The WTO, the national security exception and climate change

Article XX has been a valuable instrument to justify exceptions from the anti-discrimination provisions of the GATT 1994. In general, this Article is considered by experts to be the most likely defence for any climate change mitigation measure in breach GATT 1994 obligations. That assumption is not in dispute here; rather, this article considers the requirements of the Article XX exceptions, but also explores the conditions of the National Security exception contained in Article XXI. Although it is possible that this exception could be used for climate change mitigation measures, this paper argues that it is unlikely that the National Security exception could be legitimately applied in these circumstances without member agreement to the contrary.

Employment and industrial law in paramedic practice

This chapter will provide you with the some of the information you may need to make information on decisions in cases such as the one given above. In particular it will help you answer questions such as: 1. As Molly and Vikram are approaching the end of their shift, to attend will force them into overtime; could they refuse to attend the job on the basis of the refusal to do overtime outside of contracted hours? 2. Would their refusal be viewed as a breach of contract and therefore a disciplinary issue? 3. Why? 4. Does the need to attend this possibly gravely ill patient outweigh the demands of the paramedics to finish on time?

Legal issues related to Accountable-eHealth systems in Australia

Information privacy requirements of patients and information requirements of healthcare providers (HCP) are competing concerns. Reaching a balance between these requirements have proven difficult but is crucial for the success of eHealth systems. The traditional approaches to information management have been preventive measures which either allow or deny access to information. We believe that this approach is inappropriate for a domain such as healthcare. We contend that introducing information accountability (IA) to eHealth systems can reach the aforementioned balance without the need for rigid information control. IA is a fairly new concept to computer science, hence; there are no unambiguously accepted principles as yet. But the concept delivers promising advantages to information management in a robust manner. Accountable-eHealth (AeH) systems are eHealth systems which use IA principles as the measure for privacy and information management. AeH systems face three main impediments; technological, social and ethical and legal. In this paper, we present the AeH model and focus on the legal aspects of AeH systems in Australia. We investigate current legislation available in Australia regarding health information management and identify future legal requirements if AeH systems are to be implemented in Australia.

Disciplinary unfairness in Queensland public service legislation

A just system of discipline within an organisation requires four characteristics: a clear set of offences, proportionate punishments clearly linked to the offences, oversight and appeals from disciplinary decisions and independence from political masters. This paper examines Queensland public sector legislation and policy from 1863 to the present to demonstrate how well these four criteria are addressed. An analysis of the presence of these four characteristics in the Queensland context finds that the public sector legislation in Queensland is in breach of the guidelines that define a just and fair system in which disciplinary action is dispensed. We argue that creation of arbitrary powers to punish or dismiss staff is unjust if the legislation does not fully inform staff of what constitutes a breach of discipline, does not guarantee proportionate punishments to offences, and/or it allows the disciplinary process to be used as a tool to coerce staff to perform in a politicised or otherwise unethical manner. We conclude by making recommendations as to how this situation may be rectified.

Attribution of words versus attribution of responsibilities : Academic plagiarism and university practice

This paper examines a case of academic plagiarism and the subsequent treatment of the issues across several academic institutions. It calls for academic leaders in universities to act on what constitutes a serious breach of standards, engendered in part by broader institutional norms and values promoting the need for publications in a ‘publish or perish’ environment. While universities often promote high-sounding ideals and would generally wish to be seen to uphold high academic standards, it is argued that silence and complicity surround the way in which instances of plagiarism in academic publications are often dealt with. Actions (and inaction) by academic leaders in universities in dealing with cases of academic plagiarism speak volumes in terms of the values academic institutions profess, and those they actually uphold. The paper prompts readers to consider the need for a more consistent and proactive stance on the part of their own institutions to exercise ethical leadership in identifying and addressing academic plagiarism when it occurs.

Sale of Businesses in Australia (2nd ed.)

The greater volume of businesses sold in Australia each year are small to medium enterprises. The administration of business contracts presents far different challenges than, for example, contracts for the sale of goods alone or contracts for the sale of land. The subject matter comprises both real and personal, and tangible and intangible property. Other considerations that do not affect those other commonplace contracts include dealing with employees who are both remaining and departing, taking account of restraints of trade, and the phenomena of the passing of property being different in respect of different forms of property being transferred in the same contract. In keeping with the format of the previous edition, the book is written with the busy practitioner in mind. It deals with the formation of business contracts, all aspects of disclosure both contractual and statutory, the role of agents, and detailed consideration of the different types of subject matter of small business contracts including, the lease of the premises, intellectual property, goodwill, licences, book debts and plant and equipment. It has up to date treatment of income tax implications of the sale and the impact of the latest Commonwealth legislation on dealing with employees of a business on sale. Consistent with the last edition, the book has chapters on time of the essence and completion, personal securities, restraint of trade clauses, special conditions and remedies for breach by both parties and misleading or deceptive conduct by the seller. In relation to personal securities, whilst the current State and Territory based law on Bills of Sale and other Chattel Securities has been the subject of commentary, the proposed national reform agenda has also been commented upon although that legislation is not due until May 2010 at the earliest

The legal effect of settlement statements

The decision of Carrapetta v. Rado [2012] NSWCA 202 raises a short but very practical point relating to the right to deliver a notice to complete or have otherwise called for completion where time is of the essence of the contract in circumstances where a settlement statement subsequently sent from the seller has overstated the amount owing under the contract. It was common ground , following the oft quoted High Court decisions of Neeta (Epping) Pty Ltd v Phillips(1974) 131 CLR 286 and Louinder v Leis (1982) 149 CLR 509 that a Notice to Complete which called for completion outside the terms of the contract would be invalid. These decisions also further confirm the long accepted principles that a seller who is not “ready willing and able” to perform all their obligations or who is otherwise in breach of contract at the time could not deliver a Notice to Complete (at[27]).The issue in this case did not so much concern the efficacy of the Notice to Complete at the time was delivered ,but the legal effect upon the Notice to Complete of the later delivery of a settlement statement for what the buyer considered to be performance beyond that required by the contract.

Howzat! The High Court, negligence and indoor cricket

This article examines the High Court case of Woods v Multi-Sport that considers the liability of an indoor cricket centre for an injury sustained by a player. It is a good example of how the issue of breach is dealt with in a sports law context and also shows how difficult it can be to determine when a sporting body will in breach of a duty of care owed to its participants.

Assisting a suicide : potential succession law consequences

The recent criminal law decisions where people have been convicted of aiding suicide raise important legal and ethical issues in relation to whether euthanasia should be legalised. These cases also raise issues of great significance for succession lawyers. Where, as in cases such as Nielsen and Justins, the person convicted of aiding a suicide is a principal beneficiary under the will of the deceased, various legal consequences, such as: forfeiture of the interest under the will; liability for breach of fiduciary obligation; and/or a finding of undue influence, may follow which may result in loss of such benefit.

Fatal flaws : the risks for beneficiaries who assist a suicide

The recent criminal conviction of Queensland teacher Merin Nielsen for aiding the suicide of an elderly acquaintance, Frank Ward, raises some timely issues, particularly for succession lawyers.

Approaches to access control under uncertainty

The ultimate goal of an access control system is to allocate each user the precise level of access they need to complete their job - no more and no less. This proves to be challenging in an organisational setting. On one hand employees need enough access to the organisation’s resources in order to perform their jobs and on the other hand more access will bring about an increasing risk of misuse - either intentionally, where an employee uses the access for personal benefit, or unintentionally, through carelessness or being socially engineered to give access to an adversary. This thesis investigates issues of existing approaches to access control in allocating optimal level of access to users and proposes solutions in the form of new access control models. These issues are most evident when uncertainty surrounding users’ access needs, incentive to misuse and accountability are considered, hence the title of the thesis. We first analyse access control in environments where the administrator is unable to identify the users who may need access to resources. To resolve this uncertainty an administrative model with delegation support is proposed. Further, a detailed technical enforcement mechanism is introduced to ensure delegated resources cannot be misused. Then we explicitly consider that users are self-interested and capable of misusing resources if they choose to. We propose a novel game theoretic access control model to reason about and influence the factors that may affect users’ incentive to misuse. Next we study access control in environments where neither users’ access needs can be predicted nor they can be held accountable for misuse. It is shown that by allocating budget to users, a virtual currency through which they can pay for the resources they deem necessary, the need for a precise pre-allocation of permissions can be relaxed. The budget also imposes an upper-bound on users’ ability to misuse. A generalised budget allocation function is proposed and it is shown that given the context information the optimal level of budget for users can always be numerically determined. Finally, Role Based Access Control (RBAC) model is analysed under the explicit assumption of administrators’ uncertainty about self-interested users’ access needs and their incentives to misuse. A novel Budget-oriented Role Based Access Control (B-RBAC) model is proposed. The new model introduces the notion of users’ behaviour into RBAC and provides means to influence users’ incentives. It is shown how RBAC policy can be used to individualise the cost of access to resources and also to determine users’ budget. The implementation overheads of B-RBAC is examined and several low-cost sub-models are proposed.

Connecting across continents : collaborative learning in a Web 2.0 world

Purpose – The article aims to review a university course, offered to students in both Australia and Germany, to encourage them to learn about designing, implementing, marketing and evaluating information programs and services in order to build active and engaged communities. The concepts and processes of Web 2.0 technologies come together in the learning activities, with students establishing their own personal learning networks (PLNs). Design/methodology/approach – The case study examines the principles of learning and teaching that underpin the course and presents the students' own experiences of the challenges they faced as they explored the interactive, participative and collaborative dimensions of the web. Findings – The online format of the course and the philosophy of learning through play provided students with a safe and supportive environment for them to move outside of their comfort zones, to be creative, to experiment and to develop their professional personas. Reflection on learning was a key component that stressed the value of reflective practice in assisting library and information science (LIS) professionals to adapt confidently to the rapidly changing work environment. Originality/value – This study provides insights into the opportunities for LIS courses to work across geographical boundaries, to allow students to critically appraise library practice in different contexts and to become active participants in wider professional networks.

Withholding and withdrawal of ‘futile’ life-sustaining treatment : unilateral medical decision-making in Australia and New Zealand

This article examines the law in Australia and New Zealand that governs the withholding and withdrawal of ‘futile’ life-sustaining treatment. Although doctors have both civil and criminal law duties to treat patients, those general duties do not require the provision of treatment that is deemed to be futile. This is either because futile treatment is not in a patient’s best interests or because stopping such treatment does not breach the criminal law. This means, in the absence of a duty to treat, doctors may unilaterally withdraw or withhold treatment that is futile; consent is not required. The article then examines whether this general position has been altered by statute. It considers a range of suggested possible legislation but concludes it is likely that only Queensland’s adult guardianship legislation imposes a requirement to obtain consent to withhold or withdraw such treatment.

Overstepping the fiduciary mark

The decision of Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor is the latest in a series of Supreme Court actions arising out of Ms Ban’s management of the affairs of her long-time elderly friend, ADF. Following on from an earlier decision in which it was determined that Ms Ban held her share of funds in a joint bank account with ADF on trust for him, this most recent case concerned a claim for an account of funds withdrawn from that account on the basis that as trustee Ms Ban owed fiduciary duties to ADF. The purpose of the accounting was to determine whether any withdrawals had been made in breach of trust, which would give rise to equitable remedies. The primary question for determination was therefore whether the withdrawals were applied for the benefit of ADF. Having regard to all the circumstances of the case, his Honour found that although some transactions were for ADF’s benefit, substantial withdrawals, (including a significant portion of a $700,000 transfer), were not applied for his benefit, and were therefore made in breach of fiduciary obligation, giving rise to equitable rights and remedies.

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)