Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.

Voter behaviour and constitutional change in Australia since 1967

Australian Constitutional referendums have been part of the Australian political system since federation. Up to the year 1999 (the time of the last referendum in Australia), constitutional change in Australia does not have a good history of acceptance. Since 1901, there have been 44 proposed constitutional changes with eight gaining the required acceptance according to section 128 of the Australian Constitution. In the modern era since 1967, there have been 20 proposals over seven referendum votes for a total of four changes. Over this same period, there have been 13 federal general elections which have realised change in government just five times. This research examines the electoral behaviour of Australian voters from 1967 to 1999 for each referendum. Party identification has long been a key indicator in general election voting. This research considers whether the dominant theory of voter behaviour in general elections (the Michigan Model) provides a plausible explanation for voting in Australian referendums. In order to explain electoral behaviour in each referendum, this research has utilised available data from the Australian Electoral Commission, the 1996 Australian Bureau of Statistics Census data, and the 1999 Australian Constitutional Referendum Study. This data has provided the necessary variables required to measure the impact of the Michigan Model of voter behaviour. Measurements have been conducted using bivariate and multivariate analyses. Each referendum provides an overview of the events at the time of the referendum as well as the =yes‘ and =no‘ cases at the time each referendum was initiated. Results from this research provide support for the Michigan Model of voter behaviour in Australian referendum voting. This research concludes that party identification, as a key variable of the Michigan Model, shows that voters continue to take their cues for voting from the political party they identify with in Australian referendums. However, the outcome of Australian referendums clearly shows that partisanship is only one of a number of contributory factors in constitutional referendums.

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

Enriching community engaged learning through interdisciplinary collaboration

Twenty first century society presents critical challenges for higher education (Brew 2013, 2). The challenges facing modern communities require graduates to have skills that respond to issues at the boundaries of, and intersections between, disciplines. Mounting evidence suggests that interdisciplinary curriculum and pedagogies help students to develop boundary-crossing skills and a deeper awareness of the student’s domain-specific knowledge (Spelt et al. 2009; Strober 2011). Spelt et al. (2009) describe boundary-crossing skills as the ability to engage with different discourses, take account of multiple perspectives, synthesise knowledge of different disciplines, and cope with complexity. In this chapter we investigate emerging conditions, practical processes, and pedagogical strategies that are enabling the Lab stakeholders, the community, the university, and students to participate in interdisciplinary community-engaged learning. Aspects of the Lab that are considered in this chapter include building trust, sharing values, establishing learning goals that are reflected in learning experiences and assessment, and employing strategies that define and attend to relationships and roles. The case study, “The Recognition of Aboriginal and Torres Strait Islander Peoples in the Australian Constitution”, a QUT collaborative project with the Social Justice Research Unit Anglicare Southern Queensland, describes the collaborators, processes, outcomes, and the lessons learned through one Lab project over three semesters. The issues illustrated in the case study are then further explored in a critical discussion of the strategies supporting interdisciplinarity in community-engaged learning across university/community collaboration, within and across the university, and for student participants

The 2006 CSRC guidelines for articles of Association of Chinese listed companies : critiquing from an Australian perspective

Compares the Chinese Securities and Regulatory Commission's guidelines for articles of association of listed companies issued in 2006 with 'replaceable' rules in the Australian Corporations Act 2001. Discusses the provisions of the Chinese guidelines and the Australian rules on corporate constitution, interpretation, a company's representative, object clauses, shareholders' powers and meetings and directors. Questions whether the Chinese guidelines facilitate effective corporate governance.

Government, citizenship and cultural policy : expertise and participation in Australian media policy

The study of institutions and policy processes in the formation of culture have been a major concern of the "cultural policy debate", which has been a major debate in Australian cultural studies in the 1990s (Bennett 1992a; Cunningham 1992; O'Regan 1993; cf. McGuigan 1996). Bennett (1992) argues that culture in modern societies is defined less by a distinct series of artistic and intellectual practices, the ways of life of distinctive communities or social groups, or as a system for the structuring of meaning in a society, but rather in terms of "the specificity of the governmental tasks and programmes in which those practices come to be inscribed." (Bennett 1992a: 397) Within such a framework, policy becomes "not... an optional add-on but... central to the definition and constitution of culture" (Bennett 1992a: 397). This understanding of culture as "intrinsically governmental" has in turn been linked to an increasingly strategic role for discourses of citizenship as a basis for the engagement of cultural studies intellectuals with the political sphere...

Australian Library and Information Association (ALIA)

The Australian Library and Information Association (ALIA) is the professional association for the Australian library and information services sector. It seeks to empower the profession in the development, promotion and delivery of quality library and information services to the nation, through leadership, advocacy, and mutual support. The ALIA represents the interest of 6000 members, the profession and Australia's 12 million library users. The objects of the Association are listed in its constitution. They are To promote the free flow of information and ideas in the interest of all Australians and a thriving culture, economy, and democracy. To promote and improve the services provided by all kinds of library and information agencies. To ensure the high standard of personnel engaged in information provision and foster their professional interests and aspirations. To represent the interests of members to governments, other organizations, and the community. To encourage people to contribute to the improvement of library and information services through support and membership of the association.

Learning Chinese as a Heritage Language: An Australian Perspective

Summary: This book explores the fascinating topic of heritage language learning, looking in particular at Chinese Australians' learning of Chinese. The author studies the investment, challenges and benefits of heritage language learning across varied contexts including school, work, home and in the community. The book investigates how Chinese Australians navigate and negotiate their Chineseness and how resources are used to support their learning. The book is based on a mixed methods study which uses Bourdieu's sociological theory, and offers implications for sociologists of language and education, Chinese heritage language learners and teachers, as well as language and cultural policy makers. Review: This book is a compelling account of the habitus of Chineseness in a world of mobility. It offers up a plethora of insights into the implication of heritage language learning in the constitution of Chinese identity; it makes available a sophisticated mixed methods approach for using the thinking tools of Pierre Bourdieu; it adds to these tools a nuanced cultural dimension. Karen Dooley, Queensland University of Technology, Australia In our increasingly trans-migratory world, language can be central to cultural identity. Dr Mu’s research breaks new ground by adapting Bourdieu’s insights to examine how cultural identity (‘Chinese-ness’) is linguistically learned and practiced in Australia. His remarkable book will interest educators and researchers grappling with how language pertains to identity. Tom Strong, University of Calgary, Canada A thought-provoking, highly engaging work that has deftly shown how Bourdieusian framework can be applied in the research field of literacy education and Heritage Language learning. A must-read for those interested in overseas Chinese communities and Heritage Language learning across various immigrant communities in general! Liang Du, Beijing Normal University, China

What counts as English in the internationalised Australian university: Implications for teaching and learning

English is currently ascendant as the language of globalisation, evident in its mediation of interactions and transactions worldwide. For many international students, completion of a degree in English means significant credentialing and increased job prospects. Australian universities are the third largest English-speaking destination for overseas students behind the United States and the United Kingdom. International students comprise one-fifth of the total Australian university population, with 80% coming from Asian countries (ABS, 2010). In this competitive higher education market, English has been identified as a valued ‘good’. Indeed, universities have been critiqued for relentlessly reproducing the “hegemony and homogeneity of English” (Marginson, 2006, p. 37) in order to sustain their advantage in the education market. For international students, English is the gatekeeper to enrolment, the medium of instruction and the mediator of academic success. For these reasons, English is not benign, yet it remains largely taken-for-granted in the mainstream university context. This paper problematises the naturalness of English and reports on a study of an Australian Master of Education course in which English was a focus. The study investigated representations of English as they were articulated across a chain of texts including the university strategic plan, course assessment criteria, student assignments, lecturer feedback, and interviews. Critical Discourse Analysis (CDA) and Foucault’s work on discourse enabled understandings of how a particular English is formed through an apparatus of specifications, exclusionary thresholds, strategies for maintenance (and disruption), and privileged concepts and speaking positions. The findings indicate that English has hegemonic status within the Australian university, with material consequences for students whose proficiency falls outside the thresholds of accepted English practice. Central to the constitution of what counts as English is the relationship of equivalence between standard written English and successful academic writing. International students’ representations of English indicate a discourse that impacts on identities and practices and preoccupies them considerably as they negotiate language and task demands. For the lecturer, there is strategic manoeuvring within the institutional regulative regime to support students’ English language needs using adapted assessment practices, explicit teaching of academic genres and scaffolded classroom interaction. The paper concludes with the implications for university teaching and learning.