John L Anderson

''Terror among the Gum Trees'' - Is Our Criminal Legal Framework Adequate to Curb the Peril of Bushfire Arson in Australia?

Many Australians choose to live in a natural environment which places them at risk of the devastating impact of bushfires. The threat of loss from bushfires appears to be on the increase assisted by the climatic conditions in Australia that are set to continue in the foreseeable future. Human activity is stated to be the single greatest cause of bushfire ignitions whether it is due to arson or from an accidental source. Against the backdrop of the catastrophic Victorian bushfires of February 2009 the authors examine the legal and regulatory frameworks relating to bushfire arson in Australia and also consider international perspectives as to both legislation and sentencing ideologies. Although a nationally co-ordinated approach is required in the formulation of substantive legislative provisions aimed at the crime of arson, the authors also advocate that the future way forward in the management of bushfire arson is to adopt a preventative rather than reactive approach. The creative role that courts can play with respect to sentencing options to address the needs of those involved in bushfire arson is also considered. Analysis of regulatory efforts both within and outside Australia reveal that the ‘terror’ in the bush is unlikely to be controlled by legal proscriptions alone but by an integrated approach involving police, the fire services and other correctional service agencies within the criminal justice system.

Confessions to Mr Big A new rule of evidence

In Queen v Hart, the Supreme Court of Canada recognised what was described as a ‘new rule of evidence’ concerning confessions obtained during ‘Mr Big’ operations. This undercover policing technique is known to be a time-intensive but effective strategy in the investigation of cases in which suspects are highly secretive. In Hart, the Canadian Supreme Court recognised the value of this form of investigation, but emphasised that such strategies require careful scrutiny by the judiciary because of the potential for unethical policing and the unreliability of confessions in cases where this evidence is obtained in association with ‘entrapment’ strategies. This article examines the ‘novel’ jurisprudence in Hart, and considers its utility in the context of other common law countries, particularly Australia where uniform evidence legislation applies in the majority of jurisdictions. Ultimately it is contended that the ‘new rule of evidence’ in Hart is effectively a specific adaptation of well-known rules of evidence in the extant common law and legislation of Australia, England and New Zealand and, therefore, of limited utility outside Canada.

Assemblage, Counter-Law and the Legal Architecture of Australian Covert Surveillance

Surveillance practices are typically divisible between the activities of private and state actors. A complex system of regulated and unregulated activity is interfaced with legal architectures deployed to authorise, prohibit, regulate and often legitimate those activities. In this chapter we explore the Australian legal architecture of surveillance. A brief history of Australian surveillance legislation, a discussion of the current regulatory framework at the State and Federal level, and consideration of issues of privacy, accessible technology and the justifications for strategic targeted surveillance operations in the context of a risk society comprise this chapter. By framing the legal architectures, we illustrate how developed legal systems organise and articulate surveillance practices, and consider several uses and effects of these articulations.