Law: Journal Articles

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  • ItemOpen Access
    Safe as Houses? The Limits of Seismic Building Regulation in Aotearoa New Zealand
    (2023) Hopkins, W. John
    In 2016, the Building (Earthquake-prone Buildings) Amendment Act 2016 was introduced to address the issue of seismic vulnerability amongst existing buildings in Aotearoa New Zealand. This Act introduced a mandatory scheme to remediate buildings deemed particularly vulnerable to seismic hazard, as recommended by the 2012 Royal Commission into the Canterbury earthquake sequence of 2010–2011. This Earthquake-prone Building (EPB) framework is unusual internationally for the mandatory obligations that it introduces. This article explores and critiques the operation of the scheme in practice through an examination of its implementation provisions and the experiences of more recent seismic events (confirmed by engineering research). This analysis leads to the conclusion that the operation of the current scheme and particularly the application of the concept of EPB vulnerability excludes large numbers of (primarily urban) buildings which pose a significant risk in the event of a significant (but expected) seismic event. As a result, the EPB scheme fails to achieve its goals and instead may create a false impression that it does so
  • ItemOpen Access
    Mobile learning in Higher Education: Moving Towards a Framework for Efficacy and Sustainability
    (2013) Farley, Helen; Murphy, Angela
    The role of mobile technologies in higher education is becoming increasingly important, resulting in a need for theoretical frameworks that provide a sound foundation to support the use of these technologies for effective teaching and learning in a sustainable manner. This review summarises the characteristics of three influential but contrasting theories of mobile learning that have been developed since 2005. These three theories are compared and contrasted according to two categories; namely, the nature of the definition used for the theory and the relationship with existing theories of learning and pedagogical considerations that form the foundation of the theoretical framework. Using the lessons learned from this examination, the authors propose a methodology for creating a pragmatic Mobile Learning Evaluation Framework (MLEF) that is applicable to a variety of contexts and is flexible enough to accommodate the adoption of emerging mobile technologies. This work is already underway and is expected to be completed in 2015.
  • ItemOpen Access
    Experiments with the Extension of Legal Personality to Ecosystems and Beyond-Human Organisms: Challenges and Opportunities for Company Law
    (Cambridge University Press (CUP), 2023) Jefferson, David; Macpherson, Elizabeth; Moe , Steven
    in recent years, a number of jurisdictions have recognized diverse ecosystems and other-than-human organisms as legal persons. From national constitutions and legislation to subnational judicial decisions and ordinances, these legal experiments have extended legal personality to riverine and terrestrial ecological communities, including vast geographical areas and the beyond-human beings that inhabit them. A growing body of literature engages with these developments and, in particular, their consequences for states and governments. However, few analyses have considered the practical implications they may present for private organizations operating under company law. We address this research gap and explore potential challenges and opportunities that the recognition of ecosystems as legal persons may create for private legal persons, especially corporations. We also discuss the possible impacts and opportunities of the expansion of legal personality on company law and corporate practice more broadly, arguing for a reimagination of company law. This reimagination embraces an ethics of reciprocity, responsibility, and relationality between corporate entities, and ecological and human communities.
  • ItemOpen Access
    Conscription to Fight a War of Aggression under International Criminal Law
    (Oxford University Press (OUP), 2023) Boister, Neil
    The criminalisation of the unlawful use of force in international relations is not usually linked to conscription of an army to fight such a war. However, historical precedent in the Nuremberg and Tokyo International Military Tribunals established that conscription was part of the common plan to wage a war of aggression. After a brief history of conscription and its justifications, this article examines that precedent and then analyses how it could be put to use in a prosecution of the crime of aggression under the Rome Statute of the International Criminal Court. Finally, it argues that there is a normative case for the inclusion of conscription within the scope of the crime of aggression because of the harm done to both the conscripts and the state and people of the place they invade.
  • ItemOpen Access
    A Prisoners' Island: Teaching Australian Incarcerated Students in the Digital Age
    (Universtity of Bergen Library, 2014) Hopkins, S; Farley, Helen
    While incarcerated students have always faced many obstacles to full and effective participation in university study, the global shift toward paperless e-learning environments has created new challenges for prisoners without direct internet access. Based on prison focus groups with Australian incarcerated students and direct participant observation while tutoring tertiary students within four Queensland correctional centres, this paper explores the obstacles and constraints faced by incarcerated students in light of the increasing digitisation of materials and methods in higher education. This paper also reviews the outcomes, limitations and challenges of recent Australian projects trialling new internet-independent technologies developed to improve access for incarcerated tertiary students. This paper argues that technology-centred approaches alone will not adequately address the challenges of access for incarcerated students unless such interventions are also informed by an understanding of the sociocultural nature of learning and teaching within correctional centres.
  • ItemOpen Access
    Education and vocational training: Why the differences are important
    (2018) Farley, Helen; Pike A
    Countries across the world have similar objectives for educating and training their citizens, with demanding targets to promote lifelong learning, mobility, equity, social cohesion and active citizenship. Objectives for educating and training prisoners, however, tend to focus on employment. Important differences in ‘education’ and ‘vocational training’ must be considered for effective planning and delivery, to ensure prisoners have individual choices and opportunities to reach their full potential. The tendency for prison administrators to focus on provision of vocational training to boost post release employment, is interrogated. A more nuanced understanding of the role of education and training in prisons is suggested.
  • ItemOpen Access
    International Human Rights Law
    (2023) Mudgway, Cassandra; Ayoubi, L
  • ItemOpen Access
    Barriers and enablers to the use of virtual worlds in higher education: An exploration of educator perceptions, attitudes and experiences
    (2015) Gregory S; Scutter S; Jacka L; McDonald M; Newman C; Farley, Helen
    Three-dimensional (3D) virtual worlds have been used for more than a decade in higher education for teaching and learning. Since the 1980s, academics began using virtual worlds as an exciting and innovative new technology to provide their students with new learning experiences that were difficult to provide any other way. But since that time, virtual worlds have failed to maintain their popularity as learning spaces; many builds falling into disuse and many disappearing altogether. The aim of this article is not only to determine why virtual worlds have not become a mainstream teaching tool, but to ascertain why they have even failed to maintain their popularity. In order to do this, the research team surveyed over 200 academics about the barriers and enablers to the use and perceived affordances of virtual worlds in teaching and learning. These responses are examined in relation to academics' past, present and future use, experience and knowledge of virtual world environments.
  • ItemOpen Access
    Categorical denial in convicted sex offenders: the concept, its meaning, and its implication for risk and treatment
    (Elsevier BV, 2015) Marshall WL; Marshall LE; ware, jayson
    Although denial takes many forms, in this review we have restricted our concerns to those sex offenders who claim to not have committed a sexual offense. We refer to these offenders as "categorical deniers". The literature on the incidence of categorical denial, the characteristics of these offenders, and the many purposes denial seems to serve are all given consideration. We then examine the relationship of categorical denial to future risk taking into consideration the relationship of future risk to the meaning denial has for these men. Next we consider three different approaches treatment providers have taken to categorical deniers. These involve: 1) a decision to exclude them from treatment; 2) attempts to overcome denial (either by involving them in a pre-treatment program, or embedding them within a regular program); and 3) the provision of a program exclusively for deniers. Evidence for all of these approaches is limited and not yet impressive enough to allow for conclusions as to their value. Finally, we suggest that future studies include larger numbers of deniers and differentiate offender types.
  • ItemOpen Access
    The utility of peer-support in enhancing the treatment of incarcerated sexual offenders
    (Emerald, 2018) Perrin C; Frost A; ware, jayson
    Purpose: In the quest to maximize treatment gains, recent research has shifted focus from treatment itself to the context in which treatment takes place. Such investigations have alluded to rehabilitative climate, therapeutic alliance, prison social climate, and the efficacy of group process. The purpose of this paper is to review peer-support as a mechanism via which these goals might be reached. Design/methodology/approach: A review of the literature on peer-support in carceral settings was undertaken in February 2017. Findings: While there is very little research exploring peer-support in the context of offender rehabilitation, there are some promising signs from many qualitative investigations that peer-led roles can bridge many gaps in support within the therapeutic context. Research limitations/implications: More research on the potential negative impact of peer-support in carceral setting is needed. Practical implications: This paper proposes that the implementation of peer-support programs that operate alongside treatment interventions represent an encouraging direction for the future. It is argued that prisoner-led peer-support initiatives that are characterized by shared problem solving and reciprocal emotional support can greatly reduce the anxiety prisoners face surrounding treatment. It is suggested that, through peer-support, treatment gains may be enhanced and better assimilated into program-completers’ lives. Social implications: Peer-support may assist current treatment approaches with sexual offenders and could therefore potentially contribute to reductions in recidivism. Originality/value: This paper is the first to review peer-support in the context of imprisonment and offender therapy. It therefore provides an important status update for future researchers wishing to investigate this topic, and outlines several priorities that such research might interrogate further.
  • ItemOpen Access
    Are Categorical Deniers Different? Understanding Demographic, Personality, and Psychological Differences between Denying and Admitting Individuals with Sexual Convictions
    (Informa UK Limited, 2020) Ware J; Blagden N; Harper C; ware, jayson
    The purpose of this study was to establish whether there were demographic, personality, or psychological differences between a sample of 40 incarcerated sex offenders in categorical denial and 37 sex offenders admitting responsibility in an Australian minimum-security unit. Categorical deniers had lower IQs, were older, and were more likely to be child molesters. Criminogenically, there were no differences between categorical deniers and those who admitted their offences in relation to Static-99 risk scores. Psychologically, offenders denying their offences were significantly more shame-prone, and likely to use externalization as a method of impression-management. They were also more compulsive than those admitting their offences, but less antisocial and sadistic, when compared on personality indices. The study is limited by the small sample size however implications for further research and the treatment of categorical deniers are discussed.
  • ItemRestricted
    Academic domains as political battlegrounds: A global enquiry by 99 academics in the fields of education and technology
    (SAGE Publications, 2017) Al Lily AE; Foland J; Stoloff D; Gogus A; Deniz Erguvan I; Tomé Awshar M; Tondeur J; Hammond M; Venter IM; Jerry P; Vlachopoulos D; Oni A; Liu Y; Badosek R; López de la Madrid MC; Mazzoni E; Lee H; Kinley K; Kalz M; Sambuu U; Bushnaq T; Pinkwart N; Adedokun-Shittu NA; Zander POM; Oliver K; Pombo LMT; Balaban Sali J; Gregory S; Tobgay S; Joy M; Elen J; Jwaifell MOH; Said MNHM; Al-Saggaf Y; Naaji A; White J; Jordan K; Gerstein J; Umit Yapici I; Sanga C; Nleya PT; Sbihi B; Rocha Lucas M; Mbarika V; Reiners T; Schön S; Sujo-Montes L; Santally M; Häkkinen P; Al Saif A; Gegenfurtner A; Schatz S; Padilla Vigil V; Tannahill C; Padilla Partida S; Zhang Z; Charalambous K; Moreira A; Coto M; Laxman K; Sara Farley H; Gumbo MT; Simsek A; Ramganesh E; Birzina R; Player-Koro C; Dumbraveanu R; Ziphorah M; Mohamudally N; Thomas S; Romero M; Nirmala M; Cifuentes L; Osaily RZK; Clemency Omoogun A; Seferoglu SS; Elçi A; Edyburn D; Moudgalya K; Ebner M; Bottino R; Khoo E; Pedro L; Buarki H; Román-Odio C; Qureshi IA; Ahsan Khan M; Thornthwaite C; Kerimkulova S; Downes T; Malmi L; Bardakci S; Itmazi J; Rogers J; Rughooputh SDDV; Ali Akour M; Henderson JB; de Freitas S; Schrader PG; Farley, Helen
    This article theorizes the functional relationship between the human components (i.e., scholars) and non-human components (i.e., structural configurations) of academic domains. It is organized around the following question: in what ways have scholars formed and been formed by the structural configurations of their academic domain? The article uses as a case study the academic domain of education and technology to examine this question. Its authorship approach is innovative, with a worldwide collection of academics (99 authors) collaborating to address the proposed question based on their reflections on daily social and academic practices. This collaboration followed a three-round process of contributions via email. Analysis of these scholars’ reflective accounts was carried out, and a theoretical proposition was established from this analysis. The proposition is of a mutual (yet not necessarily balanced) power (and therefore political) relationship between the human and non-human constituents of an academic realm, with the two shaping one another. One implication of this proposition is that these non-human elements exist as political ‘actors’, just like their human counterparts, having ‘agency’ – which they exercise over humans. This turns academic domains into political (functional or dysfunctional) ‘battlefields’ wherein both humans and non-humans engage in political activities and actions that form the identity of the academic domain. For more information about the authorship approach, please see Al Lily AEA (2015) A crowd-authoring project on the scholarship of educational technology. Information Development. doi: 10.1177/0266666915622044.
  • ItemOpen Access
    International Update: New Zealand media law update
    (2022) Cheer, Ursula
    This update reports further on developments in New Zealand media law in the last few years, and follows on from the first part that dealt with defamation, privacy and breach of confidence. New Zealand’s hate speech legislation has been the subject of ongoing review following an appalling terrorism incident involving mass murder, and a general media regulatory review is being carried out contemporaneously focussed on online harms. A copyright case was largely a success for media relying on a fair dealing defence. Court reporting cases continue to proceed from a basic open justice principle, but this will be departed from in particular to protect young offenders from social media attack. A number of cases have developed the law relating to protection of journalistic sources, and common law contempt of court has been replaced by a statutory model that attempts to provide more clarity, in particular about sub judice contempt. Media continue to seek access to court records and courts appear to be taking a more nuanced and sympathetic approach in granting access. The New Zealand Media Council has expressed strong views about native and embedded advertising masquerading as news and indicated it is prepared to consider complaints made against such content.
  • ItemOpen Access
    Can Western Water Law Become More ‘Relational’? A Survey of Comparative Laws affecting Water across Australasia and the Americas
    (Informa UK Limited, 2022) Macpherson, Elizabeth
    There is increasing support, in international legal theory and advocacy, for water governance approaches that go beyond the technocratic, and recognise the reciprocal relatedness of water peoples and water places. Such an approach may seem logical within certain Indigenous law and belief systems, but can Western legal frameworks become more ‘relational’? How can they evolve to be capable of meaningfully relating with Indigenous systems of law and governance for water? This article draws on a comprehensive survey of comparative legal developments affecting water across seven settler-colonial countries in Australasia and Latin America that attempt (or profess) to be relational. I critically evaluate these attempts against the ‘yardstick’ of relationality. In each jurisdiction there are unresolved calls for a social, cultural and constitutional transformation of some sort, in which Indigenous and environmental justice are key. The analysis here reveals the potential for constitutional law to drive relational water laws, although without place-based specificity and supporting institutions, resources and redistributions of power, constitutional approaches risk having little practical impact.
  • ItemOpen Access
    Taking eBook readers to prisons: A tale of two projects
    (Springer International Publishing, 2014) Murphy A; Bedford T; Hopkins S; Farley, Helen
    This paper reports on a project that was first introduced to World Conference on Mobile and Contextual Learning attendees in 2012, the PLEIADES project (Portable Learning Environments for Incarcerated Adult Distance Education Students) and discusses how this project evolved into two separate projects; one each from the two technologies originally trialled. PLEIADES introduced a version of an internet-independent version of the Learning Management System (LMS) called Stand Alone Moodle (SAM) and eBook readers to incarcerated students in a correctional centre in Southern Queensland. The Triple ‘E’ Project (Empowerment, E-Learning and E-Readers) using eBook readers similar to those trialled in the PLEIADES project, were rolled out to a further four correctional centres. This paper explores the issues and challenges involved with deploying eBook readers to incarcerated students through the PLEIADES and Triple ‘E’ projects.
  • ItemOpen Access
    International Update New Zealand media law update
    (2022) Cheer, Ursula
    This update of New Zealand media law follows a short hiatus and presents highlights from the last few years. The update will be published in two parts, this first part dealing with developments in defamation, privacy, and breach of confidence. The second part will deal with hate speech and online harms, copyright, court reporting, contempt, and media regulation of native and embedded advertising. In defamation, New Zealand courts have accepted a form of harm threshold but rejected changes to the multiple publication rule. Doubt has been cast on the principle that death ends most claims in defamation, following recognition in a number of cases that Māori tikanga is part of New Zealand law. Publication by hyperlink that attracts liability has been somewhat clarified, and defence against attack continues to be used by defendants with mixed success. Context has been emphasised in determining meanings and various aspects of remedies have attracted judicial comment. In privacy, a media exemption under the Privacy Act has been the subject of privacy complaint proceedings and later statutory amendment. The publicity requirement in our publication tort has been relaxed and remedies have been the subject of obiter comment. An overlap between privacy and reputational harm has been recognised by the High Court and causation issues have defeated a claim by a prominent ex-MP. Courts have indicated interest in addressing whether our publication tort should continue to have a second limb requiring highly offensive publication, and lawyers are using this argument strategically. Two breach of confidence cases involving wrongful disclosure of information resulted in injunctions issued to prevent publication by media as third party recipients.
  • ItemOpen Access
    Men with Sexual Convictions and Denial
    (Springer Science and Business Media LLC, 2020) Blagden N; ware, jayson
    Purpose of Review: We review the evidence base for men who categorically deny responsibility for their sexual crimes. Specifically, we consider the characteristics of these individuals and the purpose or function of the denial, whether denial leads to an increased risk of reoffending and the evidence for different treatment options available for deniers. Recent Findings: Whilst there is some evidence that deniers differ from admitters, it appears that categorical denial is a strategy used to reduce negative consequences such as a sense of shame or the fear of losing family support. The common assumption that deniers are more likely to commit further sexual crimes is not supported by the evidence to date. There remains a lack of evidence as to the best treatment approach to use. Summary: We conclude that more research is necessary. We suggest that a lack of consideration of the function of denial or the adaptive benefits of denial could explain inconsistent findings in relation to the characteristics of deniers and why denial does not appear related to recidivism. Whilst the available evidence does not support most approaches aimed at overcoming denial, we suggest that some of the most promising approaches seem to be non-disclosure-based focusing on reducing stigma; however, it is conceded that the evidence for such approaches is still emerging.
  • ItemOpen Access
    Evolution of a treatment programme for sex offenders: Changes to the NSW custody-based intensive treatment (CUBIT)
    (Informa UK Limited, 2008) Bright DA; ware, jayson
    As a result of a high treatment attrition rate two significant changes were made from August 2005 to the New South Wales Department of Corrective Services custody-based intensive treatment programme for sexual offenders (CUBIT) that directly reflect advances in the field of sex offender treatment. This article outlines the rationale and outcomes of these changes. It is argued that the implementation of an open-ended (rolling) group treatment format has significant advantages over a closed group treatment format. Secondly, the programme is now emphasizing the importance of the use of positive therapist characteristics within the programme and in so doing has moved away from an overly manualized delivery of cognitive behaviour treatment. The positive outcomes produced by the changes are discussed. © 2008 The Australian and New Zealand Association of Psychiatry, Psychology and Law.
  • ItemOpen Access
    Treatment engagement with a sexual offender who denies committing the offense
    (SAGE Publications, 2008) Marshall WL; ware, jayson
    This case study describes a strategy for treating a sexual offender who categorically denies committing the offense. These offenders usually refuse to participate in treatment or are deemed ineligible or unsuitable for sexual offender treatment on the basis of their denial of responsibility. The treatment approach outlined in this case study reflects an adaptation of conventional sexual offender treatment such that the focus is on the problems in the offender's life that led to him or her to be in a position where he or she could be "accused" of an offense. This case study demonstrates how an offender who is categorically denying responsibility for his offending was therapeutically engaged in treatment. Treatment implications of this approach are discussed. © 2008 Sage Publications.
  • ItemOpen Access
    What is the best modality for treating sexual offenders?
    (2009) Mann R; Wakeling H; ware, jayson
    This paper reviews the different treatment modalities used for treating sexual offenders. We provide an overview of the literature comparing group therapy with individual treatment and summarise the main advantages and disadvantages of both treatment modalities. Group treatment appears to be at least as effective as individual treatment, and there are several clinical advantages obtained through group processes which helpfully address the particular criminogenic needs of the sexual offender population and which are less easily obtained in individual therapy. In addition, we also address the debate about the advantages of open-ended versus closed-group formats. Openended groups seem to offer more clinical advantages than closed groups, and in particular allow for treatment to be more responsive to individual needs, although there have been no direct comparisons of the two approaches with sexual offenders. We conclude by identifying the next steps for research.