'Mad' Edwin Withers and the Struggle for Fair Trial Rights in NSW

Since the 1980s, a number of fair trial rights and civil liberties have been eroded in Australia, particularly in respect to summary justice and police powers. This article traces the 'bottom-up' origins of some of those rights and liberties in colonial New South Wales. It focuses on the activist Edwin Withers and his interactions with the Parramatta magistracy in the mid 1840s. The Withers example enables us to see how some fair trial rights and civil liberties resulted from community-based social activism, which relied upon the legislature and higher court authority to become law. The importance of these rights - for example, the right to counsel, the right to a fair and impartial tribunal and protection against arbitrary detention - is demonstrated by the very fact that they issued from the working and middle classes and are implicated within wider class relationships involving residents of a local community. Using archival research and qualitative analysis, this article has important implications for Australian legal history in relation to the adoption of the Jervis Acts 1848 (UK), some of the first summary procedure legislation enacted within colonial NSW. The article demonstrates how the fair trial rights campaign at Parramatta resulted in amendment to the adopted Acts in the colony

Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales

© The Author(s) 2019. There is a scant existing literature on the relationship between the right to silence and its effect on convictions in Australia and comparable jurisdictions. Existing research has downplayed its significance in the face of various ‘law and order’ interventions seeking to limit its operation. This study is one of the largest of its kind, surveying over 1,000 charges to empirically assess the frequency of use and the effects of silence rights (the right to silence, privilege against self-incrimination and burden of proof) on conviction, in relation to a particular set of charges laid against a specific group of marginalised defendants in the Local Court summary jurisdiction of NSW. Adding to the existing literature, this study shows empirically how silence rights operate within an Australian summary jurisdiction for a specific group of criminal defendants who are significantly socially marginalised. In the process, it demonstrates that the use of silence rights is significant for this group, mostly in non-regulatory criminal matters. In this respect, silence rights can be understood to correlate with rates of conviction, mitigation of criminal sentencing and the practice of charge-bargaining

Regulating Executive Salaries and Reducing Pay Disparities: Is pay disclosure the answer?

In 2017 it was reported that Ahmed Fahour, CEO of Australia Post – a publicly owned company – earned AUD$10.8 million in a single year. In 2015, he was paid 119 times the annual salary of the average Australia Post employee ($47,000 per annum). Fahour presided over the organisation's greatest decline in company turnover, accompanied by large-scale retrenchments of low-paid workers (Evershed, 2017). Yet as extravagant as Fahour’s pay appears, it is far from the largest executive remuneration packages paid to CEOs in Australia. In recent years, some have surpassed $30 million per annum. In the United States (US), CEO pay can be 300 times that of the average wage within the company (Mishel and Davis, 2015). Even after a slight ‘correction’ in CEO pay, which dipped in Australia during the Global Financial Crisis from an average of$5.5 million per annum to $4.7 million, David Richardson of The Australia Institute has recently found that CEO pay is on the rise again, averaging$5.2 million last financial year (Patty, 2018; Richardson, 2018)

Undoing a model system: A new federal custody notification service

© The Author(s) 2018. The Custody Notification Service is a legislative scheme to prevent Aboriginal deaths in custody. This article discusses proposed changes to the federal Custody Notification Service, that were before the federal Parliament in late 2017. It argues that the changes are inadequate, when compared with Custody Notification Service models in other Australian jurisdictions, primarily because the laws deprive Aboriginal people of important fair trial and custody rights. This article concludes by listing a range of legislative solutions proposed by Aboriginal organisations and legal representatives

Equity fines for corporate crime: Why they should be back on the legislative agenda

© The Author(s) 2019. Corporate crime causes significant social and environmental harm and its sentencing is frequently ineffective due to the ability of corporations to pass-on monetary fines to stakeholders such as workers and consumers. This article investigates the notion of equity fines or share dilution as an alternative corporate punishment that avoids the pitfalls of conventional monetary fines while acting as a significant deterrent to corporate offending. It does so by responding to the last official Australian critique of this punishment, in light of a 2010 attempt by the Scottish legislature to implement equity fines in that jurisdiction

Resistance and Reform: Shared relationships and common interests among the subjects of criminal law in colonial New South Wales

Convict history, labour history and Indigenous history provide colonial historians with abundant evidence for charting and analysing the development of both Australian democracy and the coercive Australian state. These histories often focus on one or two subaltern social groups, to the exclusion of others, or, in some cases, on the conflicts between them. This article examines this historiography before introducing a new approach to the study of Australian colonial legal history which explores the commonalities shared by marginalised peoples, arising from a combination of class and ‘race’ dynamics. It does so specifically by analysing the social processes and patterns of resistance involved in the emergence of democratic majoritarian reform to criminal law throughout the period 1788 to 1861 — a subject of recent legal historical scholarship. Explored here is the notion of shared relationships and common interests as a theoretical device that deepens existing postcolonial understandings of who comprised the major subjects of colonial criminal law and the role they played in challenging and reforming it

Industrial legislation in Australia in 2018

© 2019, Australian Labour and Employment Relations Association (ALERA), SAGE Publications Ltd, Los Angeles, London, New Delhi, Singapore and Washington DC. It has been a quiet year like last year for the passing of federal industrial legislation (due to a number of factors, including the political turmoil of the federal coalition government and their lack of an overall labour law reform agenda). This article examines key federal industrial legislative developments including the Modern Slavery Act 2018 (Cth). The article identifies that the federal Act contains much weaker compliance measures than the counterpart New South Wales legislation also passed in 2018 – the Modern Slavery Act 2018 (NSW). Also, although the Coalition government has attempted to continue to prosecute its case for further union governance measures, this agenda has been less successful than in previous years, with key government Bills not yet passed by the Parliament. The stagnation in the federal Parliament continues to motivate certain State Parliaments to address worker exploitation, and the article goes on to examine key State industrial legislation passed in 2018 including the Victorian labour hire licensing statute. In light of the continuing dominant position of the federal Labor opposition in opinion polls and an impending federal election in 2019, the article concludes by briefly considering the federal Labor opposition's agenda for industrial legislation