A comparative overview of "know-how" protection in Japan and Australia

"Know How" protection varies enormously from country to country and is a complex equation of legal, political, cultural and economic factors. A contrast between Japan and Australia serves to highlight some of these factors. For the purposes of this article, a working definition of "know how" is required. In Australia and other common law systems, no statutory definition of "know how" exists, "confidential information" proving the closest comparative term in Australia ('trade secret law' in the United States).

Charity law reforms : overview of progress since 2001

In the UK, Singapore, Canada, New Zealand and Australia, as in many other jurisdictions, charity law is rooted in the common law and anchored on the Statute of Charitable Uses 1601. The Pemsel classification of charitable purposes was uniformly accepted, and together with a shared and growing pool of judicial precedents, aided by the ‘spirit and intendment’ rule, has subsequently allowed the law to develop along much the same lines. In recent years, all the above jurisdictions have embarked on law reform processes designed to strengthen regulatory processes and to statutorily define and encode common law concepts. The reform outcomes are now to be found in a batch of national charity statutes which reflect interesting differences in the extent to which their respective governments have been prepared to balance the modernising of charitable purposes and other common law concepts alongside the customary concern to tighten the regulatory framework.

Offending Youth : Crime, Sex and Justice

Rates of female delinquency, especially for violent crimes, are increasing in most common law countries. At the same time the growth in cyber-bullying, especially among girls, appears to be a related global phenomenon. While the gender gap in delinquency is narrowing in Australia, United States, Canada and the United Kingdom, boys continue to dominate the youth who commit crime and have a virtual monopoly over sexually violent crimes. Indigenous youth continue to be vastly over-represented in the juvenile justice system in every Australian jurisdiction. The Indigenisation of delinquency is a persistent problem in other countries such as Canada and New Zealand. Young people who gather in public places are susceptible to being perceived as somehow threatening or riotous, attracting more than their share of public order policing. Professional football has been marred by repeated scandals involving sexual assault, violence and drunkenness. Given the cultural significance of footballers as role models to thousands, if not millions, of young men around the world, it is vitally important to address this problem. Offending Youth explores these key contemporary patterns of delinquency, the response to these by the juvenile justice agencies and moreover what can be done to address these problems. The book also analyses the major policy and legislative changes from the nineteenth to twenty first centuries, chiefly the shift the penal welfarism to diversion and restorative justice. Using original cases studied by Carrington twenty years ago, Offending Youth illustrates how penal welfarism criminalised young people from socially marginal backgrounds, especially Aboriginal children, children from single parent families, family-less children, state wards and young people living in poverty or in housing commission estates. A number of inquiries in Australia and the United Kingdom have since established that children committed to these institutions, supposedly for their own good, experienced systemic physical, sexual and psychological abuse during their institutionalisation. The book is dedicated to the survivors of these institutions who only now are receiving official recognition of the injustices they suffered. The underlying philosophy of juvenile justice has fundamentally shifted away from penal welfarism to embrace positive policy responses to juvenile crime, such as youth conferencing, cautions, warnings, restorative justice, circle sentencing and diversion examined in the concluding chapter. Offending Youth is aimed at a broad readership including policy makers, juvenile justice professionals, youth workers, families, teachers, politicians as well as students and academics in criminology, policing, gender studies, masculinity studies, Indigenous studies, justice studies, youth studies and the sociology of youth and deviance more generally.-- [from publisher website]

Modernising charity law : recent developments and future directions

In recent years the pressure for charity law reform has swept across the common law jurisdictions with differing results. Modernising Charity Law examines how the UK jurisdictions have enacted significant statutory reforms after many years of debate, whilst the federations of Canada and Australia seem merely to have intentions of reform. New Zealand and Singapore have begun their own reform journeys. This highly insightful book brings together perspectives from academics, regulators and practitioners from across the common law jurisdictions. The expert contributors consider the array of reforms to charity law and assess their relative successes. Particular attention is given to the controversial issues of expanded heads of charity, public benefit, religion, competition with business, government participation and regulation. The book concludes by challenging the very notion of charity as a foundation for societies which, faced by an array of global threats and the rising tide of human rights, must now also embrace the expanding notions of social capital, social entrepreneurism and civil society. This original and highly topical work will be a valuable resource for academics, regulators and legal practitioners as well as advanced and postgraduate students in law and public policy. Specialists in charity law, comparative law, and law and public policy should also not be without this important book.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Real estate issues associated with the implementation of a carbon trading framework : a rural landholders perspective

The issue of carbon sequestration rights has become topical following the United Nations Convention on Climate Change and the subsequent Kyoto Protocol which identified emissions trading as one of the mechanisms to reduce greenhouse gas emissions. The Australian Government has responded by initiating the Garnaut Climate Change Review which in its final report, proposed that an emissions trading scheme be introduced and set out some of the desirable features of such a trading scheme. This proposal has been the subject of much debate and at this stage there still seems to be little clarity surrounding the topic of emissions trading in Australia. The treatment of rights to carbon sequestered in vegetation is also an issue when reconciled with the system of land tenure and ownership in many jurisdictions. These carbon property rights are treated differently in different Australian and international jurisdictions ranging from recognition of their new and unique nature to fitting them within a more established common law framework, e.g.a profit a prendre. This paper identifies the treatment of these sequestered carbon rights within the wider property rights framework in Australia and considers issues that this treatment may inflict on land holders when there is a fracturing of ownership between the rights of the carbon in vegetation and the ownership of the land.

Exploring the contested role of mandatory reporting laws in the identification of severe child abuse and neglect

Significant numbers of children are severely abused and neglected by parents and caregivers. Infants and very young children are the most vulnerable and are unable to seek help. To identify these situations and enable child protection and the provision of appropriate assistance, many jurisdictions have enacted ‘mandatory reporting laws’ requiring designated professionals such as doctors, nurses, police and teachers to report suspected cases of severe child abuse and neglect. Other jurisdictions have not adopted this legislative approach, at least partly motivated by a concern that the laws produce dramatic increases in unwarranted reports, which, it is argued, lead to investigations which infringe on people’s privacy, cause trauma to innocent parents and families, and divert scarce government resources from deserving cases. The primary purpose of this paper is to explore the extent to which opposition to mandatory reporting laws is valid based on the claim that the laws produce ‘overreporting’. The first part of this paper revisits the original mandatory reporting laws, discusses their development into various current forms, explains their relationship with policy and common law reporting obligations, and situates them in the context of their place in modern child protection systems. This part of the paper shows that in general, contemporary reporting laws have expanded far beyond their original conceptualisation, but that there is also now a deeper understanding of the nature, incidence, timing and effects of different types of severe maltreatment, an awareness that the real incidence of maltreatment is far higher than that officially recorded, and that there is strong evidence showing the majority of identified cases of severe maltreatment are the result of reports by mandated reporters. The second part of this paper discusses the apparent effect of mandatory reporting laws on ‘overreporting’ by referring to Australian government data about reporting patterns and outcomes, with a particular focus on New South Wales. It will be seen that raw descriptive data about report numbers and outcomes appear to show that reporting laws produce both desirable consequences (identification of severe cases) and problematic consequences (increased numbers of unsubstantiated reports). Yet, to explore the extent to which the data supports the overreporting claim, and because numbers of unsubstantiated reports alone cannot demonstrate overreporting, this part of the paper asks further questions of the data. Who makes reports, about which maltreatment types, and what are the outcomes of those reports? What is the nature of these reports; for example, to what extent are multiple numbers of reports made about the same child? What meaning can be attached to an ‘unsubstantiated’ report, and can such reports be used to show flaws in reporting effectiveness and problems in reporting laws? It will be suggested that available evidence from Australia is not sufficiently detailed or strong to demonstrate the overreporting claim. However, it is also apparent that, whether adopting an approach based on public health and or other principles, much better evidence about reporting needs to be collected and analyzed. As well, more nuanced research needs to be conducted to identify what can reasonably be said to constitute ‘overreports’, and efforts must be made to minimize unsatisfactory reporting practice, informed by the relevant jurisdiction’s context and aims. It is also concluded that, depending on the jurisdiction, the available data may provide useful indicators of positive, negative and unanticipated effects of specific components of the laws, and of the strengths, weaknesses and needs of the child protection system.

Good and bad Sharia : Australia's mixed response to Islamic law

Reflecting on the legal consequences of globalisation in the 21st century, Twining predicted that societies in the West would have to 'wrestle with the extent to which the state should recognise, make concessions to, or even enforce norms and values embedded in different religions, cultures or traditions'. This is borne out as the direction across the common law world moves towards entrenching legal pluralism. The concessions each nation has made to minorities with different religions, cultures and traditions have varied. The special character of Islam, as a comprehensive blueprint for life in which law and religion unite, has meant that the negotiations for a special place for Muslims within each common law jurisdiction has been at the forefront of new legal ordering possibilities. This is the crux of the pluralism debate. Cautiously, Australians have watched the, at times histrionic, discourse in Canada and Great Britain on official recognition for Islamic law.

Environmental law and the economic impact on Australian firms

In response to international awareness of environmental issues and the inadequacies of common law actions, legislation has been enacted by Australian governments to facilitate environmental protection. The Environmental Protection Act 1994 (Qld) and accompanying Environmental Protection (Interim) Regulation 1995 (Qld) is one example of government response to mounting public pressure to legislate for the environment. Investigation into the operation of the legislation exposes the costs faced by Australian firms in its application. The legislation identifies a number of environmentally relevant activities and imposes licensing and reporting requirements on firms undertaking such activities. In view of these legislative requirements and the increasing public awareness of environmental issues over the last decade in Australia, it could be expected that firms undertaking environmentally sensitive activities will place greater importance on the management of environmental issues. If so, the greater prominence placed on environmental management may be reflected in disclosures made by the firm to its shareholders and other interested parties. This article investigates the type and extent of costs currently imposed by the body of environmental laws in Australia with the discussion primarily focusing upon costs imposed due to the operation of environmental legislation in Queensland. Further, the article reports empirical analysis of management response to environmental issues where firms are undertaking environmentally sensitive activities.

The Church of England : Charity Law and Human Rights

This book examines the interface between religion, charity law and human rights. It does so by treating the Church of England and its current circumstances as a timely case study providing an opportunity to examine the tensions that have now become such a characteristic feature of that interface. Firstly, it suggests that the Church is the primary source of canon law principles that have played a formative role in shaping civic morality throughout the common law jurisdictions: the history of their emergence and enforcement by the State in post-Reformation England is recorded and assessed. Secondly, it reveals that of such principles those of greatest weight were associated with matters of sexuality: in particular, for centuries, family law was formulated and applied with regard for the sanctity of the heterosexual marital family which provided the only legally permissible context for any form of sexual relationship. Thirdly, given that history, it identifies and assesses the particular implications that now arise for the Church as a consequence of recent charity law reform outcomes and human rights case law developments: a comparative analysis of religion related case law is provided. Finally, following an outline of the structure and organizational functions of the Church, a detailed analysis is undertaken of its success in engaging with these issues in the context of the Lambeth Conferences, the wider Anglican Communion and in the ill-fated Covenant initiative. From the perspective of the dilemmas currently challenging the moral authority of the Church of England, this book identifies and explores the contemporary ‘moral imperatives’ or red line issues that now threaten the coherence of Christian religions in most leading common law nations. Gay marriage and abortion are among the host of morally charged and deeply divisive topics demanding a reasoned response and leadership from religious bodies. Attention is given to the judicial interpretation and evaluation of these and other issues that now undermine the traditional role of the Church of England. As the interface between religion, charity law and human rights becomes steadily more fractious, with religious fundamentalism and discrimination acquiring a higher profile, there is now a pressing need for a more balanced relationship between those with and those without religious beliefs. This book will be an invaluable aid in starting the process of achieving a triangulated relationship between the principles of canon law, charity law and human rights law.

Cutting the Gordian knot of futility : a case for law reform on unilateral withholding and withdrawal of potentially life-sustaining treatment

In this paper, we propose law reform with respect to the unilateral withholding or withdrawal of potentially life-sustaining treatment in Australia and New Zealand. That is, where a doctor withholds or withdraws potentially life-sustaining treatment without consent from a patient or a patient’s substitute decision-maker (where the patient lacks capacity), or authorisation from a court or tribunal, or by operation of a statute or justifiable government or institutional policy. Our proposal is grounded in the core values that do (or should) underpin a regulatory framework on an issue such as this; these values are drawn from existing commitments made by Australia and New Zealand through legislation, the common law, and conventions and treaties. It is also grounded in a critical review of the law on unilateral withholding and withdrawal as well as the legal context within which this issue sits in Australasia. We argue that the current law is inconsistent with the core values and develop a proposal for a legal response to this issue that more closely aligns with the core values it is supposed to serve.

Work Health and Safety Law and Policy

The third edition of Work Health and Safety Law and Policy continues to provide a plain English approach to explaining and analysing the law which regulates work health and safety in Australia. Providing broad coverage, this book focuses on the role that legal regulation plays in preventing work-related injury and disease, as well as the way in which the law contributes to rehabilitating and compensating injured and ill workers. This third edition focuses on the national model Work Health and Safety Bill 2009. The provisions of the model Bill are outlined, along with court decisions and other documentation that help interpret the provisions in new legislation enacting the model Bill. There is also a chapter in the book examining the national model Work Health and Safety Regulations 2011, and model codes of practice. The book includes three chapters on common law, statutory workers’ compensation provisions and rehabilitation. Tables summarising the key legal provisions of the major Australian Commonwealth, State and Territory workers’ compensation statutes have been updated and give quick and easy reference to points of legislation.