Law Faculty

This paper examines some of the constitutional deficiencies in the protection of Indigenous peoples rights, in order to demonstrate the real need to grasp the 'constitutional moment'and reform our foundational document. Then, it considers the problems with the races power (s 51 (xxvi)), and the need to replace it with a clear federal power to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. Suggestions for a 'non-discrimination'clause are then considered.

Despite a burgeoning of law schools in Australia in the last 15 years, there has been very little exploration of the expectations and aspirations of students commencing a law degree in Australia. By contrast, a number of studies on features of professional life for practising lawyers are emerging. In particular, recent studies have shown high levels of stress, anxiety and depression among practising lawyers.

The entire legal profession – lawyers, judges, law teachers – has become so mesmerised with the stimulation of the courtroom contest that we tend to forget that we ought to be healers – healers of conflicts. 1 For more than a decade, analyses of coronial processes inspired by both therapeutic jurisprudence and restorative justice have identified the potential for maximising the therapeutic and public health benefits of the investigative functions of coroners' courts and minimising their counter-therapeutic potential. The focus of both scholarly literature and law reform proposals has been upon addressing deficits in respect of the role of families in coronial investigations and especially coroners' inquests. This has been a constructive contribution and has improved sensitivity to the risk that family members will be disenfranchised and alienated at a highly vulnerable time after they have been bereaved. This article chronicles the development in awareness of such issues. However, the potential for adverse effects on parties other than family members has been inadequately recognised in the literature, save for empirical studies conducted in 2011 for the Coronial Council of Victoria and another study published in 2014 in New Zealand. This article seeks to redress that imbalance. It argues that it is appropriate also to have regard to such potential in endeavouring to provide an approach to the work of coroners that is influenced by the sensibilities of therapeutic jurisprudence and seeks to reduce, so far as possible, counter-therapeutic outcomes for all parties, while at the same time prioritising accurate and robust fact-finding and formulation of constructive recommendations to avoid avoidable deaths. It calls for further empirical research on the impact of coroners' investigations on all affected parties and argues in favour of extension of improved funding to enable approaches to be informed by therapeutic jurisprudence and in particular to enhance eligibility for the counselling services attached to coroners' courts.

The extraordinary litigation in 1944 that enveloped Sir William Dobell, one of Australia's best known artists, ostensibly addressed whether his painting of a fellow artist, Joshua Smith, constituted a portrait or a caricature and thus whether it qualified for the prestigious Archibald Prize. However, there was much more to the litigation than a clash between modernism and traditionalism in portraiture. It constituted an archetypal example of the ways in which litigation can have counter-therapeutic effects for all who are party to it unless suitable prophylactic measures are taken or at least strategies are exercised to reduce its toxicity.

Awareness of the social tragedies and legal difficulties caused by Fetal Alcohol Spectrum Disorder has been emerging since the 1960s. However, although a great deal is now known clinically about the disorder, its diagnosis and what needs to be done by way of prevention and management, a coordinated therapeutic and public health response in Australia has thus far been lacking. In turn, this is having a range of repercussions for the courts in evaluating accused persons' criminal responsibility and culpability. Two high-quality and extensive reports during 2012 from Western Australian and Commonwealth parliamentary committees have documented the problems and provided a blueprint for a collaborative and comprehensive intergovernmental response. The challenge for government is now to implement the proposals throughout Australia (and be guided by them in New Zealand) as a matter of urgency.

Autism spectrum disorder (ASD), as defined in DSM-V, can be relevant in a variety of ways to decision-making by courts and tribunals. This includes the family, disciplinary, discrimination and criminal law contexts. By reviewing decisions made by superior courts in a number of common law jurisdictions, this article identifies a pivotal role for mental health professionals closely familiar with both the disorder and forensic exigencies to educate courts about the inner world of those with ASD. Highlighting areas of criminality that court decisions have dealt with, especially in relation to persons with Asperger's Disorder, as defined by DSM-IV, it calls for further research on the connection between ASD, on the one hand, and conduct, capacities and skills, on the other hand. It urges enhancement of awareness of the forensic repercussions of the disorder so that expert evidence can assist the courts more humanely and informedly to make criminal justice and other decisions.

The privilege against self-incrimination has a venerable history in the conduct of coroners' inquests. However, recent statutory reforms to the privilege in coroners' courts, which have had disuniform outcomes throughout Australia, have complicated the circumstances in which the privilege is extended to those claiming its protection. This editorial reviews the evolving law on the privilege generally and rulings that have been made in high-profile coronial inquests, as well as the modest volume of appellate litigation on this important issue. It identifies that the emerging law on the area prioritises amongst relevant factors for the coroner's discretion to exercise coercive powers over witnesses' objections to give evidence the fact that they are charged with serious criminal offences, and that the need for and utility of the evidence are also functioning as important considerations.

Homoeopathy has a significant clinical history, tracing its roots back to Hippocrates and more latterly to Dr Christian (Samuel) Hahnemann (1755-1843), a Saxon physician. In the last 30 years it has ridden a wave of resurgent interest and practice associated with disillusionment with orthodox medicine and the emergence of complementary therapies. However, recent years have seen a series of meta-analyses that have suggested that the therapeutic claims of homoeopathy lack scientific justification. A 2010 report of the Science and Technology Committee of the United Kingdom House of Commons recommended that it cease to be a beneficiary of NHS funding because of its lack of scientific credibility. In Australia the National Health and Medical Research Council is expected to publish a statement on the ethics of health practitioners' use of homoeopathy in 2013. In India, England, New South Wales and Western Australia civil, criminal and coronial decisions have reached deeply troubling conclusions about homoeopaths and the risk that they pose for counter-therapeutic outcomes, including the causing of deaths. The legal decisions, in conjunction with the recent analyses of homoeopathy's claims, are such as to raise confronting health care and legal issues relating to matters as diverse as consumer protection and criminal liability. They suggest that the profession is not suitable for formal registration and regulation lest such a status lend to it a legitimacy that it does not warrant.

Council have overtaken in significance the uncritical Swiss report of 2012 and have gone a long way to changing the environment of tolerance toward proselytising claims of efficacy in respect of homeopathy. The inquiry being undertaken in the United States by the Food and Drug Administration during 2015 may accelerate this trend. An outcome of the reports and inquiries has been a series of decisions from advertising regulators and by courts rejecting medically unjustifiable claims in respect of the efficacy of homeopathy. Class actions have also been initiated in North America against manufacturers of homeopathic products. The changing legal and regulatory environment is generating an increasingly scientifically marginalised existence for homeopathy. That new environment is starting to provide effective inhibition of assertions on behalf of homeopathy and other health modalities whose claims to therapeutic efficacy cannot be justified by reference to the principles of evidence-based health care. This has the potential to reduce the financial support that is provided by insurers and governments toward homeopathy and to result in serious liability exposure for practitioners, manufacturers and those who purvey homeopathic products, potentially including pharmacists. In addition, it may give a fillip to a form of regulation of homeopaths if law reform to regulate unregistered health practitioners gathers momentum, as is taking place in Australia.

It hurts when people think you are " over it " because we will never get over what happened. I remember saying in the hospital that part of us died with her. I felt very close to Lara. I know I didn't carry her for nine months but I wanted her so badly. " Ann's story " in Kohner N and Henley A, When a Baby Dies: The Experience of Late Miscarriage, Stillbirth and Neonatal Death (Routledge, London, 2001). In spite of its relative frequency, stillbirth is a phenomenon that has been relatively little discussed and requires further research for comprehensive clinical understanding. It impacts upon the legal system by way of the need to determine whether a life has come into being such that legal consequences such as criminal law, probate law and the coronial jurisdiction can attach to it. This requires contemporary clinically informed interpretation and application of the ancient " born alive rule " in respect of the ramifications of matters such as pulseless electrical activity in the heart, brain activity and agonal gasping. In the coronial domain, arguments have been put in South Australia, Victoria and Northern Ireland in recent cases and discussion has taken place publicly about whether coroners should be permitted to investigate and make findings and recommendations about cases of stillbirth. The article identifies merit in principle in such a development but highlights the need for care about such reform to the law lest it engender inconsistency in respect of important threshold definitions of " life " and " death " , lest it generate incoherent approaches of the law on the subject, and lest it have unforeseen counter-therapeutic consequences for the grieving parents of infants who have been stillborn. It notes, too, that such a change to the ambit of coronial jurisdiction would have important resourcing ramifications.

A series of court and regulatory hearings has characterised the distribution and promotion in Canada of Empower Plus, a vitamin and mineral supplement promoted by its distributors as efficacious for a remarkable array of psychiatric conditions, including bipolar disorder and schizophrenia. The column chronicles the saga and the multiple ethical and scientific concerns that arise from it. It argues that, given the risks posed to the vulnerable by supplements constituted by micronutrients that may uninformedly be seen as a viable alternative to orthodox pharmacotherapies, none of which are panaceas, supplements should be subjected to rigorous medico-scientific assessment and regulation. It laments the too rare institution of consumer protection actions brought in an effort to protect the public in such scenarios.