Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

The Law and Governance of Water Resources : The Challenge of Sustainability

To achieve the sustainable use and development of water resources is a daunting challenge for both the global and local communities. It requires commitments by all groups within the international, national and local communities from their own particular, possibly conflicting, perspectives. Without a set of coherent legal arrangements designed to ensure effective governance of water resources, their sustainable use and development are unlikely to be achieved. This study looks at how the legal arrangements for managing water resources have evolved across the continents over hundreds of years; their relevance for contemporary society; how the norms of current international and national legal regimes are responding; and, most importantly, how legal rights and duties should be structured so as to achieve sustainability in the future.

Charity law, advocacy and the aid/watch decision : compatibility of charitable purposes and political objects — the view from Australia

Introduction In 1952 the Nathan report stated that: Some of the most valuable activities of voluntary societies consist, however, in the fact that they may be able to stand aside from and criticize State action or inaction, in the interests of the inarticulate man in the street. Some 60 years later it remained the case that if a voluntary society wanted to gain or retain charitable status then, contrary to the Nathan report, the one thing it could not do was set itself up with the purpose of criticizing State action or inaction. This legal position was adopted by the authorities in Australia with the Australian Taxation Office (ATO) noting in Taxation Ruling TR2005/21: 102. An institution or fund is not charitable if its purpose is advocating a political party or cause, attempting to change the law or government policy, or propagating or promoting a particular point of view. So, why, if it is such a valuable activity, have governments steadfastly refused to allow charities to have as their purpose the freedom to advocate in this way and how has this situation been affected by the recent High Court of Australia decision in Aid/Watch v Commissioner of Taxation? This article proposes to address such questions. Beginning with some background history, it explains that, initially, the current constraints did not apply. Then it looks at the nature of these constraints: how does the law define what constitutes the type of political activity that a charity must not undertake? What is the rationale for prohibition? How has the judiciary contributed to the development of the law in this area in recent years? This will lead into a consideration of the Aid/Watch case and the implications arising from the recent final decision. The article concludes by reflecting on what has changed and why the view on this contentious matter now looks different from Australia.

Section 64 of the Property Law Act 1974 (Qld) and the reluctant buyer

The decision of the Court of Appeal in Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200 arose from unusual circumstances associated with the flood in Brisbane earlier this year. Maris Dunworth (‘the buyer’) agreed to purchase a ground floor residential apartment located beside the Brisbane River at Tennyson from Mirvac Queensland Pty Ltd (‘Mirvac’). The original date for completion was 12 May 2009. In earlier proceedings, the buyer had alleged that she had been induced to purchase the apartment by false, misleading and deceptive representations. This claim was dismissed and an order for specific performance was made with a new completion date of 8 February 2011...

Engaging law students to promote psychological health

Recent empirical evidence suggests that concern for the psychological health of law students is well justified. Traditionally, the legal curriculum has focused on the provision of substantive legal doctrinal knowledge. This approach has not always engaged students positively with their learning of law. This article considers some strategies that can be adopted by Law Faculties to better engage students with their legal education in order to promote their psychological health. These strategies are: ensuring that active learning occurs in lectures, demonstrating concern for students and their learning and skillful management of student expectations and the learning environment. Further, some self-help strategies that students can adopt for themselves are discussed. Combined, these strategies will enable students to engage more positively with their legal education.

National Environmental Law Review Issue 2011: 3, Editorial: Federal Developments

Clean Energy Agreement of the MPCCC On 10 July 2011, details of the Multi-Party Climate Change Committee’s Clean Energy Agreement for implementing a carbon price were released. This included an agreed package of measures that the Committee considered would enable Australia to meet its emissions reduction targets in an environmentally and economically efficient way. A copy of the agreement can be found on the website of the Department of Climate Change and Energy Efficiency...

Physicality in Australian Patent Law

It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods – namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.

Using cost-effective multimedia to create engaging learning experiences in law and other disciplines

This is the final report of an Australian Learning and Teaching Council Teaching Fellowship which addressed the needs of two separate groups of learners: (1) final year law students studying ethics and (2) law academics and other interested educators in higher education wishing to use information and communication technologies (ICT) to create engaging learning environments for their students but lacking the capacity to do so. The Fellowship resulted in final year law students being infused with an improved appreciation of ethical practice than they receive from traditional lecture/tutorial means by the development of an integrated program of blended learning including an online program entitled "Entry into Valhalla". This "ethics capstone‟ utilises multimedia produced using cost effective resources (including the "Second Life" virtual environment) to create engaging, contextualised learning experiences. The Fellowship also constructed the knowledge of producing cost-effective multimedia projects in other law academics and other educators in higher education by staff development activities comprising workshops, conference presentations and an interactive website using the "Entry into Valhalla" program as a case study exemplar.

Developing a transition pedagogy : intentional curriculum design in first and final year law programs

This chapter will first consider the rationale for a transition pedagogy for first and final year law students. It then discusses the elements of a transition pedagogy for both years, noting the synergies and differences between programs designed to assist transition into and out of a law degree. In doing so, the authors attempt to explore the extent to which the first year curriculum principles identified by Sally Kift under an Australian Learning and Teaching Council (ALTC) Senior Fellowship may also be applied to the final year university experience. During the course of the discussion, examples are drawn from universities and Law Schools in Australia and internationally which seek to address these imperatives...

The capstone experience in law

An effective capstone experience provides closure through: Supporting students to synthesise their learning in the program by building upon the knowledge, skills and capability development that has taken place over the entirety of the curriculum; Providing enhanced opportunities for students to reflect on their personal and professional development over the course of their legal education experience and how that prepares them for their future professional and personal lives; Assisting students to attain an understanding of what it means to be a graduate of the discipline and begin to develop a professional identity.

Physical effect in patent law

This thesis addresses one of the fundamental issues that remains unresolved in patent law today. It is a question that strikes at the heart of what a patent is and what it is supposed to protect. That question is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether patent law contains a physicality requirement. Resolving this issue will determine whether only traditional mechanical, industrial and manufacturing processes are patent eligible, or whether patent eligibility extends to include purely intangible, or non-physical, products and processes. To this end, this thesis seeks to identify where the dividing line lies between patentable subject matter and the recognised categories of excluded matter, namely, fundamental principles of nature, physical phenomena, and abstract ideas. It involves determining which technological advances are worth the inconvenience monopoly protection causes the public at large, and which should remain free for all to use without restriction. This is an issue that has important ramifications for innovation in the ‘knowledge economy’ of the Information Age. Determining whether patent law contains a physicality requirement is integral to deciding whether much of the valuable innovation we are likely to witness, in what are likely to be the emerging areas of technology in the near future, will receive the same encouragement as industrial and manufacturing advances of previous times.

Group law computations on Jacobians of hyperelliptic Curves

We derive an explicit method of computing the composition step in Cantor’s algorithm for group operations on Jacobians of hyperelliptic curves. Our technique is inspired by the geometric description of the group law and applies to hyperelliptic curves of arbitrary genus. While Cantor’s general composition involves arithmetic in the polynomial ring F_q[x], the algorithm we propose solves a linear system over the base field which can be written down directly from the Mumford coordinates of the group elements. We apply this method to give more efficient formulas for group operations in both affine and projective coordinates for cryptographic systems based on Jacobians of genus 2 hyperelliptic curves in general form.

The role of law in responding to climate change : emerging regulatory, liability and market approaches

Climate change presents as the archetypal environmental problem with short-term economic self-interest operating to the detriment of the long-term sustainability of our society. The scientific reports of the Intergovernmental Panel on Climate Change strongly assert that the stabilisation of emissions in the atmosphere, to avoid the adverse impacts of climate change, requires significant and rapid reductions in ‘business as usual’ global greenhouse gas emissions. The sheer magnitude of emissions reductions required, within this urgent timeframe, will necessitate an unprecedented level of international, multi-national and intra-national cooperation and will challenge conventional approaches to the creation and implementation of international and domestic legal regimes. To meet this challenge, existing international, national and local legal systems must harmoniously implement a strong international climate change regime through a portfolio of traditional and innovative legal mechanisms that swiftly transform current behavioural practices in emitting greenhouse gases. These include the imposition of strict duties to reduce emissions through the establishment of strong command and control regulation (the regulatory approach); mechanisms for the creation and distribution of liabilities for greenhouse gas emissions and climaterelated harm (the liability approach) and the use of innovative regulatory tools in the form of the carbon trading scheme (the market approach). The legal relations between these various regulatory, liability and market approaches must be managed to achieve a consistent, compatible and optimally effective legal regime to respond to the threat of climate change. The purpose of this thesis is to analyse and evaluate the emerging legal rules and frameworks, both international and Australian, required for the effective regulation of greenhouse gas emissions to address climate change in the context of the urgent and deep emissions reductions required to minimise the adverse impacts of climate change. In doing so, this thesis will examine critically the existing and potential role of law in effectively responding to climate change and will provide recommendations on the necessary reforms to achieve a more effective legal response to this global phenomenon in the future.

Murray-Darling basin governance : the focus of the law

The legal arrangements for the management of the Murray-Darling Basin in Australia have changed significantly over the years. The Constitution of the Commonwealth has led to the legal arrangements for the management of the Murray-Darling Basin. The Water Act 2000 of Queensland aimed at advancing sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water. The Water Management Act 2000 of New South Wales ensures the sustainable and integrated management of the water resources of the state benefiting the present and future generations. The Natural Resources Management Act 2004 of South Australia applies to water resources and to other natural resources. The Act aimed at assisting the achievement of ecologically sustainable development in the state.