James McConvill

Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.

Positive Psychology and the Demise of Defamation

Defamation is one of the more complex and fluid areas of the law and varies considerably across the Australian jurisdictions. There are moves to unify defamation law. The threshold issue that is raised in any such process is whether there is in fact a justification for continuation of defamation law. Recent advances in happiness studies and positive psychology suggest that the chief interest protected by defamation law, reputation, is over-rated and is not in fact conducive to human well-being. What others think of us is not relevant to our well-being. Anecdotally it seems that people spend much time and energy in a bid to impress others in the hope that they will grow in the estimation of others and the world at large. Hence, the results of the studies into human well-being so far as reputation is concerned may appear counter-intuitive. Nevertheless, the studies are far more convincing than lay assumptions. People are often wrong about what is in their interests. This is recognised in the concept of regret. Individuals yearn for some things, but sometimes when they acquire them they discover that the journey was wasted. Reputation is one such thing. Defamation law perpetuates the myth that reputation is intrinsically important. Defamation should be abolished. In its place, a new cause of action should be introduced whereby damages are awardable for misleading and deceptive communications which cause damage to the individual who is the subject of the communication. This cause of action should be modelled on the misleading and deceptive conduct provisions of the Trade Practices Act 1974 (Cth).

Principles of Contemporary Corporate Governance: Auditors and audits

Audited financial statements are an important part of the financial information that is available to the capital markets and an important part of effective corporate governance. Ian M Ramsay, Independence of Australian Company Auditors: Review of Current Australian Requirements and Proposals for Reform, Report to the Minister for Financial Services and Regulation, Department of Treasury (October 2001) [4.01] Introduction: The audit role and where it fits into corporate governance Overview of the audit role Auditing is defined as an assurance service that objectively gathers evidence and communicates it to third parties. Companies that are required to prepare a financial report for a financial year must have their financial report audited and obtain an auditors report. Thus all large proprietary companies and public companies must appoint an auditor. Small proprietary companies, and small companies limited by guarantee, are not required to prepare a financial report in normal circumstances and hence need not appoint an auditor. However, they must do so in a limited range of circumstances, namely where members holding at least 5 per cent of the votes in a general meeting require preparation of accounts and ask for an auditor. Broadly, the function of an auditor is to conduct a review and verification of the financial affairs of the company and to ascertain whether the financial report provided by the company complies with relevant legal requirements and accounting principles, and gives a true and fair account in all material respects of the companys financial affairs. The audit role has several objectives. The main one is to provide reasonable assurance that the financial information reported by the company is free from material misstatement. In the process, auditors provide a barrier of protection against careless or dishonest company officers. In order to fulfil this role, the auditor must have suitable skills and expertise, and must be independent of the company. The main auditing requirement is to provide a report to the members, within the financial report, for a financial year. This is laid before the annual general meeting and lodged with the Australian Securities and Investments Commission (ASIC). It is important to note that the auditors role is essentially procedural, not substantive, in nature. More particularly, pursuant to sections 307 and 308 of the Corporations Act 2001 (Cth), the auditors report to members must set out a number of matters in relation to the financial report for a financial year.

Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the childs best interests. His Honour did, however, find that due to the way in which particular provisions of Australias Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the ‘parent’ of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a ‘parent’ for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of ‘father’, and in some jurisdictions ‘parent’, rather than merely being a ‘donor’.

The Right to Convert Exploration Licences to Mining Leases in Australia: a Proposed National Uniform Model

In this article, the authors raise an important proposal for reform to Australias mining legislation: a nationally-consistent model providing exploration licence holders with a legislative right to be granted a mining lease. This proposed national model will be designed to reflect the present Western Australian system—Western Australia being the only jurisdiction to provide exploration licence holders with the express right to be granted a mining lease on application. The authors believe that the Western Australian system should provide the basis for a national legislative model, given that it is designed to balance appropriately the interests of companies wanting a right to mine to recoup the costs involved in exploring for minerals, and the interests of the public in ensuring that exploration and mining is conducted reasonably.