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Books

Biber, K. & Luker, T. 2017, Evidence and the Archive: Ethics, Aesthetics and Emotion, Routledge.

Butler, D. & Holland, G. 2017, Entertainment Law in Australia.

Purcell, K.C. 2017, Geographical Change and the Law of the Sea (forthcoming), 1st, Oxford University Press.

Chapters

Biber, K. 2017, 'The Cultural Afterlife of Criminal Evidence' in Rafter, N. & Brown, M. (eds), Oxford Research Encyclopedia of Criminology, Oxford University Press, New York, pp. 1-20.
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This article explores what happens to criminal evidence after the conclusion of legal proceedings, described here as the afterlife of evidence. The text investigates the ways that this material proliferates in the shadow of the law, in both cultural and commercial contexts. During the criminal trial, the rules of evidence and criminal procedure operate to tightly regulate the collection, admissibility, and interpretation of evidence. After the criminal trial, these rules no longer control evidence, and this material is sometimes subject to the substantial cultural curiosity associated with true crime and its artifacts. This article sets out some of the new questions that are posed by this material when it is transferred beyond the law’s control.

Goldblatt, B.A. 2017, 'Social (In)Security and Inequality in Australia: The Limited Role of Human Rights in the Policy Debate' in Durbach, A. & Edgeworth, B. (eds), Law and Poverty in Australia40 Years after the Poverty Commission, Federation Press, Annandale, pp. 183-198.
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This chapter explores the place of human rights within policy and legislative debates on social security in Australia 40 years after the Sackville Report recommended that the government treat income support as a right. It examines recent consideration by the Federal Parliament of the right to social security and the response by non-governmental bodies to violations of the right by the Australian Government. The chapter concludes that the international right to social security, while gaining greater prominence and definition, has proved limited in its capacity to improve the lives of Australians facing poverty, insecurity and inequality in the current political and legal context. The chapter proposes that calls for a right to social security should be linked to a right to equality and reiterates the long-standing and widely-held view that enforceable human rights are overdue in Australia.

Holland, G. 2017, 'Agents and Managers: Keys to Success in Entertainment' in Butler, D. & Holland, G. (eds), Entertainment Law in Australia, Federation Press, Sydney, Australia.
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Silink, A.J. 2017, 'Protecting children from abuse and neglect' in Young, L., Kenny, M.A. & Monahan, G. (eds), Children and the Law in Australia, LexisNexis Butterworths, Chatswood Australia.

Stewart, P.E. & Silink, A. 2017, 'Compensation for survivors of Institutional Child Sexual Abuse in Australia: Tortious rights and challenges for reform' in Young, L., Kenny, M.A. & Monahan, G. (eds), Children and the Law in Australia, LexisNexis Butterworths, Chatswood Australia, pp. 337-375.
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Stoianoff, N.P., Cahill, A. & Wright, E.A. 2017, 'Indigenous knowledge: what are the issues?' in Stoianoff, N.P. (ed), Indigenous Knowledge Forum: Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture, LexisNexis, pp. 11-37.

Stuhmcke, A.G. & Stewart, P. 2017, 'The 'Child' In Utero and Ex Utero' in young, L., Kenny, M. & Monahan, G. (eds), Children and the Law in Australia, Lexis Nexis, Sydney, pp. 55-82.

Varnham, S. 2017, 'Education Law in Aotearoa New Zealand' in Russo, C.J. (ed), Handbook of Education Law: Asia, Australia and New Zealand, Rowman & Littlefield Education, Maryland, US.
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Examination of the increasing recognition of the impact of law on education in Aotearoa New Zealand and analysis of current exercise of the right to education as fundamental to the welfare of New Zealand and its society.

Varnham, S. 2017, 'Education Law in Aotearoa New Zealand' in Comparative Legal Issues in Elementary and Secondary Education, Rowman & Littlefield, Maryland, US.
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Analysis of the increasing impact of law on the organisation and delivery of compulsory education in New Zealand, and comparative discussion of the exercise of the right to and rights in education

Vrdoljak, A.F. 2017, 'Criminalisation of the Illicit trade in cultural property' in Geismar, H. & Anderson, J. (eds), The Routledge Companion to Cultural Property, Routledge, London, pp. 54-69.
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Vrdoljak, A.F. 2017, 'Cultural Heritage, Human Rights and the Privatisation of War' in Durbach, A. & Lixinski, L. (eds), Heritage, Culture and Rights: Challenging Legal Discourses, Hart Publishing, Oxford, pp. 61-89.

Wright, E.A., Cahill, A. & Stoianoff, N.P. 2017, 'Australia and Indigenous traditional knowledge' in Stoianoff, N.P. (ed), Indigenous Knowledge Forum: Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture, LexisNexis, pp. 39-68.

Journal articles

Biber, K. 2017, 'Evidence in the museum: Curating a miscarriage of justice', Theoretical Criminology, pp. 1-18.
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After the conclusion of criminal proceedings, criminal evidence sometimes survives in what is described here as an afterlife. In its afterlife, criminal evidence is preserved in various locations; this article explores the museum as a repository for evidentiary exhibits. It examines the case of Lindy Chamberlain, the victim of Australia’s most notorious miscarriage of justice, and the evidence that has survived since her exoneration. Drawing upon interviews with Chamberlain herself, and also the curator of the Chamberlain collections at the National Museum of Australia, this article examines the challenges posed by curating a wrongful conviction.

Buonamano, R.L. 2017, 'Kafka and legal critique', Griffith Law Review, vol. 25, no. 4.
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Evers, M. & Townsley, L. 2017, 'The importance of ethics in the law curriculum: essential or incidental?', Law Teacher.
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© 2015 The Association of Law Teachers Recently, the debate as to whether ethics should be a compulsory requirement of a law degree was refuelled when the English and Welsh Legal Education Training Review (LETR) recommended that professional ethics should be primarily addressed in vocational Legal Services and Education Training programmes and that learning outcomes in the academic curriculum should include reference to morality and the law, the values supporting the legal system and their connection to the role of lawyers. This debate is also occurring in other jurisdictions. In Australia the debate is focused on the proposal that ethics be removed as a compulsory subject in the law degree. This proposal has raised a concern that law students will be denied the opportunity to develop as ethically competent lawyers. This paper argues for the continuation of ethics as a core component of a law degree and evidences the model used for the teaching of ethics in the law degree at the University of Technology Sydney in support of our argument. The background to the model is examined to highlight the significance of student feedback and ongoing curriculum review, including the alignment of parallel pedagogical factors. This model serves as an example of not only why ethics should be core to a law degree but, in order to provide graduates who are ethical and reflective practitioners, why ethics should be pervasively taught throughout the degree and supported by an introductory and capstone presence.

Fallah, K.L. 2017, 'Re Georgio: An Intimate Account of Transgender Interactions with Law and Society', Griffith Journal of Law & Human Dignity, vol. 5, no. 1, pp. 6-39.
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In its everyday operation, the law presumes to narrate trans stories and shape trans lives. This article shines a light on law’s claims to authority over transgender identities and transgender bodies, and offers an alternate, intimate account of one transgender person’s interactions with law and society. The stories recounted here offer glimpses into the life of Georgio. Written from the perspective of someone who has had the privilege of bearing witness to his journey, this article assembles incomplete fragments of the joys and frustrations of Georgio’s gender transition and invites deeper reflection on legal assumptions about the lives of transgender people. It represents an attempt to breathe humanity into law’s cold scripts of gender identity.

Goggin, G., Steele, L. & Cadwallader, J.R. 2017, 'Normality and disability: intersections among norms, law, and culture', Continuum, vol. 31, no. 3, pp. 337-340.
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Graham, N.G. 2017, 'Australian Environment Review', Australian Environment Review, vol. 31, no. 10, pp. 364-369.
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Harris, J. & Hargovan, A. 2017, 'Still a sleepy hollow? Directors’ liability and the business judgment rule', Australian Journal of Corporate Law, vol. 31.

Jackson, E., Millbank, J., Karpin, I. & Stuhmcke, A. 2017, 'Learning from Cross-Border Reproduction.', Med Law Rev, vol. 25, no. 1, pp. 23-46.
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Drawing upon the preliminary findings of an Australian empirical project on cross-border reproduction (CBR), this article argues that regulators and policymakers could learn from the experiences of those who travel overseas in order to access fertility treatment and surrogacy. It makes four principal observations. First, the distinction between so-called 'altruistic' and 'commercial' gamete donation and surrogacy is increasingly unsustainable and is not experienced as meaningful by many participants in CBR. Secondly, the status of the law in CBR is profoundly equivocal; for participants it is often there and not there at the same time. Thirdly, self-sourced information, from the internet and more specifically social media such as Facebook, is now the principal source of information and peer support for reproductive travellers. Fourthly, and relatedly, domestic reproductive services providers are often sidestepped. If one of the goals of regulation is to minimise the risk of harm to participants, it is not clear that it is currently achieving this aim, and this article argues that any reforms will only work if they are more responsive to the reality of CBR.

Knight, S., Buckingham Shum, S., Ryan, P., Sándor, Á. & Wang, X. 2017, 'Academic Writing Analytics for Civil Law: Participatory Design Through Academic and Student Engagement', International Journal of Artificial Intelligence in Education.
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Research into the teaching and assessment of student writing shows that many students find academic writing a challenge to learn, with legal writing no exception. Improving the availability and quality of timely formative feedback is an important aim. However, the time-consuming nature of assessing writing makes it impractical for instructors to provide rapid, detailed feedback on hundreds of draft texts which might be improved prior to submission. This paper describes the design of a natural language processing (NLP) tool to provide such support. We report progress in the development of a web application called AWA (Academic Writing Analytics), which has been piloted in a Civil Law degree. We describe: the underlying NLP platform and the participatory design process through which the law academic and analytics team tested and refined an existing rhetorical parser for the discipline; the user interface design and evaluation process; and feedback from students, which was broadly positive, but also identifies important issues to address. We discuss how our approach is positioned in relation to concerns regarding automated essay grading, and ways in which AWA might provide more actionable feedback to students. We conclude by considering how this design process addresses the challenge of making explicit to learners and educators the underlying mode of action in analytic devices such as our rhetorical parser, which we term algorithmic accountability.

Millbank, J. 2017, 'Reflecting the ‘Human Nature’ of IVF Embryos: Disappearing Women in Ethics, Law, and Fertility Practice', Journal of Law and the Biosciences.
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Many laws and ethical documents instruct us that disembodied embryos created through IVF processes are not mere tissue; they are ‘widely regarded’ as unique objects of serious moral consideration. Even in jurisdictions which disavow any overt characterization of embryonic personhood, the embryo, by virtue of its uniqueness and orientation toward future development, is said to have a ‘special status’ or command ‘respect’. The woman whose desire for a child or children created this embryo, and who inhabits the body to whom it may one day be returned, is an omission or at best an afterthought in such frameworks. This paper engages in an historical analysis of this conundrum in the Australian context. It argues that the institutional structure of foundational ethics bodies (made up of a mandated mix of scientific and religious representation, in practice dominated by men, and absent any requirement of the participation of women patients) has produced the embryo as an object of ideological compromise: ‘not mere cells’ and ‘not life’, but a poorly bounded and endlessly contested something-in-between. The paper then turns to engage with the narratives of a selection of women patients about their sense of connectedness to their stored or discarded embryos, drawn from a larger study on decision making concerning patient's experience of decision making about IVF embryos. I draw on these narratives to ask how we could reorient law and policy toward the concerns, needs and desires of such women.

Millbank, J., Stuhmcke, A. & Karpin, I. 2017, 'Embryo donation and understanding of kinship: the impact of law and policy.', Hum Reprod, vol. 32, no. 1, pp. 133-138.
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STUDY QUESTION: What is the impact of law and policy upon the experience of embryo donation for reproductive use? SUMMARY ANSWER: Access to, and experience of, embryo donation are influenced by a number of external factors including laws that impose embryo storage limits, those that frame counselling and approval requirements and allow for, or mandate, donor identity disclosure. WHAT IS KNOWN ALREADY: To date only three qualitative studies in Australia and New Zealand have been completed on the experience of embryo donation for reproductive purposes, each with a small cohort of interviewees and divergent findings. STUDY DESIGN, SIZE, DURATION: Embryo donors, recipients, and would-be donors were interviewed between July 2010 and July 2012, with three additional interviews between September 2015 and September 2016, on their experiences of embryo donation. The sampling protocol had the advantage of addressing donation practices across multiple clinical sites under distinct legal frameworks. PARTICIPANTS/MATERIALS, SETTINGS, METHODS: Participants were recruited from five Australian jurisdictions and across 11 clinical sites. Twenty-six participants were interviewed, comprising: 11 people who had donated embryos for the reproductive use of others (nine individuals and one couple), six recipients of donated embryos (four individuals and one couple) and nine individuals who had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. In total, participants reported on 15 completed donation experiences; of which nine had resulted in offspring to the knowledge of the donor. MAIN RESULTS AND THE ROLE OF CHANCE: Donors positively desired donation and did not find the decision difficult. Neither donors nor recipients saw the donation process as akin to adoption . The process and practice of donation varied considerably across different jurisdictions and clinical sites. LIMITATIONS, REASONS FOR CAUTION: Because the pool of donors and recipi...

Opeskin, B. 2017, 'The Supply of Judicial Labour: Optimising a Scarce Resource in Australia'.
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Pearce, C.M. 2017, 'The Search for a Long-term Solution to Short-term Rentals: The Rise of Airbnb and the Sharing Economy', University of Tasmania Law Review, vol. 35, no. 2, pp. 58-78.
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Rawling, M.J., Johnstone, J. & Nossar, I. 2017, 'Preventing Road Safety: The Abolition of the Road Safety Remuneration Tribunal and its Role in Regulating Road Transport Supply Chains', Sydney Law Review, vol. 2017 (forthcoming).

Ryan, P. 2017, 'Teaching collaborative problem-solving skills to law students', The Law Teacher, vol. 51, no. 2, pp. 138-150.
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Saunders, C. & Carter, D.J. 2017, 'Is health systems integration being advanced through Local Health District planning?', Australian Health Review, vol. 41, no. 2, pp. 154-161.
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Objective Delivering genuine integrated health care is one of three strategic directions in the New South Wales (NSW) Government State Health Plan: Towards 2021. This study investigated the current key health service plan of each NSW Local Health District (LHD) to evaluate the extent and nature of health systems integration strategies that are currently planned. Methods A scoping review was conducted to identify common key principles and practices for successful health systems integration to enable the development of an appraisal tool to content assess LHD strategic health service plans. Results The strategies that are planned for health systems integration across LHDs focus most often on improvements in coordination, health care access and care delivery for complex at-risk patients across the care continuum by both state- and commonwealth-funded systems, providers and agencies. The most common reasons given for integrated activities were to reduce avoidable hospitalisation, avoid inappropriate emergency department attendance and improve patient care. Conclusions Despite the importance of health systems integration and finding that all NSW LHDs have made some commitment towards integration in their current strategic health plans, this analysis suggests that health systems integration is in relatively early development across NSW. What is known about the topic? Effective approaches to managing complex chronic diseases have been found to involve health systems integration, which necessitates sound communication and connection between healthcare providers across community and hospital settings. Planning based on current health systems integration knowledge to ensure the efficient use of scarce resources is a responsibility of all health systems. What does this paper add? Appropriate planning and implementation of health systems integration is becoming an increasingly important expectation and requirement of effective health systems. The present study is the fir...

Saunders, C. & Carter, D.J. 2017, 'Is health systems integration being advanced through Local Health District planning?', Australian Health Review.
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Delivering genuine integrated health care is one of three strategic directions in the New South Wales (NSW) Government State Health Plan: Towards 2021. This study investigated the current key health service plan of each NSW Local Health District (LHD) to evaluate the extent and nature of health systems integration strategies that are currently planned.Methods A scoping review was conducted to identify common key principles and practices for successful health systems integration to enable the development of an appraisal tool to content assess LHD strategic health service plans.Results The strategies that are planned for health systems integration across LHDs focus most often on improvements in coordination, health care access and care delivery for complex at-risk patients across the care continuum by both state- and commonwealth-funded systems, providers and agencies. The most common reasons given for integrated activities were to reduce avoidable hospitalisation, avoid inappropriate emergency department attendance and improve patient care.Conclusions Despite the importance of health systems integration and finding that all NSW LHDs have made some commitment towards integration in their current strategic health plans, this analysis suggests that health systems integration is in relatively early development across NSW.What is known about the topic? Effective approaches to managing complex chronic diseases have been found to involve health systems integration, which necessitates sound communication and connection between healthcare providers across community and hospital settings. Planning based on current health systems integration knowledge to ensure the efficient use of scarce resources is a responsibility of all health systems.What does this paper add? Appropriate planning and implementation of health systems integration is becoming an increasingly important expectation and requirement of effective health systems. The present study is the first of its kind to as...

Saunders, C. & Carter, D.J. 2017, 'Right care, right place, right time: improving the timeliness of health care in New South Wales through a public-private hospital partnership.', Australian health review : a publication of the Australian Hospital Association.
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Objective The overall aim of the study was to investigate and assess the feasibility of improving the timeliness of public hospital care through a New South Wales (NSW)-wide public-private hospital partnership.Methods The study reviewed the academic and professional grey literature, and undertook exploratory analyses of secondary data acquired from two national health data repositories informing in-patient access and utilisation across NSW public and private hospitals.Results In 2014-15, the NSW public hospital system was unable to deliver care within the medically recommended time frame for over 27400 people who were awaiting elective surgery. Available information indicates that the annual commissioning of 15% of public in-patient rehabilitation bed days to the private hospital system would potentially free up enough capacity in the NSW public hospital system to enable elective surgery for all public patients within recommended time frames.Conclusions The findings of the study justify a strategic whole-of-health system approach to reducing public patient wait times in NSW and highlight the need for research efforts aimed at securing a better understanding of available hospital capacity across the public and private hospital systems, and identifying and testing workable models that improve the timeliness of public hospital care.What is known about the topic? There are very few studies available to inform public-private hospital service partnerships and the opportunities available to improve timely health care access through such partnerships.What does this paper add? This paper has the potential to open and prompt timely discussion and debate, and generate further fundamental investigation, on public-private hospital service partnerships in Australia where opportunity is available to address elective surgery wait times in a reliable and effective manner.What are the implications for practitioners? The NSW Ministry of Health and its Local Health Districts have th...

Scott, M. & Collins, P. 2017, 'The Essential Nature of a Collaborative Practice Group for Successful Collaborative Lawyers', Australasian Dispute Resolution Journal, vol. 28, pp. 12-18.
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Simm, G. 2017, 'Disaster Response in Southeast Asia: The ASEAN Agreement on Disaster Response and Emergency Management', Asian Journal of International Law.
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Southeast Asia includes some of the states at greatest risk of disasters worldwide, and ASEAN has been at the forefront of using international law to attempt to co-operate in disaster risk reduction and response. The ASEAN Agreement on Disaster Management and Emergency Response (AADMER) is a regional treaty that has been hailed as among the world’s best practice: progressive, comprehensive, and, unusually for a disaster instrument, legally binding. This paper evaluates ASEAN’s responses to two mega-disasters: Cyclone Nargis that hit Myanmar in May 2008 and Super-typhoon Haiyan/Yolanda that hit the Philippines in November 2013. The paper aims further to investigate the role of non-state actors, such as civil society and the private sector, in institutionalizing and implementing AADMER.

Steele, L. 2017, 'Policing normalcy: sexual violence against women offenders with disability', Continuum, vol. 31, no. 3, pp. 422-435.
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© 2017 Informa UK Limited, trading as Taylor & Francis Group.This article explores police responses to sexual violence reported by women offenders designated as having cognitive and psychosocial disabilities. The article does so by reference to the critical disability studies analytical approach to disability as socially constructed ‘abnormality’. This article utilizes this approach in analysing the recorded police contacts of one woman offender designated as disabled, ‘Jane’. Jane has had multiple contacts with police over a period of 15 years as a victim of sexual violence, alleged offender and ‘mentally ill’ person. The article finds that through multiple contacts with police as victim, alleged offender and ‘mentally ill’ person, the police events records build a narrative of Jane as an ‘abnormal’ body who is reduced to a drain on police and public health resources, a dishonest and nuisance offender and an attention seeker. The article argues that it is the interlocking discourses of gender, disability and criminality that produce Jane as unworthy of victim status and, perversely, in need of punishment by the criminal justice system for her public displays of trauma, mental distress and requests for police assistance. Ultimately, the article concludes that we need to give greater attention to the relationship between disability and affect, and to the broader cultural, institutional, legal and economic discourses that shape individuals’ affective responses, in understanding police responses to violence against women offenders designated as disabled and in contesting these women’s status as ‘ungrievable’ victims of violence.

Stoianoff, N.P. & Walpole, M. 2017, 'Tax and the environment: an evaluation framework for tax policy reform - group Delphi study', Australian Tax Forum: a journal of taxation policy, law and reform, vol. 31, pp. 693-716.

Stuhmcke, A.G. 2017, 'Australian Ombudsmen: Drafting a Blueprint for Reform', Australian Journal of Administrative Law, vol. 24, pp. 43-63.
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The ombudsman institution was introduced across all Australian jurisdictions from the 1970s as a central piece of administrative law reform. The original role of the office was to scrutinise administrative decision making and to promote government accountability through the resolution of citizen complaints. However, since the 1970s all Australian governments have undergone significant change. Government has expanded involvement into areas such as whistle blower and disability protection and human rights. Government also increasingly outsources decision-making to private companies, leading to the introduction of private industry ombudsmen and the removal of control from the purview of administrative law transparency mechanisms. This article argues that this transformation necessitates discussion as to reform of the ombudsman institution and suggests a new blueprint for such reform

Conferences

Dorsett, S.G. 2017, 'A Particular Kind of Imperial Subject: Edward Meurant, Interpreters and Protective Governance in the New Zealand Crown Colony Period', Protective Governance and its Intermediaries, Canberra.

Other

Goldblatt, B.A. 2017, 'Cuts to sole parent benefits are human rights violations', The Conversation, Sydney.