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Modern Slavery and Material Justicce: The Case for Remedy and Reparation 现代奴隶制和物质正义:救济和赔偿的案例
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/llwj9285
Frances Simmons, J. Burn, Fiona Mcleod
{"title":"Modern Slavery and Material Justicce: The Case for Remedy and Reparation","authors":"Frances Simmons, J. Burn, Fiona Mcleod","doi":"10.53637/llwj9285","DOIUrl":"https://doi.org/10.53637/llwj9285","url":null,"abstract":"In all its different manifestations modern slavery involves the abuse of power and the violation of human rights. In this article, we examine whether Australia is meeting its international obligations to provide access to effective remedies to survivors of modern slavery. We argue that Australia must squarely confront the violations of human rights suffered by survivors of modern slavery by improving access to remedies, including compensation. We recommend establishing a national compensation scheme, providing survivors with greater assistance to apply for reparation orders, and improving access to support and protection. These reforms are necessary to give effect to Australia’s commitment to prevent, address and remedy the human rights abuses and enable survivors to access effective remedies.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42375233","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
Beyond Unconscionability Exploring the Case for a New Prohibition on Unfair Conduct 超越无意识探索新的不正当行为禁令
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/ibyx4580
Nicholas J. Felstead
{"title":"Beyond Unconscionability Exploring the Case for a New Prohibition on Unfair Conduct","authors":"Nicholas J. Felstead","doi":"10.53637/ibyx4580","DOIUrl":"https://doi.org/10.53637/ibyx4580","url":null,"abstract":"Consumer Affairs Australia and New Zealand conducted a wholesale review of the Australian Consumer Law in 2017. Despite calls for the introduction of an ‘unfair conduct’ prohibition, the review found that a change to the current prohibition on ‘unconscionable conduct’ was unnecessary in light of the statutory prohibition evolving from its equitable origins. The recent High Court decision in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 has stifled this development and realigned statutory unconscionability with the restrictive equitable doctrine. In light of curial and extra- curial comments from senior members of the judiciary, regulators and commentators, it is appropriate to reconsider the merits of a prohibition on unfair conduct. This article argues that this reform will better promote community understanding, lead to greater certainty in commerce and fulfil the role of a ‘safety net’ provision in the Australian Consumer Law.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47552867","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
Addressing the Impact of Animal Abuse: The Need for Legal Recognition of Abused Pets as Sentient Victims of Domestic Violence in Australia 解决动物虐待的影响:需要法律承认受虐待的宠物是澳大利亚家庭暴力的有知觉的受害者
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wgyr1275
J. Kotzmann, M. Bagaric, Gabrielle C. Wolf, Morgan Stonebridge
{"title":"Addressing the Impact of Animal Abuse: The Need for Legal Recognition of Abused Pets as Sentient Victims of Domestic Violence in Australia","authors":"J. Kotzmann, M. Bagaric, Gabrielle C. Wolf, Morgan Stonebridge","doi":"10.53637/wgyr1275","DOIUrl":"https://doi.org/10.53637/wgyr1275","url":null,"abstract":"Awareness of the incidence and impact of domestic violence has increased in recent decades, along with community and legal recognition of the interests of animals. However, streams of jurisprudence addressing these issues have only partially influenced one another. While in most Australian jurisdictions, animal cruelty can constitute domestic violence, abused companion animals have not been accorded the legal status of victims. This article proposes introducing laws that recognise such animals as sentient victims of domestic violence. This would enable courts to make orders protecting these animals, which would safeguard their welfare and ensure that people with whom they live who are also experiencing domestic violence can escape without worrying about the fate of their animals. Further, it would convey the seriousness of animal cruelty, and might increase support for and awareness of programs for re-homing abused animals, and training of people involved with animals to identify and report animal abuse.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43974428","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: 4
Religious Freedom and Job Security 宗教自由和工作保障
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/fnzf5790
Joellen Riley Munton, T. MacDermot
{"title":"Religious Freedom and Job Security","authors":"Joellen Riley Munton, T. MacDermot","doi":"10.53637/fnzf5790","DOIUrl":"https://doi.org/10.53637/fnzf5790","url":null,"abstract":"Debate on the need for new anti-discrimination laws to address religious discrimination continues in Australia. Claims for greater protection for freedom of religious expression present particular challenges for employers who bear responsibilities to maintain psychologically safe and healthy workplaces for all their employees. The present ‘general protections’ against discriminatory treatment in the Fair Work Act 2009 (Cth) do not adequately deal with complaints of discrimination, largely because of the ease with which employers can excuse adverse action on the basis of their own workplace policies. However, the proposals in the Religious Discrimination Bill 2019 (Cth) go too far in seeking to address that weakness. We propose that an alternative model for balancing the respective interests in workplace disputes of this kind would be expanding the workplace bullying and unfair dismissal jurisdictions of the Fair Work Commission, to enable these kinds of conflicts to be managed in a proportionate and balanced manner.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42255500","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
Minister for Home Affairs v Benbrika and the Capacity of Chapter III of the Commonwealth Constitution to Protect Prisoners' Rights 内政部长诉本布里卡和《联邦宪法》第三章保护囚犯权利的能力
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wwjh7374
Andrew Dyer
{"title":"Minister for Home Affairs v Benbrika and the Capacity of Chapter III of the Commonwealth Constitution to Protect Prisoners' Rights","authors":"Andrew Dyer","doi":"10.53637/wwjh7374","DOIUrl":"https://doi.org/10.53637/wwjh7374","url":null,"abstract":"Protect Prisoners’ Rights Author Andrew Dyer In recent cases in which prisoners have used Chapter III of the Commonwealth Constitution to challenge draconian legislation, the High Court of Australia (‘HCA’) has deployed formalistic reasoning when rejecting their claims. The latest such case was Minister for Home Affairs v Benbrika (‘Benbrika’), where a majority upheld the continuing detention order scheme created by Division 105A of the Criminal Code Act 1995 (Cth), essentially on the basis that imprisonment is not necessarily punishment. Judges should never use such reasoning to avoid striking down laws that breach Chapter III. When they do so, they fail properly to hold power to account. However, the result in Benbrika seems largely justified. Judges are rightly cautious about using Chapter III to strike down punitive laws; and, as Edelman J showed, the Court in Benbrika could exercise restraint without resorting to formalistic evasion. His Honour correctly acknowledged that the HCA has only a limited ability to protect unpopular minorities.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44962033","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
Blurred Lines or Stark Contrasts: Are By-laws to Restrict Short-Term Holiday Letting Permissible in Queensland Community Titles Schemes? 模糊的界限还是鲜明的对比：昆士兰社区产权计划是否允许限制短期假期出租的细则？
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/fuex9448
Melissa Pocock
{"title":"Blurred Lines or Stark Contrasts: Are By-laws to Restrict Short-Term Holiday Letting Permissible in Queensland Community Titles Schemes?","authors":"Melissa Pocock","doi":"10.53637/fuex9448","DOIUrl":"https://doi.org/10.53637/fuex9448","url":null,"abstract":"Complex laws regulate the development and management of Queensland community titles schemes. Different legislative regimes co-exist, including the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) and its predecessor, the Building Units and Group Titles Act 1980 (Qld) (‘BUGT Act’). This article considers by-laws under the BUGT Act regulating short-term holiday letting post the decisions in Fairway Island GTP v Redman [2019] QMC 13 and Redman v The Proprietors – Fairway Island GTP 107328 [2020] QDC 68. It compares the BCCM Act and BUGT Act requirements and argues that similarities in by-law making powers under the two may appear to blur the divisions between them. However, the positions under each Act are in stark contrast, rendering the cases distinguishable for BCCM Act schemes, a desirable outcome. The article also explores arguments in favour of self-regulation, and the governmental response in New South Wales, Victoria and Western Australia.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43723575","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
Still Lagging Behind: Diagnosing Judicial Approaches to ‘Bodily Injury’ Claims for Psychiatric Injury under the Montreal Convention of 1999 仍然落后:根据1999年蒙特利尔公约诊断精神伤害“身体伤害”索赔的司法方法
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/idln9124
John-Patrick Asimakis
{"title":"Still Lagging Behind: Diagnosing Judicial Approaches to ‘Bodily Injury’ Claims for Psychiatric Injury under the Montreal Convention of 1999","authors":"John-Patrick Asimakis","doi":"10.53637/idln9124","DOIUrl":"https://doi.org/10.53637/idln9124","url":null,"abstract":"International civil aviation is today a mature global industry, without which the modern world is unimaginable. That modern world increasingly recognises, in view of advancing medical science, that the dualist distinction between body and mind is artificial. Yet recent judicial interpretation of the term ‘bodily injury’ in the Convention for the Unification of Certain Rules for International Carriage by Air (‘Montreal’) of 1999 has revalidated this distinction by denying compensation for psychiatric injury in the field of international civil aviation. This article challenges that interpretation by explaining the physical nature of psychiatric injury with reference to medical literature and neuroimaging technologies. It argues that the ordinary meaning of ‘bodily injury’ across Montreal’s authentic texts encompasses psychiatric injury, supporting this construction by examining both Montreal’s travaux préparatoires and its parties’ municipal jurisprudence. After briefly addressing policy concerns, it concludes that national courts may permit recovery for pure psychiatric injury under Montreal.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41757664","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
Native Title as Displaced Mediator 作为流离失所的调解人的土著头衔
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/wphs1787
Stephenie Young
{"title":"Native Title as Displaced Mediator","authors":"Stephenie Young","doi":"10.53637/wphs1787","DOIUrl":"https://doi.org/10.53637/wphs1787","url":null,"abstract":"This article considers how native title is a legal manifestation of settler colonialism that operates as a displaced mediator. Using native title cases from Australia and elsewhere, this article argues that native title displaces Indigenous laws, customs, and practices in constructing native title holders as ‘traditional’ to mediate their integration into the so-called ‘modern’ nation. Legal processes construct native title and then retroactively posit that these legal constructions pre-exist the Crown’s acquisition of sovereignty. This provides legal support for the Crown’s acquisition of sovereignty and Aboriginal and Torres Strait Islander peoples who assert native title claims become subjects who aver and reproduce the myth that the Crown acquired sovereignty over them. Native title displaces more unsettling, decolonising practices but produces the appearance of justice through the production of existential and material benefits for its subjects. Northern Territory v Griffiths (2019) 364 ALR 208 (‘Timber Creek’) demonstrates this.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70624060","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 Efficacy, Equity and Externalities of Australia’s COVIDSafe App as a Policy Intervention during the COVID-19 Pandemic: Was It Sunscreen or Tanning Lotion? 澳大利亚COVIDSafe应用程序在新冠肺炎大流行期间作为政策干预的有效性、公平性和外部性：是防晒霜还是Tanning Lotion？
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/jbeo1430
J. Selby
{"title":"The Efficacy, Equity and Externalities of Australia’s COVIDSafe App as a Policy Intervention during the COVID-19 Pandemic: Was It Sunscreen or Tanning Lotion?","authors":"J. Selby","doi":"10.53637/jbeo1430","DOIUrl":"https://doi.org/10.53637/jbeo1430","url":null,"abstract":"Digital contact tracing apps, such as the COVIDSafe App in Australia, have been rapidly implemented by many governments as a public policy solution to increase the efficiency of health screening testing during the COVID-19 viral pandemic. This article analyses how the COVIDSafe App’s unresolved efficacy and equity issues and the cybersecurity and privacy externalities it imposes onto Australians have prevented the App from making a significant positive contribution towards reducing the impact of the pandemic in Australia. It attributes some of the failure of Bluetooth-based digital contract tracing apps to their mis-characterisation as a Lessigean ‘code as law’ policy response, arguing instead that such apps are more complex and fragile cyber-physical systems requiring more analysis prior to implementation.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47995967","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 ‘Entrepreneurship Approach’ to Determining Employment Status: A Normative and Practical Critique 确定就业状况的“创业方法”:一种规范和实践的批评
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/oglb7881
Pauline Bomball
{"title":"The ‘Entrepreneurship Approach’ to Determining Employment Status: A Normative and Practical Critique","authors":"Pauline Bomball","doi":"10.53637/oglb7881","DOIUrl":"https://doi.org/10.53637/oglb7881","url":null,"abstract":"Recently, the concept of entrepreneurship has attracted increased attention in the Australian case law on employment status. Some judges have adopted an ‘entrepreneurship approach’ in determining whether a worker is an employee or an independent contractor, while others have rejected this approach. Although the concept of entrepreneurship has appeared increasingly frequently in the cases, it remains an under-theorised concept. This article critically evaluates the concept from a normative worker-protective perspective. It assesses the entrepreneurship approach by reference to theories of power and vulnerability in the employment relationship, and critically examines cases from the United States of America (‘US’) that illustrate the nature and practical operation of the entrepreneurship approach. The article argues that an entrepreneurship approach that operates in a manner similar to the ‘ABC’ test in the US warrants consideration by those seeking to revitalise the tests for employment status in Australia.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45847140","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
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