A sunburnt country – storms, surges and sea levels : of insurance and flooding rains

Increasing population pressures and life-style choices are resulting in more people living in areas that are at risk of inundation from rising sea levels and flooding. However, following natural disaster events, such as the 2011 Queensland floods, many Australians discovered they were uninsured. Either their insurance policies did not cover flood; or multiple (and confusing) water-related definitions led them to believe they had cover when they did not. Several theories are analysed to try to explain what is a world-wide underinsurance problem but these do not provide an answer to the problem. This research focuses on uncovering the reasons consumers fail to adequately insure for flood and other water-related events. Recent Australian legislative attempts to overcome insureds’ confusion of water related definitions are examined for this purpose. The authors conclude that Australian and other) legislators should set a maximum premium for a minimum amount of flood and sea related cover; and restrict the building and style of homes in flood prone areas.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

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

The high price of drug patents: Australia, patent law, pharmaceutical drugs and the Trans-Pacific Partnership

This week, the secrecy surrounding an independent Australian report on patent law and pharmaceutical drugs has been lifted, and the work has been published to great acclaim...

Natural hazards and land use planning: How resilient must a landowner be?

The past decade has seen an increase in the occurrence of natural hazards and the experience in Australia has led to a reconsideration of the planning for natural hazards by government and to the adoption of a whole-of-nation resilience-based approach to disaster management. A key component of creating community resilience is the integration of disaster management with government and community strategic planning in relation to the social, built, economic and natural environments. Joint responsibility of government and the community for ‘land use planning systems and building control arrangements [which] reduce, as far as is practicable, community exposure to unreasonable risks from known hazards’, is a critical element of a resilient community. As the responsibility for the implementation of land use planning policies in Australia is generally with local governments, this paper will examine whether, in light of improved predictive technology, the failure of a local government to adequately foresee and make provision for a known hazard will give rise to liability for damage or loss of property caused by that hazard.

The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319

Access to essential medicines: Public health and international law

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases. Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research. In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing. In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable... The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

Miami heat: Patent law, informed consent and benefit-sharing

This article considers whether the granting of patents in respect of biomedical genetic research should be conditional upon the informed consent of research participants. It focuses upon several case studies. In Moore v the Regents of the University Of California, a patient sued his physician for breach of fiduciary duty and lack of informed consent, because the doctor had obtained a patent on the patient's cell line, without the patient's authorisation. In Greenberg v Miami Children's Hospital, the research participants, the Greenbergs, the National Tay Sachs and Allied Diseases Association, and Dor Yeshorim brought a legal action against the geneticist Reubon Matalon and the Miami Children's Hospital over a patent obtained on a gene related to the Canavan disease and accompany genetic diagnostic test. PXE International entered into a joint venture with Charles Boyd and the University of Hawaii, and obtained a patent together for ‘methods for diagnosing Pseudoxanthoma elasticum’. In light of such case studies, it is contended that there is a need to reform patent law, so as to recognise the bioethical principles of informed consent and benefit-sharing. The 2005 UNESCO Declaration on Bioethics and Human Rights provides a model for future case law and policy-making.

Creation and copyright law: The case of 3D printing

The Australian Law Reform Commission is conducting an inquiry into copyright law and the digital economy in 2012 and 2013.The President, Rosalind Croucher, stated: “While the Copyright Act has been amended on occasion over the past 12 years to account for digital developments, these changes occurred before the digital economy took off. The Australian Law Reform Commission will need to find reforms that are responsive to this new environment, and to future scenarios that are still in the realm of the imagination. It is a complex and important area of law and we are looking forward to some robust debate and discussion during the course of this very important Inquiry.”

An agreement to negotiate a contract in good faith: No legal content and too uncertain for enforcement

The decision of Baldwin v Icon Energy Ltd [2015] QSC 12 is generally instructive upon the issue of the minimum required to enforce an agreement to negotiate .The language of these agreements is always couched in terms which include the expressions “good faith” and “reasonable endeavours” as descriptive of the yardstick of behaviour of each party in the intended negotiation to follow such an agreement. However, the mere statement of these intended characteristics of negotiation may not be sufficient to ensure that the agreement to negotiate is enforceable.

Predictive technology and natural hazards: Risk for Australian planning authorities?

Purpose The object of this paper is to examine whether the improvements in technology that enhance community understanding of the frequency and severity of natural hazards also increased the risk of potential liability of planning authorities in negligence. In Australia, the National Strategy imposes a resilience based approach to disaster management and stresses that responsible land use planning can reduce or prevent the impact of natural hazards upon communities. Design/methodology/approach This paper analyses how the principles of negligence allocate responsibility for loss suffered by a landowner in a hazard prone area between the landowner and local government. Findings The analysis in this paper concludes that despite being able to establish a causal link between the loss suffered by a landowner and the approval of a local authority to build in a hazard prone area, it would be in the rarest of circumstances a negligence action may be proven. Research limitations/implications The focus of this paper is on planning policies and land development, not on the negligent provision of advice or information by the local authority. Practical implications This paper identifies the issues a landowner may face when seeking compensation from a local authority for loss suffered due to the occurrence of a natural hazard known or predicted to be possible in the area. Originality/value The paper establishes that as risk managers, local authorities must place reliance upon scientific modelling and predictive technology when determining planning processes in order to fulfil their responsibilities under the National Strategy and to limit any possible liability in negligence.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

The problem child in Australian patent law : "fair" basing

The concept of "fair basing" is widely acknowledged as a difficult area of patent law. This article maps the development of fair basing law to demonstrate how some of the difficulties have arisen. Part I of the article traces the development of the branches of patent law that were swept under the nomenclature of "fair basing" by British legislation in 1949. It looks at the early courts' approach to patent construction, examines the early origin of fair basing and what it was intended to achiever. Part II of the article considers the modern interpretation of fair basing, which provides a striking contrast to its historical context. Without any consistent judicial approach to construction the doctrine has developed inappropriately, giving rise to both over-strict and over-generous approaches.