Blame it on Rio: Biodiscovery, native title, and traditional knowledge

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter-locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular, it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, informed consent, benefit-sharing, and ministerial discretion. The use of Indigenous Land Use Agreements in the context of access to genetic resources is also explored. Part 2 considers the role played by native title law in dealing with tangible and intangible property interests. The High Court decision in Western Australia v Ward considers the relationship between native title rights and cultural knowledge. The Federal Court case of Neowarra v Western Australia provides an intriguing gloss on this High Court decision. Part 3 looks at whether traditional knowledge of biodiversity can be protected under intellectual property law. It focuses upon reforms such as Senator Aden Ridgeway's proposed amendments to the Plant Breeder's Rights Act 1994 (Cth), and the push to make disclosure of origin a requirement of patent law.

Damned to fame: The moral rights of the Beckett estate

The Company B production of Samuel Beckett's Waiting for Godot raises important questions about copyright law, moral rights, and dramatic works. The playwright's nephew and executor, Edward Beckett, threatened to bring a legal action against the Sydney company for breach of contract on the grounds that unauthorised music appeared in the production. The Company B production denied that the contract made any such express provisions. The director Neil Armfield complained: 'In coming here with its narrow prescriptions, its dead controlling hand, the Beckett estate seems to me to be the enemy of art'. In the biography Damned to fame, James Knowlson documents a number of other proceedings taken by Beckett and his agents to control the productions of his work: 'He was often represented as a tyrannical figure, an arch-controller of his work, ready to unleash fiery thunderbolts onto the head of any bold, innovative director, unwilling to follow his text and stage directions to the last counted dot and precisely timed pause.' However, Knowlson notes that Beckett was inconsistent in his willingness to use legal action: 'It made a tremendous difference if he liked and respected the persons involved or if he had been able to listen to their reasons for wanting to attempt something highly innovative or even slightly different'. Famously, in 1988, Beckett brought legal action against a Dutch theatre company, which wanted to stage a production of Waiting for Godot, with women acting all the roles. His lawyer argued that the integrity of the text was violated because actresses were substituted for the male actors asked for in the text. The judge in the Haarlem court ruled that the integrity of the play had not been violated, because the performance showed fidelity to the dialogue and the stage directions of the play. By contrast, in 1992, a French court held a stage director was liable for an infringement of Beckett's moral right of integrity because the director had staged Waiting for Godot with the two lead roles played by women. In 1998, a United States production of Waiting for Godot with a racially mixed cast attracted legal threats amid accusations it had 'injected race into the play'. In the 2000 New York Fringe Festival, a company made light of this ongoing conflict between the Beckett estate and artistic directors. The work was entitled: The complete lost works of Samuel Beckett as found in an envelope (partially burned) in a dustbin in Paris labelled 'Never to be performed. Never. Ever. EVER! Or I'll sue! I'LL SUE FROM THE GRAVE!'. The plot concerned a fight between three producers and the Beckett estate. In the wake of such disputes, Beckett and later his estate sought to tighten production contracts to state that no additions, omissions or alterations should be made to the text of the play or the stage directions and that no music, special effects or other supplements should be added without prior consent.

Email negotiations form a binding land contract without a 'signature'

Email is rapidly replacing other forms of communication as the preferred means of communication between contracting parties. The recent decision of Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119 reinforces the judicial acceptance of email as an effective means of creating a binding agreement and the willingness to adopt a liberal concept of ‘signing’ in an electronic environment.

Regulating unilateral supermarket misconduct as customer/acquirer of goods and services

Supermarkets in Australia may have substantial market power as buyers in wholesale markets for grocery products. They may also have substantial bargaining power in negotiating contracts with their suppliers of grocery products. The Competition and Consumer Act 2010 (Cth) (CCA) regulates misconduct by supermarkets as customer/acquirers in three ways. First, s 46(1) of the CCA prohibits the ‘taking advantage’ of buyer power for the purpose of damaging a competitor, preventing entry or deterring or preventing competitive conduct. Secondly, s 21 of the ACL prohibits unconscionable conduct in business–to–business transactions. Thirdly, Pt IVB of the CCA provides for the promulgation of mandatory and voluntary industry codes of conduct. Since 1 July 2015 the conduct of supermarkets as customer/acquirers has been regulated by the Food and Grocery Industry Code of Conduct. This article examines these three different approaches. It considers them against the background of the misconduct at issue in ACCC v Coles Supermarkets Australia Pty Ltd which the ACCC chose to litigate as an unconscionable conduct case, rather than a misuse of market power case. The article also considers the strengths and weaknesses of each of the three approaches and concludes that while the three approaches address different problems there is scope for overlap and all three should be retained for compete coverage.

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.

Let’s talk about lex: Narrative analysis as both research method and teaching technique in law

Law is narration: it is narrative, narrator and the narrated. As a narrative, the law is constituted by a constellation of texts – from official sources such as statutes, treaties and cases, to private arrangements such as commercial contracts, deeds and parenting plans. All are a collection of stories: cases are narrative contests of facts and rights; statutes are recitations of the substantive and procedural bases for social, economic and political interactions; private agreements are plots for future relationships, whether personal or professional. As a narrator, law speaks in the language of modern liberalism. It describes its world in abstractions rather than in concrete experience, universal principles rather than individual subjectivity. It casts people into ‘parties’ to legal relationships; structures human interactions into ‘issues’ or ‘problems’; and tells individual stories within larger narrative arcs such as ‘the rule of law’ and ‘the interests of justice’. As the narrated, the law is a character in its own story. The scholarship of law, for example, is a type of story-telling with law as its central character. For positivists, still the dominant group in the legal genre, law is a closed system of formal rules with an “immanent rationality” and its own “structure, substantive content, procedure and tradition,” dedicated to finality of judgment. For scholars inspired by the interpretative tradition in the humanities, law is a more ambivalent character, susceptible to influences from outside its realm and masking a hidden ideological agenda under its cloak of universality and neutrality. For social scientists, law is a protagonist on a wider social stage, impacting on society, the economy and the polity is often surprising ways.

Controlling routine front line service workers: an Australian retail supermarket case

Food retail is known for its use of flexible labour and for the centralisation of functions at head office, resulting in a reduction of managerial autonomy at store level. This article employs a typology of controls developed from labour process scholarship to explore how retail managers negotiate the control of their predominantly part-time workforce. Using an Australian supermarket chain as a case, and mixed methods, the article demonstrates that supermarkets use a multiplicity of forms of control across their workforce. For front line service workers, the article identifies a new configuration of controls which intersects with employment status and acts differentially for checkout operators on different employment contracts.

External auditors’ perceptions of cloud computing adoption in Australia

Adopting a multi-theoretical approach, I examine external auditors’ perceptions of the reasons why organizations do or do not adopt cloud computing. I interview forensic accountants and IT experts about the adoption, acceptance, institutional motives, and risks of cloud computing. Although the medium to large accounting firms where the external auditors worked almost exclusively used private clouds, both private and public cloud services were gaining a foothold among many of their clients. Despite the advantages of cloud computing, data confidentiality and the involvement of foreign jurisdictions remain a concern, particularly if the data are moved outside Australia. Additionally, some organizations seem to understand neither the technology itself nor their own requirements, which may lead to poorly negotiated contracts and service agreements. To minimize the risks associated with cloud computing, many organizations turn to hybrid solutions or private clouds that include national or dedicated data centers. To the best of my knowledge, this is the first empirical study that reports on cloud computing adoption from the perspectives of external auditors.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

New Generation Rollingstock Depot: Case Study Report

This report summarises the findings of a case study on Queensland’s New Generation Rollingstock (NGR) Project carried out as part of SBEnrc Project 2.34 Driving Whole-of-life Efficiencies through BIM and Procurement. This case study is one of three exemplar projects studied in order to leverage academic research in defining indicators for measuring tangible and intangible benefits of Building Information Modelling (BIM) across a project’s life-cycle in infrastructure and buildings. The NGR is an AUD 4.4 billion project carried out under an Availability Payment Public-Private Partnership (PPP) between the Queensland Government and the Bomabardier-led QTECTIC consortium comprising Bombardier Transportation, John Laing, ITOCHU Corporation and Aberdeen Infrastructure Investments. BIM has been deployed on the project from conceptual stages to drive both design and the currently ongoing construction at the Wulkuraka Project Site. This case study sourced information from a series of semi-structured interviews covering a cross-section of key stakeholders on the project. The present research identified 25 benefits gained from implementing BIM processes and tools. Some of the most prominent benefits were those leading to improved outcomes and higher customer satisfaction such as improved communications, data and information management, and coordination. There were also a number of expected benefits for future phases such as: • Improved decision making through the use of BIM for managing assets • Improved models through BIM maturity • Better utilisation of BIM for procurement on similar future projects • New capacity to specify the content of BIM models within contracts There were also three benefits that were expected to have been achieved but were not realised on the NGR project. These were higher construction information quality levels, better alignment in design teams as well as project teams, and capability improvements in measuring the impact of BIM on construction safety. This report includes individual profiles describing each benefit as well as the tools and processes that enabled them. Four key BIM metrics were found to be currently in use and six more were identified as potential metrics for the future. This case study also provides insights into challenges associated with implementing BIM on a project of the size and complexity of the NGR. Procurement aspects and lessons learned for managers are also highlighted, including a list of recommendations for developing a framework to assess the benefits of BIM across the project life-cycle.

Identifying statutory encumbrances for seller disclosure

The standard land contracts in Queensland require a seller of land to disclose to a buyer not only registered encumbrances, but also statutory encumbrances affecting the land. Whether a statute creates a statutory encumbrance over the title to the property is therefore a key question for a seller when completing a contract. This article examines relevant case law and provides some guidelines for when a statute creates a statutory encumbrance that should be disclosed to a buyer as a defect in title.

Government entity contribution to an effective partnership privatisation

The partnership form of privatisation is increasingly being used, in particular to carry out complex and evolving bundles of services. These have not previously been privatised because of incomplete contracts and contract management difficulties. Improved performance of the government entity as contract administrator and member of the partnership is crucial to modern service delivery expectations yet the privatisation literature has focused on other aspects of partnerships leaving the understanding of factors impacting the effectiveness of the government entity underdeveloped. This paper proposes the development of knowledge as to the range of factors which impact the effectiveness of the government entity. There is limited data available as to the operation of trust in the partnership relationship, and as to the capability of a range of privatisation forms to achieve stewardship of infrastructure. This research will utilise the findings from that research to build a tentative framework which will be utilised in staged research interrogating first the privatization literature and then the literature of other disciplines and sectors. The combined data will be analysed to provide government and practitioners such as government entity CEO’s with a complete listing of the operation of the factors which impact the effectiveness of the government entity in contributing to improved service delivery.

Performance-based contracting for roads – Experiences of Australia and Indonesia

Many countries over the last decade, have used performance-based contracting (PBC) to manage and maintain roads. The implementation of PBC provides additional benefits for the government/public such as cost savings and improved conditions of contracted road assets. In Australia, PBC is already being implemented on all categories of roads: national, state, urban and rural. Australian PBC arrangement is designed to turn over control and responsibility for roadway system maintenance, rehabilitation, and capital improvement projects to private contractors. Contractors’ responsibilities include determination of treatment types, the design, programming and the undertaking of works needed to maintain road networks at predetermined performance levels. Indonesia initiated two PBC pilot projects in 2011, the Pantura Section Demak-Trengguli (7.68 kilometers) in Central Java Province and Section Ciasem-Pamanukan (18.5 kilometers) in West Java Province. Both sections are categorized as national roads. The contract duration for both of these projects is four years. To facilitate a possible way forward, it is proposed to conduct a study to understand Australia's experiences of advancing from pilot projects to nation-wide programs using PBC. The study focuses on the scope of contracts, bidding processes, risk allocation, and key drivers, using relevant PBC case studies from Australia. Recommendations for future PBC deployment nation-wide should be based on more research associated with risk allocation. This will include investigation of standard conditions of contract. Implications of the contract clauses for the risk management strategy to be adopted by contractors. Based on the nature of risks, some are best managed by the project owner. It is very important that all parties involved to be open to the new rules of contract and to convince themselves about the potential increased benefits of the use of PBC. The most recent states of challenging issues were explored and described.

A model for determining the optimal project life span and concession period of BOT projects

The concession agreement is the core feature of BOT projects, with the concession period being the most essential feature in determining the time span of the various rights, obligations and responsibilities of the government and concessionaire. Concession period design is therefore crucial for financial viability and determining the benefit/cost allocation between the host government and the concessionaire. However, while the concession period and project life span are essentially interdependent, most methods to date consider their determination as contiguous events that are determined exogenously. Moreover, these methods seldom consider the, often uncertain, social benefits and costs involved that are critical in defining, pricing and distributing benefits and costs between the various parties and evaluating potentially distributable cash flows. In this paper, we present the results of the first stage of a research project aimed at determining the optimal build-operate-transfer (BOT) project life span and concession period endogenously and interdependently by maximizing the combined benefits of stakeholders. Based on the estimation of the economic and social development involved, a negotiation space of the concession period interval is obtained, with its lower boundary creating the desired financial return for the private investors and its upper boundary ensuring the economic feasibility of the host government as well as the maximized welfare within the project life. The outcome of the new quantitative model is considered as a suitable basis for future field trials prior to implementation. The structure and details of the model are provided in the paper with Hong Kong tunnel project as a case study to demonstrate its detailed application. The basic contributions of the paper to the theory of construction procurement are that the project life span and concession period are determined jointly and the social benefits taken into account in the examination of project financial benefits. In practical terms, the model goes beyond the current practice of linear-process thinking and should enable engineering consultants to provide project information more rationally and accurately to BOT project bidders and increase the government's prospects of successfully entering into a contract with a concessionaire. This is expected to generate more negotiation space for the government and concessionaire in determining the major socioeconomic features of individual BOT contracts when negotiating the concession period. As a result, the use of the model should increase the total benefit to both parties.

A curve shortening flow rule for closed embedded plane curves with a prescribed rate of change in enclosed area

Motivated by a problem from fluid mechanics, we consider a generalization of the standard curve shortening flow problem for a closed embedded plane curve such that the area enclosed by the curve is forced to decrease at a prescribed rate. Using formal asymptotic and numerical techniques, we derive possible extinction shapes as the curve contracts to a point, dependent on the rate of decreasing area; we find there is a wider class of extinction shapes than for standard curve shortening, for which initially simple closed curves are always asymptotically circular. We also provide numerical evidence that self-intersection is possible for non-convex initial conditions, distinguishing between pinch-off and coalescence of the curve interior.