Anthropologists, Lawyers and Issues for Expert Witnesses: Native Title Claims in Australia

2001 ◽  
Vol 23 (1) ◽  
pp. 15-20
Author(s):  
David Trigger ◽  
Robert Blowes
Keyword(s):  
Western Australia ◽  
Federal Court ◽  
Central Issue ◽  
Court Decision ◽  
Expert Witnesses ◽  
Primary Research ◽  
Social Scientists ◽  
Native Title ◽  
Field Notes

Social scientists such as anthropologists, linguists and historians play an important role in researching and producing genealogies, reports and other claim materials which are submitted as evidence in native title claims. Being expert witnesses for Aboriginal claimants (or any other party) means that they may also be cross-examined on their evidence by opposing counsel. The recent Federal Court decision Daniel v State of Western Australia (the ‘Daniel case’2) highlights the need to carefully manage communications which occur in the course of researching, documenting and conducting native title claims; the case raises the issue of avoiding (or delaying) the loss of the protection of ‘client privilege’3 for confidential documents such as anthropological field notes and other primary research materials. The central issue is whether various documents can be kept confidential, and if so, for how long.

A Consideration of the Relationship between the Rules of Court and the Code of Ethics in Forensic Psychiatry

2004 ◽  
Vol 38 (1-2) ◽  
pp. 20-25
Author(s):  
Peter C. Gaughwin
Keyword(s):  
Forensic Psychiatry ◽  
Code Of Ethics ◽  
Clinical Work ◽  
Federal Court ◽  
Forensic Assessment ◽  
Expert Witnesses ◽  
Ethical Challenges ◽  
Medical Speciality ◽  
Personal Conflict ◽  
The Relationship

Objective To consider the relationship between the Rules of Court for expert witnesses and the revised Ethical Guideline No. 9 and Practice Guideline No. 9 of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and how this affects the responsibilities that psychiatrists have to a court and to their profession, when they enter the legal arena. Method Literature relevant to the subject, the Federal Court rules relating to expert witnesses and the RANZCP Guidelines are discussed and compared, with examples used to illustrate particular issues that arise from time to time in the civil jurisdiction. A distinction is drawn between the functions of those psychiatrists who undertake forensic assessment and those who undertake clinical work, and some of the ethical challenges facing forensic psychiatrists are considered. Results The Rules of Court relating to expert witnesses and the RANZCP Guidelines No. 9 have a complementary relationship and are thus ethically consistent with each other and provide a basis for psychiatrists to maintain and enhance the integrity of their profession. Conclusion Forensic psychiatry is a particularly complex medical speciality and one that can create enormous personal conflict for clinicians, especially those who are not forensic consultants. It may therefore be time for the College to develop an accreditation process for those prepared to undertake further study in the nature and practice of forensic psychiatry.

scholarly journals The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge towards Native Title ‘Ownership’

2019 ◽  
Author(s):  
Simon Young
Keyword(s):  
Court Decision ◽  
Current Regulation ◽  
High Court ◽  
Native Title ◽  
First Peoples ◽  
New Challenges ◽  
Torres Strait ◽  
The Many

The Torres Strait regional sea claim, culminating in the High Court decision of Akiba v Commonwealth, signalled a new respect for the holistic relationships and dominion that underlay First Peoples’ custodianship of land and waters. The ‘Akiba correction’ centred upon a distinction between ‘underlying rights’ and specific exercises of them – and produced in that case a surviving right to take resources for any purpose (subject to current regulation). The correction emerged from extinguishment disputes, but the significance of this edge towards ‘ownership’ was soon evident in ‘content’ cases on the mainland. Yet there are new challenges coming in the wake of Akiba. What of the many native title determinations that have been settled or adjudicated on pre-Akiba thinking? And what does this renaissance in native title law offer to the communities that will fail (or have failed) the rigorous threshold tests of continuity – also crafted with the older mindset?

scholarly journals Spinifex People as Cold War Moderns

2015 ◽  
Vol 4 ◽  
pp. 71-94
Author(s):  
Greg Castillo
Keyword(s):  
Cold War ◽  
Western Australia ◽  
Land Tenure ◽  
Large Scale ◽  
Nuclear Testing ◽  
Atomic Age ◽  
Native Title ◽  
Global Modernity ◽  
The 1950S ◽  
The Government

Aboriginal Australian contemporary artists create works that express indigenous traditions as well as the unprecedented conditions of global modernity. This is especially true for the founders of the Spinifex Arts Project, a collective established in 1997 to create so-called “government paintings”: the large-scale canvases produced as documents of land tenure used in negotiations with the government of Western Australia to reclaim expropriated desert homelands. British and Australian nuclear testing in the 1950s displaced the Anangu juta pila nguru, now known to us as the Spinifex people, from their nomadic lifeworld. Exodus and the subsequent struggle to regain lost homelands through paintings created as corroborating evidence for native title claims make Spinifex canvases not simply expressions of Tjukurpa, or “Dreamings,” but also artifacts of the atomic age and its impact on a culture seemingly far from the front lines of cold war conflict.

Introduction

2020 ◽  
pp. 1-14
Author(s):  
Donald W. Rogers
Keyword(s):  
Supreme Court ◽  
Civil Liberties ◽  
Supreme Court Decision ◽  
Federal Court ◽  
Court Decision ◽  
Federal Law ◽  
Court Records ◽  
History Of ◽  
First Time ◽  
The U.S

This introduction reframes the history of the U.S. Supreme Court decision Hague v. CIO (1939) that guaranteed speech and assembly rights in public municipal forums under federal law for the first time. It lifts the story out of standard treatment as a product of police repression of labor organizers by city boss Frank Hague, exploring instead the case’s broader roots in multiple changes in city governance, policing, the labor movement, civil liberties law, and anticommunism and antifascism politics of the late New Deal era. It urges examination of all sides of the controversy, winners and losers, scrutinizing evidence beyond antiboss sources, including varied newspapers, municipal reports, trial transcripts, labor archives, and federal court records. It views the case as part of a constitutional watershed.

Prison Versus Western Australia: Which Worked Best, the Australian Penal Colony or the English Convict Prison System?

2019 ◽  
Vol 59 (5) ◽  
pp. 1139-1160
Author(s):  
Barry Godfrey
Keyword(s):  
Western Australia ◽  
Natural Experiment ◽  
New South ◽  
New South Wales ◽  
Prison System ◽  
Jeremy Bentham ◽  
Social Scientists ◽  
Penal Colony ◽  
South Wales

Abstract Between 1850 and 1868, a natural experiment in punishment took place. Men convicted of similar crimes could serve their sentence of penal servitude either in Britain or in Australia. For historians and social scientists, this offers the prospect of addressing a key question posed over 200 years ago by the philosopher, penal theorist and reformer Jeremy Bentham when he authored a lengthy letter entitled ‘Panopticon versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared’. This article answers the underlying tenet of Bentham’s question, ‘Which was best prison or transportation?’ by applying two efficiency tests. The first tests whether UK convicts or Australian convicts had higher rates of reconviction, and the second explores the speed to reconviction.

NATIVE TITLE ISSUES AFFECTING PETROLEUM EXPLORATION AND PRODUCTION

1999 ◽  
Vol 39 (2) ◽  
pp. 107
Author(s):  
M.W. Hunt
Keyword(s):  
Oil And Gas ◽  
Federal Court ◽  
Petroleum Exploration ◽  
Native Title ◽  
Area Of Interest ◽  
Exploration And Production ◽  
Petroleum Companies ◽  
Offshore Oil And Gas ◽  
The Right ◽  
Offshore Oil

This paper focusses on onshore exploration and production because the right to negotiate does not apply offshore. However, the Native Title Act can be relevant to offshore oil and gas explorers and producers. First, where their area of interest includes an island within the jurisdiction of Western Australia. Secondly, in respect of land required for the facilities to treat petroleum piped ashore.Under the original Native Title Act the right to negotiate proved unworkable, the expedited procedure failed to facilitate the grant of exploration titles and titles granted after 1 January 1994 were probably invalid.The paper examines the innovations introduced by the amended Native Title Act to consider whether it will be more 'workable' for petroleum explorers and producers. It examines some of categories of future acts in respect of which the right to negotiate does not apply (specifically indigenous land use agreements, renewals and extensions of titles, procedures for infrastructure titles, reserve land, water resources, low impact future acts, approved exploration etc acts and the expedited procedure).Other innovations include the new registration test for native title claims, the validation of pre-Wik titles, the amended right to negotiate procedure, the State implementation of the right of negotiate procedure and the objection and adjudication procedure for grants on pastoral land.The response of each state and territory parliament to the amended Act is considered, as is the Federal Court decision in the Miriuwung Gajerrong land claim (particularly the finding that native title includes resources, questioning whether these resources extend to petroleum).The paper observes that the full impact of the new Act cannot be determined until the states and territories have passed complementary legislation and it is all in operation. However, the paper's preliminary conclusion is that it does not provide a workable framework for the interaction between petroleum companies and native title claimants.The writer's view is that the right to negotiate procedure is unworkable if relied upon to obtain the grant of a title. If a proponent wishes to develop a project in any commercially acceptable timeframe, it will have to negotiate an agreement with native title claimants. The paper's conclusion is that a negotiated agreement is the only way to cope with native title issues.

Major court and tribunal decisions in Australia in 2018

2019 ◽  
Vol 61 (3) ◽  
pp. 421-437 ◽  
Author(s):  
Ingrid Landau ◽  
Dominique Allen
Keyword(s):  
Small Group ◽  
Employment Status ◽  
Federal Court ◽  
Food Delivery ◽  
Court Decision ◽  
Court Decisions ◽  
Judicial Decisions ◽  
Gig Economy ◽  
Employment Standards ◽  
Definition Of

The year 2018 saw significant tribunal and court decisions concerning the definition of ‘casual’ for the purposes of the National Employment Standards, the obligations of labour hire employers, and the employment status of food delivery drivers in the gig economy. This review also covers a number of significant changes to awards made by the Fair Work Commission as part of its 4-yearly award review; a Full Federal Court decision about the extent to which a small group of employees genuinely agreed to approve an enterprise agreement. An unusual tribunal decision about an employee who was assumed to have a disability is noted. Finally, the review considers several significant judicial decisions on accessorial liability and penalites under the Fair Work Act.

The Basis of the ‘Basis Rule’: The Role of the Basis Rule in the Admissibility of Expert Opinion

2015 ◽  
Vol 43 (2) ◽  
pp. 313-337
Author(s):  
Trang Phan ◽  
David Caruso
Keyword(s):  
Expert Opinion ◽  
Common Law ◽  
Court Decision ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Specific Context ◽  
High Court ◽  
General Terms ◽  
Admissible Evidence

The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.

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