Modernising charity : steps to an alternative architecture for common law charity jurisprudence

This chapter addresses the question, how can the common law concept of charity law be modernised? There are difficulties with the present jurisprudential conception. The focus of the chapter is not on those difficulties, however, but rather on the development of an alternative architecture for common law jurisprudence. The conclusion to which the chapter comes is that charity law can be modernised by a series of steps to include all civil society organisations. It is possible if the ‘technical’ definition of charitable purpose is abandoned in favour of a contemporary, not technical concept of charitiable purpose. This conclusion is reached by proposing a framework, developed from the common law concept of charities, that reconciles into a cohesive jurisprudential architecture all of the laws applying to civil society organisations, not just charities. In this section, first the argument is contextualised in an idea of society and located in a gap in legal theory. An analogy is then offered to introduce the problems in the legal theory applying, not just to charities, but more broadly to civil society organisations. The substantive challenge of mapping an alternative jurisprudence is then taken in steps. The final substantive section conceptualises the changes inherent in a move beyond charities to a jurisprudence centred on civil society organisations and how this would bring legal theory into line with sectoral analysis in other disciplines.

Law autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.

Striving to realise the European idea : judging the news media’s accounts of how the Berlin Wall gave impetus to a new order across Europe

The 1990 European Community was taken by surprise, by the urgency of demands from the newly-elected Eastern European governments to become member countries. Those governments were honouring the mass social movement of the streets, the year before, demanding free elections and a liberal economic system associated with “Europe”. The mass movement had actually been accompanied by much activity within institutional politics, in Western Europe, the former “satellite” states, the Soviet Union and the United States, to set up new structures – with German reunification and an expanded EC as the centre-piece. This paper draws on the writer’s doctoral dissertation on mass media in the collapse of the Eastern bloc, focused on the Berlin Wall – documenting both public protests and institutional negotiations. For example the writer as a correspondent in Europe from that time, recounts interventions of the German Chancellor, Helmut Kohl, at a European summit in Paris nine days after the “Wall”, and separate negotiations with the French President, Francois Mitterrand -- on the reunification, and EU monetary union after 1992. Through such processes, the “European idea” would receive fresh impetus, though the EU which eventuated, came with many altered expectations. It is argued here that as a result of the shock of 1989, a “social” Europe can be seen emerging, as a shared experience of daily life -- especially among people born during the last two decades of European consolidation. The paper draws on the author’s major research, in four parts: (1) Field observation from the strategic vantage point of a news correspondent. This includes a treatment of evidence at the time, of the wishes and intentions of the mass public (including the unexpected drive to join the European Community), and those of governments, (e.g. thoughts of a “Tienanmen Square solution” in East Berlin, versus the non-intervention policies of the Soviet leader, Mikhail Gorbachev). (2) A review of coverage of the crisis of 1989 by major news media outlets, treated as a history of the process. (3) As a comparison, and a test of accuracy and analysis; a review of conventional histories of the crisis appearing a decade later.(4) A further review, and test, provided by journalists responsible for the coverage of the time, as reflection on practice – obtained from semi-structured interviews.

Adoption Law and Practice [2nd ed.]

This book addresses the modern law relating to adoption. It comes at a time of fundamental change in adoption practice as, increasingly, Irish couples look outside the jurisdiction for the child that will make their family complete.---------- * Examines and explains the new regulatory framework and the law now governing domestic and intercountry adoption.---------- * Provides a guide to the changes outlined in the Adoption Bill 2008 which also consolidates the provisions of seven previous statutes and incorporates the Hague Convention into Irish statute law.---------- * Considers the responsibilities of the new Adoption Authority, and the roles of other administrative and legal bodies.---------- * Sets out the adoption process, explaining the complexities of intercountry adoption, giving consideration to the interface between adoption and children in care and dealing with the rights of the parties involved.

Female genital mutilation : Australian law, policy and practical challenges for doctors

As long ago as 1994, the Family Law Council accepted it was likely that female genital mutilation (FGM) was being conducted in Australia. In 2010, doctors and hospitals reported that it is being conducted and that they are seeing female patients who have experienced FGM. It is impossible to obtain precise data about the extent to which it is performed in Australia, but data indicates that FGM is a relevant issue for Australian medical practitioners. The medical profession has an interest in this topic because its members may be asked to conduct FGM, advise those considering it, or treat female patients with effects from the practice. This article provides a background on the practice of FGM, explains the relevant Australian law, considers whether the current legal prohibition on FGM is justified, and discusses the practical challenges facing individual practitioners and the profession. To inform further discussions about methods of responding to demand for FGM, reference is made to strategies being promoted in African nations to abolish this cultural practice.

European advanced driver training programs : reasons for optimism

Post license advanced driver training programs in the US and early programs in Europe have often failed to accomplish their stated objectives because, it is suspected, that drivers gain self perceived driving skills that exceed their true skills—leading to increased post training crashes. The consensus from the evaluation of countless advanced driver training programs is that these programs are a detriment to safety, especially for novice, young, male drivers. Some European countries including Sweden, Finland, Austria, Luxembourg, and Norway, have continued to refine these programs, with an entirely new training philosophy emerging around 1990. These ‘post-renewal’ programs have shown considerable promise, despite various data quality and availability concerns. These programs share in common a focus on teaching drivers about self assessment and anticipation of risk, as opposed to teaching drivers how to master driving at the limits of tire adhesion. The programs focus on factors such as self actualization and driving discipline, rather than low level mastery of skills. Drivers are meant to depart these renewed programs with a more realistic assessment of their driving abilities. These renewed programs require considerable specialized and costly infrastructure including dedicated driver training facilities with driving modules engineered specifically for advanced driver training and highly structured curricula. They are conspicuously missing from both the US road safety toolbox and academic literature. Given the considerable road safety concerns associated with US novice male drivers in particular, these programs warrant further attention. This paper reviews the predominant features and empirical evidence surrounding post licensing advanced driver training programs focused on novice drivers. A clear articulation of differences between the renewed and current US advanced driver training programs is provided. While the individual quantitative evaluations range from marginally to significantly effective in reducing novice driver crash risk, they have been criticized for evaluation deficiencies ranging from small sample sizes to confounding variables to lack of exposure metrics. Collectively, however, the programs sited in the paper suggest at least a marginally positive effect that needs to be validated with further studies. If additional well controlled studies can validate these programs, a pilot program in the US should be considered.

Providing a law degree for the “real world” : perspective of an Australian law school

The Queensland University of Technology badges itself as “a university for the real world”. For the last decade the Law Faculty has aimed to provide its students with a ‘real world’ degree, that is, a practical law degree. This has seen skills such as research, advocacy and negotiation incorporated into the undergraduate degree under a University Teaching & Learning grant, a project that gained international recognition and praise. In 2007–2008 the Law Faculty undertook another curriculum review of its undergraduate law degree. As a result of the two year review, QUT’s undergraduate lawdegree has fewer core units, a focus on first year student transition, scaffolding of law graduate capabilities throughout the degree,work integrated learning and transition to the workplace. The revised degree commenced implementation in 2009. This paper focuses on the “real world” approach to the degree achieved through the first year programme, embedding and scaffolding law graduate capabilities through authentic and valid assessment and work integrated learning.

Conceptualising a capstone experience for law students

Currently the final year curriculum in most, if not all, Australian law schools is delivered in a disjointed way which is not engaging final year students in a genuine capstone experience that supports the development of their professional identity and their transition out of university. The possible benefits of a capstone experience include preparing law students for the practice of law by assisting them to synthesise and extend their knowledge and skills, develop a professional identity that incorporates moral, ethical and social values, and become skilled problem solvers and life-long learners who can meet the rigours of the dynamic, competitive, and challenging world of twenty-first century legal practice. In 2009 the ALTC funded the “Curriculum renewal in legal education” project which seeks to achieve curriculum renewal for legal education through the articulation of a set of curriculum design principles for the final year and the design of a transferable model for an effective final year program. The three cornerstone capstone curriculum objectives identified by the project are closure of the tertiary experience, reflection on that experience, and transitioning from university student to legal professional. These cornerstone curriculum objectives will inform the development of the final year principles and model program. This paper will report on the progress that has been made on the project including a meeting of the project reference group held in February 2010 and the draft curriculum design principles.

Assessing the capstone experience : conceptualising a capstone experience for law students

Assessment Principle -- -- The capstone experience should include assessment that: 1: Enables students to apply their knowledge skills and capabilities in an authentic context ; 2: Tests whether or not students are able to apply knowledge skills and capabilities in unfamiliar contexts ; 3: Incorporates feedback from a multitude of sources including peers and self‐reflection to enable students to become self‐reliant and to exercise their own professional judgment ; 4: Recognises the culminating nature of the capstone experience.

Review of 'Laying Down the Criminal Law : A Handbook for Youth Workers'

This third edition of Laying down the criminal law: A handbook for youth workers is essential to understanding young people’s experiences with criminal justice in Queensland. The text comprises detailed scenarios of situations where a young person would have contact with the system, and young people ‘in trouble’ (for example, being excluded from school). The text discusses how workers support the young person in talking to police, going to court, or being a victim of crime. One scenario notes how a youth worker responds to 15 year old Stephen staying at a youth shelter after leaving home and having contact with police. Scenarios are supplemented with information about confidentiality and negligence, and how workers consider these concepts supporting young people...

Parliamentary inquiry into alcohol-related violence

Alcohol consumption has been a popular leisure activity among Australian since European Settlement. Australians currently consume 7.2 litres per capita pure alcohol and Australia in regards to alcohol consumption is ranked as the 22nd highest country of 58 countries. Although the alcohol industry has provided leisure, employment and government taxes, alcohol use has also become associated with chronic health problems, crime, public disorder and violence. Drunken and disorderly behaviour is commonly associated with Pubs, Clubs and Hotels, particularly in the late night entertainment areas. Historically, drunkenness and disorderly behaviour has been managed by measures such as floggings, jail and treatment in asylums. Alcohol has also been banned in specific areas and restrictions have applied to hours and days of operation. In more recent times alcohol policies have included extended trading hours, restricted trading hours and bans in some Aboriginal communities in order to reduce alcohol-related violence. Community and business partnerships in and around licensed premises have also developed in order to address the noise, violence and disorderly behaviour that often occurs in the evenings and early mornings. There is an urgent need for the government to be more robust about implementing effective alcohol control policies in order to prevent and reduce the harmful effects of alcohol.

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.

Order supported by law : the enforcement of norms in virtual communities

As online social spaces continue to grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This article examines two issues that go to the core of egitimate governance in online communities: how are rules enforced and punishments imposed, and how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally ultimately backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult conceptual gap between criminal law and the predominantly compensatory remedies of contractual doctrine. When theorists have addressed the need for the rules of virtual communities to be enforced, a dichotomy has generally emerged between the appropriate role of criminal law for 'real' crimes, and the private, internal resolution of 'virtual' or 'fantasy' crimes. In this structure, the punitive effect of internal measures is downplayed and the harm that can be caused to participants by internal sanctions is systemically undervalued.

Towards a relational theory of copyright law

This research provides a systematic and theoretical analysis of the digital challenges to the established exclusive regime of the economic rights enjoyed by authors (and related rightholders) under the law of copyright. Accordingly, this research has developed a relational theory of authorship and a relational approach to copyright, contending that the regulatory emphasis of copyright law should focus on the facilitation of the dynamic relations between the culture, the creators, the future creators, the users and the public, rather than the allocation of resources in a static world. In this networked digital world, the creative works and contents have become increasingly vital for people to engage in creativity and cultural innovation, and for the evolution of the economy. Hence, it is argued that today copyright owners, as content holders, have certain obligations to make their works accessible and available to the public under fair conditions. This research sets forward a number of recommendations for the reform of the current copyright system.