"Fair" government contracts for community service provision : time to curb unfettered executive freedom?

All Australian governments are significantly increasing the use of contracted community service provision through not for profit (NFP) organisations. These transactions occur through grant arrangements which take the form of standard contracts or deeds rather than drawing on statutory authority. Government inquiries bodies have consistently reported and raised concerns about the fairness of such standard grant contract terms, but failed to provide any mechanism whereby fairness can be assured. The Productivity Commission has suggested that the resulting poor relationship results in inappropriate risk transfer, micro-management, disincentives to innovate and poor service provision. This paper develops and tests a fairness measure based on the principles of the Australian Consumer Law which legislates fairness protections for standard consumer contracts.  

The search for freedom in extreme sports : a phenomenological exploration

Participation in extreme sports is continuing to grow, yet there is still little understanding of participant motivations in such sports. The purpose of this paper is to report on one aspect of motivation in extreme sports, the search for freedom. The study utilized a hermeneutic phenomenological methodology. Fifteen international extreme sport participants who participated in sports such as BASE jumping, big wave surfing, extreme mountaineering, extreme skiing, rope free climbing and waterfall kayaking were interviewed about their experience of participating in an extreme sport. Results reveal six elements of freedom: freedom from constraints, freedom as movement, freedom as letting go of the need for control, freedom as the release of fear, freedom as being at one, and finally freedom as choice and responsibility. The findings reveal that motivations in extreme sport do not simply mirror traditional images of risk taking and adrenaline and that motivations in extreme sports also include an exploration of the ways in which humans seek fundamental human values.

Bayesian modelling of surveillance and proof of freedom : the mathematical, logical & psychological challenges

Keeping exotic plant pests out of our country relies on good border control or quarantine. However with increasing globalization and mobilization some things slip through. Then the back up systems become important. This can include an expensive form of surveillance that purposively targets particular pests. A much wider net is provided by general surveillance, which is assimilated into everyday activities, like farmers checking the health of their crops. In fact farmers and even home gardeners have provided a front line warning system for some pests (eg European wasp) that could otherwise have wreaked havoc. Mathematics is used to model how surveillance works in various situations. Within this virtual world we can play with various surveillance and management strategies to "see" how they would work, or how to make them work better. One of our greatest challenges is estimating some of the input parameters : because the pest hasn't been here before, it's hard to predict how well it might behave: establishing, spreading, and what types of symptoms it might express. So we rely on experts to help us with this. This talk will look at the mathematical, psychological and logical challenges of helping experts to quantify what they think. We show how the subjective Bayesian approach is useful for capturing expert uncertainty, ultimately providing a more complete picture of what they think... And what they don't!

Assessing testamentary and decision-making competence/capacity in the Australian context

Australia lacks a satisfactory, national paradigm for assessing competence and capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Competence/capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon competency/capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. A qualitative study seeking the views of legal and medical professionals who practise in this area has been conducted. This incorporated surveys and interviews of 10 legal and 20 medical practitioners. Some of the results are discussed here. Practitioners were asked whether there is a standard approach and whether national guidelines were desirable. There was general agreement that uniform guidelines for the assessment of competence/capacity would be desirable. The interviews also canvassed views as to the state of the relationship between the professions. The results of the empirical research support the hypothesis that relations between the professions could be improved. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

A meshfree-based local Galerkin method with condensation of degree of freedom

Condensation technique of degree of freedom is firstly proposed to improve the computational efficiency of meshfree method with Galerkin weak form. In present method, scattered nodes without connectivity are divided into several subsets by cells with arbitrary shape. The local discrete equations are established over each cell by using moving kriging interpolation, in which the nodes that located in the cell are used for approximation. Then, the condensation technique can be introduced into the local discrete equations by transferring equations of inner nodes to equations of boundary nodes based on cell. In the scheme of present method, the calculation of each cell is carried out by meshfree method with Galerkin weak form, and local search is implemented in interpolation. Numerical examples show that the present method has high computational efficiency and convergence, and good accuracy is also obtained.

A meshfree-based local Galerkin method with condensation of degree of freedom for elastic dynamic analysis

Condensation technique of degree of freedom is first proposed to improve the computational efficiency of meshfree method with Galerkin weak form for elastic dynamic analysis. In the present method, scattered nodes without connectivity are divided into several subsets by cells with arbitrary shape. Local discrete equation is established over each cell by using moving Kriging interpolation, in which the nodes that located in the cell are used for approximation. Then local discrete equations can be simplified by condensation of degree of freedom, which transfers equations of inner nodes to equations of boundary nodes based on cells. The global dynamic system equations are obtained by assembling all local discrete equations and are solved by using the standard implicit Newmark’s time integration scheme. In the scheme of present method, the calculation of each cell is carried out by meshfree method, and local search is implemented in interpolation. Numerical examples show that the present method has high computational efficiency and good accuracy in solving elastic dynamic problems.

Freedom to choose? Embryo selection, reproductive decision-making and the role of the state

Involving the biopsy of an eight-cell embryo, PGD has been hailed as a means of making reproductive decisions without having to face the heart-wrenching decision to abort an affected foetus. However, controversy around the kinds of traits for which testing can be done, and who has access to the technology, has led to questions about the way in which the technology is developing. Women who are allowed to access in vitro fertilisation (IVF) services can currently also access PGD in limited circumstances.

Assessing capacity in the context of testamentary, enduring power of attorney, and advance care directive documents in Australia

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian population. Legal and medical professionals are increasingly being asked to determine whether individuals are legally capable to make their own testamentary, financial and/or personal/health care decisions. Diseases such as dementia impact upon cognition which necessitates collaboration between the legal and medical professions to satisfactorily assess the effect of such mentally disabling conditions upon legal competency. Terminological and methodological differences exist between the two professions when assessing capacity in this context which subsequently create miscommunication and misunderstanding. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner. Exacerbating the situation is the fact that no consistent and transparent capacity assessment paradigm currently exists in Australia. Assessments are instead being undertaken on an ad hoc basis dependent upon the skill set of the legal and/or medical professionals involved. A qualitative study seeking the views of legal and medical professionals who practise in this area has been conducted. This incorporated a review of the relevant literature and surveys which informed the semi-structured interviews conducted with 10 legal and 20 medical practitioners. Practitioners were asked whether there is a standard approach to assessment and whether national guidelines would assist. The general consensus was that uniform guidelines would be advantageous. The research also canvassed practitioner views as to the state of the relationship between the professions when assessing capacity. Three promising practices have emerged from this research: first, is the need for the development of national guidelines and supporting principles to satisfactorily assess capacity; second, is the possibility of strengthening the relationship between legal and medical professionals to assist in the satisfactory assessment of legal capacity; and third, the need for increased community education.

Use your freedom of choice : reasons for choosing homeschool in Australia

In Australia, the decision to home educate is becoming increasingly popular (cf. Harding & Farrell, 2003; Townsend, 2012). In spite of its increasing popularity, the reasons home education is chosen by Australian families is under-researched (cf. Jackson & Allan, 2010). This paper reports on a case study that set out to explore the links between families that unschool and the parenting philosophies they follow. In- depth, qualitative interviews were conducted with a group of home education families in one of Australia’s most populated cities. Data were analysed using Critical Discourse Analysis. The analysis revealed that there were links between the parents’ beliefs about home education and their adherence to Attachment Parenting.

A fair use project for Australia: Copyright law and creative freedom

This essay provides a critical assessment of the Fair Use Project based at the Stanford Center for Internet and Society. In evaluating the efficacy of the Fair Use Project, it is worthwhile considering the litigation that the group has been involved in, and evaluating its performance. Part 1 outlines the history of the Stanford Center for Internet and Society, and the aims and objectives of the Fair Use Project. Part 2 considers the litigation in Shloss v. Sweeney over a biography concerning Lucia Joyce, the daughter of the avant-garde literary great, James Joyce. Part 3 examines the dispute over the Harry Potter Lexicon. Part 4 looks at the controversy over the Shepard Fairey poster of President Barack Obama, and the resulting debate with Associated Press. Part 5 of the essay considers the intervention of the Fair Use Project as an amicus curiae in the ‘Column case’. Part 6 explores the participation of the Fair Use Project as an amicus curiae in the litigation over 60 Years Later, an unauthorised literary sequel to J.D. Salinger’s The Catcher in the Rye. Part 7 of the essay investigates the role of the Fair Use project in disputes over copyright law and musical works. Part 8 investigates the role of the Fair Use Project as an advocate in disputes over copyright law, fair use, documentary films, and internet videos. The conclusion has main three arguments. First, it contends that Australia should establish a Fair Use Project to support creative artists in litigation over copyright exceptions. Second, it maintains that Australia should adopt a flexible, open-ended defence of fair use, and draw upon the rich jurisprudence in the United States on the fair use doctrine. Finally, this paper argues that support should be given at an international level to the proposal for a Treaty on Access to Knowledge.

The freedom to tinker: Patent law and experimental use

This article considers the origins and the development of the defence of experimental use in patent law - the ’freedom to tinker'. It explores the impact of such an exemption upon a number of important industries - such as agriculture, biotechnology, and pharmaceutical drugs. This article takes a comparative approach in its analysis of patent law and experimental use. It highlights the competing norms, and lack of harmonization between a number of jurisdictions - including the United States, the European Union, and Australia. Section 2 provides a critique of the development of the common law defence of experimental use in the United States. It considers a series of precedents - including Roche Products Inc v Bolar Pharmaceuticals, Madey v Duke University, Integra Lifesciences I Ltd v Merck KgaA, and Applera v MJ Research. Section 3 explores the operation of patent law and experimental use in European jurisdictions. It looks at a number of significant precedents in the United Kingdom, the Netherlands, France, Italy, and Germany. Section 4 considers the policy debate in a number of forums over the defence of experimental use in Australia. It examines the controversy over Genetic Technologies Limited asking research organisations to obtain a licence in respect of its patents associated with non-coding DNA and genomic mapping. It also considers the inquiries of the Australian Law Reform Commission and the Advisory Council on Intellectual Property, as well as the impact of the TRIPS Agreement and the Australia-United States Free Trade Agreement. The conclusion contends that there is a need for a broad-based defence of experimental use for all the member states of the Organisation for Economic Co-operation and Development.