Law: Journal Articles

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  • ItemOpen Access
    Indigenous rights and ontological plurality in the institutional arrangements for the Waikato and Waipā Rivers in Aotearoa
    (Informa UK Limited, online-publication-date) Clark C; Fisher K; Macpherson, Elizabeth
    This paper analyses the institutional arrangements for the Waikato and Waipā Rivers in Aotearoa New Zealand to consider how effectively they promote Indigenous rights and the exercise of Māori law and relationships with place. We ask how these arrangements shape power relations and dynamics among different (human and non-human) actors and whether they foster relationality and create the enabling conditions that generate alternatives to modernist ways of governing. After examining the detail of these complex institutional arrangements in a way that exposes their ontological foundations, this paper argues that, despite limitations, particularly in relation to implementation, these arrangements operate to increase Iwi authority and, thus, promote Indigenous rights, and legal and ontological pluralism. This outcome demonstrates a vibrancy and plurality of thinking in relation to new models of law and institutional arrangements in settler-colonial contexts—beyond those grounded in rights of nature—and that there are a variety of pathways towards the realisation of Indigenous rights and authority, and the related promotion of legal and ontological pluralism.
  • ItemOpen Access
    ‘As the Island Choirs Gather’
    (Brill, 2023) Hopkins, W. John; Natoli , Tommaso; Avila , Leanne
    ... this study will first illustrate how the Pacific Region has known different and discontinuous phases in addressing the causes and the effects of disasters, and how this led to the adoption of a fragmented regional setting (Section 2). Despite that, since 2015, a renewed effort in adopting regional frameworks can be noticed, and this led some PICs to achieve noteworthy regulatory advancements in this field (Section 3). Such reforms are based on pursuing a holistic approach to reducing the risk of disasters (DRR) while contextually adapting to the changing climate and its effects, under both the institutional and normative perspectives. As will be discussed in the conclusions (Section 4), the most recent Pacific regional trends in the Pacific provide reasons for a degree of optimism. However, a number of risks, not only deriving from climate-related threats but also intrinsic to the Pacific governance model itself, loom over the region’s future.
  • ItemOpen Access
    The LOSC: A ‘Constitution for the Oceans’ in the Anthropocene?
    (Brill, 2023) Scott, Karen
    Since being described as a ‘constitution for the oceans’ at its adoption in 1982, the United Nations Convention on the Law of the Sea has evolved to hold a special status among multilateral treaties. As a constitution—actual or perceived—the has provided the framework and processes for a relatively dynamic law of the sea that has developed to address new environmental, technological and geopolitical challenges in the forty years since its adoption. By necessity however, these developments have been incremental in nature and have been confined by the parameters of the constitution. In this article, I argue that such incremental change will be insufficient if the law of the sea is to adapt to the Anthropocene, our current geological and geopolitical Epoch. In this article, I argue that the characterisation of the as a ‘constitution for the oceans’ has become a straitjacket for the regime and is preventing the serious exploration of alternative epistemological imaginaries of the law of the sea. I argue for a quiet abandonment of the description of the as a ‘constitution for the oceans’ and the actual and perceived consequences of the appellation.
  • ItemOpen Access
    To the RescEU? Disaster Risk Management as a Driver for European Integration
    (2024) Hopkins, W. John; Faulkner , Holly; Clausing , Silke
    The European Union has incrementally expanded its role in the field of disaster risk management (DRM) since the late 1980s. This expansion has often been very slow as states have regularly challenged the EU’s growing role in an area traditionally seen as core member-state business. Nevertheless, the increasing inability of individual Member States to respond effectively to disasters led to the establishment of the Union Civil Protection Mechanism (UCPM) in 2001. The mechanism was significantly strengthened in 2019 with the establishment of the rescEU operational reserve and again in 2021 as a response to the COVID-19 pandemic. This article assesses the development of EU responsibilities in the field the DRM in the context of EU integration. In particular, it asks whether increased risk from natural hazards is creating a new driver towards European co-operation and integration. Will disasters, ironically, play a significant role in ‘rescEU’ing the Union?
  • ItemOpen Access
    A Critical Feminist Evaluation of Climate Adaptation Law and Policy: The Case of Aotearoa New Zealand
    (2024) Macpherson , Elizabeth; Masselot , Annick; Jefferson, David; Gunn , Julia
    Laws and policies designed to help communities adapt to the effects of climate change are proliferating around the world. Our analysis of Aotearoa New Zealand’s adaptation policies reveals that the experiences of women are not adequately accounted for, and that technocratic, masculinist, and top-down adaptation approaches have been prioritized over knowledges and approaches from diverse perspectives. We argue for a critical feminist reconceptualization of climate adaptation, based on: (1) taking a relational approach to embedding an ethics of care; (2) putting equity and justice in context; and (3) acknowledging diverse agency and knowledge production. Our approach suggests possible paths toward more inclusive and equitable climate adaptation based on relational understandings of reciprocal, human-environment relationships. This analysis has broad, global relevance for other countries that seek to adopt adaptation policies, by identifying possible new pathways toward just and equitable climate adaptation.
  • ItemOpen Access
    Pacific (2021)
    (Brill, 2023) Hopkins, W. John; Avila L
  • 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.