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.

Closing the gap between policy and 'Law' : Indigenous homelands and a working future

The Northern Territory Government's Working Future: Outstations/Homelands (2009) policy statement gives effect to the Council of Australian Government's Closing the Gap policy on Indigenous housing and remote service delivery. These policies mark a radical shift in public policy that winds back the outstations and homelands movement that began in the 1970's. This paper examines Indigenous homelands policy and considers whether these policies are consistent with the Indigenous human rights and in particular the United Nations Declaration on the Rights of Indigenous Peoples (2007), which Australia endorsed in 2009. The author argues that the current homelands policy breaches a number of Indigenous human rights and promotes assimiliation by forcing Indigenous Australians to relocate to access basic services such as health, housing and education. As a consequence these policies are counter-intuitive to the overall Closing the Gap goals of improving Indigenous health outcomes because they fail to take into account the importance of country and culture to Indigenous wellbeing. She concludes that Australian governments need to formulate a homelands policy that is consistent with Indigenous human rights and in particular the right of self determination, enjoyment of culture and protection against forced assimilation.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.

Property Agents and Motor Dealers Act : take two

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions commenced on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent, 21 September 2001.

'Attaching' warning statements by facsimile consumer protection prevails!

Section 366 of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) mandates that all contracts for the sale of residential property in Queensland (other than contracts formed on a sale by auction) have a warning statement ‘attached’ as the first or top sheet. Alternative judicial views have emerged concerning the possibility of attaching a warning statement to a contract sent by facsimile. In recognition of the consumer protection nature of the legislation, in MP Management (Aust) Pty Ltd v Churven [2002] QSC 320 Muir J favoured a restrictive view of the word ‘attached’ requiring physical joinder of the warning statement to the relevant contract. In contrast, in MNM Developments Pty Ltd v Gerrard [2005] QDC 10 Newton DCJ opined that the requirements of the PAMDA could be met where the warning statement preceded the contract of sale in a facsimile transmission sent in one continuous stream. Newton DCJ considered that this broader approach promoted commercial convenience. In an appeal from the decision of Newton DCJ, in MNM Developments Pty Ltd v Gerrard [2005] QCA 230 a majority of the Queensland Court of Appeal has held that the restrictive view propounded by Muir J is correct. Notwithstanding possible commercial inconvenience, it is not possible for a warning statement to be attached to a contract sent by facsimile.

Marketeers beware

The practices of marketeers in the Queensland property market have been the subject of intense media interest and have caused widespread consumer concern. In response to these concerns the Queensland government has amended the Property Agents and Motor Dealers Act 2000 (Qld) (“the Act”). Significant changes to the Act were introduced by the Property Agents and Motor Dealers Amendment Act 2001 (Qld) (“the amending Act”). Implicit in the introduction of the amending Act was recognition that marketeers had altered their operating tactics to avoid the requirements of the Act. The amendments enhance regulation and are intended to capture the conduct of all persons involved in unconscionable practices that have lead to dysfunction in certain sectors of the Queensland property market. The amending Act is focussed on a broad regulatory response rather than further regulation of specific occupations in the property sale process as it was recognised that the approach of industry regulation had proven to be inadequate to curtail marketeering practices and to protect the interests of consumers. As well as providing for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period to all contracts (other than auction contracts) for the sale of residential property in Queensland; in an endeavour to further protect consumer interests the amending Act provides for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent (21 September 2001). The aim of this article is to examine the circumstances in which marketeers will contravene the legislation and the ramifications.

Waiver in the Court of Appeal

The vagaries inherent in the operation of special conditions in land sale contracts have commonly required judicial interpretation. A further illustration is provided by the recent decision of the Queensland Court of Appeal (Jerrard, Keane JJA and Philip McMurdo J) in Donaldson and Donaldson v Bexton and Bexton [2006] QCA 559.

When is a warning statement “attached” to a contract?

Section 366 of the Property Agents and Motor Dealers Act 2000 (Qld) provides that all contracts for the sale of residential property in Queensland (other than contracts formed on a sale by auction) should have “attached” as the first or top sheet a warning statement in the approved form. The section does not explain or define the meaning of the word “attached”. Further, the section does not contemplate the situation where the contract is faxed to a potential buyer for execution.