Reform Commission Report Research Articles

James Crawford and the Law of State Immunity

Abstract In James Crawford’s later career as a public international lawyer, he was synonymous with the great topics of inter-state relations—the creation of states, state responsibility, and so forth—and with the work of the International Court of Justice. But he retained throughout his professional life an abiding interest in foreign relations law, being that loose collection of issues that characterises the interface between public international and municipal law. Nowhere is this better reflected than in his contribution to the law of state immunity—and, in particular, his preparation as Commissioner of the ground-breaking 1984 Australian Law Reform Commission Report No 24 on Foreign State Immunity (‘ALRC 24’), which led in due course to the Foreign States Immunities Act 1985 (Cth) (‘FSIA’) being passed by the Federal Parliament almost unchanged from Commission’s suggested text. This paper aims to assess the legacy of ALRC 24 alongside other writings on state immunity that Crawford published prior to and in conjunction with the report—in particular his significant articles in the Australian Year Book of International Law, the American Journal of International Law and the British Yearbook of International Law. This corpus of materials shows Crawford in two underexplored guises—as municipal lawyer and legislative draftsman. And they also show his instincts as one of the great liberalisers of public international law, committed to ensuring that the parameters of the restrictive theory of state immunity, then novel to the common law, were accurately reflected in legislative language.

THE AWARDING OF POST-DIVORCE MAINTENANCE TO A MUSLIM EX-WIFE AND CHILDREN IN THE SOUTH AFRICAN COURTS: THE INTERACTION BETWEEN DIVINE AND SECULAR LAW

The article discusses the differences between the South African civil law and Islamic law with specific reference to post-divorce spousal maintenance as well as postdivorce maintenance of children in light of recent case law, Mahomed v Mahomed [2009] JOL 23733 (ECP). The issue of post-divorce spousal maintenance is especially controversial and it is noted that in both systems the issue should not beseen in isolation, but in conjunction with the other protection possibilities within each of these systems. The apparent conflict between the South African constitutional principles and the principles of Islam is noted and compared to the Indian legal and constitutional experience, although reference is also made to the Algerian legal position. Drawing an analogy with the South African legal developments vis-à-vis customary marriages, the article concludes and submits that any enactment by the South African legislature, dealing with the maintenance of spouses and children after divorce, whether in the format of the Muslim Marriage Bill as set out in the 2003 South African Law Reform Commission Report, or in any other format, should take cognizance of the rulings and teachings of Islam.

Bringing Australia's Privacy Act Up to International Standards (Submission in Response to the Privacy Act Review - Issues Paper)

This submission to the Australian federal Attorney-General’s Departmen is by the Australian Privacy Foundation (APF), the country's leading privacy advocacy organisation, and is written by five members of its Board. It is in response to the Attorney-General’s Review of the Privacy Act 1988 (Cth) – Issues Paper. The last comprehensive review of the Privacy Act was in 2008 with the publication of the Australian Law Reform Commission Report for Your Information – Australian Privacy Law and Practice (the ALRC Report). The ALRC report recognised privacy as a human right. It also found that privacy protection should take precedence over a range of countervailing interests, such as cost and convenience. However, although the government at the time professed to accept many of the ALRC’s recommendations, and said it would introduce legislation in a number of tranches, it failed to introduce many of the most important reforms, such as removal of exemptions. APF submits that, after this Review, the government should introduce one comprehensive reform Bill, and should not resort to the subterfuge of reform in stages. Significantly, since 2008, many countries have introduced stronger privacy protections. For example, the European Union (EU) has introduced significant privacy protections in the General Data Protection Regulation (GDPR). These laws are regarded as the gold standard in best practice data protection. The GDPR commenced operation in 2016 and was fully implemented across the EU by 2018. In comparison, Australia’s privacy and data protection laws are weak and do not meet the best practice standards set by the EU and other countries. This review must be used as an opportunity to modernize and strengthen Australia’s privacy laws to meet the best practice standards set Internationally. Australia should even seek to exceed those standards and lead the world. This submission addresses almost all of the 69 issues raised by the Attorney-General’s Department in the Issues Paper. The submission also addresses many of the submissions made to the Review by Australian Information Commissioner (OAIC)... We have noted in this submission particular aspect to which we give support, and others we oppose.

“The Abuse of Older Australians (Elder Abuse)”: Reform Activity and Imperatives

ABSTRACT Significant national reform activity is occurring that concerns the abuse of older people by trusted others. This includes an Australian Law Reform Commission report entitled Elder Abuse – A National Legal Response (2017), and the adoption in 2019 of the first ever “National plan to respond to the abuse of older Australians (elder abuse)”. While service responses in this field largely exist at, and will continue to be provided at, state and territory level, this article considers current and needed reform initiatives in a field of increasing national government attention. IMPLICATIONS The adoption of the first ever national plan concerning the abuse of older people in Australia adds significant impetus and direction for reform in this key social policy area. Most service and regulatory reforms aimed at improving responses to the abuse of older people will occur at state and territory level. The breadth of likely and necessary reforms is significant, ranging from policing practices through to guardianship law reform.

The thin edge of the wedge: ukuthwala, alienation and consent

Ukuthwala, a mock abduction of a girl for the purpose of a customary marriage, has been subject to debate at both local and national level. This debate culminated into a South African Law Reform Commission Report on the practice of ukuthwala. However, the case of Jezile v S brings theory into reality, putting in stark relief the issues that surround this custom in a constitutional democracy. The Jezile case highlights the disjuncture between communities’ lived realities and the constitutional imperatives of the right to practice one’s culture, as well as the rights to equality and dignity, specifically for women and the girl child in the context of ukuthwala. Based on field research conducted in September 2015 and April 2016 in Engcobo (where the ukuthwala was alleged to take place in Jezile), this article sets out the community’s views in the aftermath of the case. Highlighting the alienation of the community from the law, and the complexities in understanding consent, the article posits that much more needs to be done from the ‘bottom up’ to ensure gender equality and protection of the girl child from harm.

Privacy, Free Speech and Ruthlessness: The Australian Law Reform Commission's Report, Serious Invasions of Privacy in the Digital Era

(2014). Privacy, Free Speech and Ruthlessness: The Australian Law Reform Commission's Report, Serious Invasions of Privacy in the Digital Era. Journal of Media Law: Vol. 6, No. 2, pp. 193-205.

Looking Behind the Increase in Custodial Remand Populations

Numbers, rates and proportions of those remanded in custody have increased significantly in recent decades across a range of jurisdictions. In Australia they have doubled since the early 1980s, such that close to one in four prisoners is currently unconvicted. Taking NSW as a case study and drawing on the recent New South Wales Law Reform Commission Report on Bail (2012), this article will identify the key drivers of this increase in NSW, predominantly a form of legislative hyperactivity involving constant changes to the Bail Act 1978 (NSW), changes which remove or restrict the presumption in favour of bail for a wide range of offences. The article will then examine some of the conceptual, cultural and practice shifts underlying the increase. These include: a shift away from a conception of bail as a procedural issue predominantly concerned with securing the attendance of the accused at trial and the integrity of the trial, to the use of bail for crime prevention purposes; the diminishing force of the presumption of innocence; the framing of a false opposition between an individual interest in liberty and a public interest in safety; a shift from determination of the individual case by reference to its own particular circumstances to determination by its classification within pre-set legislative categories of offence types and previous convictions; a double jeopardy effect arising in relation to people with previous convictions for which they have already been punished; and an unacknowledged preventive detention effect arising from the increased emphasis on risk. Many of these conceptual shifts are apparent in the explosion in bail conditions and the KPI-driven policing of bail conditions and consequent rise in revocations, especially in relation to juveniles. The paper will conclude with a note on the NSW Government’s response to the NSW LRC Report in the form of a Bail Bill (2013) and brief speculation as to its likely effects.

Evolution of advance care planning in Australia – launching the new international advance care planning and end of life care society

Although there were small areas of interest in advance care planning (ACP) and the ability to refuse treatment in Australia as early as 1987, the implementation of and research in,...

Making health choices; Part 1. Advance Care planning in aged care project. Setting the scene

IntroductionThe (2009) Australian National Health & Hospital Reform Commission Report highlighted the need for advance care planning (ACP) for older persons in residential aged care facilities (RACFs). Using knowledge gained...

Australian dental students views on a compulsory internship scheme

Objective: The National Health and Hospitals Reform Commission Report suggests introducing an internship period for all newly qualified dental/oral health practitioners in Australia. This study gauged the opinions of undergraduates from three dental schools in Australia. Methods: An online survey collected demographic information on gender and age, the program registered for, year and place of study. The level of support for an internship was gauged using a five-point scale. Open-ended questions on the concerns, advantages and disadvantages of an internship concluded the survey. All students in the participating universities were invited to participate via email. Results: There were 445 responses. Forty per cent of students were supportive of an internship scheme. The level of support differed by gender, age, relationship status, having a previous tertiary qualification and year of study. Males, older participants, those with children and those with previous qualifications were less supportive. The main concerns related to issues around choice, family commitments, location of internship placements and salary levels. Conclusion: Support for an internship scheme for dental graduates elicited a divided opinion amongst dental students. Many issues around financing and logistics have to be addressed before any such scheme could be implemented in Australia: there is a need to consult with dental graduates and promote the benefits to the student body.

Grasping the initiative in health policy research and reform

The conference highlighted the need for new policy development using quantitative methods.

Bigger is not always better: what the National Health and Hospitals Reform Commission report means for general practice

The National Health and Hospitals Reform Commission report has a focus on building on "the vital role of general practice", to strengthen primary health care as the "cornerstone of our future health system". The report proposes Comprehensive Primary Health Care Centres and Services that will deliver "one-stop" primary health care; but in health care, bigger is not always better. The biggest challenge for the reform process may well be bringing together the different cultures of the largely private primary health care services, funded by the federal government, and the public, primary and community health services, funded by the states and territories. The report pays little real attention to the reforms needed to address the social determinants of health. There is a clear need for action now on the report's most urgent recommendations for Aboriginal and Torres Strait Islander health, mental health, dental health and services for rural and remote communities. Diversity is a great strength of Australian general practice, and we must not lose it in the rush to reform.

THE REPORT OF THE CONSERVATIVE PARTY TAX REFORM COMMISSION

Four economists give their views on the economics and political economy of the Conservative Party Tax Reform Commission Report.

Consumer Workshop Report—Fourth Scientific Meeting of the Australasian Society for Breast Disease (ASBD)

The inaugural ASBD consumer workshop was held at the ASBD Scientific Meeting in partnership with Breast Cancer Network Australia (BCNA) which represents breast cancer consumers at a national level. Participants included breast cancer survivors, partners and family members. The workshop was intended to bring women with a personal experience of breast cancer to a forum at the scientific meeting, to provide expert information on current breast cancer research and treatment, and to seek the views of consumers about participation in clinical trials and genetics research. Mr. Bill McLeay, breast surgeon and member of the ASBD Executive, explained the multidisciplinary composition of ASBD, and updated workshop participants with highlights of presentations from the scientific meeting. Father Bill Uren, a Jesuit priest whose background is moral philosophy, jurisprudence and theology, and is a member of the Australian Health Ethics Committee of the National Health and Medical Research Council, discussed Gene Research and the Australian Law Reform Commission Report. This included several aspects of human genetic research such as consent, data issues, and potential discrimination. Dr. Nicole McCarthy, a medical oncologist and clinical researcher, presented on cancer clinical trials and explained issues relevant to participants in clinical trials. The workshop on these two topics was conducted as facilitated small group discussion with reports back to the whole group. The discussion on genetic research addressed ethical issues about research into genes in women who have breast cancer. A hypothetical study was given to each group, and participants provided their views on the expected benefits of the research, access to information about research results involving genes, and the storage of genetic tissue. The cancer clinical trials discussion was scenariobased, and the feedback from participants varied according to the specific scenario. Their responses to the issues addressed identified the need for:

Rape Trial Studies: Handle with Care

The notion that the issue of the accused's honest belief about consent has little effect on the outcome of most rape trials has gained considerable acceptance amongst some rape law reformers. The acceptance of this claim can be partly traced to the Law Reform Commission of Victoria's study of rape prosecutions in 1991. However, properly considered, the study provides no support for this assertion. This is because of two limitations to the study: the merely cursory analysis of pre-trial decision making and the lack of plausible assessment of the jury's approach to its fact-finding task. Properly understood, the study's findings suggest a reform of the trial judge's direction to the jury, a possibility ignored in the Law Reform Commission's report. This paper argues that law reformers should pay more attention to such limitations when considering empirical research into rape prosecutions.

Decisions about life and death: assessing the Law Reform Commission and the Presidential Commission Reports.

This paper compares the critically comments upon certain aspects of the Canadian Law Reform Commission Report, Euthanasia, Aiding Suicide and Cessation of Treatment, and the United States Presidential Commission Report, Deciding to Forego Life-Sustaining Treatment. It focuses on their positions on euthanasia and on the general principles, values, and procedures that ought to govern practices of foregoing life-sustaining treatment. The paper first comments on the recent debate over the moral relevance of the killing/letting die distinction, since this issue appears crucial in assessing the rationality of the current, absolute prohibitions of direct killing in medical contexts, embodied both in law and in codes of ethics. This issue bear upon a question in the closing section--whether the withdrawal of foods and fluids is ever morally permissible.

Arbitration in Hong Kong: The Arbitration Ordinance 1963-1982

Hong Kong has recently been taking steps to establish itself as an Asian centre for commercial arbitration. In 1982 important amendments to the Hong Kong Arbitration Ordinance (Cap. 341 of the Laws of Hong Kong) were introduced and for the last eighteen months a Steering Committee has been working to establish an International Arbitration Centre and to ensure that the necessary resources and supporting facilities are made available to encourage parties in dispute to agree to arbitration in Hong Kong. The reform of the law of arbitration followed the Hong Kong Law Reform Commission's Report on Commercial Arbitration in 1981. Although largely modelled on the English Arbitration Acts of 1950 and 1979 the Arbitration Ordinance contains a number of important differences from the English legislation. These can be grouped under three headings: pre-arbitration conciliation, the role and procedure of the courts and arbitral procedure. The conciliation process is a feature of many agreements involving trade in the Far East, including the People's Republic of China. Section 2A of the Ordinance assists its effective implementation in four ways.