The pragmatic approach : the myriad gene patents before the Australian courts

The Full Court of the Federal Court of Australia in D'Arcy v Myriad Genetics [2014] FCAFC 115 recently upheld the validity of Myriad Genetics' Australian BRCA1 gene patent over isolated DNA sequences.

Is climate change litigation an effective strategy for promoting greater action to address climate change? What other legal mechanisms might be appropriate?

In recent times a widespread consensus on the reality and gravity of anthropogenic climate change has emerged. Perceived inadequacies in the Australian government’s legal and policy responses to climate change issues have resulted in environmental activists increasingly turning to the courts as a strategy to promote greater action to address adverse climate impacts. The efficacy of this strategy for achieving climate goals is limited by the time and expense of litigating, the restrictions inherent in environmental law administrative challenges, and the possibility that judicial decisions may be overruled by the legislature. To date, climate change litigation in Australia has met with varied success, yet its significance extends beyond the court room as an important mechanism for raising public, political and commercial awareness about climate change issues. Ultimately, however, the types of far-reaching changes needed to mitigate and manage adverse climate impacts require strong regulatory backing. The most effective approach to addressing the complex challenges posed by climate change is a coordinated suite of regulatory measures spearheaded by the Federal Government.

Ants, apples and the ABCs: The use of commercial phonics programmes in prior-to-school children's services

Commercial phonics programmes (e.g. Jolly Phonics and Letterland) are becoming widely used in the early years of school. These programmes claim to use a systematic explicit approach, considered as the preferred method of phonics instruction for teaching alphabetic code-breaking skills in Australia and the UK in the first years of school (Department of Education, Science and Training, 2005; Rose, 2006). However, little is known about the extent to which they are being used in prior-to-school settings, and the reasons behind decisions to use them. This study surveyed 283 early childhood staff in Sydney, Australia and found that commercial phonics programmes were being used in 36% of the early childhood settings surveyed. Staff with early childhood univer- sity qualifications and staff working in not-for-profit service types were less likely to use a commercial phonics programme than staff without university qualifications and staff working in for-profit services. Staff with less than 10 years’ experience were also more likely to use a commercial phonics programme. The rationale behind decisions deter- mining whether or not staff used the programmes ranged from pragmatic reasons, such as parent pressure or higher management decisions, to pedagogical reasons, such as teacher beliefs about how children learn to read and write. The practices staff engage in to teach phonics are explored.

The ghost in the machine: Legal challenges of neural interface devices

Neural interface devices and the melding of mind and machine, challenge the law in determining where civil liability for injury, damage or loss should lie. The ability of the human mind to instruct and control these devices means that in a negligence action against a person with a neural interface device, determining the standard of care owed by him or her will be of paramount importance. This article considers some of the factors that may influence the court’s determination of the appropriate standard of care to be applied in this situation, leading to the conclusion that a new standard of care might evolve.

Putting the 'Personal' back into injury: An interpretation of Pt 3-5 of the ACL

There is an ongoing debate in relation to Part 3-5 of the ACL, particularly over its use in relation to other civil liability remedies. This article looks more closely at ss 138 and 139. It argues that, because of a possible design flaw in the statutory construction of s 138, it can be interpreted much more broadly than it has been to date. Also, the paper discusses the effect on an interpretation of s 139 ACL of both the High Court’s decision in Marks v GIO Australia Holdings Ltd, and a small but significant amendment to s 139 when the ACL was enacted. It argues that s 139 can now be interpreted broadly to include claims not just for loss of financial support or services but for all loss or damage or injury caused.

Australian Commercial Law

Australian Commercial Law offers a concise yet comprehensive introduction to commercial law in Australia. The textbook provides a thorough and detailed discussion of a variety of topics in commercial law such as agency, bailment, the sale of goods, the transfer of property and the Personal Property Securities Act. The book also offers a detailed overview of topics within the Australian Consumer Law that are now relevant to commercial practice such as unconscionable conduct, consumer guarantees, and misleading and deceptive conduct. Written in a clear and accessible style, each chapter features key points and further reading to enhance students' understanding. Significant cases are discussed in detail and include excerpts from judgments to illustrate points of law. Australian Commercial Law is an indispensable resource for students who are seeking a comprehensive understanding of commercial law.

It might be yours there but it’s not down here: Issues arising under the PPSA in cross-border transactions

As a relatively new piece of legislation, the Personal Property Securities Act 2009 (Cth) (PPSA) is yet to be the subject of much significant judicial consideration. Whilst the position of the Australian courts is becoming clearer in relation to domestic disputes, parties to cross-border transactions continue to encounter an alarming number of uncertainties with respect to the enforcement and maintenance of their security interests. This article considers the relevant problematic provisions of the PPSA and considers them in light of the authorities dealing with corresponding legislation in other jurisdictions. It then attempts to provide some guidance and suggestions as to the best means of protecting security interests in cross-border transactions.

Designing and evaluating a persuasive child restraint television commercial

Objective Relatively high rates of child restraint inappropriate use, misuse and faults in the installation of restraints have suggested a crucial need for public education messages to raise parental awareness of the need to use restraints correctly. This project involved the devising and pilot testing of message concepts, filming of a television advertisement (the TVC), and the evaluation of the TVC. This paper focuses specifically upon the evaluation of the TVC. The development and evaluation of the TVC were guided by an extended Theory of Planned Behaviour which comprised the standard constructs of attitude, subjective norm, and perceived behavioural control as well as the additional constructs of group norm and descriptive norm. The study also explored the extent to which parents with low and high intentions to self-check restraint/s differed on salient beliefs regarding the behaviour. Methods An online survey of parents (N = 384) was conducted where parents were randomly assigned to either an Intervention group (n = 161), and therefore viewed the advertisement within the survey, or the Control group (n = 223) and therefore did not view the advertisement. Results Following a one-off exposure to the TVC, the results indicated that, although not a significant difference, parents in the Intervention group reported stronger intentions (M = 4.43, SD = .74) to self-check restraints than parents in the Control group (M = 4.18, SD = .86). Also, parents in the Intervention group (M = 4.59, SD = .47) reported significantly higher levels of perceived behavioural control than parents in the Control group (M = 4.40, SD = .73). The regression results revealed that, for parents in the Intervention group, attitude and group norm were significant predictors of parental intentions to self-check their child restraint. Finally, the exploratory analyses of parental beliefs suggested that those parents with low intentions to self-check child restraints were significantly more likely than high intenders to agree that they did not have enough time to check restraints or that having a child in a restraint is more important than checking the installation of the restraint. Conclusion Overall, the findings provide some support for the persuasiveness of the child restraint TVC and provide insight into the factors influencing reported parental intentions as well as salient beliefs underpinning self-checking of restraints. Interventions that attempt to increase parental perceptions of the importance of self-checking restraints regularly and brevity of the time involved in doing so may be effective.

Breakfast at Tiffany's': eBay Inc., trade mark law, and counterfeiting

In an exploration of intellectual property and fashion, this article examines the question of the intermediary liability of online auction-houses for counterfeiting. In the United States, the illustrious jewellery store, Tiffany & Co, brought a legal action against eBay Inc, alleging direct trademark infringement, contributory trademark infringement, false advertising, unfair competition and trademark dilution. The luxury store depicted the online auction-house as a pirate bazaar, a flea-market and a haven for counterfeiting. During epic litigation, eBay Inc successfully defended itself against these allegations in a United States District Court and the United States Court of Appeals for the Second Circuit. Tiffany & Co made a desperate, unsuccessful effort to appeal the matter to the Supreme Court of the United States. The matter featured a number of interventions from amicus curiae — Tiffany was supported by Coty, the Fashion Designer's Guild, and the International Anticounterfeiting Coalition, while eBay was defended by publicly-spirited civil society groups such as Electronic Frontier Foundation, Public Citizen, and Public Knowledge as well as Yahoo!, Google Inc, Amazon.com, and associations representing telecommunications carriers and internet service providers. The litigation in the United States can be counterpointed with the fusillade of legal action against eBay in the European Union. In contrast to Tiffany & Co, Louis Vuitton triumphed over eBay in the French courts — claiming its victory as vindication of the need to protect the commercial interests and cultural heritage of France. However, eBay has fared somewhat better in a dispute with L’Oréal in Great Britain and the European Court of Justice. It is argued that, in a time of flux and uncertainty, Australia should follow the position of the United States courts in Tiffany & Co v eBay Inc. The final part examines the ramifications of this litigation over online auction-houses for trade mark law reform and consumer rights; parallel disputes over intermediary liability and safe harbours in the field of copyright law and the Anti-Counterfeiting Trade Agreement 2010. The conclusion calls for a revision of trade mark law, animated by a respect for consumers’ rights and interests in the electronic marketplace.

A simple approach to improve the electrocatalytic properties of commercial Pt/C

Here we demonstrate that commercial carbon supported Pt nanoparticles react with [AuCl4]- ions at room temperature to produce a highly active Au/Pt/C material with an ultralow coverage of elemental Au on the Pt nanoparticles that exhibits significantly enhanced activity for ethanol oxidation when compared to Pt/C.

Understanding the performance of green commercial buildings: a Sustainable Built Environment National Research Centre (SBEnrc) briefing report

Efforts to reduce carbon emissions in the buildings sector have been focused on encouraging green design, construction and building operation; however, the business case is not very compelling if considering the energy cost savings alone. In recent years green building has been driven by a sense that it will improve the productivity of occupants,something with much greater economic returns than energy savings. Reducing energy demand in green commercial buildings in a way that encourages greater productivity is not yet well understood as it involves a set of complex and interdependent factors. This project investigates these factors and focuses on the performance of and interaction between: green design elements, internal environmental quality, occupant experience, tenant/leasing agreements, and building regulation and management. This paper suggests six areas of strategic research that are needed to understand how conditions can be created to support productivity in green buildings, and deliver significant energy consumption reductions.

Environmental Crime and Specialist Courts: The case for a ‘One-Stop (Judicial) Shop’ in Queensland

The increasing international political, public and scientific engagement in matters of environmental sustainability and development has produced a rapidly expanding body of environmental law and policy. The advent of international protocols, directives, and multilateral agreements has occurred concomitantly with the harmonisation of widespread environmental regimes of governance and enforcement within numerous domestic settings. This has created an unprecedented need for environmental legal apparatuses to manage, regulate and adjudicate legislation seeking to protect, sustain and develop global natural habitats. The evolving literature in green criminology continues to explore these developments within discourses of power, harm and justice. Such critiques have emphasised the role of dedicated environmental courts to address environmental crimes and injustices. In this article, we examine the important role of specialist courts in responding to environmental crime, with specific reference to the State of Queensland. We offer a critique of existing processes and practices for the adjudication of environmental crime and propose new jurisdictional and procedural approaches for enhancing justice. We conclude that specialist environmental courts endowed with broad civil and criminal jurisdiction are an integral part of an effective response to environmental crime.

Commercial friendships between gay sales associates and straight female customers in luxury settings: A proposed theoretical framework

This study investigates friendships between gay sales associates and heterosexual female customers in luxury retail settings. By employing grounded theory methodology, the study integrates theories and findings from diverse literature streams into an original conceptual framework to illustrate the resources gay sales associates and straight female customers receive from and provide to each other during retail exchanges. The study explains why gay male–straight female friendships are uniquely suited for luxury consumption settings. Female customers characterize their friendships with gay sales associates as providing honesty, security, trust, and comfort, which stems from the absence of sexual interest and a lack of inter-female competition. Gay sales associates receive acceptance for who they are and for their displays of unconventional masculinity in retail settings. They also obtain a temporary rite from their female customers, a so-called mandate of privacy, which permits both parties to ignore the bounds of modesty and accept a degree of intimacy. Such intimacy facilitates transactions that require both personalization and customer–employee closeness, such as the selling of high-end apparel, accessories, and jewelry.

Australian Consumer Law Commentary and Materials [5th Ed.]

"The Australian Consumer Law came into operation on 1 January 2011 as a single national law. It replaced 17 different pieces of Commonwealth, State and Territory legislation relating to consumer protection. Its introduction meant that for the first time, consumers throughout Australia had the same rights and remedies and correspondingly, businesses had the same obligations and responsibilities towards consumers without the barrier of confusing and expensive local variations in the law. Australian Consumer Law: Commentary and Materials contains up-to-date material on the Australian Consumer Law, and in particular the fifth edition incorporates: a revised treatment of unconscionability, taking account of the changes to Part 2-2 of the ACL that became effective in 2012; other State and Federal provisions relating to unfair terms and cases such as Kakavas v Crown Melbourne, ACCC v Lux Distributors, Director of Consumer Affairs v Scully and PT Ltd v Spuds Surf; a comprehensive treatment of the impact of Google v ACCC, Forrest v ASIC and ACCC v TPG – the trilogy of decisions that provide the most recent insights into the High Court’s thinking on aspects of the prohibitions of misleading conduct in the ACL and the Corporations Act 2001; numerous decisions of note; and the possible impact of the Harper Review."--publisher website

Commercial Law in East Asia

The shift of economic gravity towards East Asia requires a critical examination of law's role in the Asian Century. This volume explores the diverse scholarly perspectives on law's role in the economic rise of East Asia and moves from general debates, such as whether law enjoys primacy over culture, state intervention or free markets in East Asian capitalism, to specific case studies looking at the nature of law in East Asian negotiations, contracts, trade policy and corporate governance. The collection of articles exposes the clefts and cleavages in the scholarly literature explaining law's form, function and future in the Asian Century.