What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Juvenile justice: Youth and crime in Australia [Fifth Edition]

Juvenile Justice 5th edition explores youth and crime in Australia, and the institutions and agencies associated with the administration of juvenile justice. It provides an accessible introduction to the main concepts and issues of juvenile justice and critically analyses the principles, policies and practices associated with it. The book provides clear information across a broad range of areas, and raises a number of questions about the institutions of juvenile justice and how we think about issues of juvenile justice.

Social media in selected Australian federal and state election campaigns, 2010-15

Campaigning in Australian election campaigns at local, state, and federal levels is fundamentally affected by the fact that voting is compulsory in Australia, with citizens who are found to have failed to cast their vote subject to fines. This means that - contrary to the situation in most other nations – elections are decided not by which candidate or party has managed to encourage the largest number of nominal supporters to make the effort to cast their vote, but by some 10-20% of genuine ‘swinging voters’ who change their party preferences from one election to the next. Political campaigning is thus aimed less at existing party supporters (so-called ‘rusted on’ voters whose continued support for the party is essentially taken for granted) than at this genuinely undecided middle of the electorate. Over the past decades, this has resulted in a comparatively timid, vague campaigning style from both major party blocs (the progressive Australian Labor Party [ALP] and the conservative Coalition of the Liberal and National Parties [L/NP]). Election commitments that run the risk of being seen as too partisan and ideological are avoided as they could scare away swinging voters, and recent elections have been fought as much (or more) on the basis of party leaders’ perceived personas as they have on stated policies, even though Australia uses a parliamentary system in which the Prime Minister and state Premiers are elected by their party room rather than directly by voters. At the same time, this perceived lack of distinctiveness in policies between the major parties has also enabled the emergence of new, smaller parties which (under Australia’s Westminster-derived political system) have no hope of gaining a parliamentary majority but could, in a close election, come to hold the balance of power and thus exert disproportionate influence on a government which relies on their support.

Sexual harassment and the corporation in Australia and Japan: The potential for corporate governance of human rights

The authors explore the legal and social undercurrents in Australia and Japan which are encouraging corporations to embrace broader social responsibilities. They consider a case study of sexual harassment and its regulation within Australian corporations, uncovering the legal and social conditions that have led to the adoption of sexual harassment policies. The authors propose a model for determining when corporate governance of sexual harassment is likely to be effective and test the model by reference to the experience of sexual harassment in Japan. They draw some conclusions about what the experience of corporate implementation of management of sexual harassment might mean for other areas of human rights.

Copyright law and mash-ups: A policy paper

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers - * Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: * The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: * The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.

Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

The social supply of cannabis among young people in Australia

Cannabis is the most prolifically used illicit drug in Australia, however, there is a gap in our understanding concerning the social interactions and friendships formed around its supply and use. The authors recruited cannabis users aged between 18 and 30 years throughout Australia, to explore the impact of supply routes on young users and their perceived notions of drug dealing in order to provide valuable insight into the influence that reciprocal relationships have on young people’s access to cannabis. Findings reveal that the supply of cannabis revolves around pre-existing connections and relationships formed through associates known to be able to readily source cannabis. It was found that motivations for proffering cannabis in a shared environment were related more to developing social capital than to generating financial gain. Given this, often those involved in supply do not perceive that they are breaking the law or that they are ‘dealers’. This social supply market appears to be built on trust and social interactions and, as such, presents several challenges to law enforcement. It is suggested that there would be benefit in providing targeted education campaigns to combat social supply dealing among young adults.

Social supply of cannabis in Australia

While cannabis is the most prolifically used illicit drug in Australia, there is a gap in our understanding concerning the social interactions and friendships formed around its supply and use. The authors recruited cannabis users aged between 18 and 30 years throughout Australia, to explore the impact of supply routes on young users and their perceived notions of drug dealing in order to provide valuable insight into the influence that reciprocal relationships have on young people’s access to cannabis. Findings reveal that the supply of cannabis revolves around pre-existing connections and relationships formed through associates known to be able to readily source cannabis. It was found that motivations for proffering cannabis in a shared environment were related more to developing social capital than to generating financial gain. Given this, often those involved in supply do not perceive that they are breaking the law or that they are ‘dealers’. This social supply market appears to be built on trust and social interactions and, as such, presents several challenges to law enforcement. It is suggested that there would be benefit in providing targeted education campaigns to combat social supply dealing among young adults.

Inconsistency of surrogate measures of alcohol-related accidents in South Australia

Three major changes in drink driving enforcement have occurred in South Australia since 1981. The effect of these changes on a number of surrogate measures of alcohol involvement in accidents were investigated. The surrogates included alcohol involvement of driver fatalities, and combinations of casualty, serious casualty, single vehicle and nighttime accidents. Data from previous studies were also cited. It was found that relationships between surrogate measures were inconsistent, and incompatible with assumptions about drink driving levels and related accidents. It was concluded that until these effects are understood the use of surrogate measures should be treated with caution.

Recognition and enforcement in cross-border insolvency law: A proposal for judicial gap-filling

This Article analyzes the recognition and enforcement of cross-border insolvency judgments from the United States, United Kingdom, and Australia to determine whether the UNCITRAL Model Law’s goal of modified universalism is currently being practiced, and subjects the Model Law to analysis through the lens of international relations theories to elaborate a way forward. We posit that courts could use the express language of the Model Law text to confer recognition and enforcement of foreign insolvency judgments. The adoption of our proposal will reduce costs, maximize recovery for creditors, and ensure predictability for all parties.

Capturing "organised crime" in Australian Law

This briefing paper presents and foreshadows ongoing PhD research by the first author into how understandings of organised crime in Australia have been shaped, and the extent to which these perceptions have influenced legislative and policing responses. It begins with an historical survey of significant models of organised crime, then reviews current Australian legislative strategies, and goes on to raise questions about the conceptual model that underpins these strategies. The paper concludes with a discussion of the potential policy implications of this research.

Penology from city to country: Rurality and penality in Australia

There is a long tradition of social inquiry concerned with locational patterns and place-based explanations of crime in which urban/rural differences have been regarded as of cardinal importance. The geographical and socio-spatial aspects of punishment have on the other hand been widely neglected. One reason for this is that cities have been treated as the site of the major crime problems, presenting a contrast with what are commonly assumed (often without careful empirical research) to be the naturally cohesive character of rural communities. Thus punishment, like crime, is not a significant or distinctive issue in rural communities, requiring the attention of criminologists. But just as there are significant and distinctive dimensions to rural crime, the practice of punishment in rural contexts raises important questions worthy of attention. These questions relate to (1) the demand for punishment (i.e. the penal sensibilities to be found in rural communities); (2) the supply of punishment according to principles of legal equality (notably the question of the effective availability in rural courts of the full range of penalties administered by urban courts, in particular alternatives to incarceration); and (3) the differential impact of the same penalties when imposed in different geographical settings (e.g. imprisonment may involve distant removal from an offender’s community in addition to segregation from it; license disqualification is a great deal more consequential in settings where public transport is unavailable). The chapter examines these questions by reference to available knowledge concerning patterns of punishment in rural Australia. This will be set against the background of an analysis of the differential social organisation of penality in rural and urban settings. The generally more attenuated nature of the social state and social provision in rural contexts can, depending upon the profile of particular communities (and in particular their degree of social homogeneity), produce very different penal consequences: more heavy reliance on the penal state on the one hand, or greater recourse to informal social controls on the other.

The effectiveness of the Precautionary Principle in protecting Australia's endangered species

This report is the result of a small-scale experiment looking at improving methods for evaluating environmental laws. The objective in this research was to evaluate the effectiveness of the precautionary principle – an accepted principle of international environmental law – in the context of Australia’s endangered species. Two case studies were selected by our team: the (Great) White Shark and an endangered native Australian plant known as Tylophora Linearis.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.