The genographic project: Traditional knowledge and population genetics

This article considers the debate over patent law, informed consent, and benefit-sharing in the context of biomedical research in respect of Indigenous communities. In particular, it focuses upon three key controversies over large-scale biology projects, involving Indigenous populations. These case studies are representative of the tensions between research organisations, Indigenous communities, and funding agencies. Section two considers the aims and origins of the Human Genome Diversity Project, and criticisms levelled against the venture by Indigenous peak bodies and anti-biotechnology groups, such as the Rural Advancement Foundation International. It examines the ways in which the United Nations Educational, Scientific, and Cultural Organization (UNESCO) grappled with questions of patent law, informed consent, and benefit sharing in relation to population genetics. Section three focuses upon the ongoing litigation in Tilousi v. Arizona State University, and the Havasupai Tribe v. Arizona State University. In this matter, the Havasupai tribe from the Grand Canyon in the United States brought legal action against the Arizona State University and its researchers for using genetic data for unauthorised purposes - namely, genetic research into schizophrenia, migration, and inbreeding. The litigation raises questions about informed consent, negligence, and larger matters of human rights. Section four explores the legal and ethical issues raised by the Genographic Project. It considers the aims and objectives of the venture, and the criticisms levelled against it by Indigenous communities, and anti-biotechnology groups. It examines the response of the United Nations Permanent Forum on Indigenous Issues to the Genographic Project. It charts the debate over the protection of traditional knowledge in various international fora. The conclusion recommends a number of measures to better regulate large-scale biology projects involving the participation of Indigenous communities.

The Down Under book and film remind us our copyright law’s still unfair for artists

Australian copyright law is broken, and the Australian Government isn’t moving quickly to fix it. Borrowing, quoting, and homage are fundamental to the creative process. This is how people are inspired to create. Under Australian law, though, most borrowing is copyright infringement, unless it is licensed or falls within particular, narrow categories. This year marks five years since the very real consequences of Australia’s restrictive copyright law for Australian artists were made clear in the controversial litigation over Men at Work’s 1981 hit Down Under. The band lost a court case in 2010 that found that the song’s iconic flute riff copied some of the 1934 children’s song Kookaburra Sits in the Old Gumtree. A new book and documentary tell us more about the story behind the anthem – and the court case. The book, Down Under by Trevor Conomy, and the documentary, You Better Take Cover by Harry Hayes, bring renewed interest and new perspectives on the tragic story.

Assessing testamentary capacity – who does it better? Lawyers or doctors?

The effects of mentally disabling conditions on legal capacity are escalating, particularly given the ageing Australian demographic. Wills, enduring powers of attorney, and advance health directives are coming to the fore as a means of ensuring that the wishes of people with regard to their property, finances and health care needs are respected should they become legally incapable of making their own decisions. Assessing when a person has lost legal capacity in this context is an ever-increasing concern facing society as a whole but, in particular, the legal and medical professionals conducting the assessments. Empirical and doctrinal research has been undertaken which canvassed legal and medical opinions about the relationship between members of these professions when assessing legal capacity. This research supports the hypothesis that tensions exist when assessing capacity, especially testamentary capacity. One source of tension is the effect of conflicting evidence about the loss of legal capacity given by legal and medical professionals in court, which raises questions such as: which evidence is, and should be, preferred; and who should be responsible? The exploration of these issues will be conducted with reference to the empirical data collected, and a review of the relevant Australian case law.

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.

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.

Breaches of lease between exercise of option to renew and expiry of lease in Queensland

The decision of Greppo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 illustrates a defect in s 128 of the Property Law Act 1974(Qld) which gives a right to a lessee to apply for relief against forfeiture against loss of a right to exercise an option to renew. The defect arises because the legislation does not adequately deal with breaches that occur after the exercise of the option but before the expiry of the lease. Most commercial leases of all kinds have a standard provisions, as the lease in this case, as a conditions of the exercise of the option to renew that the lessee will have given notice of exercise within the time specified to the lessor and will have up to the date of expiry of the lease paid all rent and observed all lessee’s covenants. The difficulties occur because invariably an option must be exercised before the expiry of the lease when a lessee may not be in breach of the lease but may later prior to the expiry of the lease fall into breach. As this decision indicates,at least in Queensland, that the lessee who desires to challenge the lessor’s right to enforce those conditions can neither seek relief under s 128 against forfeiture of the right to exercise the option ,or indeed, under s 124 of the Property Law Act 1974 to preserve the agreement for lease brought about by the otherwise regular exercise of the option to renew. The decision cries out for legislative reform along the lines of s 133E of the Conveyancing Act 1919(NSW) which was amended in 2001 to meet this contingency.

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.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

"Re-thinking" the influence of regulatory capture in the development of government regulation

On 30 March 2015 the Australian Federal Government launched its "Re-Think" initiative with the objective of achieving a better tax system which delivers taxes that are lower, simpler and fairer. The discussion paper released as part of the "Re:think" initiative is designed to start a national conversation on tax reform. However, inquiries into Australia's future tax system, subsequent reforms and the introduction of new taxes are nothing new. Unfortunately, recent history also demonstrates that reform initiatives arising from reviews of the Australian tax system are often deemed a failure. The most prominent of these failures in recent times is the Minerals Resource Rent Tax (MRRT), which lasted a mere 16 months before its announced repeal. Using the established theoretic framework of regulatory capture to interpret publically observable data, the purpose of this article is to explain the failure of this arguably sound tax. It concludes that the MRRT legislation itself, through the capture by the mining companies, provided internal subsidization in the form of reduced tax and minimal or no rents. In doing so, it offers an opportunity to understand and learn from past experiences to ensure that recommendations coming out of the Re:think initiative do not suffer the same fate.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

Indigenous as ’not-Indigenous' as ’Us'?: A dissident insider's views on pushing the bounds for what constitutes 'our mob'

In australia, 'Aboriginality' is often defined by people in constrictive ways that are heavily influenced by the coloniser's epistemological frameworks. An essential component of this is a 'racial' categorisation of peoples that marks sameness and difference, thereby influencing insider and outsider status. In one sense, this categorisation of people acts to exclude non-aboriginal 'others' from participation in preinvasion indigenous ontologies, ways of living that may not have contained such restrictive identity categories and were thereby highly inclusive of outsiders. One of the effects of this is that aboriginal peoples' efforts for 'advancement' - either out of 'disadvantage' and/or towards political independence (ie, sovereignty) - become confined and restricted by what is deemed possible within the coloniser's epistemological frameworks. This is so much so that aboriginal people are at risk of only reinforcing and upholding the very systems that resulted in their original and continuing dispossession.

Accounting for risk: The advent of capped conveyancing title insurance

Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this article we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.

Is corporate rescue a realistic ideal? Business as usual in Australia and the United Kingdom

This paper seeks to review the operation of Australian corporate law rescue regimes in the context of those originally contemplated by Sir Kenneth Cork and more latterly in Australia, primarily in the hands of Ron Harmer. In doing so, it draws upon some of the observations made by Professor Fletcher in the second wave of 20th century corporate rescue reform in the United Kingdom.

Assignments of non-retail commercial leases: Some contentious issues

Assignment clauses in non-retail commercial leases are as infinitely varied as the circumstances in which disputes arise. Each clause must be individually interpreted as part of the lease in which it is embedded. Whilst the assignment of a lease is one of the most commonplace transactions between lessor and lessee, the case law reveals few unifying principles. This article seeks to cautiously identify a set of principles which should be in the mind of any lawyer when a dispute relating to an assignment arises. It concludes with a short checklist of matters which must be considered by such a person to encourage the application of principles in the first instance towards a resolution of the dispute.