University of Western Sydney Law Review 

About: University of Western Sydney Law Review is an academic journal. The journal publishes majorly in the area(s): Human rights & High Court. It has an ISSN identifier of 1446-9294. Over the lifetime, 45 publications have been published receiving 141 citations.

Evaluating law reform

Abstract: There has sometimes been a naive confidence that better law can be a panacea, ameliorating social and other ills. Law reform, particularly legislative reform, has been touted as a means of facilitating progressive change. Liberal feminists, for example, have resorted to law to respond to the inequalities and inequities women experience. Other feminists have been sceptical of law reform, disillusioned with law's resistance to feminist legal analysis and challenges, and with the uncertain outcomes of feminist-inspired legal and policy changes. A brief survey of recent legislative reform in Australia would confirm this bleak estimation. Law has been used to facilitate neo-liberal economic programs and individualise employment relations; exclude asylum seekers; send single parents back to work; thwart legal recognition of same sex relationships and erode civil and political liberties. At such political junctures, reliance on litigation, rather than legislative reform, may be more effective to 'restrain, or at best, make visible unjust practices and policies ... [and] restore a cautious confidence in the law to effect change.' (1) This paper seeks to examine some of the scholarly literature about law reform to evaluate whether confidence in law reform is misplaced. It begins by distinguishing what one commentator has called classical and progressive approaches to law reform, and attempts to situate these approaches within broader philosophical, sociological and political theories. It then reviews some of the debates within feminist legal theory about the value of and risks associated with law reform. It concludes that although law reform will never be a sufficient response to inequalities and oppression, there will be times when it will be possible and necessary. Approaches to law reform Law reform is an elusive concept. The threads of reform do not form any 'clear and consistent pattern.' (2) Lawrence Friedman declares it has no objective meaning, although the scholarly literature suggests that law reform has a number of meanings. (3) The starting point of any discussion of law reform, Noel Lyon observes, is to ask the 'most basic question of jurisprudence: what is the nature and purpose of law?' (4) The answer from the law reform literature is less than clear, however, as few legal scholars directly address this question or articulate the political or philosophical position informing their analysis. Although there is a growing body of critical legal commentary about law reform, (5) particularly from feminist legal scholars, (6) much law reform scholarship is pragmatic, instrumental and atheoretical. Implicit in most of this discussion, however, is the idea that law is a social and political phenomenon and that it ought to serve the needs of society. (7) Roderick MacDonald has distinguished classical and progressive approaches to law reform. (8) He does not clearly identify what constitutes the classical approach, but his discussion suggests he is referring to commentary influenced by sociological jurisprudence and the American realist thinkers of the early twentieth century. (9) Although neither the realists nor the sociological jurists developed a single or uniform theory, themes common to both schools of thought may be identified, and some of these inform the classical (and also some of the more recent progressive) scholarship about law reform. Legal realists and legal sociologists reject legal formalism and are sceptical of 'law in books', concerning themselves with 'law in action'. (10) Both schools of thought perceive reality and knowledge (and thus law) as socially constructed and empirically verifiable. As Margaret Davies observes, the realist's 'emphasis on the "real" operation of law [meant that] law is not separate from politics, ... law is not an end in itself, but a means to an end--we have law for purposes of social regulation and it must be studied as such, not in isolation from society. …

Provocation: a totally flawed defence that has no place in Australian criminal law irrespective of sentencing regime

Abstract: Why another paper on provocation when this partial defence to murder is already the subject of widespread criticism in the literature? The answer is because the defence is still available in five Australian jurisdictions. Furthermore, there is no consistency across jurisdictions that have reviewed the defence. Recently, Western Australia elected to abolish the defence but Queensland has decided to retain provocation. Internationally, New Zealand has removed the defence from the statute book but the United Kingdom, Canada and the United States continue to allow the defence. This paper identifies the heart of the problem as mandatory life sentencing for murder and seeks to argue that the partial defence of provocation is so flawed that it is the sentencing regime that needs to be adjusted especially as 'life' rarely actually means 'for the term of his natural life'. Nevertheless, given vested interests and the difficulty of introducing legal reform, the fallback position taken in this paper is that if the defence of provocation is to be retained then it is necessary to make the defence much more difficult to run by reversing the onus of proof and by narrowing the scope of the defence. It is contended that the Western Australian Government took the correct path by abolishing the partial defence of provocation and amending the mandatory life penalty for murder.

Mind your language : interpreters in Australian immigration proceedings

Abstract: Introduction This paper deals with the role of interpreters in Australian immigration proceedings before the Refugee Review Tribunal (RRT) and the Migration Review Tribunal (MRT) The paper adopts a socio-legal analysis in that it considers both the current law on interpreting in such proceedings and also the policy and cultural issues that impact on the availability and quality of interpreting in those matters Proceedings in the RRT and MRT originate from the system of tribunal review of primary decisions made by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) about applications by persons for visas The RRT and MRT are merits review bodies established under the Migration Act 1958 (Cth) (the Migration Act) and their jurisdiction, powers and statutory procedures are set out in that Act and the Migration Regulations 1994 The RRT reviews refusals or cancellations by DIMIA of refugee visa applications (known as protection visas) to non-citizens in Australia The MRT hears refusals or cancellations in relation to non protection visas such as partner visas, family related visas, student visas, visitor visas, skilled employment visas and business related visas The Administrative Appeals Tribunal (AAT) has a diverse immigration jurisdiction including review of decisions concerning certain limited categories of protection and non protection visas but does not deal with the same range and volume of visa matters as the RRT and MRT (1) Following amendments to the Migration Act in October 2001, the Federal Court and the Federal Magistrates Court have concurrent jurisdiction under the Judiciary Act 1903 (Cth) to review decisions made by the MRT and the RRT which are not "privative clause" decisions (see further below) under the Migration Act As a result of the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia, (2) these courts are also able to review decisions where there is a claim of jurisdictional error The Federal Court also hears appeals from decisions of the Federal Magistrates Court In Australia there is no absolute common law right to an interpreter in legal proceedings Under the common law, it is a matter for the individual judge or decision-maker to determine whether a person is not sufficiently proficient in English to understand the proceedings or make themselves understood (3) However, as discussed below, provisions of the Migration Act have been construed to mean that the availability of an interpreter where required and the adequacy of interpretation are fundamental aspects of procedural fairness This derives from a central tenet of procedural fairness, namely that a decision maker must give an opportunity to be heard to a person whose interests will be adversely affected by the decision (audi alteram partem) (4) A major impetus for considering the role of interpreters in the legal system came from growing interest in the concept of access to justice which emphasises that access to competent interpreting is an integral part of a fair and just legal system The federal government's policy of the National Agenda for a Multicultural Society issued in 1989 set the scene for a greater governmental focus on equality before the law for non-English speaking people Subsequent reports, particularly in the late 1980s and early 1990s, that were concerned with access to justice issues identified interpreting needs as a significant issue These included the Australian Law Reform Commission's reports on Multiculturalism and the Law (ALRC 57) (5) and Women and Equality Before the Law (ALRC 69) (6) and also the Commonwealth Attorney General's Department 1991 report, Access to Interpreters in the Australian Legal System (7) Each of these reports referred to the role of interpreters and made recommendations about improving the availability and quality of interpreting services, either generally or in particular circumstances …

The challenge of corporate law enforcement: future directions for corporations law in Australia

Abstract: Much progress has been achieved in modernising Australian corporations law statutes over the last half century. However, much less has been achieved in enforcing or implementing corporations laws. Whilst Australia clearly does have its distinctive corporate law features that distinguish its governance arrangements from the usual Anglo-American models, it also has a large number of common features that it shares with other developed countries. Probably the most important of these are the background business culture, ethical values and legal institutions against which corporate laws operate; these are the most important ingredients in ensuring the effectiveness and enforcement of such laws. With increasing globalisation and the contraction of the role of the state in economic markets, the nature of modernity and the role of law have changed significantly since the enactment of the first broadly based company laws of the mid-nineteenth century.