The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

The mandatory notification of data breaches : issues arising for Australian and EU legal developments

Public and private sector organisations are now able to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other jurisdictions. This article reviews US, Australian and EU legal developments regarding the mandatory notification of data breaches. The authors highlight areas of concern based on the extant US experience that require further consideration in Australia and in the EU.

Influences of age and mechanical stability on volume, microstructure, and mineralization of the fracture callus during bone healing : Is osteoclast activity the key to age-related impaired healing?

Earlier studies have shown that the influence of fixation stability on bone healing diminishes with advanced age. The goal of this study was to unravel the relationship between mechanical stimulus and age on callus competence at a tissue level. Using 3D in vitro micro-computed tomography derived metrics, 2D in vivo radiography, and histology, we investigated the influences of age and varying fixation stability on callus size, geometry, microstructure, composition, remodeling, and vascularity. Compared were four groups with a 1.5-mm osteotomy gap in the femora of Sprague–Dawley rats: Young rigid (YR), Young semirigid (YSR), Old rigid (OR), Old semirigid (OSR). Hypothesis was that calcified callus microstructure and composition is impaired due to the influence of advanced age, and these individuals would show a reduced response to fixation stabilities. Semirigid fixations resulted in a larger ΔCSA (Callus cross-sectional area) compared to rigid groups. In vitro μCT analysis at 6 weeks postmortem showed callus bridging scores in younger animals to be superior than their older counterparts (pb0.01). Younger animals showed (i) larger callus strut thickness (pb0.001), (ii) lower perforation in struts (pb0.01), and (iii) higher mineralization of callus struts (pb0.001). Callus mineralization was reduced in young animals with semirigid fracture fixation but remained unaffected in the aged group. While stability had an influence, age showed none on callus size and geometry of callus. With no differences observed in relative osteoid areas in the callus ROI, old as well as semirigid fixated animals showed a higher osteoclast count (pb0.05). Blood vessel density was reduced in animals with semirigid fixation (pb0.05). In conclusion, in vivo monitoring indicated delayed callus maturation in aged individuals. Callus bridging and callus competence (microstructure and mineralization) were impaired in individuals with an advanced age. This matched with increased bone resorption due to higher osteoclast numbers. Varying fixator configurations in older individuals did not alter the dominant effect of advanced age on callus tissue mineralization, unlike in their younger counterparts. Age-associated influences appeared independent from stability. This study illustrates the dominating role of osteoclastic activity in age-related impaired healing, while demonstrating the optimization of fixation parameters such as stiffness appeared to be less effective in influencing healing in aged individuals.

Children and consent to medical treatment

This chapter deals with the law concerning children and consent to medical treatment. Where a child under the age of 18 requires medical treatment, issues arise as to who may lawfully consent to the treatment and under what circumstances. Depending on the circumstances, consent may be given by the child’s parent or guardian; the child; or a court. The chapter provides a thorough treatment of Australian law about these issues and circumstances.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

Water drinking influences eye length and IOP in young healthy subjects

This study aimed to investigate the influence of water loading upon intraocular pressure (IOP), ocular pulse amplitude (OPA) and axial length. Twenty one young adult subjects who were classified based on their spherical equivalent refraction as either myopes (n=11), or emmetropes (n=10) participated. Measures of IOP, OPA and ocular biometrics were collected before, and then 10, 15, 25 and 30 minutes following the ingestion of 1000 ml of water. Significant increases in both IOP and OPA were found to occur following water loading (p<0.0001), with peaks in both parameters occurring at 10 minutes after water loading (mean ± SEM increase of 2.24 ± 0.31 mmHg in IOP and 0.46 ± 0.06 mmHg in OPA). Axial length was found to reduce significantly following water loading (p=0.0005), with the largest reduction in axial length evident 10 minutes after water drinking (mean decrease 12 ± 3 µm). A significant time by refractive error group interaction (p=0.048) was found in axial length, indicative of a different pattern of change in eye length following water loading between the myopic and emmetropic populations. The largest difference in axial length change was evident at 10 minutes after water loading with a 17 ± 5 µm reduction in axial length evident in the myopes and only a 6 ± 2 µm reduction in the emmetropes. These findings illustrate significant changes in ocular parameters in young adult subjects following water loading.

Persons with age-related maculopathy risk genotypes and clinically normal eyes have reduced mesopic vision

PURPOSE: To determine if participants with normal visual acuity, no ophthalmoscopically signs of age-related maculopathy (ARM) in both eyes and who are carriers of the CFH, LOC387715 and HRTA1 high-risk genotypes (“gene-positive”) have impaired rod- and cone-mediated mesopic visual function compared to persons who do not carry the risk genotypes (“gene-negative”).---------- METHODS: Fifty-three Caucasian study participants (mean 55.8 ± 6.1) were genotyped for CFH, LOC387715/ARMS2 and HRTA1 polymorphisms. We genotyped single nucleotide polymorphisms (SNPs) in the CFH (rs380390), LOC387715/ARMS2 (rs10490924) and HTRA1 (rs11200638) genes using Applied Biosystems optimised TaqMan assays. We determined the critical fusion frequency (CFF) mediated by cones alone (Long, Middle and Short wavelength sensitive cones; LMS) and by the combined activities of cones and rods (LMSR). The stimuli were generated using a 4-primary photostimulator that provides independent control of the photoreceptor excitation under mesopic light levels. Visual function was further assessed using standard clinical tests, flicker perimetry and microperimetry.---------- RESULTS: The mesopic CFF mediated by rods and cones (LMSR) was significantly reduced in gene-positive compared to gene-negative participants after correction for age (p=0.03). Cone-mediated CFF (LMS) was not significantly different between gene-positive and -negative participants. There were no significant associations between flicker perimetry and microperimetry and genotype.---------- CONCLUSIONS: This is the first study to relate ARM risk genotypes with mesopic visual function in clinically normal persons. These preliminary results could become of clinical importance as mesopic vision may be used to document sub-clinical retinal changes in persons with risk genotypes and to determine whether those persons progress into manifest disease.

China's Creative Industries : Copyright, Social Network Markets and the Business of Culture in a Digital Age

China’s Creative Industries explores the role of new technologies, globalization and higher levels of connectivity in re-defining relationships between ‘producers’ and ‘consumers’ in 21st century China. The evolution of new business models, the impact of state regulation, the rise of entrepreneurial consumers and the role of intellectual property rights are traced through China’s film, music and fashion industries. The book argues that social network markets, consumer entrepreneurship and business model evolution are driving forces in the production and commercialization of cultural commodities. In doing so it raises important questions about copyright’s role in the business of culture, particularly in a digital age.

Governmentality and the reflection of legal educators : assessment practices as a case study

This paper presents a conceptual framework, informed by Foucault’s work on governmentality, which allows for new kinds of reflection on the practice of legal education. Put simply, this framework suggests that legal education can be understood as a form of government that relies on a specific rationalisation and programming of the activities of legal educators, students, and administrators, and is implemented by harnessing specific techniques and bodies of ‘know-how’. Applying this framework to assessment at three Australian law schools, this paper highlights how assessment practices are rationalised, programmed, and implemented, and points out how this government shapes students’ legal personae. In particular, this analysis focuses on the governmental effects of pedagogical discourses that are dominant within the design and scholarship of legal education. It demonstrates that the development of pedagogically-sound regimes of assessment has contributed to a reformulation of the terrain of government, by providing the conditions under which forms of legal personae may be more effectively shaped, and extending the power relations that achieve this. This analysis provides legal educators with an original way of reflecting on the power effects of teaching the law, and new opportunities for thinking about what is possible in legal education.

Governing depression in law students and the shaping of legal personae

Since a recent Australian study found that university law students experience higher rates of depression than medical students and legal professionals (Kelk et al. 2009), the mental health of law students has increasingly become a target of government. To date, however, there has been no attempt to analyse these practices as an activity of government in advanced liberal societies. This paper addresses this imbalance by providing an initial analytics of the government of depression in law schools. It demonstrates how students are responsibilised to manage the risks and uncertainties of legal education by constructing resilient forms of personal and professional personae. It highlights that, in order to avoid depression, students are encouraged to shape not just their minds and bodies according to psychological and biomedical discourses, but are also to govern their ethical dispositions and become virtuous persons. This paper also argues that these forms of government are tied to advanced liberal forms of rule, as they position the law student as the locus of responsibility for depression, imply that depression is caused by an individual failing, and entrench students within responsibilising and entrepreneurial forms of subjectivity.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

The Australian response to climate change : business as usual or legal innovation?

Through international agreement to the United Nations Framework Convention on Climate Change and the Kyoto Protocol the global community has acknowledged that climate change is a global problem and sought to achieve reductions in global emissions, within a sufficient timeframe, to avoid dangerous anthropogenic interference with the climate system. The sheer magnitude of emissions reductions required within such an urgent timeframe presents a challenge to conventional regulatory approaches both internationally and within Australia. The phenomenon of climate change is temporally and geographically challenging and it is scientifically complex and uncertain. The purpose of this paper is to analyse the current Australian legal response to climate change and to examine the legal measures which have been proposed to promote carbon trading, energy efficiency, renewable energy, and carbon sequestration initiatives across Australia. As this paper illustrates, the current Australian approach is clearly ineffective and the law as it stands overwhelmingly inadequate to address Australia’s emissions and meet the enormity of the challenges posed by climate change. Consequently, the government should look towards a more effective legal framework to achieve rapid and urgent transformations in the selection of energy sources, energy use and sequestration initiatives across the Australian community.

Alternative systems for Intellectual Property in the digital age

This paper investigates the current turbulent state of copyright in the digital age, and explores the viability of alternative compensation systems that aim to achieve the same goals with fewer negative consequences for consumers and artists. To sustain existing business models associated with creative content, increased recourse to DRM (Digital Rights Management) technologies, designed to restrict access to and usage of digital content, is well underway. Considerable technical challenges associated with DRM systems necessitate increasingly aggressive recourse to the law. A number of controversial aspects of copyright enforcement are discussed and contrasted with those inherent in levy based compensation systems. Lateral exploration of the copyright dilemma may help prevent some undesirable societal impacts, but with powerful coalitions of creative, consumer electronics and information technology industries having enormous vested interest in current models, alternative schemes are frequently treated dismissively. This paper focuses on consideration of alternative models that better suit the digital era whilst achieving a more even balance in the copyright bargain.

Is the association between temperature and mortality modified by age, gender and socio-economic status?

Background: A number of studies have examined the relationship between high ambient temperature and mortality. Recently, concern has arisen about whether this relationship is modified by socio-demographic factors. However, data for this type of study is relatively scarce in subtropical/tropical regions where people are well accustomed to warm temperatures. Objective: To investigate whether the relationship between daily mean temperature and daily all-cause mortality is modified by age, gender and socio-economic status (SES) in Brisbane, Australia. Methods: We obtained daily mean temperature and all-cause mortality data for Brisbane, Australia during 1996–2004. A generalised additive model was fitted to assess the percentage increase in all deaths with every one degree increment above the threshold temperature. Different age, gender and SES groups were included in the model as categorical variables and their modification effects were estimated separately. Results: A total of 53,316 non-external deaths were included during the study period. There was a clear increasing trend in the harmful effect of high temperature on mortality with age. The effect estimate among women was more than 20 times that among men. We did not find an SES effect on the percent increase associated with temperature. Conclusions: The effects of high temperature on all deaths were modified by age and gender but not by SES in Brisbane, Australia.

Age, muscle fatigue, and walking endurance in pre-menopausal women

Aging is associated with loss of endurance; however, aging is also associated with decreased fatigue during maximal isometric contractions. The aims of this study were to examine the relationship between age and walking endurance (WE) and maximal isometric fatigue (MIF) and to determine which metabolic/fitness components explain the expected age effects on WE and MIF. Subjects were 96 pre-menopausal women. Oxygen uptake (walking economy) was assessed during a 3-mph walk; aerobic capacity and WE by progressive treadmill test; knee extension strength by isometric contractions, MIF during a 90-s isometric plantar flexion (muscle metabolism measured by 31P MRS). Age was related to increased walking economy (low VO2, r = −0.19, P < 0.03) and muscle metabolic economy (force/ATP, 0.34, P = 0.01), and reduced MIF (−0.26, P < 0.03). However, age was associated with reduced WE (−0.28, P < 0.01). Multiple regression showed that muscle metabolic economy explained the age-related decrease in MIF (partial r for MIF and age −0.13, P = 0.35) whereas walking economy did not explain the age-related decrease in WE (partial r for WE and age −0.25, P < 0.02). Inclusion of VO2max and knee endurance strength accounted for the age-related decreased WE (partial r for WE and age = 0.03, P > 0.80). In premenopausal women, age is related to WE and MIF. In addition, these results support the hypothesis that age-related increases in metabolic economy may decrease MIF. However, decreased muscle strength and oxidative capacity are related to WE.