Process Of Law Reform Research Articles

Broader-based and Sectoral Bargaining Proposals in Collective Bargaining Law Reform: A Historical Review

Labour legislation regulating Canada’s private sector has incorporated forms of broaderbased or sectoral certification and bargaining (BBB) in varying degrees for decades, particularly in British Columbia and Quebec. However, BBB had not been the subject of significant post-war labour law reform discussion until the 1990s. This decade saw a wave of interest in introducing BBB arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later that decade. In none of these instances were BBB proposals or recommendations adopted. Since then, and until the Changing Workplaces Review (CWR) of Ontario’s Labour Relations Act (OLRA) and Employment Standards Act (ESA) commenced in 2015, private sector BBB had not been an important reform issue. BBB gained significant attention in the CWR process but was less prominent in the subsequent labour law reform processes undertaken in Alberta and British Columbia. None of these reviews have resulted in substantial BBB amendments to the labour legislation. This article traces the history of BBB as an issue in labour law reform exercises across jurisdictions in English Canada from the late 1980s to early 2019, examining the context in which these issues arose, identifying key BBB proposals, and challenges to these proposals. It concludes with an analysis of the failure of efforts to incorporate BBB proposals into labour legislation, and an assessment of the key challenges to adopting significant BBB reforms in the future.

Exploring gender differences in domestic violence reported to the NSW Police Force

ABSTRACT Whether men and women are equally violent in their intimate relationships has animated considerable debate in the scholarly literature, and increasingly, in policy and law reform processes. This debate about the gendered nature of domestic violence (DV) has re-intensified over the past decade with police data from various countries documenting an increase in women identified as DV offenders. While there has been considerable research exploring the increase in women DV offenders overseas (particularly in the USA) there has been little research in Australia. This article seeks to fill some of these gaps. It reports on a NSW study which explored differences between women and men identified as ‘persons of interest’ in an incident reported to police in 2010, and then over time (2006–2012) to see whether that person was the predominant victim or offender. This article focuses on cases in which the police intended to take legal action arising from the 2010 incident; this is important, as one would anticipate greater similarity between men’s and women’s use of violence in cases warranting the attention of the law. The article highlights the limitations of an incident focus when examining a patterned form of behaviour such as DV.

The application of Islamic inheritance law in independent and contemporary Kenya: A Muslim’s right to equality and freedom from discrimination

This article argues that the observance of Islamic inheritance law (IIL) by Muslims in Kenya while the rest of the citizens employ a universal inheritance law is legitimate. It is within the Muslims’ right to equality and freedom from discrimination both under the now-repealed 1963 independence Constitution and the present Constitution of Kenya 2010. Through analysis of previous works, cases (local and foreign), statutes, international human rights instruments, international consensus documents, other international agreements, in-depth interviews and focus group discussions, the article justifies the application of IIL in the country. It also conducts a thematic reading of the Qur’an, the Muslim Holy Book and the primary source of Islamic law, to demonstrate that IIL is a matter of exceptional importance to Muslims and therefore deserves accommodation in the Kenyan legal system under the right to equality and freedom from discrimination. The article, therefore, allays fears and misconceptions that the recognition of IIL in the country’s normative structures gives Muslims special treatment, makes them lucky and/or disunites Kenyans. Instead, it shows that such an arrangement is lawful and aligns with the principle of separation of the state and religion. It also makes Kenya inclusive and cohesive as it respects the rights of all its citizens, including the minorities. And because the enjoyment of this right is personal, the article highlights that the hesitance by other minority groups (locally and abroad) to assert it during their countries’ lawmaking or law reform processes does not estop Kenyan Muslims from doing it.

Public Interest Versus Indigenous Confidence: Indigenous Engagement, Consultation, and 'Consideration' in the Impact Assessment Act

Following a long and contentious law reform process, Canada’s new Impact Assessment Act came into force in 2019. While the Act constitutes more of a retrofit than a rebuild of the previous regime, it does include significant changes with respect to engagement and consultation with Indigenous communities. This article presents these dimensions of the Act, noting differences and improvements over the previous regime. It then goes on to explore how the new Act relates to Crown consultation obligations with respect to Indigenous communities, with particular focus on the duty to consult and accommodate, and, in a preliminary way, implementation of the United Nations Declaration on the Rights of Indigenous Peoples and associated notions of consent. Overall, the analysis shows that while the Act includes many opportunities and requirements for Indigenous engagement and consultation, it fails to provide much needed clarity around implementation of the Declaration, Indigenous consent, and the duty to consult in the project-level assessment realm. Perhaps unsurprisingly, the Act represents a relatively narrow interpretation of UNDRIP and the associated concept of free, prior and informed consent. Ultimately, under the new Act the rights and interests of Indigenous peoples become “considerations” within a new public interest decision-making paradigm that is premised on final decision-making power held by the federal government. This structure may jeopardize achievement of the original law reform impetus of restoring public confidence – and Indigenous confidence - in the federal assessment regime.

Experience obtaining legal abortion in Uruguay: knowledge, attitudes, and stigma among abortion clients

BackgroundThe abortion law in Uruguay changed in 2012 to allow first trimester abortion on request. Implementation of the law in Uruguay has been lauded, but barriers to care, including abortion stigma, remain. This study aimed to assess women’s experiences seeking abortion services and related attitudes and knowledge following implementation of the law in Uruguay.MethodsWe interviewed 207 eligible women seeking abortion services at a high-volume public hospital in Montevideo in 2014. We generated univariate frequencies to describe women’s experiences in care. We conducted regression analysis to examine variations in experiences of stigma by women’s age and number of abortions.ResultsMost of the women felt that abortion was a right, were satisfied with the services they received, and agreed with the abortion law. However, 70% found the five-day waiting period unnecessary. Women experienced greater self-judgement than worries about being judged by others. Younger women in the sample (ages 18–21) reported being more worried about judgment than women 22 years or older (1.02 vs. 0.71 on the ILAS sub-scale). One quarter of participants reported feeling judged while obtaining services. Women with more than one abortion had nearly three times the odds of reporting feeling judged.ConclusionsThese findings highlight the need to address abortion stigma even after the law is changed. Some considerations from Uruguay that may be relevant to other jurisdictions reforming abortion laws include: the need for strategies to reduce judgmental behavior from staff and clinicians towards women seeking abortions, including training in counseling skills and empathic communication; addressing stigmatizing attitudes about abortion through community outreach or communications campaigns; mitigating the potential stigma that may be perpetuated through policies to prevent “repeat” abortions; ensuring that younger women and those with more than one abortion feel welcome and are not mistreated during care; and assessing the necessity of a waiting period. The rapid implementation of legal, voluntary abortion services in Uruguay can serve in many ways as an exemplar, and these findings may inform the process of abortion law reform in other countries.

Intersectionality, Repeal, and Reproductive Rights in Ireland

In this chapter, I reflect on the ways in which reproductive activism might be said to have failed in its intersectionality during the formal referendum campaign to repeal the 8th Amendment in Ireland and, in particular, on the ways in which the formal processes of constitutional law reform that had to be negotiated in order to achieve meaningful reform and liberalisation of abortion law shaped these failures. My intention in this chapter is not to contribute in any substantial way to our evolving understanding of intersectionality and intersectional practice, but rather to reflect on the ways in which a self-avowedly intersectional and intergenerational activism for abortion law reform in Ireland may have fallen short of that avowel within the formal process of constitutional law reform as it operates in Ireland. The chapter proceeds in three parts. First, I reflect on the referendum campaign itself and particularly on some of the tactical maneuvers of the campaign relevant to the question of intersectionality. Second, I illustrate some of the ways in which the new law and its operation fail adequately to deliver reproductive justice to all with a particular focus on trans and non-binary persons, and migrants living in Ireland. Third, I will reflect on the difficulties of intersectionality in constitutional referendum campaigns.

South Asian feminist engagements with law: Some explorations in the context of violence against women

Though shaped by the distinct historical and political regimes and institutions in each country, women’s movements in South Asian countries have much in common. The struggle for justice in the context of violence against women is one of them. Women’s movements in Bangladesh, India, Nepal, Pakistan and Sri Lanka have a rich history and tradition of resisting patriarchy and violence by state and non-state actors and pursuing justice and accountability through political struggles and democratic processes. In this article, I examine two decades of South Asian feminist engagements with law in the realm of violence against women. I explore the potential for cross border legal activism, strategy sharing, solidarity, and cooperation. For my analysis, I largely draw upon feminist responses to honor crimes, acid violence, domestic violence and sexual violence. The paper is divided into five parts. In Part I, I introduce the topic and define the parameters of the article. In Part II, I discuss South Asian feminist engagements with law-making and law reform processes. Part III consists of an analysis of judgments that advance gender justice, resulting from feminist advocacy and lawyering. Part IV foregrounds the common journeys, shared experiences and challenges, and common feminist strategies in the annals of law and justice. I conclude this paper, in Part V, with the emerging South Asian feminist jurisprudence on violence against women, and its immense potential in advancing justice in each of the countries in the region.

Ethical issues when working with terminally ill people who desire to hasten the ends of their lives: a western perspective

Terminally ill people might want to discuss the options they have of hastening their deaths with their psychologists who should therefore know the law that regulates euthanasia in the jurisdictions where they practice. The legal, and therefore ethical, situation that influences psychologists’ position and terminally ill people’s options, however, differs notably across jurisdictions. Our aim is to provide a brief moral-legal historical context that explains how the law reform processes in different jurisdictions created these different legal contexts and options that, in turn, influence psychologists’ ethical position. We conclude by considering 8 specific ethical issues at a conceptual level that might confront psychologists irrespective of where they practice.

Silencing Indigenous Knowledge Systems: Analysis of Canadian Educational, Legal and Administrative Practice

As a result of the Truth and Reconciliation Commission of Canada (or TRCC, 2015a, 2015b), calls to action concerning education and law reform have been made. Currently, there is an increase in reconciliation discourse in law, healthcare and education policy, curricula and pedagogy. In Canada, efforts to decolonize institutional structures compel scholars and activists to highlight the imperative of critical analysis of identity and place in answering the calls to action. Although it was developed by the Ministry of Education for the province of Ontario, more than a decade ago, prior to the TRCC, the First Nations, Métis, and Inuit Education Policy Framework continues to inform policy and administrative procedures. Informed by Indigenous knowledge systems embedded in restorative justice and peace-building practices, this paper presents a critical analysis of the First Nations, Métis, and Inuit Education Policy Framework (2007) and finds evidence resembling discursive settler-colonial patterns of Indigenous erasure through the practice of silencing Indigenous participation and voice. Through this critical analysis, several themes emerged including colonialism, survivance, patriarchy, self-identification, notions of education, assessment, and “us versus them” binary narratives. In response, this paper argues for a trans-systemic and transdisciplinary approach to the critical analysis of discursive patterns of silencing and erasure in policy, law reform, and administrative processes. Further, through deepening interpretations and understandings of Indigenous theory and knowledge systems, it may be possible for settler-colonial stakeholders to more acutely discern the impact of settler-colonialism embedded in education, policy, administration, and legal discourses. These findings have implications for educators and administrators as well as administrative, law and policy reform.

Law Reform as a Response to Terrorist Threats

This article sets out guidelines for law reform processes to account for the challenges that terrorism may pose to the rule of law and democracy. As a response to terrorism, an increase in reforms of laws and administrative measures has been seen across jurisdictions. The substantive offenses themselves have been criticized, but as of yet, the theoretical issues that may arise during processes of reform have not been considered. However, law reform as a direct and immediate response to such events may curtail the rule of law and democracy: there may be inadequate time for debate in the legislature regarding proposed measures, or the debate may be centered on arguments based on fear and hate toward perpetrators. This article argues that this may curtail individual autonomy of citizens and truncate democracy. It sets out guidelines for how processes of law reform may treat people as capable of self-moderation.

A History of the Corporations and Markets Advisory Committee and its Predecessors

From 1983 until the abolition of the Corporations and Markets Advisory Committee (CAMAC) in 2018, there existed an independent body to provide advice to the Australian government on matters of corporate law reform. The abolition of CAMAC was controversial. The purpose of this paper is to provide a history of CAMAC and its predecessors. These law reform bodies published many reports and their influence on corporate law reform has been significant. Yet no one has yet provided a history. A key part of the paper is consideration of the debates leading up to abolition of CAMAC. An examination of these debates demonstrates how the government made this decision in the face of very strong opposition from organisations representing business, shareholders and various professions including the Australian Institute of Company Directors, the Australian Council of Superannuation Investors, the Governance Institute of Australia, the Law Council of Australia, the two major accounting bodies, the Australian Restructuring Insolvency & Turnaround Association and the Corporate Law Teachers Association. In the opinion of the author, the decision to abolish CAMAC has resulted in a weakened law reform process.

Law reform in small states

Law reform can be a complex and challenging process in any jurisdiction. Small states face additional challenges, and some advantages, associated with a small population and land area. This article looks at how law reform agencies in small states adapt the law reform process, and the particular significance of comparative research in that context. It goes on to outline how, despite the challenges, small state and jurisdiction law reform agencies have made very considerable contributions to the law. Finally, the article assesses the particular utility of co-operation between law reform agencies, including through regional associations.

Are We There Yet? The Journey to Oranga Tamariki the Ministry for Vulnerable Children: An Analysis of the Law Reform Process

The establishment of Oranga Tamariki, The Ministry for Vulnerable Children was supposed to end the perception that the law protecting vulnerable children and young people was crisis driven. The establishment of a stand-alone Ministry was to stabilise the law and improve outcomes for the most vulnerable. However, the law reform process to implement this change undermined rather than supported this effort. The method of reform, its intrinsic link with government ideology, close connection to previous reforms and the opposition to legislative amendments undermined the foundations the reform sought to lay. This paper suggests that the law reform process could have been better utilised as a vehicle with which to emphasise and accentuate the ultimate aims of the reform and assist in their successful implementation. The paper tracks various tensions in the reform process and suggests that these deficiencies permeate the law that has resulted. As such, the paper suggests the ultimate goal of the reform remains unrealised, not for lack of intention, but due to fundamental flaws in gaining support from key stakeholders. Because of this, the likelihood of future reform is high. The law reform process could have placated rather than enhanced this risk.

Resistance and Consistent: Access to Medicines and Patent Law Reform in India and China

The paper starts with reviewing the debates on patent in access to medicines in the context of globalization of TRIPS regime. It then looks at the issue of resistance related to patent theories, mechanism and the linkage with social movement during law reform processes. Accordingly, the 2005 revision of Patent Act in India and the 2008 revision of Patent Law in China are chosen as the backdrops for comparison. The choice of patentability doctrine and the exceptional clauses to promote research use would be the major aspects of comparison, both having been influenced by civil society actions at different degrees in both countries. The paper intends to draw the conclusions that while strong technocratic influences remain, both countries’ law makers have started walking out of the closed discourse of patent law reform via interacting with societal concerns in the context of improving access to medicines.

On the ground and on tap—law reform, Australian style

ABSTRACTBeing governmental, the law reform processes of a country are closely associated with the constitutional framework of the country concerned. In the case of Australia, the framework combines English and American constitutionalism. Professor Saunders neatly describes the result as ‘hybrid, derivative but eventually Australian’. After a brief overview of sources of law reform advice in Australia, the article focuses on one part of Australian law reform processes—law reform bodies established by statute that advise in a particular area (‘specialist statutory advisors’). The main question the article poses is—like the constitutional framework, are specialist statutory advisors ‘hybrid, derivative but eventually Australian’? The research hypothesis is informed by an influential stream of Australian historical and legal thought. A number of commentators have propounded that Australian democracy is distinctive, and that Australians have time and again accepted a commanding role for government, and continue to give it great respect. It is said that Benthamite utilitarianism and legislation lie at the heart of the dominant political ideology. The article examines the Australian law reform scene in the light of these theories. The research hypothesis is that these distinctive aspects of Australian political life will manifest themselves in processes of law reform, namely specific legislative processes for facilitating law reform. The article identifies and analyses specialist law reform agencies established under statutes passed by parliaments of the Commonwealth, the States, and the Territories. This analysis is followed by an assessment of specialist advisors. They are compared with two other types of law reform bodies: Ministerial committees and generalist law reform bodies. The article concludes by reflecting on how specialist statutory advisors reflect the country’s constitutional framework. In their own way—on the ground and on tap—they too are found to be ‘hybrid, derivative but eventually Australian’.

Beyond the British model. Law reform in New Zealand, Australia, Canada, South Africa and Israel

ABSTRACTThe aim of this article is to set the scene for the following special issue, which contains five papers relating to research on law reform in common law and mixed jurisdictions and which forms part of a wider research project (Law Reform Project) carried out within the Institute of Advanced Legal Studies (IALS), University of London. The first hypothesis of this research was that due to the contrasting way in which the traditions of the British common law have developed within the two mixed jurisdictions examined in this volume (namely South Africa and Israel) and their different connections with the Commonwealth, the concepts of law reform there do differ from one another. The second hypothesis of this research was that, within a homogeneous area (i.e. common law or mixed jurisdictions which all have strong historical and cultural connections with the U.K. in common and which are all members of the Commonwealth), the model of law reform, although rather homogenous, is differently shaped in each of these jurisdictions and goes beyond the British model. The case studies analysed here are New Zealand, Australia, Canada and South Africa. The articles published here seem to support some provisional conclusions on the adoption of law reform processes.

Oligopolist Speech and the Public Interest in Pharmaceutical Patent Law Reform

AbstractUnderstandings of the public interest underpin many law reform processes. The public interest is not a fully definable term and so reform bodies have to engage with a range of articulations of that interest. The negotiation of the different articulations, however, has not been explored empirically before. This article reports on a study of the claims to the public interest in a public Australian inquiry into potential abuses of the patent system by pharmaceutical companies. More specifically, submissions to the Pharmaceutical Patents Review are analysed and the results show “oligopolistic” tensions between competing views of the public interest—and with these views claiming primacy over more technical understandings of the issues. This lack of a single “public interest” allows dominant players to frame the debate to reflect their interests; and the tension between these players means that the debate, and the underlying problem, has not been subject to a resolution.

The process of intellectual property law reform in China

The process of intellectual property law reform in China

The process of intellectual property law reform in China

The process of intellectual property law reform in China

Regulating for Disruption: A Case Study of the Outer Space Law Reform

Technology is changing the world faster than ever before, and many conventional industries are at risk of being disrupted. If New Zealand wants be successful in a changing environment, it needs to be prepared to facilitate more innovative and technologically intensive industries. This paper considers the law reform process that has sought to develop a framework for a commercial launch industry in New Zealand. By using this process as a case study, some broader insight is provided into how effective New Zealand’s law reform process is at regulating for disruption. This paper begins by telling the story of Rocket Lab and Peter Beck in order to demonstrate why this reform was necessary. It then considers several discrete elements of the law reform process such as: the framing of the outer space reform, the incorporation of bilateral and multilateral treaties, regulation through contract and integration of the outer space reform within New Zealand’s environmental law framework. This paper discusses some of the unique and innovative approaches that characterise this reform. It also criticises a few elements of New Zealand’s law reform process and considers how they can be improved.