Swain on The Use and Misuse of Legal History in the High Court of Australia

Warren Swain, University of Auckland Faculty of Law, is publishing The Use and Misuse of Legal History in the High Court of Australia in The Impact of Law's History What's Past is Prologue (Sarah McKibben, Jeremy Patrick, and Marcus K Harmes, eds., Palgrave Macmillan, 2022). Here is the abstract.

Legal history is sometimes seen as little more than the study of ‘old, unhappy, far-off things’. This is reflected by the fact that the subject is no longer central to the undergraduate law curriculum. Yet this fact doesn’t tell quite the whole story. During the 1980s the High Court began to shift Australian private law in new directions. That the law has changed significantly in the last thirty years is not disputed. The precise manner in which the High Court have gone about changing the face of Australian private law, particularly through the use of historical sources is less well documented. At the heart of the process is a paradox. In reforming the common law arguments derived from history, sometimes quite ancient history, have played a vital role. This paper will explore the way in which the High Court have used historical arguments and seek to draw some lessons about what this tells us about the High Court in the post-colonial period. The doctrine of contractual penalties is used as an example.

Download the essay from SSRN at the link.

Newly Published: Jeremy Bentham and Australia (Edited by Tim Causer, Margot Finn, and Philip Schofield, UCL Press), Free for Download @TimCauser @ElCatHome @UCLpress

 New Publication

Jeremy Bentham and Australia is a collection of scholarship inspired by Bentham’s writings on Australia. These writings are available for the first time in authoritative form in Panopticon versus New South Wales and other writings on Australia, a volume in The Collected Works of Jeremy Bentham published by UCL Press.

 

In the present collection, a distinguished group of authors reflect on Bentham’s Australian writings, making original contributions to existing debates and setting agendas for future ones. In the first part of the collection, the works are placed in their historical contexts, while the second part provides a critical assessment of the historical accuracy and plausibility of Bentham’s arguments against transportation from the British Isles. In the third part, attention turns to Bentham’s claim that New South Wales had been illegally founded and to the imperial and colonial constitutional ramifications of that claim. Here, authors also discuss Bentham’s work of 1831 in which he supports the establishment of a free colony on the southern coast of Australia. In the final part, authors shed light on the history of Bentham’s panopticon penitentiary scheme, his views on the punishment and reform of criminals and what role, if any, religion had to play in that regard, and discuss apparently panopticon-inspired institutions built in the Australian colonies.

 

This collection will appeal to readers interested in Bentham’s life and thought, the history of transportation from the British Isles, and of British penal policy more generally, colonial and imperial history, Indigenous history, legal and constitutional history, and religious history.

The book is edited by Tim Causer, Margot Finn, and Philip Schofield.

Jeremy Bentham and Australia: Convicts, Utility, and Empire (UCL Press) is free for download at this link. 

 

Poon on How a Body Becomes a Boat: The Asylum Seeker in Law and Images @juselk

ICYMI:

Justine Poon, Australian National University College of Law, has published How a Body Becomes a Boat: The Asylum Seeker in Law and Images, at 30 Law & Literature 105 (2018).  Here is the abstract.

Asylum seekers arriving in Australia by boat to seek protection have been the catalyst for significant legal reform and the proliferation of political discourses. The paper analyses the metaphor of the boat as being a common trope in the legislative category of the “unauthorized maritime arrival” and in the government images that advertised this legal change. The figure of the boat effaces the asylum-seeker's body from the frame of law and discourse and constructs a myth about sovereignty and borders that enables coercive control over asylum seeker bodies.

Rick Grimes (The Walking Dead) In an Australian Court @bucketorange

More of Sarah Lynch's musings on chargeable crimes for tv characters here for Bucket Orange. This time she considers what Rick Grimes of The Walking Dead has been up to, and what charges he might face in an Australian court.

Dracula In Court @bucketorange

By Sarah Lynch, for Bucket Orange Magazine, a discussion of possible crimes Dracula could be charged with under Australian law. They include stalking and false imprisonment. But he's so charming...

Pert on the Development of Australia's Legal Personality

Alison Pert, University of Sydney Law School, has published The Development of Australia's International Legal Personality at 34 Australian Yearbook of International Law 149 (2017). Here is the abstract.

This article considers the concepts of statehood, sovereignty, independence and international legal personality as they applied to Australia in the early years after federation in 1901. It outlines the reasons for, and the process of, federation, and charts the subsequent uneven growth in autonomy in matters of foreign relations granted by the United Kingdom. One of the clearest manifestations of such autonomy is the power to enter into treaties, and the development of this power is therefore described in some detail. The precise international legal status of Australia and the other British Dominions in the early part of the 20th century was a mystery to most legal commentators, both within and outside the British Empire. This uncertainty was compounded by the rapidity of constitutional change within the Empire, particularly in the 1920s, and by Australia’s apparent diffidence to independence. For these reasons, few writers have suggested a specific date on or by which Australia acquired international legal personality. This article argues that regardless of when Australia might have gained full international legal personality, tantamount to independence, it had acquired “almost full” international personality by 1923, sufficient to enable it to act autonomously on the international plane.

Download the essay from SSRN at the link.

van Rijswijk on the "Abused Aboriginal Child" In the Australian Legal Imaginary

Honni van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Towards a Literary Jurisprudence of Harm: Re-Writing the Aboriginal Child in Law's Imaginary of Violence in the Canadian Journal of Women and the Law. Here is the abstract.

The figure of the “abused Aboriginal child” haunts the Australian legal imaginary in ways that are both poignant and dangerous. This article examines the role this figure has played in assertions of Australian law’s violent jurisdictions, in the past and in the present. I examine the narratives that support law’s claims to authority and jurisdiction over Aboriginal communities, arguing that practices of representation — narrative, figuration, and what we might more widely think of as “law’s imaginary” — need to be interrogated and challenged, as an important means of intervening in law’s violent jurisdictions. We need to engage in what I term here a “literary jurisprudence,” in order to intervene in law’s claims to authority and jurisdiction that are based on narratives of purported harm to the Aboriginal child. “Haunting” is used to think through the significance of the legal imagination in two ways: the ways in which narratives in legal and state archives affect culture and politics; and also the role of law’s own imaginary and the ways in which its figures and narratives affect judicial outcomes, perhaps in ways that function beyond logic. To say that law is haunted by the figure of the abused Aboriginal child is to point to the affective, political, legal, and imaginative afterlife of narratives and figurations that are part of law, and which are not ended with each case or legislative regime but which, unresolved, are always living on. By way of an example of these practices, I provide a reading of harm in the novels of Alexis Wright, a leading Australian novelist, which I argue together provide an exemplary text that counters state law’s representational practices and claims. What is needed to resist the use of the child figure as the occasion for further violence, I argue, and what this reading provides, can be described as a “counter-imaginary” to law’s. This counter-imaginary re-writes law’s narratives and figures, connects that which law has separated, and makes visible that which law has occluded. In particular, each of Wright’s three novels Plains of Promise (1997), Carpentaria (2006), and The Swan Book (2013) is concerned with the relation of harm to questions of Aboriginal authority. Together, all three of Wright’s novels provide a developed counter-imaginary to law’s continuing assertions of authority over Aboriginal people based on the figure of the “abused Aboriginal child,” from the early twentieth century to the present.

Download the article from SSRN at the link.

Al-Alosi on Young People as Creators of Sexually Explicit Online Fan Fiction and the Australian Legal Regime

Hadell Al-Alosi, University of New South Wales, Faculty of Law, has published Young People as Creators of Sexually Explicit Online Material: Fan Fiction and the Law in Australia as UNSW Law Research Paper No. 2015-74. Here is the abstract.

Debate concerning the role of traditional media in the sexualization of young people tends to view young people as a special group of consumers who require protection from some media content and its potential risks. However, with the advent of new media technologies, young people are no longer passive consumers of sexualized representations, but also generators of sexually explicit material that is created and shared among their peers. This challenge has raised concern among those adults who remain ambivalent, or perhaps in denial, about the possibility that young people are sexually curious. Accordingly, this essay seeks to challenge the view that young people are simply passive recipients of sexual messages in the media by highlighting the role that young people play as producers of media content, in particular through the production of fan fiction. This essay investigates the potential criminalization of young people whose online communications about sex can be classified as criminal acts under Australia’s child abuse material legislation. Interviews were conducted with five members of the judiciary to ascertain how this kind of communication might be viewed in a court of law. This was conducted as part of larger research project that seeks to analyze how Australia’s child abuse material legislation may impact on the sexual self-expression of young people themselves.

Download the essay from SSRN at the link.

Bond and Greenleaf on Copyright Duration in Australian Law, 1869 to 2014

Catherine Bond, University of New South Wales, and Graham Greenleaf, University of New South Wales, Faculty of Law, have published Copyright Duration in Australia: 1869 to 2014 at 25 Australian Intellectual Property Journal 155 (2015). Here is the abstract.

One of the most significant features of any copyright statute is the duration of the rights granted to works and subject matter other than works pursuant to that law. The most "appropriate" length of copyright also continues to be a recurring theme in legislative, policy and academic debates. However, despite both the significance of and interest in the term of copyright, there has been little empirical evidence presented on how long, in light of both statutory term and life expectancies, copyright will likely protect a work. This article provides a historical account of both the duration of copyright and its various extensions, from the introduction of the first colonial copyright statute through to today. It reveals that, while multiple legislative extensions have lengthened the term of protection, continual increases in life expectancies have also added to the duration of copyright, to the point where, today, copyright will likely protect a work for well over 100 years. The paper concludes that it is worth questioning whether IP terms are out of alignment when one form of creation – patents – only warrants a 20 year period of protection whereas another – copyright – garners 120 years. The haphazard legislature approach to copyright terms identified in this article needs to cease, and a more considered approach taken. It feels akin to science fiction that, today, copyright in a work created by a 35 year old today will generally not expire until well after the deaths of a generation that is yet to be born, and extend for more than a century. Furthermore, given the current creations found to be "literary works", this would apply to, for example, a computer program, the practical utility of which will cease over a century before its copyright expires, and where its literary or artistic appeal never existed.

Download the article from SSRN at the link.