17 December 2013

JOURNAL: Legal Scholarship Network: Legal Studies Research Paper Series



The latest issue of Legal Scholarship Network: Legal Studies Research Paper Series. University of Australia Faculty of Law, Vol. 2, No. 5: Dec 13, 2013,  is available on SSRN.
Contents include:

Articles

Paper delivered to Australian Association of Constitutional Law, WA branch, at the Constitution Centre, West Perth, 4 September 2013.

PETER JOHNSTON, University of Western Australia - Faculty of Law


One of the enduring constitutional legacies of the Glorious Revolution in 1688 whereby the English Parliamentary forces under William of Orange defeated largely French royalist troops under James II, thereby ending the Stuart monarchies’ use of arbitrary prerogative power, was the Bill of Rights 1689 (UK). Article 7 guaranteed the freedom of speech and immunity from court proceedings in relation to matters connected with "Parliamentary proceedings". In 2011, the United Kingdom Supreme Court was asked to rule on whether article 7 or the exclusive inherent jurisdiction of the UK Houses of Parliament prevented prosecution of Members for offences relating to misuse of parliamentary allowances. The Supreme Court concluded that while the allowances were ostensibly provided to allow members to carry out their electoral duties that was not a sufficient basis for denying the jurisdiction of the courts in relation to ordinary criminal offences. The prosecutions were therefore able to proceed.


The paper argues that the Supreme Court's decision resolved the possible clash of jurisdictions sensibly and pragmatically, but the Court’s reasoning is far from logically compelling or persuasive. It then notes that currently, similar prosecutions of Members of Parliament have been instituted in Australia. This prompts the question whether Chaytor is relevant in the Australian parliamentary context. Is the privilege and contempt "jurisdiction" of the Houses of Australian Parliaments necessarily exclusive in such matters? The paper concludes that no easy answer can be given as to whether Chaytor, or, at least, its reasoning, would be followed by Australian courts. Certainly, where an Australian House of Parliament declines to deal with a Member who has misused electoral funds privilege ought not to preclude a criminal prosecution. However, if the House were to institute its own contempt proceedings in relation to the Member, the situation may be far from certain.

Paper delivered at the Australian Institute of Administrative Law annual conference, Canberra, 19 July 2013

PETER JOHNSTON, University of Western Australia - Faculty of Law


This paper in Part I explores the extent to which the Extradition Act 1988 (Cth) incorporates international human rights standards such as the fair trial standards under the International Covenant on Civil and Political Rights 1966 (ICCPR). It argues that that modification of the Act to accommodate conditions in bilateral treaties between Australia and other countries authorising the Attorney General to refuse to surrender a requested person where it would be 'unjust, oppressive or incompatible with humanitarian standards' imports into extradition decisions the fair trial standards in Article 14 of the ICCPR. Further, satisfaction of those fair trial standards arguably amount to a relevant consideration in determining the issue. 


Part II by way of qualification questions the capacity of Australian courts to effectively exercise judicial review in respect of an extradition decision even if the foreign trial is likely to be inconsistent with Australian and international standards of fairness. The article concludes that due to limitations on and practical difficulties with the reviewability of the decision to surrender, regard for 'fair trial' standards may be rendered irrelevant due to a lack of any statutory or constitutional requirement for the Attorney to explain and justify a surrender decision. In the absence of any obligation to reveal the basis of the decision a person who faces extradition to a country that is unlikely to afford a fair trial will find it practically impossible to advance any objection founded on that possibility.

(2013) 2(3) International Journal for Crime, Justice and Social Democracy 55

HILDE TUBEX, University of Western Australia - Faculty of Law


In this article, I first examine the viability of comparative criminological research in a globalised world. Further, I test the validity of some global explanatory models against the local situation in countries that appear to resist the dominant trend, such as the Netherlands and Canada. I then zoom in even further to the intra‐national differences in some federal nations, such as Canada and Australia, where this situation is often linked to the overrepresentation of Indigenous people and the consequences of colonialism. Finally, I discuss the future of comparative criminological research.



(2013) 23 Australian Intellectual Property Journal 174

JANI MCCUTCHEON, University of Western Australia - Faculty of Law


This article examines the recent Federal Magistrates Court decision of Perez v Fernandez, Australia’s first case on the moral right of integrity. While not an in-depth consideration of the moral right of integrity, Perez gives some useful insights and raises some questions. This article will closely analyse and critique the decision, compare it to approaches to the moral right of integrity in the UK and Canada, and identify the useful contributions Perez makes to the fledgling Australian moral rights jurisprudence.

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