Health law : scope, sources and forces

• For the purposes of this chapter, “health law” encapsulates regulation of the medical and health professions, the administration of health services and the maintenance of public health to the extent that it is connected to the provision of health services. • There are diverging views as to whether health law can be regarded as a discrete “area of law”. • Health law draws on other areas of law such as tort law, criminal law and family law. It is also draws upon other disciplines, most notably medical and health ethics. • Social and economic forces have influenced the development and direction of health law, and these forces may become even more influential as the century develops. • The increasingly globalised world has implications for Australia’s health systems and raises questions and creates commitments in respect of the international community. • Technological developments, including in respect of treatment, diagnosis and information management, create ongoing challenges for health law. • Patient rights, human rights and consumerism are increasingly key drivers in the development of health law. • Health law is significant to contemporary Australian society because of the gravity of the topics that fall within its ambit, its social relevance to so many aspects of human existence and endeavour, the important role it plays in protecting the vulnerable, and the extent to which it engages with fundamental principles of justice.

Re-thinking home economics : from modern to postmodern accounts of pedagogical bodies

Two perceptions of the marginality of home economics are widespread across educational and other contexts. One is that home economics and those who engage in its pedagogy are inevitably marginalised within patriarchal relations in education and culture. This is because home economics is characterised as women's knowledge, for the private domain of the home. The other perception is that only orthodox epistemological frameworks of inquiry should be used to interrogate this state of affairs. These perceptions have prompted leading theorists in the field to call for non-essentialist approaches to research in order to re-think the thinking that has produced this cul-de-sac positioning of home economics as a body of knowledge and a site of teacher practice. This thesis takes up the challenge of working to locate a space outside the frame of modernist research theory and methods, recognising that this shift in epistemology is necessary to unsettle the idea that home economics is inevitably marginalised. The purpose of the study is to reconfigure how we have come to think about home economics teachers and the profession of home economics as a site of cultural practice, in order to think it otherwise (Lather, 1991). This is done by exploring how the culture of home economics is being contested from within. To do so, the thesis uses a 'posthumanist' approach, which rejects the conception of the individual as a unitary and fixed entity, but instead as a subject in process, shaped by desires and language which are not necessarily consciously determined. This posthumanist project focuses attention on pedagogical body subjects as the 'unsaid' of home economics research. It works to transcend the modernist dualism of mind/body, and other binaries central to modernist work, including private/public, male/female,paid/unpaid, and valued/unvalued. In so doing, it refuses the simple margin/centre geometry so characteristic of current perceptions of home economics itself. Three studies make up this work. Studies one and two serve to document the disciplined body of home economics knowledge, the governance of which works towards normalisation of the 'proper' home economics teacher. The analysis of these accounts of home economics teachers by home economics teachers, reveals that home economics teachers are 'skilled' yet they 'suffer' for their profession. Further,home economics knowledge is seen to be complicit in reinforcing the traditional roles of masculinity and femininity, thereby reinforcing heterosexual normativity which is central to patriarchal society. The third study looks to four 'atypical'subjects who defy the category of 'proper' and 'normal' home economics teacher. These 'atypical' bodies are 'skilled' but fiercely reject the label of 'suffering'. The discussion of the studies is a feminist poststructural account, using Russo's (1994) notion of the grotesque body, which is emergent from Bakhtin's (1968) theory of the carnivalesque. It draws on the 'shreds' of home economics pedagogy,scrutinising them for their subversive, transformative potential. In this analysis, the giving and taking of pleasure and fun in the home economics classroom presents moments of surprise and of carnival. Foucault's notion of the construction of the ethical individual shows these 'atypical' bodies to be 'immoderate' yet striving hard to be 'continent' body subjects. This research captures moments of transgression which suggest that transformative moments are already embodied in the pedagogical practices of home economics teachers, and these can be 'seen' when re-looking through postmodemist lenses. Hence, the cultural practices ofhome economics as inevitably marginalised are being contested from within. Until now, home economics as a lived culture has failed to recognise possibilities for reconstructing its own field beyond the confines of modernity. This research is an example of how to think about home economics teachers and the profession as a reconfigured cultural practice. Future research about home economics as a body of knowledge and a site of teacher practice need not retell a simple story of oppression. Using postmodemist epistemologies is one way to provide opportunities for new ways of looking.

Safety-restraint use rate as function of law enforcement and other factors : preliminary analysis

Persistent use of safety restraints prevents deaths and reduces the severity and number of injuries resulting from motor vehicle crashes. However, safety-restraint use rates in the United States have been below those of other nations with safety-restraint enforcement laws. With a better understanding of the relationship between safety-restraint law enforcement and safety-restraint use, programs can be implemented to decrease the number of deaths and injuries resulting from motor vehicle crashes. Does safety-restraint use increase as enforcement increases? Do motorists increase their safety-restraint use in response to the general presence of law enforcement or to targeted law enforcement efforts? Does a relationship between enforcement and restraint use exist at the countywide level? A logistic regression model was estimated by using county-level safety-restraint use data and traffic citation statistics collected in 13 counties within the state of Florida in 1997. The model results suggest that safety-restraint use is positively correlated with enforcement intensity, is negatively correlated with safety-restraint enforcement coverage (in lanemiles of enforcement coverage), and is greater in urban than rural areas. The quantification of these relationships may assist Florida and other law enforcement agencies in raising safety-restraint use rates by allocating limited funds more efficiently either by allocating additional time for enforcement activities of the existing force or by increasing enforcement staff. In addition, the research supports a commonsense notion that enforcement activities do result in behavioral response.

The role of the rule of law in virtual communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values. In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

Access to medicine and the dangers of patent linkage : lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India’s drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment : part 3 (Victoria)

This is the final article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Victoria. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals’ legal knowledge in this area. The article examines the level of training that medical professionals receive on issues such as refusal of treatment certificates and substitute decision-making, and the available empirical evidence as to the state of medical professionals’ knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Victoria. The article also draws together themes from the series as a whole, including conclusions about the need for more and better medical education and about law reform generally.

‘Just stupid drama queens’ : how police constrain, regulate, and punish the public visibilities of sexual/gender diversity as out of place

Using interview data on LGBT young peoples’ policing experiences, I argue policing practices work to constrain public visibilities of sexual and gender diversity in public spaces. Police actions recounted by LGBT young people suggest the workings of a certain kind of visuality (Mason, 2002) and evidenced more subtle actions that sought to constrain, regulate, and punish public visibilities of sexual and gender diversity. Aligning with the work of sexualities academics and theorists, this paper suggests that, like violence is itself a bodily spectacle from which onlookers come to know things, policing works to subtly constrain public visibilities of “queerness”. Policing interactions with LGBT young people serves the purpose of visibly yet unverifiably (Mason, 2002) regulating displays of sexual and gender diversity in public spaces. The paper concludes noting how police actions are nonetheless visible and therefore make knowable to the public the importance of keeping same sex intimacy invisible in public spaces.

Group law computations on Jacobians of hyperelliptic Curves

We derive an explicit method of computing the composition step in Cantor’s algorithm for group operations on Jacobians of hyperelliptic curves. Our technique is inspired by the geometric description of the group law and applies to hyperelliptic curves of arbitrary genus. While Cantor’s general composition involves arithmetic in the polynomial ring F_q[x], the algorithm we propose solves a linear system over the base field which can be written down directly from the Mumford coordinates of the group elements. We apply this method to give more efficient formulas for group operations in both affine and projective coordinates for cryptographic systems based on Jacobians of genus 2 hyperelliptic curves in general form.

Taking a leap of faith : are investors left short changed?

This dissertation examines the compliance and performance of a large sample of faith based (religious) ethical funds - the Shari'ah-compliant equity funds (SEFs), which may be viewed as a form of ethical investing. SEFs screen their investment for compliance with Islamic law, where riba (conventional interest expense), maysir (gambling), gharar (excessive uncertainty), and non-halal (non-ethical) products are prohibited. Using a set of stringent Shari'ah screens similar to those of MSCI Islamic, we first examine the extent to which SEFs comply with the Shari'ah law. Results show that only about 27% of the equities held by SEFs are Shari'ah-compliant. While most of the fund holdings pass the business screens, only about 42% pass the total debt to total assets ratio screen. This finding suggests that, in order to overcome a significant reduction in the investment opportunity, Shari'ah principles are compromised, with SEFs adopting lax screening rules so as to achieve a financial performance. While younger funds and funds that charge higher fees and are domiciled in more Muslim countries are more Shari'ah-compliant, we find little evidence of a positive relationship between fund disclosure of the Shari'ah compliance framework and Shari'ah-compliance. Clearly, Shari'ah compliance remains a major challenge for fund managers and SEF investors should be aware of Shari'ah-compliance risk since the fund managers do not always fulfill their fiduciary obligation, as promised in their prospectus. Employing a matched firm approach for a survivorship free sample of 387 SEFs, we then examine an issue that has been heavily debated in the literature: Does ethical screening reduce investment performance? Results show that it does but only by an average of 0.04% per month if benchmarked against matched conventional funds - this is a relatively small price to pay for religious faith. Cross-sectional regressions show an inverse relationship between Shari'ah compliance and fund performance: every one percentage increase in total compliance decreases fund performance by 0.01% per month. However, compliance fails to explain differences in the performance between SEFs and matched funds. Although SEFs do not generally perform better during crisis periods, further analysis shows evidence of better performance relative to conventional funds only during the recent Global Financial Crisis; the latter is consistent with popular media claims.

Access, progress, and fairness : rethinking exclusivity in copyright

This article provides a detailed critique of the incentives-access binary in copyright discourse. Mainstream copyright theory generally accepts that copyright is a balance between providing incentives to authors to invest in the production of cultural works and enhancing the dissemination of those works to the public. This Article argues that dominant copyright theory obscures the possibility of developing a model of copyright that is able to support authors without necessarily limiting access to creative works. The abundance that the Internet allows suggests that increasing access to cultural works to enhance learning, sharing, and creative play should be a fundamental goal of copyright policy. This Article examines models of supporting and coordinating cultural production without exclusivity, including crowdfunding, tips, levies, restitution, and service-based models. In their current forms, each of these models fails to provide a cohesive and convincing vision of the two main functions of copyright: instrumentally (how cultural production can be funded) and fairness (how authors can be adequately rewarded). This article provides three avenues for future research to investigate the viability of alternate copyright models: (1) a better theory of fairness in copyright rewards; (2) more empirical study of commons models of cultural production; and (3) a critical examination of the noneconomic harm limiting function that exclusivity in copyright provides.