Creative choices : changes to Australian copyright law and the future of the public domain

Changes to Australian copyright law introduced under the Australia–United States Free Trade Agreement will diminish the public domain, criminalise common copyright infringing practices and locally introduce significant portions of the controversial 1998 American Digital Millennium Copyright Act. This paper examines these imminent changes to Australian copyright law, with specific attention to the potential effects of the extended duration of copyright protection and the introduction of technological anti-circumvention measures. It argues that public domain-enhancing activities are crucial for sustaining cultural creativity and technological innovation, and discusses the potential role of the Creative Commons movement in establishing economically viable and legal alternatives to the current model of trade-oriented copyright reform.

Rejection of the fruit of the poisonous tree doctrine in Australia : a retreat from progressivism

This article canvasses the key Australian exclusionary rules and discretions to exclude evidence under both the common law and its statutory counterparts in the Uniform Evidence Legislation now in effect in the Commonwealth, Victoria, New South Wales, the Australian Capital Territory and Tasmania. In examining these exclusionary rules and discretions, an analysis is made as to whether evidence derived from primary evidence excluded under one or more of these rules should also be excluded under an American style 'fruit of the poisonous tree doctrine' - and why or why not. Finally, the article compares the current Australian approach to this doctrine with the present state of the American doctrine and the recognised exceptions thereto. The article concludes with recommendations for applying the doctrine in both countries, subject to suggested changes in the Jaw that take the realities of political correctness and human frailty into account.

The aftermath of provocation : homicide law reform in Victoria, New South Wales and England.

Over the past decade, homicide law reform surrounding the partial defences to murder has animated debate among criminological scholars and legal stakeholders in Australia and the United Kingdom. In response to these debates, criminal jurisdictions have conducted reviews of the partial defences to murder and implemented reforms targeted at reducing gender bias in the law which has played out through the operation of the partial defence of provocation. This research examines the different approaches taken to addressing the problem posed by provocation in Victoria, New South Wales and England. In doing so, it explores questions around the need for reform to the law of homicide, the effects of these reforms in practice, and the influential role of sentencing in questions surrounding homicide law reform. Throughout the analysis key frameworks of criminological thought in relation to feminist engagements with the law, the conceptualisation of denial and the influence of law and order politics upon the development of criminal justice policy are applied. By drawing on 81 in-depth interviews conducted with legal stakeholders across the three jurisdictions under study, and an analysis of relevant case law, this research concludes that reforms implemented to counter gender bias in the operation of homicide law have produced mixed results in practice, particularly in connection to the law’s response to three key categories of person in the courtroom: the jealous man, the female victim of homicide, and the battered woman.

The fog of flexibility : the riskiness of flexible post-secondary education in Australia

This chapter considers the political, social and technological features contributing to the rise of distance education in 20th Century Australia and to its dissolution in the early 21st Century. The discussion considers both international trends and influences, and particularly the Australian experiences that created the foggy mélange: external studies, extension studies, off-campus studies, open campus, open learning, flexible learning, flexible delivery, distance learning, distance education, correspondence learning, online learning, e-learning etc. The fogginess of the terminology reflects the ‘buzz-word’ politics of the turn-of-the-century governments, their bureaucracies and bureaucratese, and of the commercial world, its marketers and advertising slogans.

Cinema of Australia and New Zealand

From The Story of the Kelly Gang in 1906 to the Lord of the Rings trilogy, Australia and New Zealand have made a unique impact on international cinema. This book celebrates the commercially successful narrative feature films produced by these film cultures as well as key documentaries, shorts and independent films. This coverage also invokes issues involving national identity, race, history and the ability of two small film cultures to survive the economic and cultural threat from Hollywood. Chapters on well-known films, and directors, such as The Year of Living Dangerously (Peter Weir, 1982), The Piano (Jane Campion, 1993), Fellowship of the Ring (Peter Jackson, 2001) and Rabbit Proof Fence (Philip Noyce, 2002) are included with less celebrated, but equally important, films and filmmakers such as Jedda (Charles Chauvel, 1955), They're a Weird Mob (Michael Powell, 1966), Vigil (Vincent Ward, 1984) and The Goddess of 1967 (Clara Law, 2000)

Inflation dynamics and New Keynesian Phillips Curve in Australia

The New Keynesian Phillips Curve (NKPC) is a standard model in the analysis of inflation dynamics. For the Australian economy, this study establishes the empirical evidence that the NKPC can explain the process of inflation dynamics and the price-setting mechanism. The trade shocks, such as the real exchange rate and the terms of trade, play an important role in inflation dynamics.

Ignorance of the law as a defence to rape : the destruction of a maxim

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1 (b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)-(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

Catastrophic loss and the law : a comparison between 2009 Victorian Black Saturday fires and 2011 Queensland floods and Cyclone Yasi

This article explores insurability relating to loss occasioned by catastrophic events in Australia in the context of the current legal regulatory regime. The analysis includes two case studies, in which we juxtapose the Victorian Black Saturday fires in February 2--9 with the Queensland flooding and Cyclone Yasi (December 2010 - February 2011). We argue that the different responses to, and economic losses stemming from, these events illustrate the urgent need for a national regulatory and insurance regime for the prevention and alleviation of disasters and the management of their consequences.

A new child protection strategy for Aboriginal communities in Western Australia

Despite numerous government inquiries and reforms, child sexual abuse in remote Aboriginal communities is a well-documented, ongoing problem. Established in Western Australia in 2009, Operation RESET is a multi-agency proactive community engagement initiative designed to improve the ability of communities and supporting agencies to detect, respond to and prevent child sexual abuse through the implementation of community engagement, capacity building and educational strategies. This comment describes the three core principles of Operation RESET: tackling child sexual abuse requires a collaborative, proactive approach between government and communities; the underlying causes and context of child sexual abuse must be recognised; and children's overall safety and wellbeing must be enhanced through integrated services that strengthen and empower families and communities. It also enumerates the seven phases of the operation's implementation, from identifying target communities to deploying an exit strategy. The comment ends by addressing the importance of empirical evaluation.

Costs and benefits of mandatory auditing of for-profit private and not-for-profit companies in Australia

This paper addresses the paucity of research surrounding the mandatory auditing of for-profit private and not-for-profit companies in Australia. We document the various mandatory auditing provisions under the Corporations Act and identify over 22 000 companies that lodge audited accounts with the regulator under federal law. In 2011, 6339 large proprietary companies, 186 small proprietary companies, 2797 foreign-owned companies, 3985 unlisted public companies and 8404 public companies limited by guarantee had an obligation under the Corporations Act to lodge audited accounts. While large proprietary and foreign-owned companies have an option to apply to the Australian Securities and Investment Commission for audit relief, we estimate that less than 10% are granted audit exemption. We document that since 1995 an additional 1500 large proprietary companies that should have lodged under the size provisions of the Corporations Act have been granted exemption from doing so (i.e., grandfathered), although these firms appear to be subject to an annual audit even though they do not lodge accounts. We estimate the costs and discuss the potential public interest and firm-level benefits associated with the mandatory auditing of for-profit private and not-for-profit companies in Australia.