Creative Commons and the creative industries

This paper explores the growing significance of legal questions to innovation and creative practice in what are now being termed the creative industries. Noting that the case for strong copyright protection as the cornerstone of innovation is highly contested, it explores the significance of Creative Commons licences as an alternative to Digital Rights Management and copyright law. It also introduces the case studies of music, online computer games, and ‘remix culture’ that are covered in this special issue of Media and Arts Law Review.

Transitioning to practice across the professions : some lessons from the teaching profession

Across the professions, there is strong interest in the transition between graduation and early stages of professional practice. Our initial literature search revealed that this period of transition is significant to professions that include nursing, vets, midwives, financial planners, lawyers, occupational therapists, doctors as well as our particular area of interest - teachers. This importance is easy to understand for in these applied fields new graduates need to be competent in applying and synthesizing their theoretical content knowledge on a daily basis, often with limited supervision and mentoring (Goetz, Tombs & Hampton, 2005). As such, this transition period is of critical importance to the individual and their feelings of competence and early profession learning. An added layer for graduates in these professions during this transition/probation period is that they are also expected to have well-developed 'soft skills' such as communication, problem solving, and teamwork (Oblinger & Verville, 1998; Rao & Sylvester, 2000) in order to be effective in their roles.

Carbon financing and the Australian emissions trading scheme : less emissions, more opportunities?

The introduction by the Australian federal government of its Carbon Pollution Reduction Scheme was a decisive step in the transformation of Australia into a low carbon economy. Since the release of the Scheme, however, political discourse relating to environmental sustainability and climate change in Australia has focused primarily on political, scientific and economic issues. Insufficient attention has been paid to the financial opportunities which commoditisation of the carbon market may offer, and little emphasis has been placed on the legal implications for the creation of a "new" asset and market. This article seeks to shed some light on the discernable opportunities which the Scheme should provide to participants in the Australian and international debt markets.

Professions without borders : global ethics and the international rule of law

The emergence of strong sovereign states after the Treaty of Westphalia turned two of the most cosmopolitan professions (law and arms) into two of the least cosmopolitan. Sovereign states determined the content of the law within their borders – including which, if any, ecclesiastical law was to be applied; what form of economic regulation was adopted; and what, if any, international law applied. Similarly, states sought to ensure that all military force was at their disposal in national armies. The erosion of sovereignty in a post-Westphalian world may significantly reverse these processes. The erosion of sovereignty is likely to have profound consequences for the legal profession and the ethics of how, and for what ends, it is practised. Lawyers have played a major role in the civilization of sovereign states through the articulation and institutionalisation of key governance values – starting with the rule of law. An increasingly global profession must take on similar tasks. The same could be said of the military. This essay will review the concept of an international rule of law and its relationship to domestic conceptions and outline the task of building the international rule of law and the role that lawyers can and should play in it.

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Charity law, advocacy and the aid/watch decision : compatibility of charitable purposes and political objects — the view from Australia

Introduction In 1952 the Nathan report stated that: Some of the most valuable activities of voluntary societies consist, however, in the fact that they may be able to stand aside from and criticize State action or inaction, in the interests of the inarticulate man in the street. Some 60 years later it remained the case that if a voluntary society wanted to gain or retain charitable status then, contrary to the Nathan report, the one thing it could not do was set itself up with the purpose of criticizing State action or inaction. This legal position was adopted by the authorities in Australia with the Australian Taxation Office (ATO) noting in Taxation Ruling TR2005/21: 102. An institution or fund is not charitable if its purpose is advocating a political party or cause, attempting to change the law or government policy, or propagating or promoting a particular point of view. So, why, if it is such a valuable activity, have governments steadfastly refused to allow charities to have as their purpose the freedom to advocate in this way and how has this situation been affected by the recent High Court of Australia decision in Aid/Watch v Commissioner of Taxation? This article proposes to address such questions. Beginning with some background history, it explains that, initially, the current constraints did not apply. Then it looks at the nature of these constraints: how does the law define what constitutes the type of political activity that a charity must not undertake? What is the rationale for prohibition? How has the judiciary contributed to the development of the law in this area in recent years? This will lead into a consideration of the Aid/Watch case and the implications arising from the recent final decision. The article concludes by reflecting on what has changed and why the view on this contentious matter now looks different from Australia.

Parrhesia and democracy : Truthtelling, WikiLeaks and the Arab Spring

Parrhesia — the practice of truth-telling — was adapted to various ancient legal, political, philosophical and religious contexts. In this essay we focus on parrhesia in politics and its relevance for democracy, concentrating on the account given by Michel Foucault. We suggest that Foucault’s approach to parrhesia and democracy is valuable because of its stress on the analysis of governmental rationalities and the ethical comportment of citizens, rather than on the normative dimensions of democracy, as is more usual (but more sterile) in political thought. We take two modern examples of truth-telling’s role in democracy – the recent WikiLeaks scandal and the political struggles in Tunisia and Egypt – as a way of assessing the value of Foucault’s distinctive approach and the relevance of parrhesia for democracy today.

Academics’ work and the concept of “profession” : an Australian case study

Universities in Australia and elsewhere have changed considerably in recent years. Inevitably, this has meant that the work of academics has also changed. Academics’ work is of importance because they are key players in universities and universities matter to the nation economically and intellectually in advancing knowledge and its practical application. Through the changes and challenges that have characterised academia in recent years, there is an assumption that academics’ work is representative of a profession. This research study investigates how academics construct their own perspectives regarding the academic "profession". The study is theoretically informed by Freidson’s theory that conceptualises professions as occupations if they are in control of their work rather than it being under the control of either the market or of their employing institutions. Two research questions guide this study. The first question investigates how academics might construct their work in ideal terms and the second one investigates the extent to which such constructions might constitute a "profession". A qualitative case study was conducted within two Australian universities. In all, twenty academics from ten disciplines took part in the study that consisted of a focus group and fifteen individual interviews. The study was conducted in three phases during which a conceptual framework of academics’ work was developed across three versions. This framework acted both a prompt to discussion and as a potential expression of academics’ work. The first version of the framework was developed from the literature during the first phase of the study. This early framework was used during the second phase of the study when five academics took part in a focus group. After the focus group, the second version of the framework was developed and used with fifteen academics in individual interviews during phase three of the study. The third version of the framework was the outcome of a synthesis of the themes that were identified in the data. The discussion data from the focus group and the individual interviews were analysed through a content analysis approach that identified four major themes. The first theme was that academics reported that their work would ideally be located within universities committed to using their expert knowledge to serve the world. The second theme was that academics reported that they wanted sufficient thinking time and reasonable workloads to undertake the intellectual work that they regard as their core responsibility, particularly in relation to undertaking research. They argued against heavy routine administrative workloads and sought a continuation of current flexible working arrangements. The third theme was that teaching qualifications should not be mandated but that there should be a continuation of the present practice of universities offering academics the opportunity to undertake formal teaching qualifications if they wish to. Finally, academics reported that they wanted values that have traditionally mattered to academia to continue to be respected and practised: autonomy, collegiality and collaborative relationships, altruism and service, and intellectual integrity. These themes are sympathetic to Freidson’s theory of professions in all but one matter: the non-mandatory nature of formal qualifications which he regards as absolutely essential for the performance of the complex intellectual work that characterises occupations that are professions. The study places the issue of academic professionalism on the policy agenda for universities wishing to identify academics’ work as a profession. The study contributes a theory-based and data-informed conceptual framework for academics’ work that can be considered in negotiating the nature and extent of their work. The framework provides a means of analysing what "academic professionalism" might mean; it adds specificity to such discussions by exploring a particular definition of profession, namely Freidson’s theory of professions as occupations that are in control of their own work. The study contributes to the development of theories around higher education concepts of academic professionalism and, in so doing, links that theoretical contribution to the wider professions field.

Nangkha Nangdrik in the land of the Thunder Dragon : psychology, religion and the potential of mediation in the Kingdom of Bhutan

This article will consider the role that Alternative Dispute Resolution (‘Dham Kha Chen Ki Khendum’ or ‘Nangkha Nangdrik’) currently plays in resolving legal conflict in Bhutan. With a Constitution that has committed to the pursuit of Gross National Happiness, non-adversarial dispute resolution processes that promote continuing relationships and goodwill assume greater importance. One difficulty for Bhutan is that alternative dispute resolution procedures such as mediation (Dhum Drik) are being referred to in enactments of the Bhutanese National Council and National Assembly (bicameral parliament), without a shared understanding as to the characteristics and functionality of these procedures. This article will focus particularly on the current practice of mediation in Bhutan and investigate whether particular models of mediation are more suited to the Bhutanese context, given the particularities of Bhutanese culture, the search for gross national happiness, psychological understandings of happiness and the omnipresent influence of Mahayana Buddhism.

Child complainants and the court process in Australia

In recent years, it has been recognised that child complainants in the criminal justice system can experience difficulties over and above those of other complainants and that children can experience the court process as extremely traumatising. This can be exacerbated if children are complainants in child sexual offence matters and if they have to give evidence against a family member. This paper has three primary aims. First, it outlines the major factors that contribute to making court processes harrowing for child complainants. Second, it outlines some of the main initiatives that have been introduced to address these factors. Finally, it weighs up the evidence about initiatives designed to assist child complainants and concludes that such initiatives have had only limited practical impact for child complainants in the criminal justice system. The limited impact is attributed to the need to balance the rights of the accused with consideration for the complainant, a failure to translate legislative changes into practice, the impact of judicial discretion and/or a focus on protecting child complainants at the expense of increasing convictions.

Health Care and the Law [Fifth Edition]

"Fully updated to reflect the rapid pace of change in the health law areas. Explains the legal process as it relates to the health care professional."--Libraries Australia. Table of Contents Part I. Introductory concepts -- 1. What is law -- 2. The legal structure -- 3. The legal process -- Part II. Patient relationships -- 4. Consent to health care by a competent adult -- 5. Consent to health care by a legally incompetent person -- 6. Negligence -- 7. Patient information and privacy -- 8. Patients' property -- 9. Contract -- Part III. Employment -- 10. Contracts to provide health care services -- 011. Accidents and injuries related to health care --12. Registration and practice --13. Drugs --14. Criminal law and health care --15. State involvement in birth and death: registration and coronial inquiries --16. State involvement in threats to health or welfare --17. Human tissue transplants and reproductive technology --18. Expanding recognition of human rights --19. Decision making, law and ethics: a discussion.

Australia lawyer well-being : workplace demands, resources and the impact of time-billing targets

The purpose of the present study was to examine the types of workplace demands and resources experienced by full-time Australian lawyers, and the prevalence of a range of psychological outcomes. The study further focussed on the impact of time-billing targets on lawyers’ experience of these variables. Participants were 384 full-time Australian lawyers who completed an online questionnaire distributed by their Australian State or Territory Law Society. Analysis revealed that emphasis on profits within the workplace was the highest perceived demand, and the perception of social value in their work was the highest available resource. The results indicated that 37% of participants displayed Moderate to Extremely Severe depressive symptoms, and 35% were a positive screen for hazardous or harmful drinking. A series of three multivariate analyses of variance revealed significant differences between non-billers, low-to-moderate billers and high billers, with high billers experiencing greater demands, fewer resources and poorer psychological outcomes. The practical applications of these results for the legal profession are discussed.

Work health and safety and the criminal law in Australia

This paper analyses recent Australian debates about the use of the criminal law in work health and safety regulation. It argues that these debates have to be seen in the context of the historical development of work health and safety regulation in the United Kingdom and Australia. The first part of the paper shows that, since the late 19th century, contraventions against the Australian work health and safety statutes have not been regarded as 'really criminal', and have largely been addressed by informal measures and, since the 1980s, by administrative sanctions. When prosecutions have taken place, work health and safety issues have been individualised and decontextualised, so that defendants have been able to reduce their culpability in the eyes of the court. Significant legal barriers have undermined the use of the crime of gross negligence manslaughter against corporations and individuals. The second part of the paper analyses recent debates about restructuring gross negligence manslaughter and bolstering the 'criminality' of offences under the work health and safety statutes. It argues that the latter debate has been constrained by the historical forces examined in the first part of the paper, and that the current position, embodied in the recently harmonised Work Health and Safety Acts, favours attempting to recriminalise the work health and safety legislation. The debate about reforming gross negligence manslaughter has stalled.