UCPR 229 - defamation proceedings – damages to be assessed – application to interrogate as to defendant’s motive - implications of Defamation ACT 2005 - application to interrogate before action - when in the interests of justice

In Hogan v Ellery [2009] QDC 154 McGill DCJ considered two applications for leave to deliver interrogatories under r 229 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The judgment provides useful analysis of the circumstances in which a plaintiff may obtain leave to deliver interrogatories to a defendant in defamation proceedings, and also to a non-party before action.

Supreme Court Act 1995 (Qld) s 253 - leave to appeal costs orders - appeal against substantive judgment insufficient - must be arguable case that discretion will be overturned on appeal

The recent decision of the Court of Appeal in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262 provides clear direction on the Court’s expectations of a party seeking leave to appeal a costs order.This decision is likely to impact upon common practice in relation to appeals against costs orders. It sends a clear message to trial judges that they should not give leave as of course when giving a judgment in relation to costs, and that parties seeking leave under s 253 of the Supreme Court Act 1995 (Qld) should make a separate application. The application should be supported by material presenting an arguable case that the trial judge made an error in the exercise of the discretion of the kind described in House v King (1936) 55 CLR 499. A different, and interesting, aspect of this appeal is that it was the first wholly electronic civil appeal. The court-provided technology had been adopted at trial, and the Court of Appeal dispensed with any requirement for hard copy appeal record books.

Permeability estimation conditioned to geophysical downhole log data in sandstones of the northern Galilee Basin, Queensland : methods and application

This study uses borehole geophysical log data of sonic velocity and electrical resistivity to estimate permeability in sandstones in the northern Galilee Basin, Queensland. The prior estimates of permeability are calculated according to the deterministic log–log linear empirical correlations between electrical resistivity and measured permeability. Both negative and positive relationships are influenced by the clay content. The prior estimates of permeability are updated in a Bayesian framework for three boreholes using both the cokriging (CK) method and a normal linear regression (NLR) approach to infer the likelihood function. The results show that the mean permeability estimated from the CK-based Bayesian method is in better agreement with the measured permeability when a fairly apparent linear relationship exists between the logarithm of permeability and sonic velocity. In contrast, the NLR-based Bayesian approach gives better estimates of permeability for boreholes where no linear relationship exists between logarithm permeability and sonic velocity.

A catchment modelling approach integrating surface and groundwater processes, land use and distribution of nutrients : Elimbah Creek, southeast Queensland

As the world’s population is growing, so is the demand for agricultural products. However, natural nitrogen (N) fixation and phosphorus (P) availability cannot sustain the rising agricultural production, thus, the application of N and P fertilisers as additional nutrient sources is common. It is those anthropogenic activities that can contribute high amounts of organic and inorganic nutrients to both surface and groundwaters resulting in degradation of water quality and a possible reduction of aquatic life. In addition, runoff and sewage from urban and residential areas can contain high amounts of inorganic and organic nutrients which may also affect water quality. For example, blooms of the cyanobacterium Lyngbya majuscula along the coastline of southeast Queensland are an indicator of at least short term decreases of water quality. Although Australian catchments, including those with intensive forms of land use, show in general a low export of nutrients compared to North American and European catchments, certain land use practices may still have a detrimental effect on the coastal environment. Numerous studies are reported on nutrient cycling and associated processes on a catchment scale in the Northern Hemisphere. Comparable studies in Australia, in particular in subtropical regions are, however, limited and there is a paucity in the data, in particular for inorganic and organic forms of nitrogen and phosphorus; these nutrients are important limiting factors in surface waters to promote algal blooms. Therefore, the monitoring of N and P and understanding the sources and pathways of these nutrients within a catchment is important in coastal zone management. Although Australia is the driest continent, in subtropical regions such as southeast Queensland, rainfall patterns have a significant effect on runoff and thus the nutrient cycle at a catchment scale. Increasingly, these rainfall patterns are becoming variable. The monitoring of these climatic conditions and the hydrological response of agricultural catchments is therefore also important to reduce the anthropogenic effects on surface and groundwater quality. This study consists of an integrated hydrological–hydrochemical approach that assesses N and P in an environment with multiple land uses. The main aim is to determine the nutrient cycle within a representative coastal catchment in southeast Queensland, the Elimbah Creek catchment. In particular, the investigation confirms the influence associated with forestry and agriculture on N and P forms, sources, distribution and fate in the surface and groundwaters of this subtropical setting. In addition, the study determines whether N and P are subject to transport into the adjacent estuary and thus into the marine environment; also considered is the effect of local topography, soils and geology on N and P sources and distribution. The thesis is structured on four components individually reported. The first paper determines the controls of catchment settings and processes on stream water, riverbank sediment, and shallow groundwater N and P concentrations, in particular during the extended dry conditions that were encountered during the study. Temporal and spatial factors such as seasonal changes, soil character, land use and catchment morphology are considered as well as their effect on controls over distributions of N and P in surface waters and associated groundwater. A total number of 30 surface and 13 shallow groundwater sampling sites were established throughout the catchment to represent dominant soil types and the land use upstream of each sampling location. Sampling comprises five rounds and was conducted over one year between October 2008 and November 2009. Surface water and groundwater samples were analysed for all major dissolved inorganic forms of N and for total N. Phosphorus was determined in the form of dissolved reactive P (predominantly orthophosphate) and total P. In addition, extracts of stream bank sediments and soil grab samples were analysed for these N and P species. Findings show that major storm events, in particular after long periods of drought conditions, are the driving force of N cycling. This is expressed by higher inorganic N concentrations in the agricultural subcatchment compared to the forested subcatchment. Nitrate N is the dominant inorganic form of N in both the surface and groundwaters and values are significantly higher in the groundwaters. Concentrations in the surface water range from 0.03 to 0.34 mg N L..1; organic N concentrations are considerably higher (average range: 0.33 to 0.85 mg N L..1), in particular in the forested subcatchment. Average NO3-N in the groundwater has a range of 0.39 to 2.08 mg N L..1, and organic N averages between 0.07 and 0.3 mg N L..1. The stream bank sediments are dominated by organic N (range: 0.53 to 0.65 mg N L..1), and the dominant inorganic form of N is NH4-N with values ranging between 0.38 and 0.41 mg N L..1. Topography and soils, however, were not to have a significant effect on N and P concentrations in waters. Detectable phosphorus in the surface and groundwaters of the catchment is limited to several locations typically in the proximity of areas with intensive animal use; in soil and sediments, P is negligible. In the second paper, the stable isotopes of N (14N/15N) and H2O (16O/18O and 2H/H) in surface and groundwaters are used to identify sources of dissolved inorganic and organic N in these waters, and to determine their pathways within the catchment; specific emphasis is placed on the relation of forestry and agriculture. Forestry is predominantly concentrated in the northern subcatchment (Beerburrum Creek) while agriculture is mainly found in the southern subcatchment (Six Mile Creek). Results show that agriculture (horticulture, crops, grazing) is the main source of inorganic N in the surface waters of the agricultural subcatchment, and their isotopic signature shows a close link to evaporation processes that may occur during water storage in farm dams that are used for irrigation. Groundwaters are subject to denitrification processes that may result in reduced dissolved inorganic N concentrations. Soil organic matter delivers most of the inorganic N to the surface water in the forested subcatchment. Here, precipitation and subsequently runoff is the main source of the surface waters. Groundwater in this area is affected by agricultural processes. The findings also show that the catchment can attenuate the effects of anthropogenic land use on surface water quality. Riparian strips of natural remnant vegetation, commonly 50 to 100 m in width, act as buffer zones along the drainage lines in the catchment and remove inorganic N from the soil water before it enters the creek. These riparian buffer zones are common in most agricultural catchments of southeast Queensland and are indicated to reduce the impact of agriculture on stream water quality and subsequently on the estuary and marine environments. This reduction is expressed by a significant decrease in DIN concentrations from 1.6 mg N L..1 to 0.09 mg N L..1, and a decrease in the �15N signatures from upstream surface water locations downstream to the outlet of the agricultural subcatchment. Further testing is, however, necessary to confirm these processes. Most importantly, the amount of N that is transported to the adjacent estuary is shown to be negligible. The third and fourth components of the thesis use a hydrological catchment model approach to determine the water balance of the Elimbah Creek catchment. The model is then used to simulate the effects of land use on the water balance and nutrient loads of the study area. The tool that is used is the internationally widely applied Soil and Water Assessment Tool (SWAT). Knowledge about the water cycle of a catchment is imperative in nutrient studies as processes such as rainfall, surface runoff, soil infiltration and routing of water through the drainage system are the driving forces of the catchment nutrient cycle. Long-term information about discharge volumes of the creeks and rivers do, however, not exist for a number of agricultural catchments in southeast Queensland, and such information is necessary to calibrate and validate numerical models. Therefore, a two-step modelling approach was used to calibrate and validate parameters values from a near-by gauged reference catchment as starting values for the ungauged Elimbah Creek catchment. Transposing monthly calibrated and validated parameter values from the reference catchment to the ungauged catchment significantly improved model performance showing that the hydrological model of the catchment of interest is a strong predictor of the water water balance. The model efficiency coefficient EF shows that 94% of the simulated discharge matches the observed flow whereas only 54% of the observed streamflow was simulated by the SWAT model prior to using the validated values from the reference catchment. In addition, the hydrological model confirmed that total surface runoff contributes the majority of flow to the surface water in the catchment (65%). Only a small proportion of the water in the creek is contributed by total base-flow (35%). This finding supports the results of the stable isotopes 16O/18O and 2H/H, which show the main source of water in the creeks is either from local precipitation or irrigation waters delivered by surface runoff; a contribution from the groundwater (baseflow) to the creeks could not be identified using 16O/18O and 2H/H. In addition, the SWAT model calculated that around 68% of the rainfall occurring in the catchment is lost through evapotranspiration reflecting the prevailing long-term drought conditions that were observed prior and during the study. Stream discharge from the forested subcatchment was an order of magnitude lower than discharge from the agricultural Six Mile Creek subcatchment. A change in land use from forestry to agriculture did not significantly change the catchment water balance, however, nutrient loads increased considerably. Conversely, a simulated change from agriculture to forestry resulted in a significant decrease of nitrogen loads. The findings of the thesis and the approach used are shown to be of value to catchment water quality monitoring on a wider scale, in particular the implications of mixed land use on nutrient forms, distributions and concentrations. The study confirms that in the tropics and subtropics the water balance is affected by extended dry periods and seasonal rainfall with intensive storm events. In particular, the comprehensive data set of inorganic and organic N and P forms in the surface and groundwaters of this subtropical setting acquired during the one year sampling program may be used in similar catchment hydrological studies where these detailed information is missing. Also, the study concludes that riparian buffer zones along the catchment drainage system attenuate the transport of nitrogen from agricultural sources in the surface water. Concentrations of N decreased from upstream to downstream locations and were negligible at the outlet of the catchment.

The Human Fertilisation and Embryology Act 2008 : restrictions on the creation of “saviour siblings” and the relevance of the harm principle

This paper provides an overview of the regulatory developments in the UK which impact on the use of in vitro fertilization (IVF) and embryo screening techniques for the creation of “saviour siblings.” Prior to the changes implemented under the Human Fertilisation and Embryology Act 2008, this specific use of IVF was not addressed by the legislative framework and regulated only by way of policy issued by the Human Fertilisation and Embryology Authority (HFEA). Following the implementation of the statutory reforms, a number of restrictive conditions are now imposed on the face of the legislation. This paper considers whether there is any justification for restricting access to IVF and pre-implantation tissue typing for the creation of “saviour siblings.” The analysis is undertaken by examining the normative factors that have guided the development of the UK regulatory approach prior to the 2008 legislative reforms. The approach adopted in relation to the “saviour sibling” issue is compared to more general HFEA policy, which has prioritized the notion of reproductive choice and determined that restrictions on access are only justified on the basis of harm considerations.

Preventing the selection of “deaf embryos” under the Human Fertilisation and Embryology Act 2008 : problematizing disability?

Section 14(4) of the Human Fertilisation and Embryology Act 2008 imposes – within the general licensing conditions listed in the Human Fertilisation and Embryology Act 1990 – a prohibition to prevent the selection and implantation of embryos for the purpose of creating a child who will be born with a “serious disability.” This article offers a perspective that demonstrates the problematic nature of the consultation, review, and legislative reform process surrounding s 14(4). The term “serious disability” is not defined within the legislation, but we highlight the fact that s 14(4) was passed with the case of selecting deaf children in mind. We consider some of the literature on the topic of disability and deafness, which, we think, casts some doubt on the view that deafness is a “serious disability.” The main position we advance is that the lack of serious engagement with alternative viewpoints during the legislative process was unsatisfactory. We argue that the contested nature of deafness necessitates a more robust consultation process and a clearer explanation and defence of the normative position that underpins s 14(4).

Editorial: The Human Fertilisation and Embryology Act 2008

This editorial first describes the workshop out of which the present special issue arose. The editors then identify the need for a multidisciplinary collection examining the Human Fertilisation and Embryology Act 2008 from both legal and political perspectives, including the consultation process, campaigning and parliamentary debates leading to its passage, and the concluded legislation and its effects. The editorial provides an overview of the legislative reform process, key legislative changes, and the various contributions to the special issue. Cross-cutting themes include the value of a qualitative, discourse-based approach to research in this area; the need to understand the 2008 Act in historical context; unforeseen practical implications of the legislative provisions; and silences and missed opportunities in the legislation. Finally, a postscript covers the changing landscape of hybrid embryo research since the passage of the Act, and the uncertain future of the Human Fertilisation and Embryology Authority at the time of writing.

Motor Accident Insurance Act 1994 - request for information

In Angus v Conelius [2007] QCA 190 the Queensland Court of Appeal concluded that the obligations under the Motor Accident Insurance Act 1994 (Qld), and in particular s 45 of the Act (duty of claimant to cooperate with insurer), continue beyond the commencement of court proceedings

Demanding a change : time to act on statutory demands

The statutory demand procedure has been a part of our corporate law from its earliest modern formulations and it has been suggested, albeit anecdotally, that under the current regime, it gives rise to more litigation than any other part of the Corporations Act. Despite this there has been a lack of consideration of the underlying policy behind the procedure in both the case law and literature; both of which are largely centred on the technical aspects of the process. The purpose of this article is to examine briefly the process of the statutory demand in the context of the current insolvency law in Australia.

The impact of 'doomed race' assumptions in the administration of Queensland's Indigenous population by the Chief Protectors of Aboriginals from 1897 to 1942

This thesis researched how the anthropological claims of the Aborigines as a 'doomed race' in the decades between 1850 and 1870 became embedded and manifested in pervasive ideologies forming the racist protectionist policies framed in Queensland's Aboriginals Protection and Restriction of the Sale of Opium Act - 1897. Administering the Act was the government appointed Chief Protector of Aboriginals. Conferred with extraordinary powers, Chief Protectors acted and made decisions on behalf of successive governments who displayed little interest in Aboriginal affairs. Amendments to the Act between 1897 and 1939 reflected personal agendas and attitudes towards Aborigines by respective Chief Protectors. Conclusively, the research outcomes show that the 'doomed race' theory became a subterfuge for governments to mask society's racial prejudice against Indigenous peoples and allowed governments to dispossess the Indigenous people of their traditional lands without question from white settlers.

The CGT small business concessions : recent evidence from the perspective of the tax practitioner

On 21 September 1999 Division 152 was inserted into the Income Tax Assessment Act (1997) (ITAA 1997). It was subsequently subject to amendments in 2006. Division 152 contains the small business CGT concessions, which enables eligible small business taxpayers to reduce the amount of tax payable on capital gains arising from certain CGT events (including the sale of the small business itself) that occur after 11:45 am on 21 September 1999. One of the stated principal objectives of the legislation was to provide a concessionary regime for small business owners who did not have the same ability to access the concessionary superannuation regime (particularly the superannuation guarantee charge) generally available to employees. The then Federal Treasurer, Mr Peter Costello, when announcing the introduction of the concessions, specifically stated that the object of Div 152 was to provide “small business people with access to funds for retirement or expansion”. The purpose of this project is to: one, assess the extent to which small business taxpayers understand the CGT small business concessions, particularly when considering sale of their business; two, determine which of the four small business CGT concessions are being adopted and/or recommended by tax advisors to clients; and three, determine whether the recent superannuation changes announced by the Federal Government in relation to the capping of the concessional superannuation thresholds have had an impact on the use of the small business retirement concession. It is anticipated that the results of this study will reveal that that small business owners are reliant on their tax advisors to explain the operation of Division 152. It is plausible that give the complexity of the CGT concessions, most small business owners are completely unaware of the four small business CGT concessions contained in Division 152 and do not understand how these concessions apply. Our study will also reveal the extent to which each CGT small business concession has been adopted (and reasons why). In particular, emphasis will be placed on the adoption of the small business retirement concession contained in Subdivision 152-D (and specific reasons for its adoption). This study also seeks to understand whether the recent (and impending) changes to the concessional superannuation cap has resulted in the retirement concession being more widely adopted (or recommended) by tax advisors. We would expect that the results of our study to confirm this to be the case, particularly coupled with the recent economic downturn, which has led to lower superannuation fund balances. By providing accounting firms with this information, small business owners will benefit from the information, becoming better placed to be long-term self funded retirees, providing not only financial benefits to the individuals and the country, but a significant increase in social self-assurance by these members of the community.

The Indigenous digital collectif : the case among the iTadian of Northern Philippines

This paper reports on an adaptation of Callon and Law’s (1995) hybrid collectif derived from research conducted on the usage of mobile phones and internet technologies among the iTadian indigenous people of the Cordillera region, northern Philippines. Results brings to light an indigenous digital collectif—an emergent effect from the translation of both human and non-human heterogeneous actors as well as pre-existent networks, such as: traditional knowledge and practices, kinship relations, the traditional exchange of goods, modern academic requisites, and advocacies for indigenous rights. This is evinced by the iTadian’s enrolment of internet and mobile phone technologies. Examples include: treating these technologies as an efficient communicative tool, an indicator of well-being, and a portable extension of affective human relationships. Alternatively, counter-enrolment strategies are also at play, which include: establishing rules of acceptable use on SMS texting and internet access based on traditional notions of discretion, privacy, and the customary treatment of the dead. Within the boundaries of this digital collectif reveal imbrications of pre-existing networks like traditional customs, the kinship system across geophysical boundaries, the traditional exchange of mail and other goods, and the advocacy of indigenous rights. These imbrications show that the iTadian digital collectif fluently configures itself to a variety of networked ontologies without losing its character.

The government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (CTH)

This thesis examines the role of government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (Cth) and the policy considerations which Australian law should take into account in that role. There are two recurring themes arising in this examination which are significant to the recommendations and conclusions. The first is whether the needs and status of government should be different from private sector institutions, which also obtain copyright protection under the law. This theme stems from the 2005 Report on Crown Copyright by the Copyright Law Review Committee and the earlier Ergas Committee Report which are discussed in Chapters 2 and 8 of this thesis. The second is to identify the relationship between government copyright law and policy, national cultural policy and fundamental governance values. This theme goes to the essence of the thesis. For example, does the law and practice of government copyright properly reflect technological change in the way we now access and use information and does it facilitate the modern information management principles of government? Is the law and practice of government copyright consistent with the greater openness and accountability of government? The thesis concludes that government copyright law and practice in each of the three governmental roles recognised under the Copyright Act 1968 has not responded adequately to the information age and to the desire and the ability of individuals to access information quickly and effectively. The solution offered in this thesis is reform of the law and of public policy that is in step with access to information policy, the promotion of better communication and interaction with the community, and the enhanced preservation of government and private copyright materials for reasons of government accountability, effective administration and national culture and heritage.

The rise of government in Early Childhood Education and Care following the Child Care Act 1972 : the lasting legacy of the 1990s in setting the reform agenda for ECEC in Australia

Less than twenty years on from the proclamation of the Child Care Act 1972, and introduction of funding for not-for-profit child care centres, a series of market-driven public policies paved the way for the emergence of Australia’s current ECEC quasi-market. Seeking to respond to increasing demand for work-related child care in the 1990s, and to manage associated costs, a succession of Australian Governments turned to market theory and New Public Management (NPM) principles to inform ECEC policy. Reflecting on an era of high policy activity within ECEC, this paper examines a series of policy events and texts that set the course for the reform agenda that was to ensue in ECEC.