17 U. Notre Dame Austl. L. Rev. i (2015)

handle is hein.journals/undauslr17 and id is 1 raw text is: 




FOREWORD


The seventeenth issue of The University of Notre Dame Australia Law Review contains an
interesting collection of seven articles and a case note on diverse areas of the law.

In the first article, 'Stemming the Tide of Aboriginal Incarceration', Miriam Kelly and Hilde
Tubex point out that Western Australia's prison population has the highest rate of Aboriginal
over-representation in Australia. They note that research on the criminogenic effect of
imprisonment suggests that the use of imprisonment as a deterrent to future offending is not
empirically supported and that imprisonment may in fact contribute to further offending. The
article explores theoretical debates surrounding penality as a way to inform alternative crime
control strategies to imprisonment. The authors assert that any strategy to reduce Aboriginal
imprisonment rates could benefit from a perspective that views Aboriginal imprisonment as a
manifestation of Aboriginal resistance to settler colonial dominance.

The second article by James Mansfield, 'Extraterritorial Application and Customary Norm
Assessment of Non-Refoulement: The Legality of Australia's Turn Back Policy', considers
whether the Commonwealth Government's border protection policy of turning back asylum
seeker boats breaches its international obligation not to refoule refugees imposed under art
33(1) of the Refugee Convention. In addressing this issue, Mansfield examines whether art
33(1) applies extraterritorially and whether a similar obligation has become embedded in
customary international law.

In the next article, 'Internal Policing of the Enduring Issue of Racism in Professional Team
Sports', Chris Davies and Neil Dunbar consider the issue of racism in professional team sports.
They discuss cases from Australian, English and European sport which indicate that internal
regulations appear to be effective in dealing with racism issues in those sports. They suggest
that while banning spectators who have been identified as having made racist comments is
important, it is the education of culprits (whether it be a player, manager, spectator or official)
that is essential.

In the next article, 'Judicial Activism and Arbitrary Control: A Critical Analysis of Obergefell
v Hodges 566 US (2015) - The US Supreme Court Same Sex Marriage Case', Augusto
Zimmermann discusses the issue of same-sex marriage through a critical analysis of the recent
US Supreme Court decision in Obergefell v Hodges. In his view the court in Obergefell put a
stop to the democratic process by removing an important issue from the realm of democratic
deliberation. He asserts that the judges have imposed their worldview on the people at the
expense of federalism and the democratic process. He argues that such an exercise of raw
judicial power usurps the constitutional right of the people to decide whether to keep or alter
the traditional understanding of marriage, adding that it evinces the deep and perhaps
irremediable corruption of the American legal culture's conception of constitutional
interpretation.

In Mariette Brennan's article, 'Is the Health Star Rating System a Thin Response to a Fat
Problem? An Examination of the Constitutionality of a Mandatory Front Package Labelling
System', the author discusses Australia's implementation of a new front package labelling
system for packaged food products. In discussing Australia's obesity epidemic that has given

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