Monash University Law Review最新文献_第2页

Development of the Office of Commissioner of Victims’ Rights as an Appropriate Response to Improving the Experiences of Victims in the Criminal Justice System: Integrity, Access and Justice for Victims of Crime 发展受害者权利专员办公室，作为对改善刑事司法系统中受害者的经历:犯罪受害者的廉正、机会和正义的适当回应

Monash University Law Review Pub Date : 2019-11-12 DOI: 10.26180/5D1327A9AB709

Tyrone Kirchengast, Mary Iliadis, Michael O'connell

{"title":"Development of the Office of Commissioner of Victims’ Rights as an Appropriate Response to Improving the Experiences of Victims in the Criminal Justice System: Integrity, Access and Justice for Victims of Crime","authors":"Tyrone Kirchengast, Mary Iliadis, Michael O'connell","doi":"10.26180/5D1327A9AB709","DOIUrl":"https://doi.org/10.26180/5D1327A9AB709","url":null,"abstract":"Meeting the needs of crime victims has emerged as a significant 21st century concern. In the Australian context, various commissions of inquiry have recently considered how the interests of victims may be maintained in a system based on adversarial exchange between the accused and the state. Consensus has emerged around the further development of existing charters of victims’ rights as the framework through which victims’ interests may be secured. Importantly, reform of existing charter rights and the office that administers such charters, the Office of Commissioner of Victims’ Rights, provides a means of addressing the recommendations of the various inquiries in a way that supports the participatory needs of victims, while maintaining the independence and integrity of criminal justice processes that provide due process to the accused. This article considers the ways in which the Office of Commissioner of Victims’ Rights may be further developed to provide for the needs of victims against the need to maintain the adversarial character of criminal justice, and due process rights of the accused.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"61 1","pages":"1-28"},"PeriodicalIF":0.0,"publicationDate":"2019-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79139244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 6

Regulating the Non-Consensual Sharing of Intimate Images ('Revenge Pornography') via a Civil Penalty Regime: A Sex Equality Analysis 通过民事处罚制度规范非自愿分享亲密图像(“报复色情”):性别平等分析

Monash University Law Review Pub Date : 2019-11-09 DOI: 10.26180/5DC678820944F

Michelle Evans

引用次数: 1

Outsourcing obligations to developing nations: Australia's refugee resettlement agreement with Cambodia 对发展中国家的外包义务:澳大利亚与柬埔寨的难民安置协议

Monash University Law Review Pub Date : 2019-10-29 DOI: 10.26180/5DB80801EF7CF

Monique Failla

{"title":"Outsourcing obligations to developing nations: Australia's refugee resettlement agreement with Cambodia","authors":"Monique Failla","doi":"10.26180/5DB80801EF7CF","DOIUrl":"https://doi.org/10.26180/5DB80801EF7CF","url":null,"abstract":"Despite a proclaimed commitment of the ‘developed West’ to international cooperation in the formation of durable solutions for refugees, a pattern of defensive policy designed to outsource obligations under the 1951 Refugee Convention has emerged. In this context, on 26 September 2014, Australia and Cambodia signed a ‘responsibility sharing’ agreement for the relocation to Cambodia of recognised refugees who originally sought protection in Australia and were removed to Nauru for processing. Whilst the Cambodia Agreement is of particular relevance in the Australasian region, this paper will analyse its nature and eﬀect against the backdrop of the global trend of burden shifting and the implications of such an agreement for international law. This paper will examine whether the Cambodia Agreementt complies with the 1951 Refugee Convention through an analysis of the potential issues with fulﬁlment of the rights found therein. This requires the establishment of a continuum of jurisdiction pursuant to which it is concluded that transferees under the Cambodia Agreementt remain under the eﬀective jurisdiction of Australia. This paper concludes that while a developing country may have the capacity to provide the requisite standard of protection to refugees under the 1951 Refugee Convention, in practice Cambodia fails to do so.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"35 1","pages":"638"},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77416802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 6

Doing it Quietly': The World Bank's Engagement with Human Rights 悄无声息地行动:世界银行与人权的接触

Monash University Law Review Pub Date : 2019-10-29 DOI: 10.26180/5DB7FAD7E4698

R. Ball

{"title":"Doing it Quietly': The World Bank's Engagement with Human Rights","authors":"R. Ball","doi":"10.26180/5DB7FAD7E4698","DOIUrl":"https://doi.org/10.26180/5DB7FAD7E4698","url":null,"abstract":"Since the World Bank was established, its approach to human rights has evolved significantly. In the past, the Bank has been restricted by narrow interpretations of the legal framework within which it operates. The Bank's increasingly sophisticated understanding of development has led to the broadening of its mandate. Human rights are now generally considered to fall, to some extent at least, within the lawful scope of its operations. The door has been opened for the Bank to make a meaningful commitment to international human rights law. The Bank has not yet given a clear indication of how it will make this commitment. However, recent formal and informal policy statements suggest that the Bank's intention is to engage with human rights, but to 'do it quietly'. Such an approach constitutes an inadequate recognition of the established link between human rights and development. It may also fall below the standard required of the Bank under international human rights law. It is argued that a more explicit commitment to human rights law should be made through the inclusion of human rights standards in the Bank's operational policies and guidelines. Such a course would assist the Bank in its mission to alleviate poverty and would ensure greater respect for the human rights of those people in developing countries who are the intended beneficiaries of Bank projects.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"7 1","pages":"331-369"},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79120706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The patentability of non-physical inventions : lessons from the United States 非物质发明的可专利性:来自美国的经验教训

Monash University Law Review Pub Date : 2019-10-29 DOI: 10.26180/5DB7FBC59D755

B. McEniery

{"title":"The patentability of non-physical inventions : lessons from the United States","authors":"B. McEniery","doi":"10.26180/5DB7FBC59D755","DOIUrl":"https://doi.org/10.26180/5DB7FBC59D755","url":null,"abstract":"Patent systems around the world are being pressed to recognise and protect challengingly new and exciting subject matter in order to keep pace with the rapid technological advancement of our age and the fact we are moving into the era of the ‘knowledge economy’. This rapid development and pressure to expand the bounds of what has traditionally been recognised as patentable subject matter has created uncertainty regarding what it is that the patent system is actually supposed to protect. Among other things, the patent system has had to contend with uncertainty surrounding claims to horticultural and agricultural methods, artificial living micro-organisms, methods of treating the human body, computer software and business methods. The contentious issue of the moment is one at whose heart lies the important distinction between what is a mere abstract idea and what is properly an invention deserving of the monopoly protection afforded by a patent. That question is whether purely intangible inventions, being methods that do not involve a physical aspect or effect or cause a physical transformation of matter, constitute patentable subject matter. This paper goes some way to addressing these uncertainties by considering how the Australian approach to the question can be informed by developments arising in the United States of America, and canvassing some of the possible lessons we in Australia might learn from the approaches taken thus far in the United States.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"18 6 1","pages":"376"},"PeriodicalIF":0.0,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80807577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Wrongful Birth Children and Assessing Damages for Costs of Care: Australian and British Jurisprudence Compared 错误生育子女与护理费用损害赔偿的评估:澳大利亚与英国的判例比较

Monash University Law Review Pub Date : 2019-10-29 DOI: 10.26180/5DB809C1004C1

T. Carver, Tina Cockburn, B. Madden

引用次数: 0

International Sports Regulation: An Evolving Private-Public Partnership 国际体育法规:不断发展的公私伙伴关系

Monash University Law Review Pub Date : 2019-01-01 DOI: 10.26180/5e151a9c3490e

E. Windholz, G. Hodge

{"title":"International Sports Regulation: An Evolving Private-Public Partnership","authors":"E. Windholz, G. Hodge","doi":"10.26180/5e151a9c3490e","DOIUrl":"https://doi.org/10.26180/5e151a9c3490e","url":null,"abstract":"Globalisation has seen regulation move beyond the state. International sports offer a strong example, with the evolution of an extensive system of global regulation and law. The creation of the Court of Arbitration for Sport, the development of the world anti-doping regime, and more recent efforts to battle corruption, are but a few of its more prominent elements. A significant feature of this system is the international partnering of private and government bodies. However, this partnership is not without its challenges. Its evolution reveals inherent tensions between international and national regulatory regimes, as international sporting organisations challenge the sovereignty of the nation-state. This article critically examines the evolving private-public partnership that is international sports regulation. In particular, it investigates two case studies: the International Olympic Committee and the Federation Internationale de Football Association. The intellectual lenses of public-private partnership and of power are adopted to analyse these cases. The social, cultural, political and economic importance of sport makes examining the evolution of international sports regulation an interesting and valuable exercise. Studying it also potentially offers valuable insights and lessons for the development of international regulatory systems and global law-making more broadly.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"36 1","pages":"298-332"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90382547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading 残疾歧视、调整义务与持续误读问题

Monash University Law Review Pub Date : 2019-01-01 DOI: 10.26180/5E6C77949D4D0

Alice Taylor

{"title":"Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading","authors":"Alice Taylor","doi":"10.26180/5E6C77949D4D0","DOIUrl":"https://doi.org/10.26180/5E6C77949D4D0","url":null,"abstract":"The statutory duty to make adjustments contained in the Disability Discrimination Act 1992 (Cth) is one mechanism to promote substantive equality in Australia. In theory, it requires duty-bearers to adjust existing practices to accomodate a person's needs. However, in Sklavos v Australasian College of Dermatologists, it was established that a duty-bearer is only required to make adjustments for persons with disabilities where the reason for the refusal to make adjustments is based on the disability itself. This removes the positive aspect of the duty from the requirement and it makes it almost impossible for a claimant to prove their claim. This is not the first time that an Australian appellate court has effectively removed the positive duty aspects of the duty to make adjustments. This article will consider the reasons why higher courts in Australia appear to struggle to give meaning to such a duty. It will outline the purpose of the duty to make adjustments, before considering the approach of Australian courts to the duty. It will conclude by considering the different approaches adopted to such a duty in comparable jurisdictions and suggest reforms to the current Australian approach.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"50 1","pages":"461-486"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73986888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

'Best for the Protagonists Involved': Views from Senior Tort Lawyers on the Value of Mediation in Victorian Medical Negligence Disputes “对当事人最好”:资深侵权律师对维多利亚时代医疗过失纠纷调解价值的看法

Monash University Law Review Pub Date : 2019-01-01 DOI: 10.26180/5E151D5CC2ECC

T. Popa, K. Douglas

{"title":"'Best for the Protagonists Involved': Views from Senior Tort Lawyers on the Value of Mediation in Victorian Medical Negligence Disputes","authors":"T. Popa, K. Douglas","doi":"10.26180/5E151D5CC2ECC","DOIUrl":"https://doi.org/10.26180/5E151D5CC2ECC","url":null,"abstract":"Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the Civil Procedure Act 2010 (Vic) as promoting mediation. As repeat players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"29 1","pages":"333-365"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89537667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

An Argument for Diminished Culpability Manslaughter: Responding to Gaps in Victorian Homicide Law 过失杀人罪责减轻的论证:回应维多利亚杀人法的漏洞

Monash University Law Review Pub Date : 2019-01-01 DOI: 10.26180/5DCA7AB6C7DBC

M. Ulbrick, A. Flynn, D. Tyson

{"title":"An Argument for Diminished Culpability Manslaughter: Responding to Gaps in Victorian Homicide Law","authors":"M. Ulbrick, A. Flynn, D. Tyson","doi":"10.26180/5DCA7AB6C7DBC","DOIUrl":"https://doi.org/10.26180/5DCA7AB6C7DBC","url":null,"abstract":"The complexity and diversity of unlawful killings — particularly those involving mentally impaired offenders — does not fit neatly across the binary distinction of offence/defence that structures criminal law. This is demonstrated in the Australian State of Victoria, where cognitively impaired homicide offenders who fail to meet the strict remit of the mental impairment defence have no (partial) defence or offence available to them which adequately captures their levels of criminal responsibility, moral agency and culpability. This makes the sentencing of such offenders not only particularly complex but means that the only stage in which both moral and legal culpability can be considered is in mitigation. This article argues that a progressive framework is needed to permit a small minority of (mentally impaired) homicide offenders to be simultaneously inculpated and (partially) exculpated. Accordingly, we propose introducing a model of diminished culpability manslaughter in Victoria, drawing from Loughnan’s seminal reconceptualisation of ‘diminished responsibility manslaughter’ as an offence-cum-defence, which renders the diminished accused differently liable. Informed by a study of all homicide cases (n=647) sentenced in Victoria between 1 January 2000 and 31 July 2017, we argue that this model would not revoke legal capacity and would instead enhance the legitimacy and coherence of criminal law procedures, allowing a wider range of more legitimate convictions and reflective sentencing dispositions.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"130 1","pages":"201-231"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75315211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1