Civil litigation limitation periods : submission to the Royal Commission into institutional responses to child sexual abuse

This submission makes one simple yet powerful recommendation for law reform to promote justice for survivors of child sexual abuse. It is informed by extensive analyses of the phenomenon of child sexual abuse and its psychological sequelae, legislative time limits and case law across Australia and internationally, the policy reasons underpinning statutory time limits generally, and the need for fairness, certainty and practicability in the legal system. The recommendation is that legislative reform is required in all Australian States and Territories to remove time limitations for civil claims for injuries caused by child sexual abuse.

Practice and Procedures - Motor Accident Insurance Act 1994 ss 39 and 57

In Bermingham v Priest [2002] QSC 057 jones J considered the position of persons seeking to claim damages where the Motor Accident Insurance Act 1994 applies prior to its amendment by the Motor Accident Insurance Amendment Act 2000, and where proceedings are brought close to expiration of the statutory limitation period.

Analysis of the needs of the East Coast cluster regional natural resource management bodies in relation to planning for climate change adaptation

The Climate Change Adaptation for Natural Resource Management (NRM) in East Coast Australia Project aims to foster and support an effective “community of practice” for climate change adaptation within the East Coast Cluster NRM regions that will increase the capacity for adaptation to climate change through enhancements in knowledge and skills and through the establishment of long‐term collaborations. It is being delivered by six consortium research partners: * The University of Queensland (project lead) * Griffith University * University of the Sunshine Coast * CSIRO * New South Wales Office of Environment and Heritage * Queensland Department of Science, IT, Innovation and the Arts (Queensland Herbarium). The project relates to the East Coast Cluster, comprising the six coastal NRM regions and regional bodies between Rockhampton and Sydney: * Fitzroy Basin Association (FBA) * Burnett‐Mary Regional Group (BMRG) * SEQ Catchments (SEQC) * Northern Rivers Catchment Management Authority (CMA) (NRCMA) * Hunter‐Central Rivers CMA (HCRCMA) * Hawkesbury Nepean CMA (HNCMA). The aims of this report are to summarise the needs of the regional bodies in relation to NRM planning for climate change adaptation, and provide a basis for developing the detailed work plan for the research consortium. Two primary methods were used to identify the needs of the regional bodies: (1) document analysis of the existing NRM/ Catchment Action Plans (CAPs) and applications by the regional bodies for funding under Stream 1 of the Regional NRM Planning for Climate Change Fund, and; (2) a needs analysis workshop, held in May 2013 involving representatives from the research consortium partners and the regional bodies. The East Coast Cluster includes five of the ten largest significant urban areas in Australia, world heritage listed natural environments, significant agriculture, mining and extensive grazing. The three NSW CMAs have recently completed strategic level CAPs, with implementation plans to be finalised in 2014/2015. SEQC and FBA are beginning a review of their existing NRM Plans, to be completed in 2014 and 2015 respectively; while BMRG is aiming to produce a NRM and Climate Variability Action Strategy. The regional bodies will receive funding from the Australian Government through the Regional NRM Planning for Climate Change Fund (NRM Fund) to improve regional planning for climate change and help guide the location of carbon and biodiversity activities, including wildlife corridors. The bulk of the funding will be available for activities in 2013/2014, with smaller amounts available in subsequent years. Most regional bodies aim to have a large proportion of the planning work complete by the end of 2014. In addition, NSW CMAs are undergoing major structural change and will be incorporated into semi‐autonomous statutory Local Land Services bodies from 2014. Boundaries will align with local government boundaries and there will be significant change in staff and structures. The regional bodies in the cluster have a varying degree of climate knowledge. All plans recognise climate change as a key driver of change, but there are few specific actions or targets addressing climate change. Regional bodies also have varying capacity to analyse large volumes of spatial or modelling data. Due to the complex nature of natural resource management, all regional bodies work with key stakeholders (e.g. local government, industry groups, and community groups) to deliver NRM outcomes. Regional bodies therefore require project outputs that can be used directly in stakeholder engagement activities, and are likely to require some form of capacity building associated with each of the outputs to maximise uptake. Some of the immediate needs of the regional bodies are a summary of information or tools that are able to be used immediately; and a summary of the key outputs and milestone dates for the project, to facilitate alignment of planning activities with research outputs. A project framework is useful to show the linkages between research elements and the relevance of the research to the adaptive management cycle for NRM planning in which the regional bodies are engaged. A draft framework is proposed to stimulate and promote discussion on research elements and linkages; this will be refined during and following the development of the detailed project work plan. The regional bodies strongly emphasised the need to incorporate a shift to a systems based resilience approach to NRM planning, and that approach is included in the framework. The regional bodies identified that information on climate projections would be most useful at regional and subregional scale, to feed into scenario planning and impact analysis. Outputs should be ‘engagement ready’ and there is a need for capacity building to enable regional bodies to understand and use the projections in stakeholder engagement. There was interest in understanding the impacts of climate change projections on ecosystems (e.g. ecosystem shift), and the consequent impacts on the production of ecosystem services. It was emphasised that any modelling should be able to be used by the regional bodies with their stakeholders to allow for community input (i.e. no black box models). The online regrowth benefits tool was of great interest to the regional bodies, as spatial mapping of carbon farming opportunities would be relevant to their funding requirements. The NSW CMAs identified an interest in development of the tool for NSW vegetation types. Needs relating to socio‐economic information included understanding the socio‐economic determinants of carbon farming uptake and managing community expectations. A need was also identified to understand the vulnerability of industry groups as well as community to climate change impacts, and in particular understanding how changes in the flow of ecosystem services would interact with the vulnerability of these groups to impact on the linked ecologicalsocio‐economic system. Responses to disasters (particularly flooding and storm surge) and recovery responses were also identified as being of interest. An ecosystem services framework was highlighted as a useful approach to synthesising biophysical and socioeconomic information in the context of a systems based, resilience approach to NRM planning. A need was identified to develop processes to move towards such an approach to NRM planning from the current asset management approach. Examples of best practice in incorporating climate science into planning, using scenarios for stakeholder engagement in planning and processes for institutionalising learning were also identified as cross‐cutting needs. The over‐arching theme identified was the need for capacity building for the NRM bodies to best use the information available at any point in time. To this end a planners working group has been established to support the building of a network of informed and articulate NRM agents with knowledge of current climate science and capacity to use current tools to engage stakeholders in NRM planning for climate change adaptation. The planners working group would form the core group of the community of practice, with the broader group of stakeholders participating when activities aligned with their interests. In this way, it is anticipated that the Project will contribute to building capacity within the wider community to effectively plan for climate change adaptation.

Archimedes, aid/watch, constitutional levers and where we now stand

Archimedes is reported as famously saying: 'Give me a place to stand and I will move the earth.' He was referring to the power of levers. His point was that a person of ordinary capacity with a place to stand, a fulcrum and a level could change the path of planets. This principle of physics is a metaphor for how the common law has moved over the last millennium. Courts have found a stable foundation on which to stand, such as the constitutional bedrock or well-grounded precedent, and, using cases as fulcrums and legal principles as levers, the have moved the law. Australia is at a critical juncture in the development of the law of charities. The High Court of Australia has held that political purposes can be charitable in certain circumstances. The Parliament of Australia has not only enshrined this in a statutory definition of charity but has done so with a preamble to the legislation which affirms the basis for this development in residing in the 'unique nature and diversity of charities and the distinctive and important role that they play in Australia'.

The rule of law, the public interest and the management of natural resources in Australia

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation

Throughout Australia, regulation of the power of sale is highly inconsistent. In response to the uncertain nature of the mortgagee’s duty at common law, many legislatures have intervened. As a result, there has been a proliferation of statutory formula conferring varying degrees of protection on mortgagors. The differences in approach indicate a lack of consensus as to the best method of regulation. This article exposes the extent of the inconsistency and provides a comparative assessment of the various provisions with reference to the policy concerns that underpin legislative intervention. The article identifies a number of deficiencies associated with existing provisions and concludes that mortgagees and mortgagors alike would benefit from improved clarity and consistency. To that end, the article proposes a model provision that seeks to address the deficiencies identified.

Adults who lack capacity : substitute decision-making

• Mechanisms to facilitate consent to healthcare for adults who lack capacity are necessary to ensure that these adults can lawfully receive appropriate medical treatment when needed. • In Australia, the common law plays only a limited role in this context, through its recognition of advance directives and through the parens patriae jurisdiction of superior courts. • Substitute decision-making for adults who lack capacity is facilitated primarily by guardianship and other related legislation. This legislation, which has been enacted in all Australian States and Territories, permits a range of decision-makers to make different types of healthcare decisions. • Substitute decision-makers can be appointed by the adult or by a guardianship or other tribunal. Where there is no appointed decision-maker, legislation generally empowers those close to the adult to make the relevant decision. Most Australian jurisdictions have also provided for statutory advance directives. • For the most serious of decisions, such as non-therapeutic sterilisations, consent can only be provided by a tribunal. Other decisions can generally be made by a range of substitute decision-makers. Some treatment, such as very minor treatment or that which is needed in an emergency, can be provided without consent. • Guardianship legislation generally establishes a set of principles and/or other criteria to guide healthcare decisions. Mechanisms have also been established to resolve disputes as to who is the appropriate decision-maker and how a decision should be made.

Double effect and palliative care excuses

• The doctrine of double effect is an exception to the general rule that taking active steps that end life is unlawful. • The essence of the doctrine at common law is intention. • Hastening a patient’s death through palliative care will be lawful provided the primary intention is to relieve pain, and not cause death, even if that death is foreseen. • Some States have enacted legislative excuses that deal with the provision of palliative care. • These statutory excuses tend to be stricter than the common law as they impose other requirements in addition to having an appropriate intent, such as adherence to some level of recognised medical practice.

What parents value from formal support services in the context of identified child abuse

Parents whose children are identified as having experienced or being at risk of experiencing significant harm potentially provide an invaluable dimension to our understanding of the circumstances that result in child abuse or neglect and how best to respond to these invariably complex situations. This paper reports findings from a study of the experiences of six parents. In-depth interviews were conducted with four mothers and two fathers who had been referred to an intensive family support services by the Queensland statutory child protection authority. Using a critical ecological perspective, the study focused on identifying and understanding the experiences of the parents in using formal family support services, including aspects of service delivery that were helpful or unhelpful. Parents also commented on their experiences of statutory child protection services. Service components and worker qualities that parents identified as being helpful included being accessible, targeted and integrated and being able to meet a continuum of needs, from a micro to a broader level. Their reports provide invaluable insight into how formal family support services, including child protection services, can better meet the needs of parents in addressing the recurring problem of child maltreatment.

A story about being engaged in research : buzzing bees, small business and Australian unfair dismissal laws

Protection for employees from unfair dismissal (UFD) has been around in Australia under various guises for 30 years or so (Chapman, 2006). Labour standards, and particularly ILO Convention 158 (Convention Concerning Termination of Employment at the Initiative of the Employer 1982), underpin the adoption of a particular form of federal statutory UFD regime which first appeared in the 1993 reforms to the Industrial Relations Act 1998 (Commonwealth). Its existence, however, has not been uncontroversial, and the meaning, operation, scope and remedies have attracted attention over time. In fact, the first reforms to the federal UFD regime were undertaken under the Keating Labor government three months after they were enacted (Chapman, ibid.). Further reforms were made by the incoming Howard Liberal-national coalition government through the Workplace Relations Act 1996 (Commonwealth) (WRA), and arguably these reforms continued down the ‘contraction’ path (ibid.).

Stature estimation of a contemporary Australian sub-population: An evaluation of the Trotter and Gleser method using computed tomography of the femur

Utilising computed tomography scans to allow a virtual analysis of three-dimensional reconstructions of the femur, this project confirms that the traditional 1952 Trotter and Gleser stature estimation equations are inapplicable for a contemporary Queensland population. Therefore, this study introduces modern stature estimation equations for femoral length and fragmentary femoral remains using Bayesian statistics for application in forensic anthropological casework. In addition, it was found that caution needs to be applied when comparing estimated stature to reported stature on the missing persons database due to inaccuracy in Queensland drivers' licences.

‘Structuring’ judicial sentencing discretion : consistency, guidance or pandering to the punitive?

Until quite recently, most Australian jurisdictions gave statutory force to the principle of imprisonment as a sanction of last resort, reflecting its status as the most punitive sentencing option open to the court.1 That principle gave primary discretion as to whether incarceration was the most appropriate means of achieving the purpose of a sentence to the sentencing court, which received all of the information relevant to the offence, the offender and any victim(s). The disestablishment of this principle is symptomatic of an increasing erosion of judicial discretion with respect to sentencing, which appears to be resulting in some extremely punitive consequences.

Reading words into statutes : when Homer nods

The grammatical meaning of a statutory provision may not always gel with the purpose of the statute. The court may strive to give the provision an interpretation at odds with its ordinary and natural meaning to meet the purpose of the legislation. On occasion, this may involve notionally adding words to, or substituting words in, a statutory provision. This process of “reading in” words demands that close attention be paid to the boundary between statutory construction and judicial legislation, particularly where a court is invited to carve out an exception from grammatically clear words. In Jones v Wrotham Park Settled Estates [1980] AC 74, Lord Diplock identified three pre-conditions to reading words into a statute. This article analyses the utility of those conditions within the context of the modern purposive approach to statutory interpretation and evaluates whether they remain sufficient guideposts for identifying the boundary between interpretation and legislation.

Misleading conduct arising from public statements : establishing the knowledge base of the target audience

Despite the very substantial body of primary sources and secondary literature on Australia’s much-litigated statutory provisions proscribing misleading or deceptive conduct, the courts have provided little in the way of assistance about how to establish the knowledge base of the target audience at whom the public statement was directed. The purpose of this case note is to compare and contrast two recent decisions of the High Court of Australia that highlight the difficulties faced by applicants in attempting to establish a contravention of the relevant legislation where conduct is directed at a segment of the public or the public as a whole.

The ethics, aesthetics and practical politics of ownership in co-creative media

What is ‘best practice’ when it comes to managing intellectual property rights in participatory media content? As commercial media and entertainment business models have increasingly come to rely upon the networked productivity of end-users (Banks and Humphreys 2008) this question has been framed as a problem of creative labour made all the more precarious by changing employment patterns and work cultures of knowledge-intensive societies and globalising economies (Banks, Gill and Taylor 2014). This paper considers how the problems of ownership are addressed in non-commercial, community-based arts and media contexts. Problems of labour are also manifest in these contexts (for example, reliance on volunteer labour and uncertain economic reward for creative excellence). Nonetheless, managing intellectual property rights in collaborative creative works that are created in community media and arts contexts is no less challenging or complex than in commercial contexts. This paper takes as its focus a particular participatory media practice known as ‘digital storytelling’. The digital storytelling method, formalised by the Centre for Digital Storytelling (CDS) from the mid-1990s, has been internationally adopted and adapted for use in an open-ended variety of community arts, education, health and allied services settings (Hartley and McWilliam 2009; Lambert 2013; Lundby 2008; Thumin 2012). It provides a useful point of departure for thinking about a range of collaborative media production practices that seek to address participation ‘gaps’ (Jenkins 2006). However the outputs of these activities, including digital stories, cannot be fully understood or accurately described as user-generated content. For this reason, digital storytelling is taken here to belong to a category of participatory media activity that has been described as ‘co-creative’ media (Spurgeon 2013) in order to improve understanding of the conditions of mediated and mediatized participation (Couldry 2008). This paper reports on a survey of the actual copyrighting practices of cultural institutions and community-based media arts practitioners that work with digital storytelling and similar participatory content creation methods. This survey finds that although there is a preference for Creative Commons licensing a great variety of approaches are taken to managing intellectual property rights in co-creative media. These range from the use of Creative Commons licences (for example, Lambert 2013, p.193) to retention of full copyrights by storytellers, to retention of certain rights by facilitating organisations (for example, broadcast rights by community radio stations and public service broadcasters), and a range of other shared rights arrangements between professional creative practitioners, the individual storytellers and communities with which they collaborate, media outlets, exhibitors and funders. This paper also considers how aesthetic and ethical considerations shape responses to questions of intellectual property rights in community media arts contexts. For example, embedded in the CDS digital storytelling method is ‘a critique of power and the numerous ways that rank is unconsciously expressed in engagements between classes, races and gender’ (Lambert 117). The CDS method privileges the interests of the storyteller and, through a transformative workshop process, aims to generate original individual stories that, in turn, reflect self-awareness of ‘how much the way we live is scripted by history, by social and cultural norms, by our own unique journey through a contradictory, and at times hostile, world’ (Lambert 118). Such a critical approach is characteristic of co-creative media practices. It extends to a heightened awareness of the risks of ‘story theft’ and the challenges of ownership and informs ideas of ‘best practice’ amongst creative practitioners, teaching artists and community media producers, along with commitments to achieving equitable solutions for all participants in co-creative media practice (for example, Lyons-Reid and Kuddell nd.). Yet, there is surprisingly little written about the challenges of managing intellectual property produced in co-creative media activities. A dialogic sense of ownership in stories has been identified as an indicator of successful digital storytelling practice (Hayes and Matusov 2005) and is helpful to grounding the more abstract claims of empowerment for social participation that are associated with co-creative methods. Contrary to the ‘change from below’ philosophy that underpins much thinking about co-creative media, however, discussions of intellectual property usually focus on how methods such as digital storytelling contribute to the formation of copyright law-compliant subjects, particularly when used in educational settings (for example, Ohler nd.). This also exposes the reliance of co-creative methods on the creative assets storytellers (rather than on the copyrighted materials of the media cultures of storytellers) as a pragmatic response to the constraints that intellectual property right laws impose on the entire category of participatory media. At the level of practical politics, it also becomes apparent that co-creative media practitioners and storytellers located in copyright jurisdictions governed by ‘fair use’ principles have much greater creative flexibility than those located in jurisdictions governed by ‘fair dealing’ principles.