The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Digital constitutionalism and the role of the rule of law in the governance of virtual communities

This project proposes a new conceptual framework for the regulation of social networks and virtual communities. By applying a model based upon the rule of law, this thesis addresses the growing tensions that revolve around the public use of private networks. This research examines the shortcomings of traditional contractual governance models and cyberlaw theory and provides a reconstituted approach that will allow public constitutional-type interests to be recognised in the interpretation and enforcement of contractual doctrine.

The Conceptual Basis of Personal Information in Australian Privacy Law

Australian privacy law regulates how government agencies and private sector organisations collect, store and use personal information. A coherent conceptual basis of personal information is an integral requirement of information privacy law as it determines what information is regulated. A 2004 report conducted on behalf of the UK’s Information Commissioner (the 'Booth Report') concluded that there was no coherent definition of personal information currently in operation because different data protection authorities throughout the world conceived the concept of personal information in different ways. The authors adopt the models developed by the Booth Report to examine the conceptual basis of statutory definitions of personal information in Australian privacy laws. Research findings indicate that the definition of personal information is not construed uniformly in Australian privacy laws and that different definitions rely upon different classifications of personal information. A similar situation is evident in a review of relevant case law. Despite this, the authors conclude the article by asserting that a greater jurisprudential discourse is required based on a coherent conceptual framework to ensure the consistent development of Australian privacy law.

Information sharing in the 21st century : progress and challenges

With the increasing threat of cyber and other attacks on critical infrastructure, governments throughout the world have been organizing industry to share information on possible threats. In Australia the Office of the Attorney General has formed Trusted Information Sharing Networks (TISN) for the various critical industries such as banking and electricity. Currently the majority of information for a TISN is shared at physical meetings. To meet cyber threats there are clearly limitations to physical meetings. Many of these limitations can be overcome by the creation of a virtual information sharing network (VISN). However there are many challenges to overcome in the design of a VISN both from a policy and technical viewpoint. We shall discuss some of these challenges in this talk.

Work integrated learning as a component of the capstone experience in undergraduate law

Background: The “Curriculum renewal in legal education” project has been funded by the Australian Learning and Teaching Council with the core objectives being the articulation of a set of final year curriculum design principles, and the development of a model of a transferable final year program. Through these principles and the development of the model, it is anticipated that the final year experience for law students will provide greater opportunity for them to understand the relevance of their learning, and will enhance their capacity to make decisions regarding their career path. Discussion / Argument: This paper reports on the project’s progress to date, and presents an argument for the inclusion of work integrated learning (WIL) as a component of the final year experience in undergraduate law programs. The project has identified that the two principal objectives of capstone experiences are to provide closure and to facilitate transition to post-university life. Reflective practice and Bruner’s spiral curriculum model are the central theoretical foundations by which these objectives can be achieved. Experiential learning is also increasingly seen as an essential element of a capstone experience. WIL is consistent with the objectives of capstones in focusing on the transition to professional practice and providing opportunities for reflection. However, the ability of WIL to meet all of the objectives of capstones, particularly closure and integration, may be limited. Conclusions / Implications: The paper posits that while WIL should be considered as a potential component of a capstone experience, educators should ensure that WIL is not equated with a capstone experience unless it is carefully designed to ensure that all of the objectives of capstones are met. Keywords: Work-integrated learning, capstone, final year experience, law

Informed consent : the review of the law of negligence and the utility of reference to NHMRC guidelines

Although rarely referred to in litigation in the years that have followed the Ipp Review Report, there may well be some merit in more frequent judicial reference to the NHMRC guidelines for medical practitioners on providing information to patients 2004.

Weighted fairness with MCR guarantee and a general-purpose explicit rate allocation algorithm for ATM ABR service

In this paper, weighted fair rate allocation for ATM available bit rate (ABR) service is discussed with the concern of the minimum cell rate (MCR). Weighted fairness with MCR guarantee has been discussed recently in the literature. In those studies, each ABR virtual connection (VC) is first allocated its MCR, then the remaining available bandwidth is further shared among ABR VCs according to their weights. For the weighted fairness defined in this paper, the bandwidth is first allocated according to each VC's weight; if a VC's weighted share is less than its MCR, it should be allocated its MCR instead of the weighted share. This weighted fairness with MCR guarantee is referred to as extended weighted (EXW) fairness. Certain theoretical issues related to EXW, such as its global solution and bottleneck structure, are first discussed in the paper. A distributed explicit rate allocation algorithm is then proposed to achieve EXW fairness in ATM networks. The algorithm is a general-purpose explicit rate algorithm in the sense that it can realise almost all the fairness principles proposed for ABR so far whilst only minor modifications may be needed.

A general-purpose simulator for train operations

Computer simulation has been widely accepted as an essential tool for the analysis of many engineering systems. It is nowadays perceived to be the most readily available and feasible means of evaluating operations in real railway systems. Based on practical experience and theoretical models developed in various applications, this paper describes the design of a general-purpose simulation system for train operations. Its prime objective is to provide a single comprehensive computer-aided engineering tool for most studies on railway operations so that various aspects of the railway systems with different operation characteristics can be investigated and analysed in depth. This system consists of three levels of simulation. The first is a single-train simulator calculating the running time of a train between specific points under different track geometry and traction conditions. The second is a dual-train simulator which is to find the minimum headway between two trains under different movement constraints, such as signalling systems. The third is a whole-system multi-train simulator which carries out process simulation of the real operation of a railway system according to a practical or planned train schedule or headway; and produces an overall evaluation of system performance.

Copyright and creative innovation in China : an evolutionary approach?

China has made great progress in constructing comprehensive legislative and judicial infrastructures to protect intellectual property rights. But levels of enforcement remain low. Estimates suggest that 90% of film and music products consumed in China are ‘pirated’ and in 2009 81% of the infringing goods seized at the US border originated from China. Despite of heavy criticism over its failure to enforce IPRs, key areas of China’s creative industries, including film, mobile-music, fashion and animation, are developing rapidly. This paper explores how the rapid expansion of China’s creative economy might be reconciled with conceptual approaches that view the CIs in terms of creativity inputs and IP outputs. It argues that an evolutionary understanding of copyright’s role in creative innovation might better explain China’s experiences and provide more general insights into the nature of the creative industries and the policies most likely to promote growth in this sector of the economy.

Rights versus reality : the difficulty of providing 'access to English' in Queensland Courts

This report was developed out of a Legal Practitioner on Trust Account Fund grant from the Department of Justice and Attorney-General in Queensland, to review the Aboriginal English in the Courts Handbook. Judges, Magistrates, barristers and court staff were interviewed about the Handbook. The findings extend beyond Aboriginal English into access to English in Queensland Courts. Recommendations are made about language difficulties faced by witnessed and the ability to the courts to respond to them.

Optimism about safety and group-serving interpretations of safety among pedestrians and cyclists in relation to road use in general and under low light conditions

Drivers are known to be optimistic about their risk of crash involvement, believing that they are less likely to be involved in a crash than other drivers. However, little comparative research has been conducted among other road users. In addition, optimism about crash risk is conceptualised as applying only to an individual’s assessment of his or her personal risk of crash involvement. The possibility that the self-serving nature of optimism about safety might be generalised to the group-level as a cyclist or a pedestrian, i.e., becoming group-serving rather than self-serving, has been overlooked in relation to road safety. This study analysed a subset of data collected as part of a larger research project on the visibility of pedestrians, cyclists and road workers, focusing on a set of questionnaire items administered to 406 pedestrians, 838 cyclists and 622 drivers. The items related to safety in various scenarios involving drivers, pedestrians and cyclists, allowing predictions to be derived about group differences in agreement with items based on the assumption that the results would exhibit group-serving bias. Analysis of the responses indicated that specific hypotheses about group-serving interpretations of safety and responsibility were supported in 22 of the 26 comparisons. When the nine comparisons relevant to low lighting conditions were considered separately, seven were found to be supported. The findings of the research have implications for public education and for the likely acceptance of messages which are inconsistent with current assumptions and expectations of pedestrians and cyclists. They also suggest that research into group-serving interpretations of safety, even for temporary roles rather than enduring groups, could be fruitful. Further, there is an implication that gains in safety can be made by better educating road users about the limitations of their visibility and the ramifications of this for their own road safety, particularly in low light.

Collaborative digital media performance with generative music systems

Music is inherently active and interactive. Like technologies before them, digital systems provide a range of enhanced music performance opportunities. In this paper we outline the educational advantages of ensemble performance in which generative media systems are integrated. As a concrete example, we focus on our work with the jam2jam system which uses generative music processes to enhance collaborative music making. We suggest that our research points toward a new class of activities that maintain the well established benefits of ensemble performance while adding cultural and pedagogical value by leveraging the capabilities and cachet of digital media practices.

Copyright law in the United Arab Emirates in the digital age

This article gives an overview of copyright law in the United Arab Emirates (UAE) and critically evaluates its operation in the digital era, providing suggestions for reform.