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Examining BA v The King: Can a ‘home’ provide security from domestic violence? Alternative Law Journal Pub Date : 2024-04-06 Bill Swannie
This article examines the High Court decision in BA v The King, which involved the relationship between tenancy law and the criminal offence of burglary. It argues that the Court should have given greater weight to the safety of victims of domestic violence, rather than privileging the rights of the accused under tenancy law.
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Under my umbrella: LGBTQIA+ rights, LGBTQIA+ researchers and ‘internal allyship’ Alternative Law Journal Pub Date : 2024-04-05 Aidan Ricciardo, Liam Elphick
In this article, we consider the ethical obligations that LGBTQIA+ researchers have in researching LGBTQIA+ rights. First, we consider the potential impact of identity and positionality. Although people of all LGBTQIA+ identities share common experiences of marginalisation and persecution, there is much diversity among LGBTQIA+ people and their many intersections. We then propose that LGBTQIA+ researchers
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Person, or property? Brain-Computer Interface technology and the law Alternative Law Journal Pub Date : 2024-02-13 Lachlan Robb, Scott Kiel-Chisholm
Discussions of robotics and the law are often limited to ‘what technology harms humans’, rather than considering what it means when ‘humans harm technology’. This article looks to advancements of Brain-Computer Interface (BCI) technology to argue how this can be an extension of individuals and therefore causes complicated legal questions that are yet to be resolved. This article identifies the law
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A decision-making guide for online content regulation Alternative Law Journal Pub Date : 2024-02-12 Dan Svantesson
This article examines the seven standard questions that must be confronted in nearly all decisions in the online content regulation field. By mapping out and discussing those standard questions, the article may hopefully aid both legislators and judges engaged in online content regulation. The checklist of questions canvassed here may also be used as a tool to evaluate laws aimed at online content
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LGBT people in prison in Australia and human rights: A critical reflection Alternative Law Journal Pub Date : 2024-02-08 Rachel Walters, Dwayne Antojado, Matt Maycock, Lorana Bartels
This article examines the human rights protections relevant to lesbian, gay, bisexual and/or transgender (‘LGBT’) people in Australian prisons. We commence by addressing some of the inequalities experienced by incarcerated LGBT people, before outlining the relevant international human rights frameworks and their implementation in Australia. We focus on Victoria as a case study, demonstrating that there
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The death of Veronica Nelson: Reconsidering the criminalisation of opiate use Alternative Law Journal Pub Date : 2024-02-06 Mark Davison, Patrick Keyzer
This article considers the preventable death of Veronica Nelson, an Aboriginal woman who had been denied bail and then suffered a terrible death in custody, which was the subject of recent bail reforms and a Coroner's Report that has recommended sweeping reforms to the management of people in custody. This article considers a reform that the Coroner and the Parliament did not, removing the criminal
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Where is the mutilation? Understanding the High Court’s deliberation on FGM in Vaziri and Magennis Alternative Law Journal Pub Date : 2024-01-30 Juliet Rogers
In 2015, Vaziri and Magennis – the first case on female genital mutilation (FGM) – was prosecuted in Australia. Three people were convicted. In 2018, the NSW Court of Criminal Appeal ruled that the judgment was a ‘potential miscarriage of justice’. The prosecution pushed for ‘leave to appeal’ to the High Court of Australia and for consideration of the meaning of mutilation. The appeal was held in 2019
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Injustice and indignity in the threshold of materiality Alternative Law Journal Pub Date : 2023-05-15 Catherine Zhou
This article considers the role of dignity in the context of procedural fairness and the threshold of materiality. The author argues that dignity and indignation operate as social contingencies wit...
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Ensuring universal access: The case for Medicare in prison Alternative Law Journal Pub Date : 2023-05-04 Damien Linnane, Donna McNamara, Lisa Toohey
This article makes the case for the provision of Medicare universally to all Australians, specifically to those who are currently incarcerated. As the article explains through its focus on mental h...
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The Jason Roberts case: A second or subsequent appeal process to correct miscarriages of justice? Alternative Law Journal Pub Date : 2023-05-04 Pascale Chifflet, Meribah Rose
The first re-trial under the second or subsequent appeal provisions introduced into the Criminal Procedure Act 2009 (Vic) has recently concluded, resulting in the acquittal of Jason Roberts for the...
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Aboriginal and Torres Strait Islander corporations: Time for a rethink? Alternative Law Journal Pub Date : 2023-04-17 Marina Nehme
The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is not currently equipped to empower Indigenous Australian to set up their for-profit businesses under its regime due to its ...
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The role of a First Nations Voice for delegated legislation Alternative Law Journal Pub Date : 2023-04-14 Lorne Neudorf
This article explores the role of a proposed Indigenous Voice in relation to Australia's largest source of new law: delegated legislation. It argues that in order for the Voice to have a meaningful...
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Preventing torture and other cruel, inhuman or degrading treatment of children in detention in Australia Alternative Law Journal Pub Date : 2023-04-11 Anita Mackay
This article considers the multitude of inquiries and investigations into the treatment of children in youth detention in Australia over the past five years (2017–2022) as well as examples of pract...
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Defining wellness in legal education: A reply to Kawamata Alternative Law Journal Pub Date : 2023-04-07 Jonathan Crowe
This article responds to Oscar Kawamata’s thought-provoking criticisms of the conception of law student well-being that I previously advocated in this journal. Kawamata argues that my objective mod...
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Rethinking prison visitation for children with incarcerated parents: Lessons from the Australian Capital Territory Alternative Law Journal Pub Date : 2023-04-04 Joanna Cui, Caroline Doyle, Lukas Carey
Children of incarcerated parents experience a range of vulnerabilities which have led to them being dubbed the ‘invisible victims’ of the criminal justice system. This article discusses the needs o...
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Stepping out of the ivory tower into fire and flood: Climate activism and the academy Alternative Law Journal Pub Date : 2023-03-07 Nicole Rogers
In early 2022, an unprecedented flood event in Lismore, New South Wales plunged an entire community into trauma and chaos. I draw upon this event to highlight the imperative for climate activism in...
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Domestic violence as terrorism: Can control orders succeed where DV orders have failed? Alternative Law Journal Pub Date : 2023-02-22 Brendan Walker-Munro, Catherine Walker-Munro
Scholars have recently begun to explore the similarities between domestic violence and domestic terrorism. Both forms of offending rely on the use and threat of violence in conjunction with control...
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Respect for juries: A rejoinder to Hemming on Pell Alternative Law Journal Pub Date : 2023-02-21 Jeremy Patrick
The High Court decision in Pell v The Queen continues to be the subject of extensive academic controversy. In a pair of important articles, evidence and criminal law scholar Andrew Hemming has defe...
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Legislating for human security: Could South Australia lead the way again? Alternative Law Journal Pub Date : 2023-01-24 Sarah Moulds, Mark Knight
Conventional approaches to legislating to protect individual rights in Australia have utilised the language and discourse of international human rights law, attracting both support and criticism fr...
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Policing by algorithm: NSW Police’s Suspect Target Management Plan Alternative Law Journal Pub Date : 2023-01-23 Elizabeth Englezos
This article considers New South Wales Police's Suspect Target Management Plan (STMP) and its disparate impact on young and Indigenous offenders. The article re-casts analyses provided by the Youth...
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Words that hurt: Why mental health stigma is often vilification, and requires legal protection Alternative Law Journal Pub Date : 2023-01-20 Simon Katterl
Despite a series of education programs and initiatives, mental health stigma persists across the community. This is due, in part, to the law’s silence on whether mental health stigma should be cons...
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The Scott Johnson Case: Prosecuting anti-homosexual violence in New South Wales Alternative Law Journal Pub Date : 2023-01-08 Stephen Tomsen, Tyrone Kirchengast
Much interest about the failure of New South Wales criminal justice in relation to anti-gay/anti-homosexual violence has centred on recent developments regarding the 1988 death of Scott Johnson, in...
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Mint, sell, repeat: Non-fungible tokens and resale royalties for Indigenous artists Alternative Law Journal Pub Date : 2022-11-24 Elizabeth Harris
This article examines whether the Resale Royalty Right for Visual Artists Act 2009 (Cth) provides adequate protections for artists working with non-fungible tokens (NFTs). Focussing on Indigenous A...
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Family violence and family law property division: How can the system be improved? Alternative Law Journal Pub Date : 2022-11-21 Miranda Kaye
This article explores how the economic impacts of violence can continue long after a relationship has ended and how the family law system is a generally unhelpful tool for financial recovery from a...
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Same-sex sexual activity and sex work offences in Papua New Guinea: Implications from the repeal of the death penalty Alternative Law Journal Pub Date : 2022-11-12 Bal Kama
This article discusses the recent repeal of the death penalty in Papua New Guinea and examines some potential implications for considerations to decriminalise same-sex sexual activity and sex work ...
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Four thresholds of doli incapax in Australia: Inconsistency or uniformity for children’s criminal responsibility? Alternative Law Journal Pub Date : 2022-11-11 Dominique Moritz, Mac Tuomi
The presumption of doli incapax is a legal safeguard for children who contravene the criminal law. Four distinct thresholds emerge from the application of doli incapax across the Australian jurisdi...
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Legislating consent in sexual relations: How significant is the move to affirmative consent? Alternative Law Journal Pub Date : 2022-11-08 Anthony North
There are significant problems with how the justice system responds to sexual violence. This essay discusses some of the Victorian Law Reform Commission’s recent reform recommendations, focusing on...
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It’s my party: The enforceability of political party rules Alternative Law Journal Pub Date : 2022-10-11 Graeme Orr
When may a political party’s rules be enforced in an Australian court? This apparently simple question, of the justiciability of disputes involving members of parties and their executives, has rece...
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Legal education, wellness and Buddhism: A student’s response to Crowe Alternative Law Journal Pub Date : 2022-10-10 Oscar H Kawamata
In an article published in this journal in 2020, Professor Jonathan Crowe proposed that ‘well-being’ in legal education should be defined according to one’s participation in objectively good human ...
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The fall of Roe v Wade, the US anti-abortion movement and its influence in Australia Alternative Law Journal Pub Date : 2022-10-10 Tania Penovic
This article examines the overturning of the landmark US Supreme Court decision of Roe v Wade, the precedent which conferred federal constitutional protection on the right to abortion. It looks at ...
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A coloniser’s view: On healing and native title reform Alternative Law Journal Pub Date : 2022-10-04 Annika Reynolds
This article explores, from my perspective as a white person, how the recognition of rights of nature under native title is one mechanism that could contribute to healing from, and moving beyond, c...
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Prison abolition and reform in Australia: A case for campaigners to take abolition seriously Alternative Law Journal Pub Date : 2022-09-29 Robyn Lewis
This article responds to criticisms that the abolition of carceral systems is an impossible ideal which inadvertently undermines criminal justice reform. I discuss the mixed results of criminal jus...
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Instinctive synthesis and the rule of law critique: Unlocking Aladdin’s cave Alternative Law Journal Pub Date : 2022-09-22 Jye Beardow
This article addresses the criticism that instinctive synthesis undermines the rule of law. With reference to Australia, the United States, and England and Wales, the author discusses two competing...
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A call for regulatory reform to make work experience accessible rather than an obstacle Alternative Law Journal Pub Date : 2022-09-21 Anne Hewitt, Laura Grenfell
It is widely recognised that a lack of work experience can impede university students seeking graduate employment and that many tertiary students face significant barriers in securing work experien...
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Human rights law and the protection of children: Corporal punishment in perspective Alternative Law Journal Pub Date : 2022-08-17 Laetitia-Ann Greeff
Although Australia does not have a federally enacted Bill of Rights, Victoria, the Australian Capital Territory and Queensland have all adopted legislation to protect the human rights of their resi...
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Decolonised law degrees: A misnomer Alternative Law Journal Pub Date : 2022-08-16 Heron Loban
Despite evidence of efforts to embed Indigenous cultural competencies in law degrees there is a distinct absence of an instrument to measure a university’s performance. Currently, broad statements ...
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The ethical chatbot: A viable solution to socio-legal issues Alternative Law Journal Pub Date : 2022-07-15 Jenny Ng, Emma Haller, Angus Murray
Chatbots are becoming important today because of their various technical functions. They are commonly known for providing legal guidance on processes and general information. However, chatbots can ...
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The meaning and potential of a human rights-based approach to climate change post-Sharma Alternative Law Journal Pub Date : 2022-07-13 Scott Walker
Against the background of the Sharma decisions, this article considers the meaning and potential of a human rights-based approach to climate change for Australia. It examines the human right to a h...
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Emerging trends in Australian climate change litigation: Bringing the heat Alternative Law Journal Pub Date : 2022-07-11 Laura Melrose
This article examines trends in Australian climate change litigation and emerging possibilities for future cases. It considers three categories of case: public sector government accountability, corporations in the private sector, and human rights. This analysis situates cases within the Paris Agreement categories of action (adaptation, mitigation, and loss and damage) and shows how the Paris Agreement
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Unwrapping Victoria’s general environmental duty to plastics communities: Synthetic statutes Alternative Law Journal Pub Date : 2022-07-08 L M Shirley, Miranda Aprile, Hayley Byrne, Brad Jessup, Shuai Liu
The manufacture, storage and disposal of plastics can have significant negative impacts on communities living near plastics facilities, which we have termed ‘plastics communities’. This article discusses how the general environmental duty, under Victoria’s reformed Environment Protection Act 2017, can be utilised by plastics communities. This duty has the potential to reduce the harm caused by plastics
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Community lawyering and climate justice: A new frontier Alternative Law Journal Pub Date : 2022-06-29 Monica Taylor, Bronwyn Lay
Climate change threatens the livelihoods of poor and marginalised people as they have the least capacity to adapt, recover and respond to climate events. This article presents climate justice as a new frontier for the Australian community legal sector and puts forward three key reasons why community legal centres (CLCs) are ideally suited to the challenge of climate justice-related legal work.
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When is a sentence manifestly excessive? Alternative Law Journal Pub Date : 2022-06-24 Paul McGorrery, Matthew Weatherson
The most common basis for sentence appeals in Victoria is that the original sentence, or some part of it, was manifestly excessive. To date, no empirical research has been undertaken examining the bounds of manifest excess. When is a sentence not just excessive, but manifestly so? This article fills that gap by examining 100 successful manifest excess sentence appeals between 2014 and 2020, finding
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What does a right to repair tell us about our relationship with technology? Alternative Law Journal Pub Date : 2022-06-23 Kayleen Manwaring, Matthew Kearnes, Bronwen Morgan, Paul Munro, Roberta Pala, Shanil Samarakoon
This article examines the recommendations of the recent Productivity Commission Inquiry regarding the right to repair through the lens of social issues surrounding the right to repair movement. It describes the right to repair movement in Australia and globally and examines which repair practices are considered important by the Commission, and the limitations of the Commission’s preoccupation with
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Caring for intergenerational justice Alternative Law Journal Pub Date : 2022-06-23
As a year 9 student on a school trip to the Melbourne Magistrates’ Court, sitting in the last row and half-listening to a traffic offence case, I would have been wondering where to have lunch with friends once the teacher let us off on break, or trying to remember if I’d put enough money on my Myki to get home.
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The practice of bride-price in the Australian Dinka community: Is it permissible under Australian law? Alternative Law Journal Pub Date : 2022-06-21 Mark A W Deng
In this article, I discuss some of the problems associated with bride-price, practised by the Dinka people. I argue that bride-price makes women objects of sale and purchase, then discuss the rise in bride-price and how this may also result in mistreatment of women, eg, it may lead to domestic violence. I then examine the status of the bride-price under Australian law, find that it is not illegal and
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Pedestrians’ rights in the time of the e-scooter:What happened to the ‘foot’ in footpath? Alternative Law Journal Pub Date : 2022-06-17 Ciprian N Radavoi, Wellett Potter
Hailed as a ‘green’ solution for decongesting traffic, electric scooters are invading the footpath in numerous cities in Australia. This article argues that legislative and local administrative action taken regarding the use of e-scooters in a space traditionally occupied by pedestrians and slow mobility devices should better balance the rights and interests at stake.
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The Youth Allowance independence test Alternative Law Journal Pub Date : 2022-05-31 Tegan Evans
This Brief describes the current requirements to access Youth Allowance, the federal income support payment for fulltime students and apprentices. The author discusses the ‘independence’ test and its application to young people aged 21 or younger. She explores the inaccessibility of this payment for estranged or victimised youth, particularly for the LGBTQIA+ community, due to the disproportionate
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The vital role of law in fighting Australia’s food waste Alternative Law Journal Pub Date : 2022-05-26 Susan Bird, Upamali Amarakoon, Xiaoyan Liang, David Pearson
Food waste is a global problem, with significant environmental, social and economic implications. A concerted effort that engages all world governments would be an optimal approach to address food waste. While there has been some international agreement, strategies on how to reduce food waste remain the purview of national, state and local governments. In this article, we explore the Australian government’s
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Public procurement for protecting human rights Alternative Law Journal Pub Date : 2022-05-22 Fiona McGaughey, Rebecca Faugno, Elise Bant, Holly Cullen
Public procurement presents opportunities for improved human rights protection, specifically requiring that suppliers of government goods and services respect human rights. We discuss two recent developments: the introduction of the Modern Slavery Act 2018 (Cth) (MSA) which applies to businesses and Commonwealth entities and particularly, recent moves by the Western Australian government to introduce
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The definition of ‘violent conduct’ for Drug Court program access Alternative Law Journal Pub Date : 2022-05-14 Amanda Clarke
Neither ‘violent conduct’ nor ‘charged’ are defined in the founding New South Wales (NSW) drug court legislation in relation to the definition of an ‘offence involving violent conduct’ as defined in s 5(2)(b) of the Drug Court Act 1998. Accordingly, the court has relied upon the case law interpretation which has triggered much debate in NSW. The fundamental point of debate is whether the concept relates
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The dangers of pre-recorded evidence: As soon as practicable? Alternative Law Journal Pub Date : 2022-05-10 Georgia Crocker
This article examines the impacts of giving pre-recorded evidence on complainants in family violence matters in the Australian Capital Territory (ACT). The use of pre-recorded evidence in the ACT was enabled in 2015 by the Crimes (Domestic and Family Violence) Legislation Amendment Act, which aimed to protect family violence complainants from being further traumatised by this element of the criminal
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Police immunity from criminal liability: The High Court and the Zachary Rolfe murder trial Alternative Law Journal Pub Date : 2022-04-30 Stephen Gray
This article considers the High Court decision of November 2021 concerning the immunity from criminal prosecution for police contained in the Northern Territory’s Police Administration Act. It then discusses the idiosyncratic way the immunity came into being, and the question of whether it was introduced by accident or design. Thirdly, it considers the desirability of including immunities of this sort
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Positive duties to prevent sexual harassment at work: Treat the symptom or cure the disease? Alternative Law Journal Pub Date : 2022-04-30 Miranda G Stewart
This article examines one of the recommendations made by the Australian Human Rights Commission’s Respect@Work Report – to amend the Sex Discrimination Act 1984 (Cth) – to implement a positive duty on employers to prevent sexual harassment at work. This article argues that such a duty would not only improve the Act’s effectiveness but could minimise the pervasive problem of sexual harassment in the
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Can employers mandate their employees receive the COVID-19 vaccine? Alternative Law Journal Pub Date : 2022-04-30 Katherine Jefferies
This article considers the legality of employers mandating the COVID-19 vaccination in Australia. A current and pertinent topic of debate, the author explores the multiple avenues an employer may have in order to make the COVID-19 vaccine compulsory and makes comparison to other regularly accepted vaccinations such as the influenza immunisation.
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How Australia’s foreign interference laws undermine press freedom Alternative Law Journal Pub Date : 2022-04-29 Sarah Kendall
This article considers the impact of Australia’s foreign interference laws on press freedom. It finds that the laws have the potential to criminalise legitimate, good faith journalism, without providing adequate protections for journalists and sources. It makes several recommendations for law reform so that national security is protected without unduly undermining freedom of the press.
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Implementing the Sustainable Development Goals post-COVID-19: A study of Australia and Sweden Alternative Law Journal Pub Date : 2022-04-29 Kishaya Delaney,Amy Maguire
The United Nations 2030 Agenda for Sustainable Development offers countries an opportunity to align domestic law and policy through its framework of international Sustainable Development Goals (SDGs), in an effort to transform the global community. The success of the SDGs rests on their domestic implementation, which can be judged by measurement against targets. This article demonstrates the variable
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Addressing legal needs of young people in Out-of-Home Care: Practitioners call for radical change Alternative Law Journal Pub Date : 2022-04-21 Stacey McMillan,Holly Lawson,Kath McFarlane
Young Australians exiting Out-of-Home Care (OOHC) face some of the most challenging access to justice issues due to experiences of trauma, increased interactions with the justice system, distrust of government services, high rates of socioeconomic disadvantage and a lack of accessible support services. This article outlines the experience of the Mid North Coast Legal Centre (MNCLC) which, through the
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Ending seclusion and restraint use in Victoria’s mental health services: The implications for women of the Royal Commission’s recommendations Alternative Law Journal Pub Date : 2022-03-29 Yvette Maker
This article discusses the recommendations of the Royal Commission into Victoria’s Mental Health System relating to the reduction and elimination of the use of seclusion and restraint. The author focuses on the implications of these recommendations for women. She argues that the Royal Commission’s proposals stand to benefit all mental health consumers but did not address the full range of gender-specific