majority of Australians support same-sex marriage, but should the issue be taken to the people in a referendum? AAP/Dean Lewins

Should Australia hold a referendum on gay marriage?

Despite several Galaxy polls indicating that a majority of Australians support same-sex marriage - and it receiving the support of former prime minister Kevin Rudd - recent proposals for a referendum on…
Media organisations, such as the Kim Williams-led News Limited, have united to dispute the government’s new whistleblowing legislation. AAP/Lukas Coch

Strengthening whistleblower legislation: media industry unites

The Australian media industry is united in its opposition to some key provisions of the federal government’s new whistleblower legislation - now before parliament - and is pushing for some significant…
A NSW parliamentary inquiry has recommended the introduction of a ‘partial defence of gross provocation’ in legal trials involving lethal violent acts. AAP/Angela Brkic

NSW parliamentary inquiry recommends partial reform to provocation law

Yesterday, the NSW parliamentary Select Committee on the Partial Defence of Provocation released its final report. The report contains a set of recommendations for reforming a defence that has long attracted…
Mark Dreyfus has put forward a new bill to protect whistlerblowers, but it falls short in several areas. AAP/Alan Porritt

Keeping us honest: protecting whistleblowers

Australia has been fortunate enough to see mostly honest governments. We’ve experienced neither the corruption of 1950s Italy nor the tyranny of 1970s Brazil. We are not, however, without our issues: give…
Copyright law could make the job of creating Massive Open Online Courses more difficult. Legal image from www.shutterstock.com

Legal learning: how do MOOCs and copyright work?

Another university has jumped on the Massive Open Online Course (MOOC) bandwagon this month, with the Australian National University joining up with Harvard venture edX. In ANU’s case, it will enable Nobel…
Yesterday’s Federal Court decision has the potential to change the future of online broadcasting. Alan Klim

Battle royalty: is this the end of online radio streaming?

Online streaming of radio broadcasts may be a thing of the past after the Full Federal Court yesterday handed down a ruling that will result in radio stations paying higher royalties to the recording industry…
Google has scored a legal victory over the ACCC – but what was it all about? EPA/Joechen Luebke

Warning, digital literacy required: Google wins against the ACCC

Google has won its long-running legal battle with the Australian Competition and Consumer Commission (ACCC), after the High Court today overturned a ruling that the company had engaged in “misleading and…
Egyptian Muslim preacher Ahmed Mohamed Abdullah stands accused of blasphemy charges after burning a copy of the Bible during last month’s protests by Muslims against a film depicting the Prophet Muhammad. EPA/Khaled Elfiqi

Anti-blasphemy laws don’t work in Muslim countries, and they won’t work here

In the wake of the violence sparked around the world by the anti-Islam video entitled Innocence of Muslims, the debate about the need for anti-blasphemy laws has re-emerged. The Organisation of Islamic…
Footballer Liam Jurrah arriving at his committal hearing in Alice Springs. Are such processes really necessary? AAP/Xavier La Canna

Reforming the committal hearing system

Significant questions have been raised over the past three decades, most recently by Victorian Attorney General Robert Clark, as to the benefits of the pre-trial system. In particular, whether having so…
Eddie Koiki Mabo (left) and Jack Wailu on the Torres Strait Island of Mer during the High Court challenge. AAP/National Archives of Australia

Advocates or activists: what can lawyers learn from Mabo?

Australians have just celebrated Mabo Day – this year marking the 20th anniversary of the landmark High Court decision that changed the course of land rights in Australia The case has special resonance…
The government’s obligations to immigration detainees are very similar to those of prisoners. AAP/Dean Lewins

After Serco, what rights do asylum seekers have in detention?

A training manual instructing immigration detention centre guards to use force to incapacitate detainees was leaked this week. It included techniques to kick, punch and target pressure points on detainees…