Do you want a chance to win $1,000 and be published in ALSA's Academic Journal? Enter into the National Essay Competition (NEC) for you chance to win!
The NEC is open to current Australian LLB or JD students. Students are encouraged to submit an academic paper between 3,000 and 12,000 words on any legal issue.
The winner will receive a prize of $1,000. The top four papers will also receive national exposure in the Australian Law Students’ Association Academic Journal which is distributed to all Australian law student societies.
Submission dates for the 2018 NEC will be announced in early 2018.
2017 NATIONAL ESSAY COMPETITION FINALISTS
In the field of Indigenous affairs, the focus of legislation and discourse thus far has largely been on land – that is, on real property rights. This focus aptly captures Western ownership-centric views and legal histories whilst also identifying the importance of Aboriginal connection to country. However, where this focus fails is in its disregard for the unique nature of that spiritual and cultural connection. Therein lies a bundle of Indigenous rights and interests compiling an ancient and hugely valuable compendium of traditional knowledge that remains unprotected from commercial exploitation.
Conventional law proving generally inadequate, Australia – and Victoria in particular – has begun to develop sui generis laws that recognise the unique nature of these traditional Indigenous rights and interests and which have recourse to customary law and tradition. The difficulty is in providing for these sui generis regimes such that they comfortably sit within, and engage with, the conventional law. Furthermore, any legislative scheme must also recognise the commercial landscape in which it will operate, for it is largely from commercial exploitation that rights and interests must be protected, particularly in the current shift towards the wide-spread incorporation of Aboriginal groups.
Upon review of the true state of affairs, I exhort the need to implement a new system that properly bridges the gap between different legal systems, and indeed between different ways of thinking. Such a system will be able to cater to the commercial reality of the corporate landscape in which dealings between indigenous and other parties now occur, and will allow traditional owners to come to any bargaining table with the full set of powers that would, under any other system, be afforded to the owners of that which is being bartered.
The Chinese Communist Party has implemented the rule of law as a major policy intended to steer China into a new political age. However, due to the fundamental differences between China and the West’s political, legal and historical backgrounds the implementation of the rule of law in China is assuming a vastly different form to its Western counterpart.
This essay aims to explore the mechanisms of the Western rule of law, China’s historical amenability to its traditional operation, the dimensions of China’s actual implementation of it and how it might function in China in the future.
Historically, military involvement in domestic affairs was associated with authoritarianism and military dictatorships. Such hostility towards domestic military deployments results from political and legal traditions such as parliamentary supremacy, which ensured that power did not rest solely with the Executive. The absence of domestic military presence is considered a hallmark of liberal democracy; however, tensions may arise between this and the state’s responsibility to protect its people during emergencies. One recent example in Australia was the terrorist act of the Lindt Café Siege, after which the military and the executive government were criticised for not calling out the troops under Part IIIAAA of the Defence Act 1903 (Cth) to intervene earlier to dispel the threat. On the other hand, Part IIIAAA has been strongly criticised for allowing increased militarisation, increasing executive powers, and overstepping state authority and power by allowing the military to intervene domestically. This paper aims to justify Part IIIAAA and the expansion of military power domestically, using a jurisprudential framework going beyond contemporary policy-making, to demonstrate the necessity in having an emergency system where the executive, and military, can intervene to protect the citizens and state. The first section discusses emergency jurisprudence, providing different models that justify greater executive power in emergency situations, using theorists such as Oren Gross, David Dyzenhaus, John Locke and Giorgio Agamben. The second considers martial law as an emergency response, and its scope in liberal democracies, focussing on A V Dicey’s view on martial law. The third section provides examples of executive action in times of emergency, by referring to colonial Australia, the UK, Jamaica, Cape Colony and the US. The final section addressees and justifies Part IIIAAA and its position as a hybridised emergency mechanism using the aforementioned ideas on emergency jurisprudence.
Please note that any original work contained in the essays linked above remains the intellectual property of the authors. These essays must not be copied or distributed without the consent of the author.