Judicial Perspective Research Articles

The First Decade of The Basic Law—A Judicial Perspective

(2007). The First Decade of The Basic Law—A Judicial Perspective. Asia Pacific Law Review: Vol. 15, No. 2, pp. 125-136.

Assessing the Credibility of Refugee Applicants: A Judicial Perspective

The principal responsibility of refugee decision makers is to determine those to whom refugee protection is owed. The manner in which these decisions are to be made in Australia is the subject of ongoing debate. However, that debate is not the subject of this paper. The focus of this paper is on the credibility assessment of refugee applicants and its principal purpose is instructive. It is my hope that it will enhance the credibility of credibility assessment within existing processes. Its secondary purpose is to provide a basis from which policy makers may consider legislative and other procedural change.It has been suggested that the ‘devil is in the detail’ in refugee decision making. Working in a common law country, Australian refugee decision makers are afforded the (often binding) benefit of extensive judicial review of the refugee determination process.1 Thus, for Australian decision makers, the ‘devil in the detail’ is often to be found in a plethora of binding legal precedent. Accordingly, while the first part of this paper discusses selected matters which have facilitated the assessment of the credibility of refugee applicants in Australia, as one of the most authoritative domestic sources available, the second part of this paper principally focuses on the expressed views of Australian courts after examining credibility findings in decisions of the Refugee Review Tribunal.2

Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

The fragmented nature of national and international legal and dispute settlement regimes, and the formalistic nature of the customary international law rules on treaty interpretation and conflicts of laws, offer little guidance on how national and international judges should respond to the proliferation of competing jurisdictions and the resultant incentives for forum shopping and rule shopping by governments and non-governmental actors international economic law. Due to their different jurisdictions, procedures and different rules of applicable laws, national and international judges often interpret international trade law from different (inter)national, (inter)governmental, constitutional and judicial perspectives. This paper explores the judicial functions of national and international judges to reach justified decisions based on positive law, on the basis of transparent, predictable and fair procedures, and to interpret international treaties in conformity with of justice. Chapters I to III explain some of the principles of justice underlying international trade law and argue that international rules for a mutually beneficial division of labour among private citizens should be construed with due regard to the human rights obligations of governments. Chapters III and IV propose to strengthen international cooperation among national and international courts, for instance by negotiating additional WTO commitments to interpret domestic trade laws conformity with the WTO obligations of the countries concerned and to settle WTO disputes over private rights primarily domestic courts, without transforming essentially private disputes into disputes among governments.

Healthcare and other social aspects of genetics: a judicial perspective

This paper discusses several scientific developments relating to genetic science, including DNA technology; gene therapy; cloning; stem cell research; pharmocogenetics; reproductive technology; and genetically modified organisms used in agriculture and environmental protection. It also identifies various social, ethical and legal issues relating to these developments, including genetic privacy; genetic discrimination in employment and insurance; gene doping in sports; commercialisation of products developed from genetic information; confidentiality, disclosure and other liability issues for physicians; rights and responsibilities regarding donated reproductive material; environmental and health concerns; and principles of criminal responsibility. It explores these issues in order to highlight both the fact that the benefits of scientific progress inevitably raise difficult and complex social problems, and society's need to consider, discuss, and pursue solutions to these problems before they become overwhelming.

Sieyès et le jury constitutionnaire : perspectives historico-juridiques

Marco Fioravanti, Sieyès and the constitutional jury : historical I judicial perspectives. This article studies the origin of the control of the constitutionality of laws in France, particularly the project Sieyès presented to the National Convention on the 2 and 18 thermidor an III (20 July and 5 August 1795) which culminated in the idea of a constituent power and separation of powers. The authors tries to demonstrate that in the French tradition characterized by the refusal to use instruments to guarantee the integrity of the constitution and to limit the powers of the legislator, the project of Sieyès is an attempt to create a neutral power by the constitutional jury, a politico-judicial organ, responsible for controlling the constitutionality of laws, for proposing the change in the constitution, and for the exercise of an natural equality.

Child victims of sexual abuse: Children's experience of the investigative process in the criminal justice system

This paper is a selected review of research on issues surrounding the investigation of intra-familial child sexual abuse for children aged eight and above, in the criminal justice system. Particular attention is paid to features of the investigative interview in relation to the child's level of understanding, ability to report and likely emotional response when the proceedings take place. Best practice by police and social care agencies involves establishing valid and reliable information from children while attending to their developmental level and emotional state. The review aims to distil principles optimising this process from both the investigative judicial perspective and the child's focus, as well as from the inter-agency perspective and information sharing. Recommendations are made for improving the interview process based on research and methods from a range of disciplines and to optimise information recording in a format easily shared between agencies. Updated and ongoing training procedures are key to successful practice with training shared across police and social work agencies. The focus of this review is informed by preliminary findings from pilot research in progress on behalf of the Metropolitan Police Child Abuse Investigation Command.

Editorial: Is Atheism a Religion? Recent Judicial Perspectives on the Constitutional Meaning of "Religion"

Editorial: Is Atheism a Religion? Recent Judicial Perspectives on the Constitutional Meaning of "Religion"

The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. By Thomas M. Keck. Chicago: University of Chicago Press, 2004. 370p. $65.00 cloth, $24.00 paper.The title of this work presents its thesis at the macrolevel, but it is with limited support that the author claims that the current Supreme Court is the “most activist.” The core argument of the book is actually presented in the last chapter in clear fashion. There, the author explicitly refers to the Court as the O'Connor Court since he determines that it is largely the blend of political conservatism and judicial moderation, long displayed by Sandra Day O'Connor, that encapsulates the modern Court. So the thesis is no more than stated as something of a straw man at the outset. Thomas Keck “reveals” that the political ideology (liberal/conservative) dimension of justices is not identical to the judicial activism/restraint dimension of their judicial perspectives. These are and always have been two separate dimensions, even if they may not be orthogonal. It is not clear why this is the first major point of the discussion.

Judicial Perspectives on Family Drug Treatment Courts

Family Drug Treatment Courts are a specialized calendar or docket that operates within the juvenile dependency court. These courts provide the setting for a collaborative effort by the court and all the participants in the child protection system to come together in a non-adversarial setting to determine the individual treatment needs of substance-abusing parents whose children are under the jurisdiction of the dependency court. This article is intended to give judges and others a judicial perspective on FDTCs, and to offer some assistance for those who are operating or who are considering creating one.

The Cannabis Infringement Notice scheme in Western Australia: a review of policy, police and judicial perspectives

Western Australia (WA) became the fourth Australian jurisdiction to adopt a 'prohibition with civil penalties scheme' for minor cannabis offences when its Cannabis Infringement Notice (CIN) scheme became law on 22 March 2004. This study examined the attitudes and practices of policy makers, members of the law enforcement and magistracy and other judicial sectors involved in enforcing the new scheme, and their views as to its likely impact on the drug market. As part of the pre--post evaluation of the legislative reforms a sample of 30 police, other criminal justice personnel and policy makers have been qualitatively interviewed. Data were collected both at the pre-implementation stage (March and June 2003) and shortly after the Act became operational (mid-June 2004). The Western Australia Police Service's implementation of the CIN scheme has been extremely professional. However, these early results suggest that while the CIN scheme has been designed to take into account problems with similar schemes elsewhere in Australia, possible problems include: some operational police being unsure about the operation of the scheme; expected savings in police resources will probably be reduced by procedures which require offenders to be taken back to the station rather than issue notices on the spot as intended by the scheme's architects; probable net widening; problems with exercise of police discretion to issue a CIN; and public misunderstanding of the scheme. In the early months of the scheme understanding of the new laws among both police and members of the public was far from perfect. For the system to achieve the outcomes intended by legislators, it is essential that levels of understanding improve. Media and other campaigns to inform the public that cannabis cultivation and use remain illegal, and to warn about risks associated with cannabis use, should be extended. As it will be at least 18 months before the scheme is operationally settled in, the media and others should be cautious about reading too much into police data on numbers of notices issued and on rates of compliance.

Injecting Law into Politics and Politics into Law: Legislative and Judicial Perspectives on Constitutional Human Rights

Law, unlike political theory, is capable of providing minimum standards for objective assessments of the rightness and wrongness of political actions. Constitutional rights can affect the rule-making process in Parliament by influencing legislators and the executive, as well as judges, with specific ideas of right and wrong. The Parliamentary Joint Select Committee on Human Rights (JCHR) has provided a means of injecting such ideas into the legislative process, allowing Parliament to address human rights issues and forcing the executive to do so. The article analyses the ways in which human rights law has been allowed to affect law-making. It then considers whether the need for judges to enforce human rights has led judges to undertake activities that are more political than previously. To this end the article examines the techniques of self-discipline developed to ensure that the judiciary stays within its constitutional authority, illustrates how the proper relationship between judges, Parliament and the executive depends on context, and explores the effect of these developments on possible criteria for judicial legitimacy, including accountability and representativeness. It concludes that the interplay of human rights law and political judgment has had a positive impact, helping to open up and structure legislation and policy-making.

Judging Surveys: Experts, Empirical Evidence and Law Reform

The conduct of empirical legal research and its relationship to law reform is examined. A detailed analysis of the largest survey of State and federal judges conducted in Australia explores some of the limits to empirical investigation, particularly the tendency to rely on judicial perspective as the basis for law reform.

Victims of Human Trafficking in Italy: A Judicial Perspective

This article presents quantitative and qualitative information about victims of human trafficking in Italy. It does so from the point of view of Italian judicial activities and draws on information from various sources: statistics on criminal proceedings, judicial cases from the Italian public prosecutors' offices handling the largest volume of prosecutions for human trafficking, and interviews with investigating magistrates of these offices and NGOs. The first part of the article provides a quantitative analysis of criminal proceedings brought against traffickers in Italy between June 1996 and June 2001. Particular attention is paid to the victims of trafficking. It considers their nationalities and their geographic distribution in the country and an attempt is made to estimate their number on the basis of judicial data. In the second part a qualitative analysis of recent judicial cases on human trafficking is provided, the purpose being to draw up profiles of the victims and identify current trends. Finally, the article deals with the role of victims as collaborators in proceedings brought against traffickers in Italy. It considers the systems in place to assure their presence at trials as witnesses and the degree of cooperation between law enforcement agencies and NGOs in this field.

Hostile M&A and the Poison Pill in Japan: A Judicial Perspective

The Court of Chancery and the Delaware Supreme Court in the early 1980s faced a complex public policy question. It was a question on which the legislative branch of our government had offered no meaningful guidance. The stakes were very high, as a particular judicial answer to this policy question might have large, yet uncertain, effects on new innovations in the market for corporate control. In a period of such great uncertainty, and with so little guidance on vital policy issues from the other branches of government, the Delaware Courts developed the common law of corporations with respect to takeovers in a gradual, incremental manner. The courts took measured steps to allow for adjustments and changes in direction. Japan’s judiciary may soon face a situation similar to the one faced by the Court of Chancery in the early 1980s. The introduction of the poison pill as a takeover defense will most likely create tension within the business, legal, and investment communities, requiring the courts of Japan to resolve that tension. This article posits some of Delaware’s experience in responding and adapting to the poison pill that will hopefully prove helpful as Japan embarks down this path.

A Judicial Perspective on The Sacred in Society

The primary virtue of establishment is the Church's duty under law to minister to anyone at all who may turn to it, including the ungodliest. Establishment does not imply a religious State, that is a State whose law requires subservience by the citizens to the State religion; if it did, it would be barbarous (but contrast the Black Rubric in the Book of Common Prayer). Establishment does not entail State control of the Church. The legal characteristics of establishment are as follows. (1) The law of the Church of England is part of the law of the land. (2) Bishops and some other office-holders are appointed by the Queen on ministerial advice. (3) 26 diocesan bishops sit as legislators in the House of Lords. (4) The Queen as Supreme Governor acts as monarch for the Church as she acts as monarch for the State. The Church of England is not a “congregational” church: its forms of worship are prescribed by law, and are not at the liberty of the community worshipping in any particular church. The bishops' resolution which authorised the use of the 1928 revision of the Book of Common Prayer in face of the will of Parliament (which was the lawful authority in the matter) was a lamentable disobedience to the law which it was their duty to uphold. Such a legal transgression might possibly nowadays be subject to correction by the High Court on judicial review, though that would require departure from earlier high authority. However that may be, it has to be recognised that there is no room, in the practice of an established Church, for the notion that conscience might justify disobedience to the law. The conscience of the believer is worth no more than the conscience of an unbeliever. The established Church possesses two immeasurable virtues: first, that religion is no tyrant: belief is not compulsory; second, that the Church's ministration is available to everyone. Their unified effect is a great force for good.

Ideologies of Language: Some Reflections on Language and U.S. Law

I present two U.S. court cases in which I participated as a linguistic anthropological "expert" to show how language ideologies of the law both influence legal outcomes and conflict with "scientific" ideas about language. One case was the murder trial of a young Mixtec‐speaking Indian from Oaxaca; the other was a civil suit brought by four Hispanic women dismissed from an elder‐care center for speaking Spanish on the job. I identify in the linguistic ideologies of both cases a principle of "referential transparency" that takes the essential business of words, regardless of the linguistic code, to be communicating propositional information. In the second case, 1 describe a further notion of "linguistic paranoia" in which speaking a language other than English is taken as inherently insulting or threatening. I relate these implicit ideological threads to the legal outcomes, to the restricted notions of potential "language rights" that might emerge from such ideologies, and to the clash between theoretical and judicial perspectives on language. [Keywords: U.S. law, language rights, linguistic ideology, expert witnesses, linguistic anthropology]

Aesthetics, Culture, and the Whole Damn Thing

From a judicial perspective, the operation of law is affected by legal culture and by aesthetics, that is to say what impacts the senses. Communication to and from the judge is affected by the choice between morality and writing. Language, visuality, and humor are seen as aspects of aesthetics and culture. The resultant effect on the internal psychology of judicial decision making is explored in this essay adapted from an address to the International Conference of the Law & Literature Association of Australia in 2002.

Fatherhood: A Judicial Perspective: Unmarried Fathers and the Changing Role of the Family Court

Fatherhood: A Judicial Perspective: Unmarried Fathers and the Changing Role of the Family Court

Forensic Sciences from the Judicial Perspective

(2003). Forensic Sciences from the Judicial Perspective. Australian Journal of Forensic Sciences: Vol. 35, No. 1, pp. 115-132.

Therapeutic Jurisprudence: Judicial and Corrections Panel

Innovative therapeutic initiatives for the treatment of persons with substance abuse problems have been implemented in the criminal justice systems of California and Arizona. Judicial perspectives and reflections on these programs reveal the multiple issues inherent in innovation and day-to-day operations, from collaboration to implementation, including attitudinal shifts, resource allocation, client issues, and the changing role of judges who practice therapeutic jurisprudence. A pioneering program of treatment for dual disorders among male offenders addresses multiple issues in the provision of psychological services in a forensic setting in California.