Legal issues related to Accountable-eHealth systems in Australia

Information privacy requirements of patients and information requirements of healthcare providers (HCP) are competing concerns. Reaching a balance between these requirements have proven difficult but is crucial for the success of eHealth systems. The traditional approaches to information management have been preventive measures which either allow or deny access to information. We believe that this approach is inappropriate for a domain such as healthcare. We contend that introducing information accountability (IA) to eHealth systems can reach the aforementioned balance without the need for rigid information control. IA is a fairly new concept to computer science, hence; there are no unambiguously accepted principles as yet. But the concept delivers promising advantages to information management in a robust manner. Accountable-eHealth (AeH) systems are eHealth systems which use IA principles as the measure for privacy and information management. AeH systems face three main impediments; technological, social and ethical and legal. In this paper, we present the AeH model and focus on the legal aspects of AeH systems in Australia. We investigate current legislation available in Australia regarding health information management and identify future legal requirements if AeH systems are to be implemented in Australia.

A legal perspective of carbon rights and benefit sharing under REDD+: A conceptual framework and examples from Cambodia and Kenya

This article discusses two key issues in REDD+ design and implementation at the national level – carbon rights, and benefit sharing. Both carbon rights and benefit sharing can be understood as new legal concepts (although they build on existing law), and as legal concepts they offer a framework for addressing related areas of REDD+ policy. Many countries are currently considering how to manage carbon rights and benefit sharing issues, including Cambodia and Kenya. Both of these countries host existing forest carbon projects and are also in the process of designing national REDD+ programmes. This article uses a conceptual framework for carbon rights and benefit sharing derived from legal analysis to consider the cases of both Cambodia and Kenya, and also includes a general discussion of the challenges countries might encounter when considering how to manage carbon rights and benefit sharing in the context of REDD+ implementation.

Developments in Australian laws requiring the reporting of suspected child sexual abuse

Thousands of Australian children are sexually abused every year, and the effects can be severe and long lasting. Not only is child sexual abuse a public health problem, but the acts inflicted are criminal offences. Child sexual abuse usually occurs in private, typically involving relationships featuring a massive imbalance in power and an abuse of that power. Those who inflict child sexual abuse seek to keep it secret, whether by threats or more subtle persuasion. As a method of responding to this phenomenon and in an effort to uncover cases of sexual abuse that otherwise would not come to light, governments in Australian States and Territories have enacted legislation requiring designated persons to report suspected child sexual abuse. With Western Australia’s new legislation having commenced on 1 January 2009, every Australian State and Territory government has now passed these laws, so that there is now, for the first time, an almost harmonious legislative approach across Australia to the reporting of child sexual abuse. Yet there remain differences in the State and Territory laws regarding who has to make reports, which cases of sexual abuse are required to be reported, and whether suspected future abuse must be reported. These differences indicate that further refinement of the laws is required

An investigation of the knowledge and practices relating to drink driving among Chinese drivers

This project was a comprehensive study of drink driving in two Chinese cities. It examined general motor vehicle drivers' and drunk driving offenders' knowledge on and practices of drinking and driving, and their interaction with alcohol misuse problems. In addition, traffic police officers' perceptions of drink driving and their legal enforcement practices were studied. The differences between the two cities (Guangzhou and Yinchuan) were discussed and the approaches by China and Australia to drink driving legislation, legal enforcement and policy were also compared.

Submission to the Legal Affairs and Community Safety Committee - Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012

This submission addresses the Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012 which has as its objectives (1) the introduction of a Boot Camp Order as an option instead of detention for young offenders and (2) the removal of the option of court referred youth justice conferencing for young offenders. As members of the QUT Faculty of Law Centre for Crime and Justice we welcome the invitation to participate in the discussion of these issues which are critically important to the Queensland community at large but especially to our young people.

Submission to the Legal Affairs and Community Safety Committee Youth Justice and Other Legislation Amendment Bill

This submission addresses the Youth Justice and Other Legislation Amendment Bill 2014 the objectives of which are to: 1. Permit repeat offenders’ identifying information to be published and open the Children’s Court for youth justice matters involving repeat offenders; 2. Create a new offence where a child commits a further offence while on bail; 3. Permit childhood findings of guilt for which no conviction was recorded to be admissible in court when sentencing a person for an adult offence; 4. Provide for the automatic transfer from detention to adult corrective services facilities of 17 year olds who have six months or more left to serve in detention; 5. Provide that, in sentencing any adult or child for an offence punishable by imprisonment, the court must not have regard to any principle, whether under statute or at law, that a sentence of imprisonment (in the case of an adult) or detention (in the case of a child) should only be imposed as a last resort; 6. Allow children who have absconded from Sentenced Youth Boot Camps to be arrested and brought before a court for resentencing without first being given a warning; and 7. Make a technical amendment to the Youth Justice Act 1992.

Foucault Goes to Law School : Using Foucault to Examine Australian Legal Education

This paper will consider the way that Foucault’s work has been utilised to examine Australian legal education, particularly in the context of understanding the construction of the legal identity. While remaining sensitive to the many potential ‘uses’ of Foucault’s tools, as well as his problematisation of the author as an organising feature of discourse, this paper will argue that legal education scholarship overwhelmingly utilises concepts such as ‘discourse’ and ‘power-knowledge’, which, while useful, cannot provide a nuanced understanding of the construction of the legal identity. Consequently, this paper suggests that future legal education research utilise Foucault’s concepts of ‘ethics’ and ‘governmentality’ to address these issues.

Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts

In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone. However, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.

The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce

Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (‘empirical facts’). Legal education needs to prepare our students for this broader legal context. This paper examines how ‘empirical facts’ are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.

Professional Responsibility and Legal Ethics in Queensland

With the commencement of the Legal Profession Act 2007 (Qld) and the establishment of the Legal Services Commission, the legal profession and legal services market in Queensland has experienced significant changes to its regulatory environment. Professional Responsibility and Legal Ethics in Queensland provides a detailed explanation and analysis of these changes. The book will assist lawyers to plan for successful practice within this new environment by examining such topics as: • The scope and application of key provisions within the Legal Profession Act; • The role, functions and policies of the Legal Services Commission; • The ethical and regulatory implications of operating as an Incorporated Legal Practice or as a Multi-Disciplinary Partnership; • Developments affecting trust accounts and client money dealings more generally; • Recent case law, Tribunal decisions and Legal Services Commission guidelines in relation to the new conduct standards of Unsatisfactory Professional Conduct and Professional Misconduct; and • The impact of the new legislation and regulatory environment on a range of traditional ethical duty categories such as the duty to communicate, costs and billing practices, as well as the paramount duties to the court and to the administration of justice. An invaluable reference for legal professionals, this book is also an important resource for law students grappling with questions raised by legal ethics and their application to the workplace.

In search of Chinese jurisprudence : does Chinese legal tradition have a place in China's future?

Questions the extent to which Westerrn commercial laws adopted by China, particularly in its Company Laws of 1993 and 1995, are comptaible with China's different cultural and legal traditions. Suggests that Western concepts of the rule of law and of corporate governance are alient to China. Outlines the development of the Western legal tradition. based on Judaeo-Christian beliefs and legal rationalism. Compares this with the deveopment of the Chinese legal tradtion, based on Confucianism and legalism. Proposes ways in which the two traditions could be reconciled more effectively.

Regulating non-executive directors in Australia : a socio-legal approach

Discusses the role of legislation and codes of conduct in influencing the behaviour of non-executive directors. Outlines the functions of a board of directors and considers the role on non-executive directors in particular. Traces the development of standards of skill required on non-executive directors both under the Australian Corporations Act 2001 and under common law. Questions whether these have brought about a real change in behaviour. Considers whether professionalisation of directorship could be more effective.