A.R.T., surrogacy and legal parentage : a comparative legislative review

This is one of three Occasional Papers published by the Victorian Law Reform Commission as part of the Commission's work on assisted reproduction and adoption. A central issue which arises in the context of assisted reproduction is how to recognise and protect the best interests of children who are conceived through assisted reproduction. The three Occasional Papers deal with different aspects of this question. This Paper examines how laws in the other Australian states, and in the United States, United Kingdom and Canada regulate access to assisted reproduction, control the use of surrogacy and deal with issues relating to parentage of children conceived through assisted reproduction. Generally, this legislation gives priority to protecting the best interests of children, but the way in which this is done varies considerably.

Intellectual property, creativity and innovation : IP models and the political economy of developing Asia

In advanced capitalist societies, intellectual property laws protecting such subject matter as copyright and patents are justified by a combination of theories, which include the provision of economic incentives to foster creativity and innovation and the prevention of unfair competition. IP academics and policy makers have differing views about the appropriate balance between these objectives and public interest considerations such as health, education and the protection of the environment. These different views entered the policy debate in Asian developing countries in connection with an unprecedented introduction and expansion of IP laws over the last 25 years. This paper will use case studies of law reform from Asia, in particular Southeast Asia, to show that the policy considerations of governments in reforming their laws were often quite different from the standard rationale mentioned above. As much of the IP was, at least initially, held by foreigners and introduced to attract foreign investment, national development considerations were joined with the more commonly quoted objectives to promote the rights, creativity and innovation of individuals. Such national development objectives at times coincided and at other times collided with official explanations and received wisdom about the effects of stronger IP rights.

Especially in the early postcolonial period, copyright laws and other IP laws were frequently restricted or simply not implemented, if they conflicted with development policies in areas such as education or public health. Such policies were slowly changing in the wake of WTO-TRIPS and other international agreements. Nevertheless, the implementation and enforcement of the IP laws has been uneven. Specialised institutions such as courts and IP administering agencies compete with other branches of government and administration for limited funding and a rich repertoire of informal dispute settlement procedures has kept the number of court cases relatively low. In some countries, censorship laws have influenced freedom of expression and led to quite idiosyncratic interpretations of intellectual property laws. Governments often also retain a role in the assessment of licensing and technology transfer contracts. And while there are many programs to foster individual creativity, in most cases R & D activities are still largely taking place in government institutions and this has influenced the thinking about intellectual property rights and creativity in the context of employment.

The paper uses a few case studies to examine the implementation of IP laws in selected Asian developing countries to point to the quite different institutional setting for IP law reform in comparison to European or American models. It reaches some tentative conclusions as to the likely effects on creativity and innovation under these different circumstances.

ID scanning, the media and the politics of urban surveillance in an Australian regional city

Computerised ID scanning technologies have permeated many urban night-time economies in Australia, the United States, Canada and the United Kingdom. This paper documents how one media organisation’s overt and tacit approval of ID scanners helped to normalise this form of surveillance as a precondition of entry into most licensed venues in the Australian city of Geelong. After outlining how processes of governance “from above” and “from below” interweave to generate distinct political and media demands for strategies to prevent localised crime problems, a chronological reconstruction of media reports over a three-and-a half year period demonstrates how ID scanning became the centrepiece of a holistic reform strategy to combat alcohol-related violence in this nightclub precinct. Several discursive techniques helped to normalise this “technological fix”, while suppressing critical discussion of viable concerns over information privacy, data security and system networking. These
included pairing reports of an initial “signal crime” with examples of “virtual victimhood” to stress the urgency of a radical surveillance-based response, which was supported by anecdotal statements from key “primary definers” highlighting the success of this initiative in targeting a wider population of antisocial “others”. The implications of these reporting practices are discussed in light of the media’s central role in reforming the Geelong night-time economy and broader trends in using novel surveillance technologies to combat urban crime problems at the expense of alternative measures that protect individual liberty.

‘Till death do us part : judging the men who kill their intimate partners

This paper examines the construction of masculinity in judge’s sentencing remarks across seventeen cases of male perpetrated intimate femicide sentenced between March 2005 and May 2007 in the Victorian Supreme Court. Using a narrative analysis of sentencing transcripts it investigates how ideal understandings of hegemonic masculinity are used in judicial decision making to condemn or sympathise with male offenders of intimate femicide. The findings illustrate the profound influence that traditional understandings of masculinity and fatherhood still have on current sentencing practises despite the current climate of homicide law reform both within Australia and overseas. Whilst this paper did not directly assess the impact of recent homicide law reforms, specifically provocation, it is explicitly concerned with the continued influence of gender norms and bias at the sentencing stage of the legal process. As such, it provides a preliminary illustration of the key role that judges play in advocating or rejecting change within the criminal justice system, and more broadly legitimising attitudes about male violence against women throughout society. In condoning the use of extreme violence, in any context, judges send a message to society that such behaviour is either generally or specifically acceptable and accommodated within a legal framework.

Provocation in New South Wales : the need for abolition

Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice, and, specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

Divergent directions in reforming legal responses to lethal violence

Over the past three decades, debates about legal reforms to lethal violence have been evident across Australia and in other jurisdictions. While these debates have often arisen from shared concerns, the resulting reforms have taken different approaches to reformulating the defences to murder. This article considers the divergent approaches taken to reform and the process of law reform itself, documenting the significance of localised histories and high profile cases. It also questions whether reforms to the defences to murder have responded adequately to the varying contexts within which men and women kill. The analysis reveals the limitations of law reform inquiries that fail to take a comprehensive approach to considering the operation of the laws in this area. The article calls for ongoing critical analysis of homicide within and beyond the law.

Murder or manslaughter? NSW ponders the provocation problem

In Parliament last week, NSW took steps towards better understanding, and potentially solving, the problems posed by the partial defence of provocation. This comment analyses key arguments presented to the Parliamentary Select Committee for the retention and abolition of the partial defence of provocation.

Legal loophole protecting violent men : why the defence of provocation needs to change

This comment analyses the successful use of the provocation defence in New South Wales in cases of male perpetrated intimate homicide. In doing so, it makes an argument for why the defence should be abolished.

Time to act - provocation must be rejected as an excuse for murder

This opinion piece provides an argument for why the Select Committee of the New South Wales Parliamentary Inquiry into the partial defence of provocation should reccomend abolition of this controversial partial defene to murder. 

The possibility of regulating for obesity prevention - understanding regulation in the Commonwealth Government

A complex regulatory package is likely to be necessary to effectively reduce obesity prevalence in developed countries. This study investigated the barriers and facilitators to implementing regulatory interventions to prevent obesity within the executive arm of the Australian Commonwealth Government. Policy reviews were conducted on nine government departments to understand their roles and interests in obesity. From this process we identified regulatory review carried out by the Office of Best Practice Regulation as possibly posing a barrier to law reform for obesity prevention, along with the complexity of the food policymaking structures. The policy reviews informed subsequent in-depth semi-structured interviews with senior Commonwealth government officers (n = 13) focused on refining our understanding of the barriers to enacting obesity prevention policy. In addition to the two barriers already identified, interviewees identified a lack of evidence for interventions, which would reduce obesity prevalence, and the influence of politicians on executive decisions as posing obstacles. Most interviewees believed that the barriers to regulating to prevent obesity were strong and that intervention by elected politicians would be the most likely method of implementing obesity prevention policy.