Reparations for Indigenous People: International and Comparative Perspectives

Published in concomitance with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, this volume brings together a group of renowned legal experts and activists from different parts of the world who, from international and comparative perspectives, investigate the right of indigenous peoples to reparation for breaches of their individual and collective rights. The first part of the book is devoted to general aspects of this important matter, providing a comprehensive assessment of the relevant international legal framework and including overviews of the topic of reparations for human rights violations, the status of indigenous peoples in international law, and the vision of reparations as conceived by the communities concerned. The second part embraces a comprehensive investigation of the relevant practice at the international, regional, and national level, examining the best practices of reparations according to the ideologies and expectations of indigenous peoples and offering a comparative perspective on the ways in which the right of these peoples to redress for the injuries suffered is realized worldwide. The global picture painted by these contributions provides a view of the status of relevant international law that is synthesized in the two final chapters of the book, which include a concrete example of how a judicial claim for reparation is to be structured and prescribes the best practices and strategies to be adopted in order to maximize the opportunities for indigenous peoples to obtain effective redress. As a whole, this volume offers a comprehensive vision of its subject matter in international and comparative law, with a practical approach aimed at supporting legal academics, administrators, and practitioners in improving the avenues and modalities of reparations for indigenous peoples

The problem child in Australian patent law : "fair" basing

The concept of "fair basing" is widely acknowledged as a difficult area of patent law. This article maps the development of fair basing law to demonstrate how some of the difficulties have arisen. Part I of the article traces the development of the branches of patent law that were swept under the nomenclature of "fair basing" by British legislation in 1949. It looks at the early courts' approach to patent construction, examines the early origin of fair basing and what it was intended to achiever. Part II of the article considers the modern interpretation of fair basing, which provides a striking contrast to its historical context. Without any consistent judicial approach to construction the doctrine has developed inappropriately, giving rise to both over-strict and over-generous approaches.

Informed consent : the review of the law of negligence and the utility of reference to NHMRC guidelines

Although rarely referred to in litigation in the years that have followed the Ipp Review Report, there may well be some merit in more frequent judicial reference to the NHMRC guidelines for medical practitioners on providing information to patients 2004.

Proof of causation in informed consent cases : establishing what the plaintiff would have done

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff’s ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff’s prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court’s reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.

Copyright and creative innovation in China : an evolutionary approach?

China has made great progress in constructing comprehensive legislative and judicial infrastructures to protect intellectual property rights. But levels of enforcement remain low. Estimates suggest that 90% of film and music products consumed in China are ‘pirated’ and in 2009 81% of the infringing goods seized at the US border originated from China. Despite of heavy criticism over its failure to enforce IPRs, key areas of China’s creative industries, including film, mobile-music, fashion and animation, are developing rapidly. This paper explores how the rapid expansion of China’s creative economy might be reconciled with conceptual approaches that view the CIs in terms of creativity inputs and IP outputs. It argues that an evolutionary understanding of copyright’s role in creative innovation might better explain China’s experiences and provide more general insights into the nature of the creative industries and the policies most likely to promote growth in this sector of the economy.

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.

Government : charity boundaries

The Preamble1 was the initial legislative statement of matters construed by government to constitute charitable purposes in a common law context. It provided an outline of what was to become the core agenda for government’s relationship with charity. The resulting implied partnership, as viewed by government, endured for four centuries and in many different cultural contexts across the common law world. During that period, judicial mediation on the balance to be struck between government interest in acquiring value for granting tax exempt privileges and the right of individuals to freely dispose of property in accordance with their particular altruistic wishes steadily broadened the range of purposes deemed to be charitable, the vagaries of donor choice often prevailing over government interest in acquiring value for tax exemption.

Law autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.

Catch me if you can : the effective service of bankruptcy documents in a changing world

This article discusses some recent judicial decisions to assist legal practitioners to overcome some of the problems encountered when serving Bankruptcy Notices and Creditor’s Petitions. Some of the issues covered in the discussion are: What the valid last-known address of the debtor can be, whether a Bankruptcy Notice can be validly served by email on a debtor who is located outside Australia, whether service of a Bankruptcy Notice is valid when the debtor is outside Australia when service on the debtor occurs in Australia, whether the creditor’s failure to obtain leave for service of a Bankruptcy Notice can be excused, what can be done regarding personal service of a Creditor’s Petition when a debtor is outside Australia and whether the Court can set aside a sequestration order. The article goes on to place the issues in the context of broader bankruptcy policies noting that effective service of bankruptcy documents is challenging in a world where mobility of debtors is global and new modes of communication ever changing.

Listening in to others : in between noise and silence

Since the launch of the ‘Clean Delhi, Green Delhi’ campaign in 2003, slums have become a significant social and political issue in India’s capital city. Through this campaign, the state, in collaboration with Delhi’s middle class through the ‘Bhagidari system’ (literally translated as ‘participatory system’), aims to transform Delhi into a ‘world-class city’ that offers a sanitised, aesthetically appealing urban experience to its citizens and Western visitors. In 2007, Delhi won the bid to host the 2010 Commonwealth Games; since then, this agenda has acquired an urgent, almost violent, impetus to transform Delhi into an environmentally friendly, aesthetically appealing and ‘truly international city’. Slums and slum-dwellers, with their ‘filth, dirt, and noise’, have no place in this imagined city. The violence inflicted upon slum-dwellers, including the denial of their judicial rights, is justified on these accounts. In addition, the juridical discourse since 2000 has ‘re-problematised slums as ‘nuisance’. The rising antagonism of the middle-classes against the poor, supported by the state’s ambition to have a ‘world-class city’, has allowed a new rhetoric to situate the slums in the city. These representations articulate slums as homogenised spaces of experience and identity. The ‘illegal’ status of slum-dwellers, as encroachers upon public space, is stretched to involve ‘social, cultural, and moral’ decadence and depravity. This thesis is an ethnographic exploration of everyday life in a prominent slum settlement in Delhi. It sensually examines the social, cultural and political materiality of slums, and the relationship of slums with the middle class. In doing so, it highlights the politics of sensorial ordering of slums as ‘filthy, dirty, and noisy’ by the middle classes to calcify their position as ‘others’ in order to further segregate, exclude and discriminate the slums. The ethnographic experience in the slums, however, highlights a complex sensorial ordering and politics of its own. Not only are the interactions between diverse communities in slums highly restricted and sensually ordained, but the middle class is identified as a sensual ‘other’, and its sensual practices prohibited. This is significant in two ways. First, it highlights the multiplicity of social, cultural experience and engagement in the slums, thereby challenging its homogenised representation. Second, the ethnographic exploration allowed me to frame a distinct sense of self amongst the slums, which is denied in mainstream discourses, and allowed me to identify the slums’ own ’others’, middle class being one of them. This thesis highlights sound – its production, performances and articulations – as an act with social, cultural, and political implications and manifestations. ‘Noise’ can be understood as a political construct to identify ‘others’ – and both slum-dwellers and the middle classes identify different sonic practices as noise to situate the ‘other’ sonically. It is within this context that this thesis frames the position of Listener and Hearer, which corresponds to their social-political positions. These positions can be, and are, resisted and circumvented through sonic practices. For instance, amplification tactics in the Karimnagar slums, which are understood as ‘uncultured, callous activities to just create more noise’ by the slums’ middle-class neighbours, also serve definite purposes in shaping and navigating the space through the slums’ soundscapes, asserting a presence that is otherwise denied. Such tactics allow the residents to define their sonic territories and scope of sonic performances; they are significant in terms of exerting one’s position, territory and identity, and they are very important in subverting hierarchies. The residents of the Karimnagar slums have to negotiate many social, cultural, moral and political prejudices in their everyday lives. Their identity is constantly under scrutiny and threat. However, the sonic cultures and practices in the Karimnagar slums allow their residents to exert a definite sonic presence – which the middle class has to hear. The articulation of noise and silence is an act manifesting, referencing and resisting social, cultural, and political power and hierarchies.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.

Challenging the assumptions of positivism : an analysis of the concept of society in Sampi on behalf of the Bardi and Jawi people v Western Australia [2010] and Bodney v Bennell [2008]

The requirement to prove a society united by a body of law and customs to establish native title rights has been identified as a major hurdle to achieving native title recognition. The recent appeal decision of the Federal Court in Sampi on behalf of the Bardi and Jawi People v Western Australia [2010] opens the potential for a new judicial interpretation of society based on the internal view of native title claimants. The decision draws on defining features of legal positivism to inform the court’s findings as to the existence of a single Bardi Jawi society of ‘one people’ living under ‘one law’. The case of Bodney v Bennell [2008] is analysed through comparitive study of how the application of the received positivist framework may limit native title recognition. This paper argues that the framing of Indigenous law by reference to Western legal norms is problematic due to the assumptions of legal positivism and that an internal view based on Indigenous worldviews, which see law as intrinsically linked to the spiritual and ancestral connection to country, is more appropriate to determine proof in native title claims.

'Attaching' warning statements by facsimile consumer protection prevails!

Section 366 of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) mandates that all contracts for the sale of residential property in Queensland (other than contracts formed on a sale by auction) have a warning statement ‘attached’ as the first or top sheet. Alternative judicial views have emerged concerning the possibility of attaching a warning statement to a contract sent by facsimile. In recognition of the consumer protection nature of the legislation, in MP Management (Aust) Pty Ltd v Churven [2002] QSC 320 Muir J favoured a restrictive view of the word ‘attached’ requiring physical joinder of the warning statement to the relevant contract. In contrast, in MNM Developments Pty Ltd v Gerrard [2005] QDC 10 Newton DCJ opined that the requirements of the PAMDA could be met where the warning statement preceded the contract of sale in a facsimile transmission sent in one continuous stream. Newton DCJ considered that this broader approach promoted commercial convenience. In an appeal from the decision of Newton DCJ, in MNM Developments Pty Ltd v Gerrard [2005] QCA 230 a majority of the Queensland Court of Appeal has held that the restrictive view propounded by Muir J is correct. Notwithstanding possible commercial inconvenience, it is not possible for a warning statement to be attached to a contract sent by facsimile.

The requirement to 'Start a Proceeding' to prevent the lapse of a caveat

Section 126 of the Land Title Act 1994 (Qld) regulates whether, and if so, when a caveat will lapse. While certain caveats will not lapse due to the operation of s 126(1), if a caveator does not wish a caveat to which the section applies to lapse, the caveator must start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat within the time limits specified in, and otherwise comply with the obligations imposed by, s 126(4). The requirement, in s 126(4), to “start a proceeding” was the subject of judicial examination by the Court of Appeal (McMurdo P, Holmes JA and MacKenzie J) in Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192.