The Church of England : Charity Law and Human Rights

This book examines the interface between religion, charity law and human rights. It does so by treating the Church of England and its current circumstances as a timely case study providing an opportunity to examine the tensions that have now become such a characteristic feature of that interface. Firstly, it suggests that the Church is the primary source of canon law principles that have played a formative role in shaping civic morality throughout the common law jurisdictions: the history of their emergence and enforcement by the State in post-Reformation England is recorded and assessed. Secondly, it reveals that of such principles those of greatest weight were associated with matters of sexuality: in particular, for centuries, family law was formulated and applied with regard for the sanctity of the heterosexual marital family which provided the only legally permissible context for any form of sexual relationship. Thirdly, given that history, it identifies and assesses the particular implications that now arise for the Church as a consequence of recent charity law reform outcomes and human rights case law developments: a comparative analysis of religion related case law is provided. Finally, following an outline of the structure and organizational functions of the Church, a detailed analysis is undertaken of its success in engaging with these issues in the context of the Lambeth Conferences, the wider Anglican Communion and in the ill-fated Covenant initiative. From the perspective of the dilemmas currently challenging the moral authority of the Church of England, this book identifies and explores the contemporary ‘moral imperatives’ or red line issues that now threaten the coherence of Christian religions in most leading common law nations. Gay marriage and abortion are among the host of morally charged and deeply divisive topics demanding a reasoned response and leadership from religious bodies. Attention is given to the judicial interpretation and evaluation of these and other issues that now undermine the traditional role of the Church of England. As the interface between religion, charity law and human rights becomes steadily more fractious, with religious fundamentalism and discrimination acquiring a higher profile, there is now a pressing need for a more balanced relationship between those with and those without religious beliefs. This book will be an invaluable aid in starting the process of achieving a triangulated relationship between the principles of canon law, charity law and human rights law.

Trade, travel and disease : the role of law in pandemic preparedness

In 2009 the world experienced an influenza pandemic caused by the H1N1 virus. While the pandemic was milder then expected, it nonetheless provided the world with an opportunity to do real-time testing of pandemic preparedness. This paper examines the threats to human health posed by infectious diseases and the challenges for the global community in development of effective surveillance systems for emerging infectious diseases. In 2005 a new revised version of the International Health Regulations (IHR) was adopted. The requirements of the IHR (2005) are outlined and considered in light of the constraints facing resource-poor countries. Finally, the paper addresses the role of domestic law-making in supporting public health preparedness and articulates a number of ethical principles that should be considered when developing new public health laws.

Pandemic preparedness in Asia : a role for law and ethics?

Management of pandemic influenza relies on complex coordination of many different dimensions of the health and social care systems, emergency services, levels of national and local government, civil society, communications and media, and cultural expectations. Law is one small but important component of those arrangements, which touch on fundamental ethical debates. This review demonstrates that the Asian region is actively engaging those issues in diverse ways in light of their varied socioeconomic and cultural backgrounds, but scope remains for prioritising further research into these relationships.

The rule of law, the public interest and the management of natural resources in Australia

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

Pro bono partnerships in environmental law : enhancing outcomes for universities and CLCs

CLE can be a life-changing event in a law student’s education. It can open their eyes to the day-to-day operation of justice and provide them with examples of possible career paths they may never have thought existed. Yet it can also provide long-term benefits for CLCs and academics. Recent CLE models have moved towards partnerships with external organisations and away from on-site legal clinics. Some examples have exhibited success with a multidisciplinary approach involving students from non-law disciplines to provide a holistic approach to a CLC’s needs. Such a multidisciplinary approach is of particular benefit in community lawyering clinics where students are engaged in social change lawyering. The QUT/EDO partnership presents a new model in the environmental clinic landscape in Australia. Initial feedback suggests that the clinic has assisted students in gaining insight into the access to justice issues arising from mining activities and to raise the level of understanding and awareness among community members of their legal rights to protect the environment. Looking at ways to increase partnerships between universities and CLCs is of vital importance in the future, given recent federal government CLC funding cuts. The legal clinic model has great potential to evolve and contribute in ensuring the continued operation of legal initiatives to protect the environment in the public interest.

Work Health and Safety Law and Policy

The third edition of Work Health and Safety Law and Policy continues to provide a plain English approach to explaining and analysing the law which regulates work health and safety in Australia. Providing broad coverage, this book focuses on the role that legal regulation plays in preventing work-related injury and disease, as well as the way in which the law contributes to rehabilitating and compensating injured and ill workers. This third edition focuses on the national model Work Health and Safety Bill 2009. The provisions of the model Bill are outlined, along with court decisions and other documentation that help interpret the provisions in new legislation enacting the model Bill. There is also a chapter in the book examining the national model Work Health and Safety Regulations 2011, and model codes of practice. The book includes three chapters on common law, statutory workers’ compensation provisions and rehabilitation. Tables summarising the key legal provisions of the major Australian Commonwealth, State and Territory workers’ compensation statutes have been updated and give quick and easy reference to points of legislation.

Improving criteria and feedback in student assessment in law

Spurred on by both the 1987 Pearce Report1 and the general changes to higher education spawned by the “Dawkins revolution” from 1988, there has been much critical self-evaluation leading to profound improvements to the quality of teaching in Australian law schools.2 Despite the changes there are still areas of general law teaching practice which have lagged behind recent developments in our understanding of what constitutes high quality teaching. One such area is assessment criteria and feedback. The project Improving Feedback in Student Assessment in Law is an attempt to remedy this. It aims to produce a manual containing key principles for the design of assessment and the provision of feedback, with practical yet flexible ideas and illustrations which law teachers may adopt or modify. Most of the examples have been developed by teachers at the University of Melbourne Law School. The project was supported in 1996 by a Committee for the Advancement of University Teaching grant and the manual will be published late in 1997.3 This note summarises the core principles which are elaborated further in the manual.

Rendering to Caesar and God : St Paul, the natural law tradition and the authority of law

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law���s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.

On the symbiosis of law and truth in Christian theology: Reconciling universal and particular through the Pauline law of love

This article argues that the secular liberal and positivist foundations of the modern Western legal system render it violent. In particular, the liberal exclusion of faith and subjectivity in favour of abstract and universal reason in conjunction with its privileging of individual autonomy at the expense of the community leads to alienation of the individual from the community. Similarly, the positivist exclusion of faith and theology from law, with its enforced conformity to the posited law, also results in this violence of alienation. In response, this article proposes a new foundation for law, a natural law based in the truth of Trinitarian theology articulated by John Milbank. In the Trinity, the members exist as a perfect unity in diversity, providing a model for the reconciliation of the legal individual and community: the law of love. Through the law of love as the basic norm, individuals love their neighbours as themselves, reconciling the particular and the universal, and providing a community of peace rather than violence.

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.

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.

Medical education and law: Withholding/withdrawing treatment from adults without capacity

BACKGROUND Law is increasingly involved in clinical practice, particularly at the end of life, but undergraduate and postgraduate education in this area remains unsystematic. We hypothesised that attitudes to and knowledge of the law governing withholding/withdrawing treatment from adults without capacity (the WWLST law) would vary and demonstrate deficiencies among medical specialists. AIMS We investigated perspectives, knowledge and training of medical specialists in the three largest (populations and medical workforces) Australian states, concerning the WWLST law. METHODS Following expert legal review, specialist focus groups, pre-testing and piloting in each state, seven specialties involved with end-of-life care were surveyed, with a variety of statistical analyses applied to the responses. RESULTS Respondents supported the need to know and follow the law. There were mixed views about its helpfulness in medical decision-making. Over half the respondents conceded poor knowledge of the law; this was mirrored by critical gaps in knowledge that varied by specialty. There were relatively low but increasing rates of education from the undergraduate to continuing professional development (CPD) stages. Mean knowledge score did not vary significantly according to undergraduate or immediate postgraduate training, but CPD training, particularly if recent, resulted in greater knowledge. Case-based workshops were the preferred CPD instruction method. CONCLUSIONS Teaching of current and evolving law should be strengthened across all stages of medical education. This should improve understanding of the role of law, ameliorate ambivalence towards the law, and contribute to more informed deliberation about end-of-life issues with patients and families.

After the gold rush: Patent law and biological inventions

In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment. In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful: It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18). MacLean said she had many industrial applications. ’For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: ’There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000). This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as ’novelty', ’inventive step', and ’utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the ’Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions. This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.

Franklin Barley: Patent law and plant breeders’ rights

This paper considers the relationship between patent law and plant breeders' rights in light of modern developments in biotechnology. It examines how a number of superior courts have sought to manage the tensions and conflicts between these competing schemes of intellectual property protection. Part 1 considers the High Court of Australia case of Grain Pool of Western Australia v the Commonwealth dealing with Franklin barley. Part 2 examines the significance of the Supreme Court of the United States decision in JEM Ag Supply Inc v Pioneer Hi-Bred International Inc with respect to utility patents and hybrid seed. Part 3 considers the Supreme Court of Canada case of Harvard College v the Commissioner of Patents dealing with the transgenic animal, oncomouse, and discusses its implications for the forthcoming appeal from the Federal Court case of Percy Schmeiser v Monsanto.

Patent law and biological inventions

In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment. In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful: It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18). MacLean said she had many industrial applications. 'For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: 'There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000). This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as 'novelty', 'inventive step', and 'utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the 'Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions. This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.