Category: News

‘Dynamics of Power within Criminal Law’

The UNSW Law Journal (‘Journal’) is currently welcoming submissions for the thematic component of Issue 48(2). The topic for this thematic is ‘Dynamics of Power within Criminal Law’.

Dynamics of power is an inherently broad concept to define, but generally refers to the underlying influence that individuals, groups or ideas hold within a particular context. They have a dominant role in many aspects of criminal law, whether it be in the relationships and interactions between different criminal justice stakeholders, or between the conflicting public opinion and justice considerations that affect suggested reforms. In recent years there has been an increasing discussion around dynamics of power, particularly surrounding the barriers they can present to complainants. For example, the increase in reported domestic and gender-based violence in 2023 and 2024 raises questions as to the power dynamics that have led to these increases, and how they may prevent victims from seeking support. Further, the inherent power dynamics present between children and the legal system presents various barriers to children’s access to this system as defendants or complainants.

Recent developments within other areas of criminal law highlight existing and emerging dynamics of power between various stakeholders. For example, developments in the common law and statute affecting the sentencing of Aboriginal and Torres Strait Islander defendants highlights an interesting power dynamic between Aboriginal and Torres Strait Islander peoples and judicial officers. Furthermore, the recent enactment of affirmative consent laws for sexual assault offences in New South Wales (‘NSW’) highlights key issues about the balance between social and political pressure for reform, and legal considerations of what is considered fair and just. Additionally, the speed and frequency of media coverage surrounding criminal proceedings, as facilitated by social media, raises interesting debates around the dynamics between open justice and the right to a fair trial. Finally, the relationship between minority groups and police and the impact that the inherent power dynamics within this relationship can have on the broader criminal justice system.

In a world in which power dynamics are increasingly at play in political and social realms, their effect in our criminal justice system should be analysed. Additionally, current and emerging measures that could have positive or negative effects in limiting such dynamics should be considered.

In writing submissions, authors may wish to explore the following issues.

Domestic Violence

• The significant increase in gender-based violence and related deaths in Australia throughout the first half of 2024.
• The measures announced by the Albanese Government, including the National Plan to End Violence against Women and Children 2022–2032, and the statistical dashboard that is in development.
• The recent entry into force of the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW), criminalising coercive control.
• The recent announcement to permanently establish the Leaving Violence Program.
• The legal barriers presented to victims of domestic violence.

Sexual Assault Law Reforms

• The introduction of affirmative consent laws in NSW, considering the NSW Law Reform Commission’s (‘NSWLRC’) Consent in Relation to Sexual Offences report.
• Comparative discussion of consent reforms in NSW versus other Australian or international jurisdictions.
• The balance between socially desirable law reform and offering sufficient protections to defendants.
• The barriers presented to victims assaulted by individuals in positions of power.

The Media’s Role in Criminal Trials

• The balance between the media’s role in facilitating open justice and the defendant’s right to a fair trial and procedural integrity.
• The legitimacy of judge alone trials, particularly when adopted because of pre-trial publicity.
• Consideration of the NSWLRC’s Open Justice: Court and Tribunal Information: Access Disclosure and Publication report and the ways social media and the media more generally should or should not be limited regarding criminal trials.

Children and the Law

• The higher rates of incarceration and re-offending for children from vulnerable backgrounds, and the strengths and weaknesses of the diversionary measures on offer.
• The recent introduction of section 22C into the Bail Act 2013 (NSW) reforming youth bail laws and its predicted impacts on Aboriginal and Torres Strait Islander youth.
• Barriers to entry to a variety of police and court processes faced by child complainants.
• The impact of the Child Sexual Offence Evidence Program on providing children greater support during a criminal trial.

Indigenous Australians under Criminal Law

• The overrepresentation of Aboriginal and Torres Strait Islander peoples in Australian prisons, and criticisms that state governments have ignored reform proposals suggesting alternatives to incarceration be implemented.
• The effects of Bugmy v The Queen on the sentencing of Aboriginal and Torres Strait Islander peoples, and criticisms that this decision does not go far enough.
• The lack of recognition of Aboriginal traditional law in the criminal justice system.
• Evaluation of the Walama List Pilot introduced in the NSW District Court in 2022.

Police Powers

• Evaluation of the NSW Police Force’s bail compliance check practices, considering the Law Enforcement Conduct Commission’s (‘LECC’) recent call for submissions on this issue.
• Consideration of systemic issues in NSW Police Force’s interviewing practices, bearing in mind the recommendations of the LECC Operation Mantus report tabled in December 2023.
• The relationship between minority groups and the police, and factors that influence police officers’ awareness of these power dynamics and their effect.

However, authors are not limited to these topics and are encouraged to draw upon their own interests and expertise. The Journal welcomes comparative, inter-disciplinary, historical and novel methodological approaches, as well as doctrinal scholarship.

The submission deadline for the thematic Issue 48(2) is 15 November 2024, with publication set for late July 2025. Any changes to these deadlines will be updated on the Journal’s website.

Submissions should be between 7,000 and 13,000 words in length, excluding footnotes. The style guide for the Journal is the fourth edition of the Australian Guide to Legal Citation, as supplemented by the latest edition of the Journal’s ‘Additions’, which is available on our website.

The Journal is an independent, peer-reviewed publication. While publication is subject to peer review, publication decisions remain at the Editor’s discretion, in consultation with the Executive Committee of the Journal. The Journal does not publish articles that have been, or will be, published elsewhere, either in identical or substantially similar form. Please contact the Journal at law.journal@unsw.edu.au if you are interested or have queries about submitting for Issue 48(2).

If you intend to submit an article, it would be greatly appreciated if you could please provide some early indication of your proposed topic or area of research. We strongly encourage you to pass this call for submissions to any colleagues, research networks or organisations who may be interested in making a submission.

Yours sincerely,

Cordella O’Loughlin

Editor, Issue 48(2)

‘Equity, Conscience and Commercial Morality’

The UNSW Law Journal is currently welcoming submissions for the thematic component of Issue 47(4). The topic for this thematic is ‘Equity, Conscience and Commercial Morality’.

Though much has been made of the adage that ‘the categories of equity are never closed’, there has been significant stagnation in public debate regarding the development and reform of equity in general, particularly commercial equity. Though it is a given that courts of equity should work their way to a conclusion through a comprehensive view of every connected circumstance, equity continues to grapple with the extent to which the flexibility of equity conflicts with underlying principles, if at all. This is especially true in the realm of commercial equity, where certainty is widely considered to be of paramount importance. Indeed, the increasing complexity of commercial activity and regulation has made the search for unifying principles more difficult, and perhaps even undesirable.  

Meanwhile, there has been a resurgence in debate surrounding the place of moral and ethical concepts in commercial transactions and regulation. In particular, growth in the number and size of mega-corporations has given rise to concerns regarding commercial fairness in the marketplace. At the individual level, questions of if and how far equitable doctrines should intervene to uphold commercial fairness are the subject of ongoing judicial consideration.

It seems that the increasing speed of commercial innovation and development will continue to push the law towards a crossroads of ideals: for example, to what extent are traditional equitable doctrines suitable for the modern commercial environment? To what extent should moral concepts play a role in commercial transactions? Does equity remain fit for purpose, and what part should statute play in the fashioning of equitable relief? Such questions are ripe for academic commentary and analysis.

In writing submissions, authors may wish to explore the following issues. However, authors are not limited to these areas of law and are encouraged to draw upon their own areas of expertise. In particular, the Journal welcomes submissions that discuss relationships between equitable doctrines and private law, or that discuss private law theory. The Journal also welcomes comparative and inter-disciplinary, along with orthodox, approaches to these issues and questions.

The Role of Equity in Commerce

• The relationship between equitable doctrines and statutory regimes governing commercial behaviour.
• The tension between equity’s flexibility and the desirability of certainty in commercial transactions.
• The adequacy of equity’s ability to fashion justice and relief in the context of commercial law.

Modern Trusts and Equitable Duties

• The suitability of traditional equitable duties to modern day commercial activity and regulation.
• Uses and misuses of modern trusts, including trading trusts, superannuation and family discretionary trusts.
• The relationship between equitable duties and conscience.

Regulation of Financial Services

• The impact of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry and other inquiries on the moral and ethical standards applicable to commercial activity.
• The extent to which equitable concepts and moral ideas inform, or should inform, commercial and financial services regulation.
• Theories and methods of effective principles-based regulation.

Corporate Morality and Moral Market Practices

• The achievability and limits of commercial fairness in light of changing market structures and depreciation in consumer bargaining power.
• Corporate social responsibility and the moral obligations of the modern corporation.
• Theories of justice, such as distributive justice, in the context of consumer protection and regulatory responses to market crises.

Professional Services Firms and Professional Ethics

• The ethical role and obligations of professional and legal services firms in facilitating commercial transactions.
• The desirability of commercial efficiency and therefore the ethicality of firm use of emerging technologies, such as generative AI, to achieve those goals.

Discretion and Judicial Conscience in Commercial Litigation

• The characteristics and qualities of a properly formed judicial conscience as applicable to equitable suits and remedies.
• The place of moral and ethical concepts in judicial decision-making in commercial law, for example as applicable to judicial debate surrounding unconscionable dealing.

The submission deadline for the thematic Issue 47(4) is 31 March 2024, with publication set for early December 2024. Any changes to these deadlines will be updated on the Journal’s website.

Submissions should be between 7,000 and 13,000 words in length, excluding footnotes. The style guide for the Journal is the fourth edition of the Australian Guide to Legal Citation, as supplemented by the latest edition of the Journal’s Additions to the AGLC (4^th Ed), which is available on our website.

The Journal is an independent, peer-reviewed publication. While publication is subject to peer review, publication decisions remain at the Editor’s discretion, in counsel with the Executive Committee of the Journal. The Journal does not publish articles that have been, or will be, published elsewhere, either in identical or substantially similar form. Please contact the Journal at law.journal@unsw.edu.au if you are interested or have queries about submitting for Issue 47(4).

If you intend to submit an article, it would be greatly appreciated if you could please provide some early indication of your proposed topic or area of research. We strongly encourage you to pass this call for submissions to any colleagues, research networks or organisations who may be interested in making a submission.

Yours sincerely,

Rowan Gray
Editor, Issue 47(4)