Paul Fairall | Curtin University (original) (raw)
Papers by Paul Fairall
James Cook University law review, 2004
Can the doctrine of necessity be used to justify, either retrospectively or prospectively, interr... more Can the doctrine of necessity be used to justify, either retrospectively or prospectively, interrogation techniques that would ordinarily be regarded as torture? The standard hypothetical case used to support this astonishing suggestion is the 'ticking bomb' scenario. A bomb is ticking. Its location is unknown, except to the person in the cell next door. Many lives are in the balance. Your captive won't talk. He or she might under torture. Would you not allow it? Would you torture their innocent child to make someone talk? Would you punish someone who tortured another in order to extract vital information? In this paper I propose to explore this conundrum: to what extent are wrong actions privileged by good intentions? I propose to do so against the backdrop of a recent upsurge in terrorism.
This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been a... more This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in High Court Review by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Recommended Citation Paul Ames Fairall. (1995) "Improper use of position by company officers: The Queen v Hopwood & Byrnes" ,, .
Melbourne University Law Review, 2007
attacks in the United States represent an extraordinary challenge for human rights protection in ... more attacks in the United States represent an extraordinary challenge for human rights protection in Australia. The legislative erosion of rights traditionally assumed as being fundamental within common law countries lies at the heart of this challenge. This article focuses on extraordinary measures recently added to the package of anti-terrorism laws: preventative detention orders; prohibited contact orders; and control orders. These measures were added to Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) by the Anti-Terrorism Act [No 2] 2005 (Cth), and directly and explicitly remove or interfere with a number of individual rights. In this article we argue that the threat to human rights posed by such measures derives not only from their legislative enactment and form. The threat is heightened by the dominance of a positivistic legalism in the approach of the High Court of Australia-an approach that treats the constitutional text as the foundation of the rule of law in Australia, as opposed to the supreme manifestation of the rule of law that rests on a broader, but less explicit, foundation of constitutionalism. In this respect, the presence of a written Constitution has hindered the protection of rights to the extent that the principle of legality operates within a textual straitjacket. Until such time as Australia adopts a bill of rights at the national level, or there occurs an unlikely shift in the jurisprudential approach of the High Court, the Court will have little room to manoeuvre out of its positivistic corner when faced with other extraordinary legislative measures.]
This paper will consider the Australian response to people smuggling against the backdrop of the ... more This paper will consider the Australian response to people smuggling against the backdrop of the events of September 11 and the so-called war on terrorism, in which Australia is an enthusiastic participant. Border protection became the key issue in the recent federal elections, the result of the coincidence of September 11 and the almost contemporaneous saga involving the rescue ship, the MV Tampa. In the aftermath of the Tampa case, the government introduced mandatory minimum sentences for people smuggling, and introduced specific measures retrospectively removing any possible claim for compensation or unlawful action in relation to the detention of the Tampa. Importantly, parts of Australia most accessible by boat from Indonesia, namely, Christmas Island, Ashmore Reef and the Cocos Islands, were removed from the country's migration zone, making it impossible to apply for a protection visa from those parts of Australia. The government also strengthened the regime of mandatory d...
The principle that the prosecution must prove the guilt of the accused beyond reasonable doubt is... more The principle that the prosecution must prove the guilt of the accused beyond reasonable doubt is basic to the administration of criminal justice (Woolmington v The Queen). The purpose of this article is to determine the outer limits of the principle by reviewing some recent cases in the High Court of Australia. These cases show that the Woolmington principle is not absolute. It does not govern every aspect or stage of a criminal trial. It is hoped that by studying the exceptions to the general principle, its central meaning will be seen in sharper focus.
In Australia it has been customary to force a person who cannot afford legal representation to tr... more In Australia it has been customary to force a person who cannot afford legal representation to trial undefended, even in cases of serious crime. In Dietrich v The Queen (’Dietrich') the Full Bench of the High Court of Australia, in a majority decision, signalled that this practice should cease.
The remarkable case of Cogden1 offers a good example of the exculpatory force of sane delusions. ... more The remarkable case of Cogden1 offers a good example of the exculpatory force of sane delusions. Mrs Cogden killed her daughter under the influence of a nightmare that she was being attacked by North Korean soldiers. She was tried before the Supreme Court of Victoria and acquitted. Cogden is usually treated as an early example of sane automatism by sleep-walking. It was not a case of insanity and there was no reason for imposing a special verdict. A case such as Cogden may also be analysed in terms of the defence of mistake of fact. A mistaken belief may negate some fault element. It may also activate a defence (such as self-defence) not otherwise available on the objective factso2 Delusions wil! be exculpatory in the second situation to the extent that the subjective beliefs of the accused are relevant to the particular defence which is raised. This note canvasses the law on the borderline of sanity, where sane delusions shade into insane delusions. Is there a difference between sa...
This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been a... more This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in High Court Review by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Recommended Citation Neil Rees and Paul Fairall. (1995) "Gregory Wayne Kable v The Director of Public Prosecutions for New South Wales: The power to legislate for one" ,, .
Federal laws passed since the 11 September 2001 attacks in the United States represent an extraor... more Federal laws passed since the 11 September 2001 attacks in the United States represent an extraordinary challenge for human rights protection in Australia. The legislative erosion of rights traditionally assumed as being fundamental within common law countries lies at the heart of this challenge. This article focuses on extraordinary measures recently added to the package of anti-terrorism laws: preventative detention orders; prohibited contact orders; and control orders. These measures were added to Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) by the Anti-Terrorism Act [No 2] 2005 (Cth), and directly and explicitly remove or interfere with a number of individual rights. In this article we argue that the threat to human rights posed by such measures derives not only from their legislative enactment and form. The threat is heightened by the dominance of a positivistic legalism in the approach of the High Court of Australia — an approach that treats the constitutional text as the foundation of the rule of law in Australia, as opposed to the supreme manifestation of the rule of law that rests on a broader, but less explicit, foundation of constitutionalism. In this respect, the presence of a written Constitution has hindered the protection of rights to the extent that the principle of legality operates within a textual straitjacket. Until such time as Australia adopts a bill of rights at the national level, or there occurs an unlikely shift in the jurisprudential approach of the High Court, the Court will have little room to manoeuvre out of its positivistic corner when faced with other extraordinary legislative measures.
James Cook University law review, 2004
Can the doctrine of necessity be used to justify, either retrospectively or prospectively, interr... more Can the doctrine of necessity be used to justify, either retrospectively or prospectively, interrogation techniques that would ordinarily be regarded as torture? The standard hypothetical case used to support this astonishing suggestion is the 'ticking bomb' scenario. A bomb is ticking. Its location is unknown, except to the person in the cell next door. Many lives are in the balance. Your captive won't talk. He or she might under torture. Would you not allow it? Would you torture their innocent child to make someone talk? Would you punish someone who tortured another in order to extract vital information? In this paper I propose to explore this conundrum: to what extent are wrong actions privileged by good intentions? I propose to do so against the backdrop of a recent upsurge in terrorism.
This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been a... more This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in High Court Review by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Recommended Citation Paul Ames Fairall. (1995) "Improper use of position by company officers: The Queen v Hopwood & Byrnes" ,, .
Melbourne University Law Review, 2007
attacks in the United States represent an extraordinary challenge for human rights protection in ... more attacks in the United States represent an extraordinary challenge for human rights protection in Australia. The legislative erosion of rights traditionally assumed as being fundamental within common law countries lies at the heart of this challenge. This article focuses on extraordinary measures recently added to the package of anti-terrorism laws: preventative detention orders; prohibited contact orders; and control orders. These measures were added to Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) by the Anti-Terrorism Act [No 2] 2005 (Cth), and directly and explicitly remove or interfere with a number of individual rights. In this article we argue that the threat to human rights posed by such measures derives not only from their legislative enactment and form. The threat is heightened by the dominance of a positivistic legalism in the approach of the High Court of Australia-an approach that treats the constitutional text as the foundation of the rule of law in Australia, as opposed to the supreme manifestation of the rule of law that rests on a broader, but less explicit, foundation of constitutionalism. In this respect, the presence of a written Constitution has hindered the protection of rights to the extent that the principle of legality operates within a textual straitjacket. Until such time as Australia adopts a bill of rights at the national level, or there occurs an unlikely shift in the jurisprudential approach of the High Court, the Court will have little room to manoeuvre out of its positivistic corner when faced with other extraordinary legislative measures.]
This paper will consider the Australian response to people smuggling against the backdrop of the ... more This paper will consider the Australian response to people smuggling against the backdrop of the events of September 11 and the so-called war on terrorism, in which Australia is an enthusiastic participant. Border protection became the key issue in the recent federal elections, the result of the coincidence of September 11 and the almost contemporaneous saga involving the rescue ship, the MV Tampa. In the aftermath of the Tampa case, the government introduced mandatory minimum sentences for people smuggling, and introduced specific measures retrospectively removing any possible claim for compensation or unlawful action in relation to the detention of the Tampa. Importantly, parts of Australia most accessible by boat from Indonesia, namely, Christmas Island, Ashmore Reef and the Cocos Islands, were removed from the country's migration zone, making it impossible to apply for a protection visa from those parts of Australia. The government also strengthened the regime of mandatory d...
The principle that the prosecution must prove the guilt of the accused beyond reasonable doubt is... more The principle that the prosecution must prove the guilt of the accused beyond reasonable doubt is basic to the administration of criminal justice (Woolmington v The Queen). The purpose of this article is to determine the outer limits of the principle by reviewing some recent cases in the High Court of Australia. These cases show that the Woolmington principle is not absolute. It does not govern every aspect or stage of a criminal trial. It is hoped that by studying the exceptions to the general principle, its central meaning will be seen in sharper focus.
In Australia it has been customary to force a person who cannot afford legal representation to tr... more In Australia it has been customary to force a person who cannot afford legal representation to trial undefended, even in cases of serious crime. In Dietrich v The Queen (’Dietrich') the Full Bench of the High Court of Australia, in a majority decision, signalled that this practice should cease.
The remarkable case of Cogden1 offers a good example of the exculpatory force of sane delusions. ... more The remarkable case of Cogden1 offers a good example of the exculpatory force of sane delusions. Mrs Cogden killed her daughter under the influence of a nightmare that she was being attacked by North Korean soldiers. She was tried before the Supreme Court of Victoria and acquitted. Cogden is usually treated as an early example of sane automatism by sleep-walking. It was not a case of insanity and there was no reason for imposing a special verdict. A case such as Cogden may also be analysed in terms of the defence of mistake of fact. A mistaken belief may negate some fault element. It may also activate a defence (such as self-defence) not otherwise available on the objective factso2 Delusions wil! be exculpatory in the second situation to the extent that the subjective beliefs of the accused are relevant to the particular defence which is raised. This note canvasses the law on the borderline of sanity, where sane delusions shade into insane delusions. Is there a difference between sa...
This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been a... more This Journal Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in High Court Review by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Recommended Citation Neil Rees and Paul Fairall. (1995) "Gregory Wayne Kable v The Director of Public Prosecutions for New South Wales: The power to legislate for one" ,, .
Federal laws passed since the 11 September 2001 attacks in the United States represent an extraor... more Federal laws passed since the 11 September 2001 attacks in the United States represent an extraordinary challenge for human rights protection in Australia. The legislative erosion of rights traditionally assumed as being fundamental within common law countries lies at the heart of this challenge. This article focuses on extraordinary measures recently added to the package of anti-terrorism laws: preventative detention orders; prohibited contact orders; and control orders. These measures were added to Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) by the Anti-Terrorism Act [No 2] 2005 (Cth), and directly and explicitly remove or interfere with a number of individual rights. In this article we argue that the threat to human rights posed by such measures derives not only from their legislative enactment and form. The threat is heightened by the dominance of a positivistic legalism in the approach of the High Court of Australia — an approach that treats the constitutional text as the foundation of the rule of law in Australia, as opposed to the supreme manifestation of the rule of law that rests on a broader, but less explicit, foundation of constitutionalism. In this respect, the presence of a written Constitution has hindered the protection of rights to the extent that the principle of legality operates within a textual straitjacket. Until such time as Australia adopts a bill of rights at the national level, or there occurs an unlikely shift in the jurisprudential approach of the High Court, the Court will have little room to manoeuvre out of its positivistic corner when faced with other extraordinary legislative measures.