In conversation with the Honourable Ian Callinan AC

When, in 1977, the Australian electorate provided a double majority to effect a change of section 72 of the Commonwealth Constitution requiring judges of the High Court of Australia to retire at the age of 70 years old, I doubt we understood the continuing capacity of these esteemed members of the judiciary. For the opportunity to sit and talk with Ian Callinan AC who, in compliance with that amendment, retired from the High Court in September 2007, I needed to wait until he returned from The Hague where he was sitting as a Judge ad hoc on the International Court of Justice. Although a native of Casino, New South Wales, Mr Callinan is regarded as a Queenslander. Indeed, he grew up in Brisbane, finished high school at Brisbane Grammar and graduated in law at The University of Queensland. Appointed in 1978 as a Queen’s Counsel, Mr Callinan enjoyed this period of his legal career and we discussed an aspect of the Christopher Skase case, which reinforced my belief that Mr Callinan is an incredibly skilful advocate. On 14 September 1998, ABC Four Corners broadcasted the views of some prominent Australians on the appointment of Mr Callinan to the High Court. In assessing the type of person Mr Callinan is, Tony Morris QC said: “Ian Callinan isn't a coward”, while former Commonwealth Attorney-General, Michael Lavarch, said: “He was regarded as an absolutely outstanding criminal lawyer within the Queensland legal profession, I mean really a top-notch advocate”. I was not interested in raising any of the controversial issues that Mr Callinan has encountered as an advocate in high profile matters. I wanted to know how he felt about his time on the High Court, what his thoughts are on the operation of the High Court, the IP cases he decided, the real life issues that he feels impact on counsel who are appearing before the High Court and the people he regarded as role models. During our conversation, Mr Callinan laughed often and when he did his eyes lit up, revealing his passion for life. He is an incredibly genuine Australian who loved his time as a barrister, enjoyed his role on the High Court, enjoys his current job as mediator, loves writing novels, has a great desire for continual improvement in the quality of legal education and legal advocacy and sees a need for change in IP law. When I asked: “So, what might the future hold for you?”, he laughed and said: “Well, at my age I don’t have a long horizon time”. I said: “Just enjoy the journey?”, to which Mr Callinan responded: “Exactly”.

Re-framing planning decision-making : increasing flood resilience in Jakarta

Purpose – Rapid urbanisation, fragmented governance and recurrent flooding complicates resolution of DKI Jakarta’s chronic housing shortage. Failure to effectively implement planning decisionmaking processes poses potential human rights violations. Contemporary planning policy requires the relocation of households living in floodplains within fifteen metres of DKI Jakarta’s main watercourses; further constraining land availability and potentially requiring increased densification. The purpose of this paper is to re-frame planning decision-making to address risks of flooding and to increase community resilience. Design/methodology/approach – This paper presents a preliminary scoping study for a technologically enhanced participatory planning method, incorporating synthesis of existing information on urbanisation, governance, and flood risk management in Jakarta. Findings – Responsibility for flood risk management in DKI Jakarta is fragmented both within and across administrative boundaries. Decision-making is further complicated by: limited availability of land use data; uncertainty as to the delineated extent of watercourses, floodplains, and flood modelling; unclear risk and liability for infrastructure investments; and technical literacy of both public and government participants. Practical implications – This research provides information to facilitate consultation with government entities tasked with re-framing planning processes to increase public participation. Social implications – Reduction in risk exposure amongst DKI Jakarta’s most vulnerable populations addresses issues of social justice.

The economics of credence goods : an experiment on the role of liability, verifiability, reputation and competition

Credence goods markets are characterized by asymmetric information between sellers and consumers that may give rise to inefficiencies, such as under- and overtreatment or market breakdown. We study in a large experiment with 936 participants the determinants for efficiency in credence goods markets. While theory predicts that liability or verifiability yield efficiency, we find that liability has a crucial, but verifiability at best a minor, effect. Allowing sellers to build up reputation has little influence, as predicted. Seller competition drives down prices and yields maximal trade, but does not lead to higher efficiency as long as liability is violated. (JEL D12, D82)

OHS liability, corporate officers and corporate groups

This article examines the new model for corporate officer liability under section 144 of the Occupational Health and Safety Act 2004 (Vic), and explores the extent to which this might effectively extend responsibility for OHS offences to members of corporate groups, such as holding companies. In doing so, the authors canvass the failure of corporate law to impose such obligations on corporate officers in general, and on holding companies as shadow officers. It is argued that provisions such as section 144 of the Victorian Act should be included in all OHS legislation.

Book review - Richard Goldberg, Medicinal Product Liability and Regulation (Hart Publishing, Oxford, 2013) 214pp

In December 2013, settlement was reached between approximately 100 Australian and New Zealand Thalidomide victims and the company which had acted as the Australian distributor of the infamous drug, thus putting to rest the possibility of litigation. Around the same time, Thalidomide victims in the United Kingdom (UK) launched a similar bid for compensation against the manufacturer and distributor. It is clear that despite a lengthy amount of time having passed ever since the thalidomide disaster commenced in 1962, the controversy over compensation continues. Indeed, the author of Medicinal Product Liability and Regulation (published before the announcement of the British legal claim), Professor Goldberg, notes that claims for resulting birth defects continue to emerge right into the present day. His prescient insight into the contemporary relevance of compensation for pharmaceutical injuries thus makes Medicinal Product Liability and Regulation a very relevant addition to the small body of scholarship that is available on this rather specific and complex issue.

Project-based civil engineering courses

Problem solving is an essential element of civil engineering education. It has been observed that students are best able to understand civil engineering theory when there is a practical application of it. Teaching theory alone has led to lower levels of comprehension and motivation and a correspondingly higher rate of failure and “drop-out”. This paper analyses the effectiveness of introducing practical design projects at an early stage within a civil engineering undergraduate program at Queensland University of Technology. In two of the essential basic subjects, Engineering Mechanics and Steel Structures, model projects which simulate realistic engineering exercises were introduced. Students were required to work in small groups to analyse, design and build the lightest / most efficient model bridges made of specific materials such as spaghetti, drinking straw, paddle pop sticks and balsa wood and steel columns for a given design loading/target capacity. The paper traces the success of the teaching strategy at each stage from its introduction through to the final student and staff evaluation.

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

Governing civil society: How literacy, education and security were brought together

This study questions how the categories of security, education and literacy were brought together as related elements of a whole-of-government strategy in the production of civil society. Drawing on an analysis of key political texts, the study argues that the categories of education and literacy have been used in diverse ways in the production of national, social, economic and geopolitical security interests. As dialogue about security has intensified, rationalisations about the national interest have engaged notions of security leading to the legitimation of a diverse set of policy instruments, strategically used to contain the rise of complex social forces and protect homogenous cultural values.

The responsibility of intermediaries: Emerging IP protection schemes, from Content ID, to three-strikes and follow-the-money

The only effective and scalable way to regulate the actions of people on the internet is through online intermediaries. These are the institutions that facilitate communication: internet service providers, search engines, content hosts, and social networks. Governments, private firms, and civil society organisations are increasingly seeking to influence these intermediaries to take more responsibility to prevent or respond to IP infringements. Around the world, intermediaries are increasingly subject to a variety of obligations to help enforce IP rights, ranging from informal social and governmental pressure, to industry codes and private negotiated agreements, to formal legislative schemes. This paper provides an overview of this emerging shift in regulatory approaches, away from legal liability and towards increased responsibilities for intermediaries. This shift straddles two different potential futures: an optimistic set of more effective, more efficient mechanisms for regulating user behaviour, and a dystopian vision of rule by algorithm and private power, without the legitimising influence of the rule of law.

Integrated reporting and directors’ concerns about personal liability exposure: Law reform options

Integrated reporting () holds significant promise as a new reporting paradigm that is holistic, strategic, responsive, material, and relevant across multiple time frames. However, its uptake in Australia is being hampered by directors’ concerns about personal liability exposure, particularly for forward-looking statements that subsequently prove to be unfounded. This article seeks to illuminate the bases for these liability concerns by outlining the similarities between and the operating and financial review requirements under the Corporations Act 2001 (Cth), and the relevant grounds for liability for misleading and deceptive disclosures, and breach of directors’ duties. In light of this discussion, this article proposes four possible reform options, ranging from minor adaptations to the Framework to far-reaching reforms of the Corporations Act. As assurance is desirable to ensure that reliance can be placed on integrated reports, the development of a legal safe harbour for auditors of forward-looking information is also canvassed.

Receivers' future liability for costs

In Juniper Property Holdings No.15 Pty Ltd v Caltabiano [2015] QSC 95, Jackson J considered what he described as a 'novel point' as to whether the court had jurisdiction to make a determination of the liability of receivers and managers appointed to the plaintiff to pay any costs orders that may be made in favour of the defendant.