Why Her Behaviour Is Still on Trial: The Absence of Context in the Modernisation of the Substantive Law on Consent

2019 ◽  
Vol 42 (2) ◽  
Author(s):  
Annie Cossins
Keyword(s):  
Sexual Assault ◽  
New South ◽  
New South Wales ◽  
Rape Myth Acceptance ◽  
Rape Myth ◽  
Law Reform ◽  
Victim Blame ◽  
Sexual Autonomy ◽  
South Wales ◽  
Substantive Law

Two cases studies illustrate the paradox at the heart of the substantive law of sexual assault – that it is possible (i) for a woman who does not communicate her consent to be deemed to consent; and (ii) for a defendant to have a reasonable belief about a woman’s consent even though it is accepted that she did not consent, both of which undermine the concept of her sexual autonomy. In light of the research on rape myth acceptance (‘RMA’) which shows that RMA is one of the most consistent predictors of victim blame in sexual assault scenarios, this article discusses how sexual assault law reform in New South Wales in 2007, which introduced a ‘communicative’ model of consent, has been subsequently undermined by the decisions in two recent judge-alone trials. Options for reform are discussed in light of the community standards expected under a ‘communicative’ model of consent.

Establishing Boundaries

2011 ◽  
pp. 146-157
Author(s):  
Christopher Brien
Keyword(s):  
Information Technology ◽  
New South ◽  
New South Wales ◽  
Effective Communication ◽  
Law Reform ◽  
Competing Interests ◽  
South Wales ◽  
Workplace Monitoring ◽  
Acceptable Use Policies

This chapter examines workplace monitoring in Australia. Competing interests between those of employees and employers are outlined. Recent decisions by courts and tribunals in Australia are considered. Information technology or acceptable use policies that are part of the contract of employed are identified as a means of establishing boundaries. The relevant reports of both the New South Wales Law Reform Commission and the Victorian Law Reform Commission are also discussed. The idea that Commonwealth legislation could be enacted to simplify the process of establishing boundaries is noted. This activity should be viewed more generally as strengthening the protection of privacy in Australian law. Management and workers both have responsibilities in establishing boundaries with regard to workplace monitoring. Effective communication between employers and employees is an essential part for creating a culture of respect and trust within an organization.

Communicative consent in New South Wales: Considering Lazarus v R

2018 ◽  
Vol 43 (2) ◽  
pp. 96-101 ◽  
Author(s):  
James Monaghan ◽  
Gail Mason
Keyword(s):  
Sexual Assault ◽  
New South ◽  
New South Wales ◽  
South Wales ◽  
Legal Discourses ◽  
The Law

In this article, we consider the influence of the communicative model of consent in New South Wales. After outlining the model, we argue that it stood behind 2007 reforms to the law of sexual assault in New South Wales. Then, we analyse a recent appellate decision, Lazarus v R [2016] NSWCCA 52, asking whether the communicative ideals that underpinned the 2007 amendments are evident in the legal discourses in the judgments. We argue that communicative ideals remain under-realised in the discourses.

scholarly journals Strip Searches, Police Power and the Infliction of Harm: An Analysis of the New South Wales Strip Search Regime

2021 ◽  
Vol 10 (2) ◽  
Author(s):  
Vicki Sentas ◽  
Michael Grewcock
Keyword(s):  
New South ◽  
New South Wales ◽  
Law Reform ◽  
Public Attention ◽  
Drug Detection ◽  
South Wales ◽  
Police Data ◽  
The Individual ◽  
Detection Dog ◽  
Police Vehicles

Police misuse of strip search powers at music festivals, at train stations, in police vehicles and at other locations has been subject to sustained public attention in recent years. This article traces the evolution of strip search practices in New South Wales, explores the legal and policy context in which they have developed, highlights the individual and social harms arising from them and discusses the need for fundamental law reform. We argue that recent controversies regarding police strip searches and drug detection dog operations in New South Wales show policing to be simultaneously a law-making and a law-abusing power. By examining concepts concerned with how police construct their own working rules, police data and testimony provided to the Law Enforcement Conduct Commission (LECC), we explain how police justify conducting strip searches that should otherwise be considered unlawful.

scholarly journals The First Limb of Barnes v Addy: A Taxonomy in Tatters

2015 ◽  
Vol 15 (1) ◽  
Author(s):  
The Hon Justice David J S Jackson
Keyword(s):  
New South ◽  
New South Wales ◽  
Point Of View ◽  
Law Reform ◽  
High Court ◽  
The Core ◽  
South Wales ◽  
Statutory Law ◽  
The Law ◽  
Court Of Appeal

<em>This lecture is given in tribute to Tony Lee. That is only fitting. He is a scholar of international significance and he was personally responsible for much of the core statutory law reform in this State on the subjects of Trusts and Succession Law. Not long after the High Court’s decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (‘Farah’), I asked Professor Lee what he thought about it. He said this: ‘Well, David, after all these years of reading cases I think that cases where plaintiffs don’t win generally don’t decide very much about the law.’ Then he said: ‘But I don’t know, what do you think?’ I was taken aback. At that time, I was full of the joys of the High Court’s decision. First, I thought it had rescued indefeasibility from the scrap heap, particularly so far as bank mortgages were concerned. Secondly, whilst I now agree with Professor Keith Mason’s point of view that the High Court’s treatment of the New South Wales Court of Appeal was intemperate, I was not unhappy then that the High Court had stemmed the tide of those who were intent on bending first limb Barnes v Addy liability into a restitutionary framework.</em>

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