Review of Public Trustee Files - Families and generational asset transfers: Making and challenging wills in contemporary Australia

The Public Trustee file review was designed to address research questions relating to will disputes and socio-cultural and family norms, expectations and obligations that underpin challenges to wills. Findings from this review will augment the earlier review of all adjudicated succession law cases in Australia between January and December 2011. The research team obtained 139 cases for the review. Within the reviewed cases, parties generally needed some kind of formalised assistance to resolve disputes and almost a third ended up going to court. Most claims launched to contest wills were successful i.e. led to a change in distribution. The existence of poor and/or complex personal relationships between beneficiaries, disputants and/or the deceased were a feature of most cases involving will disputes, particularly where disputes were escalated to court. There are significant costs of will contestation both for the estate and the individuals involved in disputes. Previous research has identified that in addition to the direct costs is the indirect cost of extending the time for probate of the will. This review highlights that one of the most significant costs of will contestation is the damage to familial relationships that appears to both drive and be worsened by contestation. Findings of this review highlight the role of Public Trustees in providing financial management and advocacy services to protect and support vulnerable people in the community such as those with impaired capacity, as well as offering services such as will drafting and deceased estate administration.

Protecting Australia's children: A cross-jurisdictional review of domestic violence protection order legislation

Increasingly, domestic violence is being treated as a child protection issue, and children affected by domestic violence are recognised as experiencing a form of child abuse. Domestic violence protection order legislation – as a key legal response to domestic violence – may offer an important legal option for the protection of children affected by domestic violence. In this article, we consider the research that establishes domestic violence as a form of child abuse, and review the provisions of State and Territory domestic violence protection order legislation to assess whether they demonstrate an adequate focus on the protection of children.

Children with gender dysphoria deserve better from the law

An increasing number of Australian children are accessing specialist health services for gender dysphoria treatment, largely because of a growing awareness among doctors about available specialist health services. But the law is not in step with the needs of these children...

Emissions Trading and WTO Law: A Global Analysis

Emissions trading schemes have been introduced throughout the world in order to achieve an environmental end. In the pursuit of reducing greenhouse gas emissions, these schemes will have a direct impact on the global economy. This book examines the details of emissions trading schemes through the lens of the World Trade Organization (WTO) law. Emissions trading schemes both implemented and proposed will be deconstructed to understand whether they will have a single uniform legal status within the WTO law, or indeed whether the legal status of the units of trade will differ on a case-by-case basis. This book examines non-discrimination provisions and exceptions within four significant WTO ‘covered agreements’. This analysis will be undertaken with a goal to understand how emissions trading scheme measures may be labelled and treated by WTO dispute settlement bodies. Moreover, the narrative of this publication demonstrates where decisions must be made by WTO Members in relation to the legal treatment of emissions trading units and liabilities. The aim of the book is to consider the issues associated with emissions trading that arise within the existing WTO law. This monograph will consider emissions trading schemes through the lens of WTO law to establish how these schemes will be defined, where they may potentially breach the non-discrimination provisions of the law and, whether the WTO law should be amended through Member agreement in order to accommodate these schemes. The book is an adaptation of a PhD thesis, which is an analysis of one emissions trading framework – the Australian Clean Energy Package – using WTO law as the theoretical framework. The aim of the proposed monograph is to increase the scope of analysis from the Clean Energy Package to emissions trading schemes more generally. It is envisaged that to do this effectively, examples of frameworks that have been proposed and implemented by various WTO members must be used as case studies for both WTO compliance and non-compliance.

Property law reforms in Queensland: Is the regulatory burden on land transactions reduced?

The reduction of unnecessary regulation was a clear policy objective of the Queensland government during 2014. In the area of property sales significant reforms were introduced from 1 December 2014. This article examines the key aspects of these reforms and whether there has been a reduction in red tape for sellers and buyers of land.

Prostitution Ideology and Trafficking Policy: The Impact of Political Approaches to Domestic Sex Work on Human Trafficking Policy in Australia and the United States

Debates over the legitimacy and legality of prostitution have characterised human trafficking discourse for the last two decades. This article identifies the extent to which competing perspectives concerning the legitimacy of prostitution have influenced anti-trafficking policy in Australia and the United States, and argues that each nation-state’s approach to domestic sex work has influenced trafficking legislation. The legal status of prostitution in each country, and feminist influences on prostitution law reform, have had a significant impact on the nature of the legislation adopted.

Rediscovering law students as citizens: Critical thinking and the public value of legal education

In a series of publications over the last decade, Australian National University Professor Margaret Thornton has documented a disturbing change in the nature of legal education. This body of work culminates in a recently published book based on interviews with 145 legal academics in Australia, the United Kingdom, New Zealand and Canada. In it, Thornton describes a feeling of widespread unease among legal academics that society, government, university administrators and students themselves are moving away from viewing legal education as a public good which benefits both students and society. Instead, legal education is increasingly being viewed as a purely private good, for consumption by the student in the quest for individual career enhancement.

Australian Commercial Law

Australian Commercial Law offers a concise yet comprehensive introduction to commercial law in Australia. The textbook provides a thorough and detailed discussion of a variety of topics in commercial law such as agency, bailment, the sale of goods, the transfer of property and the Personal Property Securities Act. The book also offers a detailed overview of topics within the Australian Consumer Law that are now relevant to commercial practice such as unconscionable conduct, consumer guarantees, and misleading and deceptive conduct. Written in a clear and accessible style, each chapter features key points and further reading to enhance students' understanding. Significant cases are discussed in detail and include excerpts from judgments to illustrate points of law. Australian Commercial Law is an indispensable resource for students who are seeking a comprehensive understanding of commercial law.

Integrated reporting and directors’ concerns about personal liability exposure: Law reform options

Integrated reporting () holds significant promise as a new reporting paradigm that is holistic, strategic, responsive, material, and relevant across multiple time frames. However, its uptake in Australia is being hampered by directors’ concerns about personal liability exposure, particularly for forward-looking statements that subsequently prove to be unfounded. This article seeks to illuminate the bases for these liability concerns by outlining the similarities between and the operating and financial review requirements under the Corporations Act 2001 (Cth), and the relevant grounds for liability for misleading and deceptive disclosures, and breach of directors’ duties. In light of this discussion, this article proposes four possible reform options, ranging from minor adaptations to the Framework to far-reaching reforms of the Corporations Act. As assurance is desirable to ensure that reliance can be placed on integrated reports, the development of a legal safe harbour for auditors of forward-looking information is also canvassed.

Open for litigation: Australia, and the Trans-Pacific Partnership

On the 28th May 2014, a petition signed by 1.8 million people worldwide was delivered to the Australian Parliament to protest against the radical secrecy surrounding the Trans-Pacific Partnership.

Does Australia need laws for 'Biotrespass' to protect organic farmers?

The supreme court of Western Australia handed down a landmark decision yesterday, on genetically modified crop liability. The ruling in Marsh v Baxter is an enormous win for the agricultural biotechnology industry, and has disappointed organic farmers and their advocates.

The High Court of Australia and the Marlboro Man: The Battle Over the Plain Packaging of Tobacco Products

In 2012, the High Court of Australia handed down a landmark decision on the plain packaging of tobacco products. This chapter considers the historic ruling in the case of JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth. This chapter explores several themes in the decision. First, it highlights the historical work by the High Court of Australia on the role of health regulation, the use of health warnings, and tobacco control. Second, the chapter considers the High Court of Australia's view that intellectual property law promotes the public interest.Third, it explores the High Court of Australia’s analysis of the constitutional law on acquisition of property on just terms. Finally, this chapter contends that the High Court of Australia's ruling on plain packaging of tobacco products will spark an 'Olive Revolution' — and will encourage superior courts and policy-makers to follow suit.

From Kafka to KAFTA: Intellectual property, and the Korea-Australia free trade agreement

This paper provides a critical examination of the intellectual property sections of the Korea-Australia Free Trade Agreement 2014. Chapter 13 of the Korea-Australia Free Trade Agreement 2014 deals with the subject of intellectual property law. The Chapter covers such topics as the purposes and objectives of intellectual property law; copyright law; trade mark law; patent law; and intellectual property enforcement. The Joint Standing Committee on Treaties in the Australian Parliament highlighted the controversy surrounding this chapter of the agreement: The intellectual property rights chapter of KAFTA has drawn considerable attention from academics and stakeholders regarding the proposed need for changes to Australian intellectual property law and the inclusion of intellectual property in the definition of investment with regard to the investor-state dispute mechanism. Other concerns raised with the Committee include the prescriptive nature of the chapter, the lack of recognition of the broader public interests of intellectual property rights, and possible changes to fair use provisions. Article 13.1.1 of the Korea-Australia Free Trade Agreement 2014 provides that: ‘Each Party recognises the importance of adequate and effective protection of intellectual property rights, while ensuring that measures to enforce those rights do not themselves become barriers to legitimate trade.’ This is an unsatisfactory description of the objectives and purposes of intellectual property law in both Australia and Korea. There is a failure to properly consider the range of public purposes served by intellectual property law – such as providing for access to knowledge, promoting competition and innovation, protecting consumer rights, and allowing for the protection of public health, food security, and the environment. Such a statement of principles and objectives detracts from the declaration in the TRIPS Agreement 1994 of the public interest objectives to be served by intellectual property. Chapter 11 of the Korea-Australia Free Trade Agreement 2014 is an investment chapter, with an investor-state dispute settlement regime. This chapter is highly controversial – given the international debate over investor-state dispute settlement; the Australian context for the debate; and the text of the Korea-Australia Free Trade Agreement 2014. In April 2014, the United Nations Conference on Trade and Development (UNCTAD) released a report on Recent Developments in Investor-State Dispute Settlement. The overall figures are staggering. UNCTAD reports a significant growth in investment-state dispute settlement, across a wide array of different fields of public regulation. Given the broad definition of investment, intellectual property owners will be able to use the investor-state dispute settlement regime in the Korea-Australia Free Trade Agreement 2014. This will have significant implications for all the various disciplines of intellectual property – including copyright law, trade mark law, and patent law.

Geopiracy: Patent law, climate change, and geoengineering

Patent law is a regime of intellectual property, which provides exclusive rights regarding scientific inventions, which are novel, inventive, and useful. There has been much debate over the limits of patentable subject matter relating to emerging technologies. The Supreme Court of the US has sought to rein in the expansive interpretation of patentability by lower courts in a series of cases dealing with medical information (Prometheus), finance (Bilski), and gene patents (Myriad). This has led to a reinvigoration of the debate over the boundaries of patentable subject matter. There has been controversy about the rise in patenting of geoengineering - particularly by firms such as Intellectual Ventures.