Competency and capacity : the legal and medical interface

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian society. Legal and medical professionals are increasingly being asked to determine whether individuals are legally competent/capable to make their own testamentary and substitute decision-making, that is financial and/or personal/health care, decisions. No consistent and transparent competency/capacity assessment paradigm currently exists in Australia. Consequently, assessments are currently being undertaken on an ad hoc basis which is concerning as Australia’s population ages and issues of competency/capacity increase. The absence of nationally accepted competency/capacity assessment guidelines and supporting principles results in legal and medical professionals involved with competency/capacity assessment implementing individual processes tailored to their own abilities. Legal and medical approaches differ both between and within the professions. The terminology used also varies. The legal practitioner is concerned with whether the individual has the legal ability to make the decision. A medical practitioner assesses fluctuations in physical and mental abilities. The problem is that the terms competency and capacity are used interchangeably resulting in confusion about what is actually being assessed. The terminological and methodological differences subsequently create miscommunication and misunderstanding between the professions. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner when assessing testamentary and/or substitute decision-making competency/capacity. This research investigates the effects of the current inadequate testamentary and substitute decision-making assessment paradigm and whether there is a more satisfactory approach. This exploration is undertaken within a framework of therapeutic jurisprudence which promotes principles fundamentally important in this context. Empirical research has been undertaken to first, explore the effects of the current process with practising legal and medical professionals; and second, to determine whether miscommunication and misunderstanding actually exist between the professions such that it gives rise to a tense relationship which is not conducive to satisfactory competency/capacity assessments. The necessity of reviewing the adequacy of the existing competency/capacity assessment methodology in the testamentary and substitute decision-making domain will be demonstrated and recommendations for the development of a suitable process made.

Copyrights and copyfights : copyright law and the digital economy

This paper will consider questions around the reform of copyright law, and how they are increasingly being framed by the challenges of the digital economy. It discusses the review of copyright and the digital economy being undertaken by the Australian Law Reform Commission, with particular reference to the costs and benefits of copyright law to consumers and creative producers. We argue that there is a pressing need to develop fair copyright rules that encourage investment in the digital economy, allow widespread dissemination of knowledge through society, and support the innovative reuse of copyright works. To better align copyright law with these goals, we recommend that Australia introduce an open ended ‘fair use’ style copyright exception, and encourage the development of a digital copyright exchange of the sort discussed in the UK by the Hargreaves and Hooper Reports.

Why ADR must be a mandatory subject in the law degree - the profession

The Australian legal profession, as well as the content and pedagogy of legal education across Australia, are steeped in tradition and conservatism. Indeed, the legal profession and our institutions of legal education are in a relationship of mutual influence which leaves the way we teach law resistant to change. There has traditionally been pushback against the notion that dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This paper argues that this position cannot be maintained in the modern legal climate. We challenge legal education orthodoxy and promote NADRAC’s position that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of DR instruction.

Why ADR must be a mandatory subject in the law degree - the academy

The profession of law is deeply steeped in tradition and conservatism. The content and pedagogy employed in law faculties across Australia is similarly steeped in tradition and conservatism. Indeed, the practice of law and our institutions of legal education are in a relationship of mutual influence; a dénouement which preserves the best aspects of our common law legal system, but also leaves the way we educate, practice, and think about the role of law, resistant to change. In this article, we lay down a challenge to legal education orthodoxy and a call to arms for legal academic progressivists. It is our simple argument that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. There has been traditional pushback against the notion that alternative dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This position cannot be maintained in the modern day legal climate. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of ADR instruction. With respect to relationships of mutual influence, whether legal education should assimilate the practise of law, or shape the practise of law makes no difference here. Both views necessitate the inclusion of ADR as a compulsory subject in the law degree.

Submission to expert panel on constitutional recognition of Indigenous people

Submission recommended addition of a new 'self-enacting' preamble and enacting words to the Commownealth Constitution, and replacement of the 'race power' by a series of more specific powers relating to the recognition of native title and laws of the indigenous people.

Constitutional Law

"This book systematically explores and clarifies the complexities of Austrealian Constitutional law and provides valuable critical analysis suitable for students, academics and government departments." -- book cover "Constitutional Law examines the foundational principles and concepts of this area of law. Written by practicing lawyers and lecturers in the subject, this book aims to provide an accessible yet comprehensive introductory text for Australian students. In eight parts this book systematically explores and clarifies the complexities of Australian Constitutional law and provides valuable critical analysis suitable for students, academics and government departments. An excellent resource for law students, Constitutional Law provides visual summaries in the form of flow charts, and each chapter includes key concepts and end-of-chapter discussion questions, further reading and useful websites and links. It also introduces students to key examinable areas, legal style essays, problems and assessment." -- publisher website

Steady natural convection of non-Newtonian power-law fluid in a trapezoidal enclosure

Numerically investigation of free convection heat transfer in a differentially heated trapezoidal cavity filled with non-Newtonian Power-law fluid has been performed in this study. The left inclined surface is uniformly heated whereas the right inclined surface is maintained as uniformly cooled. The top and bottom surfaces are kept adiabatic with initially quiescent fluid inside the enclosure. Finite volume based commercial software FLUENT 14.5 is used to solve the governing equations. Dependency of various flow parameters of fluid flow and heat transfer is analyzed including Rayleigh number, Ra ranging from 10^5 to 10^7, Prandtl number, Pr of 100 to 10,000 and power index, n of 0.6 to 1.4. Outcomes have been reported in terms of isotherms, streamline, and local Nusselt number for various Ra, Pr, n and inclined angles. Grid sensitivity analysis is performed and numerically obtained results have been compared with those results available in the literature and found good agreement.

The wrong tool for the job? The predictive powers of the DBQ in a sample of Queensland motorists

Introduction This study reports on the application of the Manchester Driver Behaviour Questionnaire (DBQ) to examine the self-reported driving behaviours (e.g., speeding, errors & aggressive manoeuvres) and predict crash involvement among a sample of general Queensland motorists. Material and Methods Surveys were completed by 249 general motorists on-line or via a pen-and-paper format. Results A factor analysis revealed a three factor solution for the DBQ which was consistent with previous Australian-based research. It accounted for 40.5% of the total variance, although some cross-loadings were observed on nine of the twenty items. The internal reliability of the DBQ was satisfactory. However, multivariate analysis using the DBQ revealed little predictive ability of the tool to predict crash involvement or demerit point loss e.g. violation notices. Rather, exposure to the road was found to be predictive of crashes, although speeding did make a small contribution to those who recently received a violation notice. Conclusions Taken together, the findings contribute to a growing body of research that raises questions about the predictive ability of the most widely used driving assessment tool globally. Ongoing research (which also includes official crash and offence outcomes) is required to better understand the actual contribution that the DBQ can make to understanding and improving road safety. Future research should also aim to confirm whether this lack of predictive efficacy originates from broader issues inherent within self-report data (e.g., memory recall problems) or issues underpinning the conceptualisation of the scale.

Shifting global power and shifting state power

The adoption of the Declaration on the Rights of Indigenous Peoples (DRIP) by the United Nations General Assembly in September 2007 has been heralded by many as a major breakthrough in the promotion of Indigenous rights under international law. Many however are sceptical as to whether DRIP actually promotes Indigenous rights or rather limits them in ways that serve the interests of nation states thereby diminishing the universality of human rights with respect to Indigenous peoples. This paper will examine how shifts in global power from the United States to the BRIC nations (Brazil, Russia, India and China) are likely to impact on the realisation of the right of self determination for Indigenous peoples. It will start by outlining the right of self determination as articulated in the Declaration, and in particular how the United States and its allies - the CANZUS group (Canada, Australia, New Zealand and United States) - were influential in shaping its form and content. The paper will then assess the extent to which the right to self determination is realised in Australia, the United States and the BRJC nations to provide an indication of the likely future direction of recognition and realisation of Indigenous rights at a global level.

Digitally enabled?! An analysis of law and justice students' use of smart devices

The research seeks to understand the nature of law and justice students’ use of technology for their learning purposes. There is often an assumption made that all students have, and engage with, technology to the same degree. The research tests these assumptions by means of a survey conducted of first year law and justice students to determine their actual use of smart devices inside and outside classes. The analysis of results reveals that while the majority of respondents own at least one smart device; most rarely use their device for their learning purposes.

Legal Reasoning in Environmental Law : a Study of Structure, Form and Language

This book analyses the structure, form and language of a selected number of international and national legal instruments and reviews how an illustrative range of international and national judicial institutions have responded to the issues before them and the processes of legal reasoning engaged by them in reaching their decisions. This involves a very detailed discussion of these primary sources of international and national environmental law with a view to determining their jurisprudential architecture and the processes of reasoning expected of those responsible for implementing these architectural arrangements. This book is concerned not with the effectiveness or the quality of an environmental legal system but only with its jurisprudential characteristics and their associated processes of legal reasoning.

Lexis Nexis Questions and Answers : Equity and Trusts [4th Ed.]

"LexisNexis Questions and Answers: Equity and Trusts provides students with a clear and systematic approach to successfully analysing and answering assessment questions on equity and trusts. Each chapter commences with a discussion of key principles and issues including a summary of relevant leading cases and legislation for effective revision. Examples of written questions with fact scenarios follow, each with a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. Readers are provided with advice on common errors to avoid when answering questions and practical hints and tips on how to achieve higher marks. Features • Summary of key issues helps students revise key areas before attempting problem questions • Sample questions with model answers assist students with effective exam study preparation"--publisher website

Ethics, Law and Health Care : a Guide for Nurses and Midwives

Understanding ethics and law in health care is an essential part of nurses’ and midwives’ professional standards. Ethics, Law and Health Care focuses on teaching applied ethics and law in a manner that illustrates the real world applications of these core components of the nursing and midwifery curriculum and practice. It equips readers with the ability to recognise and address legal and ethical issues that will arise in their professional practice. The book uses the four principles of biomedical ethics (autonomy, non-maleficence, beneficence and justice) together with the use of both the Nursing and Midwifery Codes of Ethics and Codes of Professional Conduct, issued by the Nursing and Midwifery Board of Australia, as a central means through which to analyse and approach ethical and legal issues. Ethics, Law and Health Care is scaffolded to assist readers in understanding legal and ethical principles, to integrate them in the context of a particular issue within professional practice, and provide them with a decision-making framework to take action in a professional context by utilising the Codes as well as state and federal law. Aided by pedagogical features such as case studies, review questions, further reading and a glossary of common terms, this book is an essential resource for students, academics and practitioners.

Domestic violence and family law : recognition and appropriation

The battered women’s movement in the United States contributed to a sweeping change in the recognition of men’s violence against female intimate partners. Naming the problem and arguing in favour of its identification as a serious problem meriting a collective response were key aspects of this effort. Criminal and civil laws have been written and revised in an effort to answer calls to take such violence seriously. Scholars have devoted significant attention to the consequences of this reframing of violence, especially around the unintended outcomes of the incorporation of domestic violence into criminal justice regimes. Family law, however, has remained largely unexamined by criminologists. This paper calls for criminological attention to family law responses to domestic violence and provides directions for future research.

Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.