Uniform Civil Procedure Rules r150 : orders relating to "property" – whether sperm extracted and stored may be characterised as “property”

In Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 an order was made under r 250 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) requiring the respondent to continue to hold and maintain straws of semen belonging to the applicant’s deceased husband. The decision includes a useful analysis of the development of the common law regarding property rights in human bodies and body parts.

Returning to the practices of our ancestors? Reconsidering Indigenous justice and the emergence of restorative practices

Restorative practices have often been considered both as emerging from the customs of Indigenous peoples, and ways of responding to crime that might be most suitable for Indigenous individuals and communities. This paper, which consists of two parts, will reconsider these claims from a critical perspective. The first part of the paper draws on my Ph.D. research on the emergence of restorative justice in Western criminal justice systems. It will argue that although many advocates of restorative justice uncritically and unproblematically accept that restorative practices emerged from the customs of Indigenous peoples, the relationship between Indigenous justice customs and the emergence of restorative justice is much more nuanced than proponents imply. The paper will examine, therefore, the legitimating rationalities associated with the diverse historical ‘truths’ obscured in advocates’ accounts of the role of Indigenous customs and the emergence of restorative justice. The second section draws on the findings of recent research undertaken at the Australian Institute of Criminology, and will present data on the numbers of Indigenous juveniles who participate in restorative conferences in each jurisdiction. These data will be used to elucidate the disparity between the rhetoric or ‘promise’ of restorative justice, and its apparent impact in relation to Indigenous juveniles. This paper will conclude with a consideration of the continued relevance of restorative justice for Indigenous young people in Australia.

Community Partnerships for Fostering Student Interest and Engagement in STEM

The foundations of Science, Technology, Engineering and Mathematics (STEM) education begins in the early years of schooling when students encounter formal learning experiences primarily in mathematics and science. Politicians, economists and industrialists recognise the importance of STEM in society, and therefore a number of strategies have been implemented to foster interest. Similarly, most students see the importance of science and mathematics in their lives, but school science and mathematics is usually seen as irrelevant, particularly by students in developed countries. This paper reports on the establishment and implementation of partnerships with industry experts from one jurisdiction which have, over a decade, attempted to reconcile the interests of youth and the contemporary world of science. Four case studies are presented and qualitative findings analyzed in terms of program outcomes and student engagement. The key finding is that the formation of relationships and partnerships, in which students have high degree of autonomy and sense of responsibility, is paramount to positive dispositions towards STEM. Those features of successful partnerships are also discussed. The findings raise some hope that innovative schools and partnerships can foster innovation and connect youth with the real world.

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Copyright protections and disability rights : turning the page to a new international paradigm

This paper argues that governments around the world need to take immediate coordinated action to reverse the 'book famine.' There are over 129 million book titles in the world, but persons with print disabilities can obtain less than 7% of these titles in formats that they can read. The situation is most acute in developing countries, where less than 1% of books are accessible. Two recent international developments – the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) and the new Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (somewhat ironically nicknamed the ‘VIP Treaty’) – suggest that nation states are increasingly willing to take action to reverse the book famine. The Marrakesh Treaty promises to level out some of the disparity of access between people in developed and developing nations and remove the need for each jurisdiction to digitise a separate copy of each book. This is a remarkable advance, and suggests the beginnings of a possible paradigm shift in global copyright politicsmade all the more remarkable in the face of heated opposition by global copyright industry representatives. Now that the Marrakesh Treaty has been concluded, however, we argue that a substantial exercise of global political will is required to (a) invest the funds required to digitise existing books; and (b) avert any further harm by ensuring that books published in the future are made accessible upon their release.

Form prevailing over substance?

The decision of the Court of Appeal in Kellas-Sharpe v PSAL Ltd [2012] QCA 371 considered a not unusual provision in a loan agreement, being a provision whereby a lender agrees to accept a lower or concessional rate of interest in circumstances of prompt payment by the borrower. The loan agreement in question provided for the borrower to pay a standard rate of interest of 7.5% per month. However, if the borrower was not in default, the lender agreed to accept interest at a concessional rate of interest of 4% per month. The issue for determination by the Court of Appeal (McMurdo P, Gotterson JA and Fryberg J) was whether the clause was subject to the equitable jurisdiction to relieve against penalties, and, if so, if the interest rate provision should be treated as a penalty making the interest rate provision void. In mounting this argument, the borrower was seeking to overturn a long line of authority which has repeatedly upheld the semantic distinction between an increase in the rate of interest (which attracts the doctrine concerning penalties) and an incentive to the borrower by way of a reduction in the interest rate for prompt payment (which does not attract the doctrine)...

Prosecution of maritime terrorists : the role of national courts in ensuring accountability

Maritime security has emerged as a critical legal and political issue in the contemporary world. Terrorism in the maritime domain is a major maritime security issue. Ten out of the 44 major terrorist groups of the world, as identified in the US Department of State’s Country Reports on Terrorism, have maritime terrorism capabilities. Prosecution of maritime terrorists is a politically and legally difficult issue, which may create conflicts of jurisdiction. Prosecution of alleged maritime terrorists is carried out by national courts. There is no international judicial institution for the prosecution of maritime terrorists. International law has therefore anticipated a vital role for national courts in this respect. The international legal framework for combating maritime terrorism has been elaborately examined in existing literature therefore this paper will only highlight the issues regarding the prosecution of maritime terrorists. This paper argues that despite having comprehensive intentional legal framework for the prosecution of maritime terrorists there is still some scopes for conflicts of jurisdiction particularly where two or more States are interested to prosecute the same offender. This existing legal problem has been further aggravated in the post September 11 era. Due to the political and security implications, States may show reluctance in ensuring the international law safeguards of alleged perpetrators in the arrest, detention and prosecution process. Nevertheless, international law has established a comprehensive system for the prosecution of maritime terrorists where national courts is the main forum of ensuring the international law safeguards of alleged perpetrators as well as ensuring the effective prosecution of maritime terrorists thereby playing an instrumental role in establishing a rule based system for combating maritime terrorism. Using two case studies, this paper shows that the role of national courts has become more important in the present era because there may be some situations where no State is interested to initiate proceedings in international forums for vindicating rights of an alleged offender even if there is a clear evidence of violation of international human rights law in the arrest, detention and prosecution process. This paper presents that despite some bottlenecks national courts are actively playing this critical role. Overall, this paper highlights the instrumental role of national courts in the international legal order.

Double tax agreements and the international allocation of business income in Australia

Increasingly, the effectiveness of the present system of taxation of international businesses is being questioned. The problem associated with the taxation of such businesses is twofold. A system of international taxation must be a fair and equitable system, distributing profits between the relevant jurisdictions and, in doing so, avoiding double taxation. At the same time, the prevention of fiscal evasion must be secured. In an attempt to achieve a fair and equitable system Australia adopts unilateral, bilateral and multilateral measures to avoid double taxation and restrict the avoidance of tax. The first step in ascertaining the international allocation of business income is to consider the taxation of business income according to domestic law, that is, the unilateral measures. The treatment of international business income under the Australian domestic law, that is, the Income Tax Assessment Act 1936 (Cth) and Income Tax Assessment Act 1997 (Cth), will depend on two concepts, first, whether the taxpayer is a resident of Australia and secondly, whether the income is sourced in Australia. After the taxation of business profits has been determined according to domestic law it is necessary to consider the applicability of the bilateral measures, that is, the Double Tax Agreements (DTAs) to which Australia is a party, as the DTAs will override the domestic law where there is any conflict. Australia is a party to 40 DTAs with another seven presently being negotiated. The preamble to Australia's DTAs provides that the purpose of such agreements is 'to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income'. Both purposes, for different reasons, are equally important. It has been said that: The taxpayer hopes the treaty will prevent the double taxation of his income; the tax gatherer hopes the treaty will prevent fiscal evasion; and the politician just hopes. The first purpose, the avoidance of double taxation, is achieved through the provision of rules whereby the Contracting States agree to the classification of income and the allocation of that income to a particular State. In this sense DTAs do not allocate jurisdiction to tax but rather provide an arrangement whereby the States agree to restrict their substantive law. The restriction is either through the non-taxing of the income or via the provision of a tax credit.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

New directions in intercultural early education in Australia

Early education in Australia encompasses both early education and care(ECEC) and the early years of school. Educational approaches to cultural and linguistic diversity have varied not only by sector but also by jurisdiction based on distinct curriculum frameworks and policies. In Australian early education, provision for cultural and linguistic diversity has been framed largely by multicultural discourse, as defined by a complex history of progressive, yet often superficial reforms. Current initiatives serve to change this trajectory and the positioning of stakeholders. The incorporation of intercultural rather than multicultural approaches offers new possibilities for early education and directs attention to real challenges for ECEC. They re-position Aboriginal and Torres Strait Islanders as the First Australians, and direct attention to both Australia’s social, cultural and linguistic diversity and to the role of early childhood educators in enacting more inclusive pedagogies. Challenges yet to be addressed include the cultural understanding of Australian early childhood educators, particularly those who identify as Anglo- Australian, deeper policy enactment in pedagogic practice and negotiation with diverse families and communities. This paper will address the historical and current policy contexts of intercultural early education in Australia, the development of intercultural initiatives, and emerging issues as national policies are introduced. The discussion draws on responses to intercultural early education in New Zealand and Canada to consider approaches to intercultural priorities in Australia. The paper will attend predominantly to Aboriginal and Torres Strait Islander perspectives as a core element of change in Australian early childhood policy, focusing on ECEC.

Does board gender diversity have a financial impact? Evidence using stock portfolio performance.

There is growing regulatory pressure on firms worldwide to address the under-representation of women in senior positions. Regulators have taken a variety of approaches to the issue. We investigate a jurisdiction that has issued recommendations and disclosure requirements, rather than implementing quotas. Much of the rhetoric surrounding gender diversity centres on whether diversity has a financial impact. In this paper we take an aggregate (market-level) approach and compare the performance of portfolios of firms with gender diverse boards to those without. We also investigate whether having multiple women on the board is linked to performance, and if there is a within-industry effect. Overall, we do not find evidence of an association between diversity and performance. We find some weak evidence of a negative correlation between having multiple women on the board and performance, but that in some industries diversity is positively correlated with performance.

Random Breath Testing in Australia: Is there an Optimum Level of Intensity?

Background: Random Breath Testing (RBT) is the main drink driving law enforcement tool used throughout Australia. International comparative research considers Australia to have the most successful RBT program compared to other countries in terms of crash reductions (Erke, Goldenbeld, & Vaa, 2009). This success is attributed to the programs high intensity (Erke et al., 2009). Our review of the extant literature suggests that there is no research evidence that indicates an optimal level of alcohol breath testing. That is, we suggest that no research exists to guide policy regarding whether or not there is a point at which alcohol related crashes reach a point of diminishing returns as a result of either saturated or targeted RBT testing. Aims: In this paper we first provide an examination of RBTs and alcohol related crashes across Australian jurisdictions. We then address the question of whether or not an optimal level of random breath testing exists by examining the relationship between the number of RBTs conducted and the occurrence of alcohol-related crashes over time, across all Australian states. Method: To examine the association between RBT rates and alcohol related crashes and to assess whether an optimal ratio of RBT tests per licenced drivers can be determined we draw on three administrative data sources form each jurisdiction. Where possible data collected spans January 1st 2000 to September 30th 2012. The RBT administrative dataset includes the number of Random Breath Tests (RBTs) conducted per month. The traffic crash administrative dataset contains aggregated monthly count of the number of traffic crashes where an individual’s recorded BAC reaches or exceeds 0.05g/ml of alcohol in blood. The licenced driver data were the monthly number of registered licenced drivers spanning January 2000 to December 2011. Results: The data highlights that the Australian story does not reflective of all States and territories. The stable RBT to licenced driver ratio in Queensland (of 1:1) suggests a stable rate of alcohol related crash data of 5.5 per 100,000 licenced drivers. Yet, in South Australia were a relative stable rate of RBT to licenced driver ratio of 1:2 is maintained the rate of alcohol related traffic crashes is substantially less at 3.7 per 100,000. We use joinpoint regression techniques and varying regression models to fit the data and compare the different patterns between jurisdictions. Discussion: The results of this study provide an updated review and evaluation of RBTs conducted in Australia and examines the association between RBTs and alcohol related traffic crashes. We also present an evidence base to guide policy decisions for RBT operations.

Justice for pollution-victims in China and Australia

The concept of environmental justice is well developed in North America, but is still at the evolutionary stage in most other jurisdictions around the globe. This paper seeks to explore two jurisdictions where incidents of environmental justice are likely to be seen in the future as a result of manufacturing and mining practices. The discussion will centre upon avenues to environmental justice for both private citizens and the public at large. The first jurisdiction considered is China, where environmental liability claims brought by Chinese citizens have increased at an annual average of 25% (Yang 2011). Manufacturing is at the core of the Chinese economy and is responsible for some of the unprecedented economic growth in the region. Less discussed are the industry impacts on water and air pollution levels and the associated implications of these pollutants on local communities. China introduced the Tort Liability Law (TLL) in 2010, which may provide avenues to justice for private citizens. The other jurisdiction considered by the paper is Australia, where the mining boom has buffered the Australian economy from the global financial crisis. There is some limited case law in Australia where private citizens have made a claim in toxic torts; however the framework is underdeveloped in terms of the significant risks facing indigenous and local communities in mining areas and also by comparison to the developments of the TLL framework in China. This paper traces the regulatory responses to the affects of major industries on communities in China and Australia. From this it examines the need for environmental justice avenues that align with rule of law principles.

Mainstreaming therapeutic jurisprudence and the adversarial paradigm—incommensurability and the possibility of a shared disciplinary matrix

Problem-solving courts appear to achieve outcomes that are not common in mainstream courts. There are increasing calls for the adoption of more therapeutic and problem-solving practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and arguably, outside the adversarial paradigm itself. To some extent, this work is tolerated but marginalised. However, do therapeutic and problem-solving functions have the potential to help define, rather than simply complement, the role of judicial officers? The core question addressed in this thesis is whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see—or are we seeing—a juristic paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn? This thesis examines the current relationship between adversarialism and therapeutic jurisprudence in the context of Kuhn’s conception of the transition from periods of ‘normal science’, through periods of anomaly and disciplinary crises to paradigm shifts. It considers whether therapeutic jurisprudence and adversarialism are incommensurable in the Kuhnian sense, and if so, what this means for the relationship between the two, and for the agenda to mainstream therapeutic jurisprudence. The thesis asserts that Kuhnian incommensurability is, in fact, a characteristic of the relationship between adversarialism and therapeutic jurisprudence, but that the possibility of a therapeutic paradigm shift in law can be reconciled with many adversarial and due process principles by relating this incommensurability to a broader disciplinary matrix.

Contemporary comment : is it time for Australia to adopt Circles of Support and Accountability (COSA)?

Circles of Support and Accountability (COSA) - an innovative process for reintegrating child sex offenders into the community after a period of incarceration - have not yet been firmly established in any Australian jurisdiction. This is the case despite their widespread use in Canada, the United Kingdom. and parts of the United States of America, and despite a growing body of research evidence that demonstrates their efficacy in reducing recidivism among child sex offenders. This Contemporary Comment outlines the emergence of COSA and the existing evidence in support of COSA. It argues that COSA should be piloted in Australia.