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Bond University Student Law Review

Recent documents in Bond University Student Law Review

Last Build Date: Thu, 19 Oct 2017 17:24:34 PDT

Copyright: Copyright (c) 2017 Bond University All rights reserved.

Laws of armed conflict and civilian participation in intra-state revolutions: The Iranian Revolution 1979

Tue, 17 May 2016 21:35:21 PDT

The Iranian Revolution of 1979 provides a pertinent case study for such analysis, considering its distinct revolutionary phases, well-documented events (due to attention of the international community at that time), and similarities to other internal conflicts. Thus, this paper will begin by providing an historical overview of the Iranian Revolution and analysing the status of the conflict. Focus will then shift to an examination of the status of civilians involved in the revolution and associated protections. The legality (at LOAC) of the prosecution and punishment of former government officials and counter-revolutionary civilians, following the establishment of the Republic of Iran, are also considered. Finally, gaps and ambiguities in LOAC are identified before proposing recommendations to promoting greater protections and obligations for those who participate in intrastate revolutions. The emergence of an unregulated, or at least under-regulated, form of violent armed conflict must be prevented to ensure the principles of LOAC are upheld.

The efficacy and legality of drones in modern warfare

Tue, 17 May 2016 21:30:22 PDT

The aim of this paper is to analyse the efficacy and legality of drones in modern warfare. It argues that the use of drones is a specific characteristic of modern warfare strengthening the conclusion that modern warfare cannot be explained sufficiently by the classic understanding of peace and war anymore. It is the asymmetric nature of warfare and armed conflict that makes the use of drones both necessary and dangerous at the same time. In particular, the long-term effects on the population directly affected by drone strikes and the resultant consequences for the relationship between the involved states as well as the possible change in the dynamic of modern armed conflicts evolving from growing knowledge and cheaper technology are reason for concern regarding the to date unregulated use of drones both in- and outside combat. In addition to the socio-political concerns, the paper outlines that, from a legal point of view, the use of drones is not as unproblematic as military and government officials tend to say. Using statistics from the US army and the US CIA, this paper will argue that the technology itself is indeed able to be highly precise and efficient. This, however, does not mean that the application of drones does not leave room for highly disproportionate attacks. It is the humane application of the weapon that makes the difference. Considering both the socio-political effects and the problems arising from the core principles of LOAC, particularly proportionality, this paper will argue that it is necessary to create a legal frame work regulating the use of drones in- and outside combat.

Mediation & confidentiality

Tue, 17 May 2016 21:25:39 PDT

Mediation continues to be an ever-growing faction of the legal community with the introduction of more legislation requiring parties to attempt to solve disputes outside of the courtroom. While it is generally accepted that mediation is a confidential process, the rules of confidentiality in Australia and internationally are not so black and white. This paper is broken into four sections to determine why there is a need for confidentiality, when disclosure is required by law and what the general rules of confidentiality are in relation to mediators, mediation, and legal practitioners in Australia as well as an international comparison with the United States of America. Ultimately, through the extrapolation of these topics, it will be shown that while the current rules of confidentiality attempt to equally protect the rights of all parties, this often results in an individual’s access to justice being inhibited.

Current trends surrounding the constitutional freedom of political communication

Tue, 17 May 2016 21:25:29 PDT

Freedom of speech is a vital pillar supporting Australia’s democracy and has long been recognised as a fundamental principle at common law. The freedom of political communication is implied from Australia’s Constitution and acts as a restriction on the Commonwealth’s legislative power. Current events such as the growing threat of a possible terrorist attack and renewed public debate surrounding the operation of the Racial Discrimination Act 1975 (Cth) have led to statutory amendments and proposed changes that affect Australian’s freedom of political communication. This paper endeavours to examine these recent legislative amendments and proposals in order to determine whether they are strengthening or enfeebling Australian society.

Pouring oil on troubled waters: The use of equitable remedies in judicial review

Tue, 17 May 2016 21:25:20 PDT

In earlier times, the pouring of oil into the sea is said to have been done deliberately in order to forestall rough seas. Although oil may be highly effective at calming troubled waters, we know that seafarers would not rely on this ancillary technique alone. Instead, they tried to engineer strong ships capable of breaking waves on their own. In Australia, there are two distinct types of remedies available to a litigant when seeking judicial review through constitutional means. First, the writs of mandamus, certiorari and prohibition which are called ‘constitutional writs’. Second, injunctions and declarations which are ‘equitable remedies’. The constitutional writs are often criticised for being only obtainable through archaic processes and governed by technical rules. Accordingly, equitable remedies, which are available in the field of public law precisely because of the inadequacies of the constitutional writs, have played a critical part in shaping modern Australian administrative law. However, mainly due to their different historical backgrounds, the constitutional writs and the equitable remedies operate in a fundamentally different manner. It has been proposed by some Australian legal minds that equitable remedies will have a “knock-on” effect for the other remedies by refocusing judicial review. However, it will be suggested by the author of this text that administrative lawyers should not rely too heavily upon the capacity of equitable remedies to become the forefront of judicial review. Instead of trying to pour oil on troubled waters, focus should be shifted to the constitutional writs, which have the innate potential of fulfilling the constitutional mandate of Section 75(v) as intended.

Assessing the Need for a Constitutionally-Entrenched Bill of Rights in Australia

Sun, 18 Mar 2007 19:20:39 PDT

This article discusses the Bill of Rights issue in an Australian context. It firstly examines the advantages and disadvantages of adopting a Bill of Rights in order to assist in establishing whether this document in necessary in Australia. It then considers the ways in which a Bill of Rights has been implemented in the United Kingdom, South Africa and Canada in order to determine which implementation approach would be most suited to Australia in the event that a Bill of Rights is adopted.

The New Family Dispute Resolution System: Reform Under the Family Law Amendment (Shared Parental Responsibility) Act 2006

Sun, 18 Mar 2007 19:19:32 PDT

This article explores the changes to Australia’s family law system brought about by the recent enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). It outlines the new family law system as proposed by the Act, and discusses the Australian Government’s reasoning behind the changes. This article then examines the new family mediation process through the use of Family Relationship Centres, addressing both the advantages and disadvantages of the introduction of compulsory mediation prior to pursuing litigation. This article aims to highlight that while the new family system has certain benefits, some problems may still exist with its implementation in the current post-seperation environment.

The Pacific Solution - Assessing Australia's Compliance with International Law

Sun, 18 Mar 2007 18:57:12 PDT

This article focuses on the extent to which the Pacific Solution legislative scheme implemented by the Australian Government in 2001 complies with international law. It discusses Australia’s obligations in several key areas of international refugee law, seeking to elucidate the interpretative discrepancies as to the content of these obligations, and examines to what extent and in which areas the Pacific Solution complies with international law.

The Law Around a Miscarriage of Justice in Queensland

Sun, 18 Mar 2007 17:35:45 PDT

This article examines the judicial test expounded by the High Court in M v The Queen (1994) 181 CLR 487, which intermediate appeal courts in Australia considering an application for a miscarriage of justice are currently governed by. It argues that the High Court in fact created two separate tests which can yield different results when applied to the same set of facts. In doing so, this article discusses the historical development of the judicial test, and its context within the statutory requirements of s668E of the Criminal Code Act 1899 (Qld). Using both judicial commentary and academic interpretation, this article then goes on to scrutinise the formulation of the judicial test from M v The Queen. Finally, the judicial test will be considered in the context of a petition for the exercise of the Royal Prerogative brought on behalf of Graham Stuart Stafford on the ground that there had been a miscarriage of justice, illustrating the two distinct outcomes of the test.