Receivers' future liability for costs

In Juniper Property Holdings No.15 Pty Ltd v Caltabiano [2015] QSC 95, Jackson J considered what he described as a 'novel point' as to whether the court had jurisdiction to make a determination of the liability of receivers and managers appointed to the plaintiff to pay any costs orders that may be made in favour of the defendant.

Hail to the thief: A tribute to Kazaa

This paper considers the ongoing litigation against the peer to peer network Kazaa. Record companies and Hollywood studios have faced jurisdictional and legal problems in suing this network for copyright infringement. As Wired Magazine observes: ’The servers are in Denmark. The software is in Estonia. The domain is registered Down Under, the corporation on a tiny island in the South Pacific. The users - 60 million of them - are everywhere around the world.' In frustration, copyright owners have launched copyright actions against intermediaries - like Internet Service Providers such as Verizon. They have also embarked on filing suits of individual users of file-sharing programs. In addition, copyright owners have called for domestic and international law reform in respect of digital copyright. The Senate Committee on Government Affairs in the United States Congress has reviewed the controversial use of subpoenas in suits against users of file-sharing peer to peer networks. The United States has encouraged other countries to adopt provisions of the Digital Millennium Copyright Act 1998 (US) in bilateral and regional free trade agreements.

Submission on the Hawke Interim Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

There are currently no regulatory mechanisms, laws or policies that specifically provide rights to Indigenous peoples over their Indigenous knowledge and intellectual property. We strongly recommend that the commonwealth take the lead to ensure that national sui generis laws are developed (perhaps to operate initially in areas of Cth jurisdiction, such as IPAs and national parks). The development of such laws should be in tandem with practical guidelines to assist their implementation. A comprehensive, nationally consistent scheme for access to genetic resources, which offers meaningful protection of traditional knowledge and substantive benefit-sharing with Indigenous communities, has to be developed. There are already a range of reports/resources that urge these same reforms and that we direct the Enquiry to again; these include the Voumard Report (2000) – especially Fourmile’s Appendix 10 – “Indigenous Interests”, and Terri Jankes “Our Culture, Our Future (1998).

Environmental Crime and Specialist Courts: The case for a ‘One-Stop (Judicial) Shop’ in Queensland

The increasing international political, public and scientific engagement in matters of environmental sustainability and development has produced a rapidly expanding body of environmental law and policy. The advent of international protocols, directives, and multilateral agreements has occurred concomitantly with the harmonisation of widespread environmental regimes of governance and enforcement within numerous domestic settings. This has created an unprecedented need for environmental legal apparatuses to manage, regulate and adjudicate legislation seeking to protect, sustain and develop global natural habitats. The evolving literature in green criminology continues to explore these developments within discourses of power, harm and justice. Such critiques have emphasised the role of dedicated environmental courts to address environmental crimes and injustices. In this article, we examine the important role of specialist courts in responding to environmental crime, with specific reference to the State of Queensland. We offer a critique of existing processes and practices for the adjudication of environmental crime and propose new jurisdictional and procedural approaches for enhancing justice. We conclude that specialist environmental courts endowed with broad civil and criminal jurisdiction are an integral part of an effective response to environmental crime.

Mandatory reporting laws: Their origin, nature, and development over time

Dozens of countries have enacted mandatory reporting laws in various forms to respond to child abuse and neglect. Other countries including England are currently considering whether to introduce them, and if so in what form. It is important for policymakers, practitioners and researchers to understand these laws’ background, nature and purpose. This chapter outlines the origins and provenance of the first mandatory reporting laws; discusses their nature; describes major developments over time; and identifies some major effects and their consequences. It is shown that the laws are a heterogeneous, organic, flexible mechanism enabling social intervention where otherwise such intervention is severely compromised or impossible. Their primary function is to comprise but one aspect of a multifaceted child welfare system by identifying cases of serious maltreatment which would not otherwise come to light: sexual abuse and severe physical abuse are paradigm examples. The essential role of these laws is therefore primarily a tertiary aspect of a public health model, rather than a purely preventative strategy. Mandatory reporting laws are made by each specific jurisdiction according to its preferred design and function within its socio-political system. There is a spectrum of different approaches from which a jurisdiction can choose: they can apply to a broad or a narrow range of reporter groups, a broad or a narrow range of types of maltreatment, and a broad or a narrow range of instances where abuse or neglect occurs.

Insolvency academics contributing to the review of insolvency laws: An Australian perspective

Introduction 1 It gives me great pleasure to contribute to this publication to honour Professor Ian Fletcher on his retirement as Foundation Chair of the INSOL International Academic Group. A collection of essays that include topics on domestic, cross-border and international insolvency appropriately reflects the breadth of Professor Fletcher’s impact on the scholarship of insolvency law – not only in his “home” jurisdiction of England and Wales and closer to home in Europe, but also stretching around the globe, in this case, to Australia. 2 In the early 1990s when I first began to research in the area of cross-border insolvency law, a colleague mentioned that they had recently attended the XIIIth International Congress of Comparative Law in Montreal in August 1990 and heard the Cross-border Insolvency: General Report expertly delivered by an English academic, Ian Fletcher, who was widely regarded as an authority in the area. This was my first introduction to Professor Fletcher’s work and over the intervening years I have referred often to his scholarship....

A Submission to the Inquiry into the Resale Royalty Right for Visual Artists Bill 2008 (Cth)

A right of resale, or droit de suite (a right to follow), is a legislative instrument under intellectual property law, which enables artists to receive a percentage of the sale price whenever artistic works are resold. A French legal scholar, Albert Vaunois, first articulated the need for a 'droit de suite' in connection with fine art back in 1893. The French Government introduced a scheme to protect the right of resale in 1920, after controversy over artists living in poverty, while public auction houses were profiting from the resale of their artistic creations. In the United States, there has been less support for a right of resale amongst legislatures. After lobbying from artists such as the king of pop art, Robert Rauschenberg, the state of California passed the Resale Royalties Act in 1977. At a Federal level, the United States Congress has shown some reluctance in providing national recognition for a right of resale in the United States. A number of other European countries have established a right of resale. In 2001, the European Council adopted the Artists' Resale directive and recognised that the 'artist's resale right forms an integral part of copyright and is an essential prerogative for authors.' In 2006, the United Kingdom promulgated regulations, giving effect to a right of resale in that jurisdiction. However, a number of Latin American and African countries have established a right of resale. The New Zealand Parliament has debated a bill on a right of resale.

Virtual countries: Internet domain names and geographical terms

This paper examines the dispute between the Seattle company Virtual Countries Inc. and the Republic of South Africa over the ownership of the domain name address southafrica.com. The first part of the paper deals with the pre-emptive litigation taken by Virtual Countries Inc. in a District Court of the United States. The second part considers the possible arbitration of the dispute under the Uniform Domain Name Dispute Resolution Process of the Internet Corporation for Assigned Names and Numbers (ICANN) and examines the wider implications of this dispute for the jurisdiction and the governance of ICANN. The final section of the paper evaluates the Final Report of the Second WIPO Internet Domain Name Process.

Trick or treaty?: The Australian debate over the Anti-Counterfeiting Trade Agreement

The secretive 2011 Anti-Counterfeiting Trade Agreement – known in short by the catchy acronym ACTA – is a controversial trade pact designed to provide for stronger enforcement of intellectual property rights. The preamble to the treaty reads like pulp fiction – it raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trademark law; the regulation of the digital environment; and border measures. Memorably, Susan Sell called the international treaty a TRIPS Double-Plus Agreement, because its obligations far exceed those of the World Trade Organization's TRIPS Agreement 1994, and TRIPS-Plus Agreements, such as the Australia-United States Free Trade Agreement 2004. ACTA lacks the language of other international intellectual property agreements, which emphasise the need to balance the protection of intellectual property owners with the wider public interest in access to medicines, human development, and transfer of knowledge and technology. In Australia, there was much controversy both about the form and the substance of ACTA. While the Department of Foreign Affairs and Trade was a partisan supporter of the agreement, a wide range of stakeholders were openly critical. After holding hearings and taking note of the position of the European Parliament and the controversy in the United States, the Joint Standing Committee on Treaties in the Australian Parliament recommended the deferral of ratification of ACTA. This was striking as representatives of all the main parties agreed on the recommendation. The committee was concerned about the lack of transparency, due process, public participation, and substantive analysis of the treaty. There were also reservations about the ambiguity of the treaty text, and its potential implications for the digital economy, innovation and competition, plain packaging of tobacco products, and access to essential medicines. The treaty has provoked much soul-searching as to whether the Trick or Treaty reforms on the international treaty-making process in Australia have been compromised or undermined. Although ACTA stalled in the Australian Parliament, the debate over it is yet to conclude. There have been concerns in Australia and elsewhere that ACTA will be revived as a ‘zombie agreement’. Indeed, in March 2013, the Canadian government introduced a bill to ensure compliance with ACTA. Will it be also resurrected in Australia? Has it already been revived? There are three possibilities. First, the Australian government passed enhanced remedies with respect to piracy, counterfeiting and border measures in a separate piece of legislation – the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth). Second, the Department of Foreign Affairs and Trade remains supportive of ACTA. It is possible, after further analysis, that the next Australian Parliament – to be elected in September 2013 – will ratify the treaty. Third, Australia is involved in the Trans-Pacific Partnership negotiations. The government has argued that ACTA should be a template for the Intellectual Property Chapter in the Trans-Pacific Partnership. The United States Trade Representative would prefer a regime even stronger than ACTA. This chapter provides a portrait of the Australian debate over ACTA. It is the account of an interested participant in the policy proceedings. This chapter will first consider the deliberations and recommendations of the Joint Standing Committee on Treaties on ACTA. Second, there was a concern that ACTA had failed to provide appropriate safeguards with respect to civil liberties, human rights, consumer protection and privacy laws. Third, there was a concern about the lack of balance in the treaty’s copyright measures; the definition of piracy is overbroad; the suite of civil remedies, criminal offences and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations and remedies. Fourth, there was a worry that the provisions on trademark law, intermediary liability and counterfeiting could have an adverse impact upon consumer interests, competition policy and innovation in the digital economy. Fifth, there was significant debate about the impact of ACTA on pharmaceutical drugs, access to essential medicines and health-care. Sixth, there was concern over the lobbying by tobacco industries for ACTA – particularly given Australia’s leadership on tobacco control and the plain packaging of tobacco products. Seventh, there were concerns about the operation of border measures in ACTA. Eighth, the Joint Standing Committee on Treaties was concerned about the jurisdiction of the ACTA Committee, and the treaty’s protean nature. Finally, the chapter raises fundamental issues about the relationship between the executive and the Australian Parliament with respect to treaty-making. There is a need to reconsider the efficacy of the Trick or Treaty reforms passed by the Australian Parliament in the 1990s.

Linking spatial stock dynamics and economics: Evaluation of indicators and fishery management for the travelling eastern king prawn (Melicertus plebejus)

Reduced economic circumstances havemoved management goals towards higher profit, rather than maximum sustainable yields in several Australian fisheries. The eastern king prawn is one such fishery, for which we have developed new methodology for stock dynamics, calculation of model-based and data-based reference points and management strategy evaluation. The fishery is notable for the northward movement of prawns in eastern Australian waters, from the State jurisdiction of New South Wales to that of Queensland, as they grow to spawning size, so that vessels fishing in the northern deeper waters harvest more large prawns. Bioeconomic fishing data were standardized for calibrating a length-structured spatial operating model. Model simulations identified that reduced boat numbers and fishing effort could improve profitability while retaining viable fishing in each jurisdiction. Simulations also identified catch rate levels that were effective for monitoring in simple within-year effort-control rules. However, favourable performance of catch rate indicators was achieved only when a meaningful upper limit was placed on total allowed fishing effort. Themethods and findings will allow improved measures for monitoring fisheries and inform decision makers on the uncertainty and assumptions affecting economic indicators.

Civil Procedure — Commentary and Materials, 6th Edition

This book provides a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Each chapter features in-depth questions and notes together with lists of further reading to aid understanding of the issue. It also examines and discusses each substantive and procedural step in the trial process. Topics include jurisdiction of a court to consider a matter, alternative dispute resolution, limitations of actions, commencing proceedings, group proceedings, pleading, summary disposition, gathering evidence, affidavits, interlocutory procedures, settlement, trial and appeal, costs Each of the state, territory and federal procedures is covered.

En förutbestämd sanning : Barnamord och delaktighet i 1700-talets Finland belysta genom kön, kropp och social kontroll

The study analyses the prevention or endorsing of the crime of infanticide in Finland 1702 1807, rather than the result. Also the impacts of the female body, biology of childbirth and experiences of pregnancy are examined, together with insights from modern medical research. Circumstances are reconstructed by a critical reading of judicial records on all levels of the judicial system. In all 269 cases of infanticide and 142 accessory crimes within the jurisdiction of the Turku court of appeal are studied, with particular focus on exceptionally well recorded cases of 83 accused women and 41 women and men accused of being party to the crime. Secondary sources are medical and jurisprudential writings, the public debate on infanticide, broadsheets and letters asking the King for pardon. Infanticide was considered murder by law. Unmarried women were predetermined as the main culprits. Nevertheless, deliberate infanticides were rare and committed mostly in accomplice. The majority of the infanticides studied were cases where inexperienced and unmarried women accidentally had given birth alone and usually to a dead child. Unaware that the pain they were experiencing was in fact a labour, the accused women instinctively sought solitude to push out the child. Some misunderstood the birth as an urgent need to defecate. The unexpected delivery ended in hiding the baby without remorse. This crime was promoted by several factors in Finnish rural culture, amongst others that also married women hid their pregnancy. The immediate household members did not necessarily know about the childbirth and failed to help the woman. This typical pattern in most cases of infanticide in 18th century Finland is also recorded in modern cases of unknown pregnancies. Fear of accountability prevented witnesses testifying to the actual course of events. The truth remained elusive. With only a few exceptions, the women were sentenced to death or imprisonment. The majority of those accused of accomplice were acquitted. However, too harsh sentences for accidents affected the reporting of the crime. Criminal politics failed to curtail infanticide as the crime was unsatisfactorily addressed by law, society and the judicial system.

Poisoning for production: how effective is fox baiting in south-eastern Australia?

1. The European red fox Vulpes vulpes represents a continuing threat to both livestock and native vertebrates in Australia, and is commonly managed by setting ground-level baits impregnated with 1080 (sodium fluoroacetate) poison. However, the long-term effectiveness of such control campaigns is likely to be limited due to the ability of foxes to disperse over considerable distances and to swiftly recolonize areas from where they had been removed. 2. To investigate the effectiveness of fox baiting in a production landscape, we assessed the potential for foxes to reinvade baited farm property areas within the jurisdiction of the Molong Rural Lands Protection Board (RLPB), an area of 815 000 ha on the central tablelands of New South Wales, Australia. The spatial distribution and timing of fox baiting campaigns between 1998 and 2002 was estimated from RLPB records and mapped using Geographical Information System software. The effectiveness of the control campaign was assessed on the basis of the likely immigration of foxes from non-baited farms using immigration distances calculated from published relationships between dispersal distance and home range size. 3. Few landholders undertook baiting campaigns in any given year, and the area baited was always so small that no baited property would have been sufficiently far from an unbaited property to have been immune from immigrating individuals. It is likely, therefore, that immigration onto farms negated any long-term effects of baiting operations. This study highlights some of the key deficiencies in current baiting practices in south-eastern Australia and suggests that pest management programmes should be monitored using such methods to ensure they achieve their goals.

Electricity pricing in New Zealand and the Australian State of Queensland: Accounting for the impact of sector restructuring

The electricity industries of New Zealand (NZ) and the Australian state of Queensland have undergone substantial structural and regulatory reform with the common intent to improve economic efficiency. Deregulation and privatisation have been key elements of the reform but have been approached differently by each jurisdiction. This study traces the link between structural and regulatory regimes and asset valuation, profits and, ultimately, pricing. The study finds that key drivers in recent price increases are the government-owned generation and retail sector in NZ and the government-owned distribution sector in Queensland. It is concluded that, contrary to the rationale for the imposition of regulatory controls in a nonmarket environment, the regulatory regimes appear to have contributed to higher rather than lower pricing structures.

Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this chapter, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.