The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

The mandatory notification of data breaches : issues arising for Australian and EU legal developments

Public and private sector organisations are now able to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other jurisdictions. This article reviews US, Australian and EU legal developments regarding the mandatory notification of data breaches. The authors highlight areas of concern based on the extant US experience that require further consideration in Australia and in the EU.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

Subjective blur limits for higher order aberrations

Purpose: We compared subjective blur limits for defocus and the higher-order aberrations of coma, trefoil, and spherical aberration. ---------- Methods: Spherical aberration was presented in both Zernike and Seidel forms. Black letter targets (0.1, 0.35, and 0.6 logMAR) on white backgrounds were blurred using an adaptive optics system for six subjects under cycloplegia with 5 mm artificial pupils. Three blur criteria of just noticeable, just troublesome, and just objectionable were used.---------- Results: When expressed as wave aberration coefficients, the just noticeable blur limits for coma and trefoil were similar to those for defocus, whereas the just noticeable limits for Zernike spherical aberration and Seidel spherical aberration (the latter given as an “rms equivalent”) were considerably smaller and larger, respectively, than defocus limits.---------- Conclusions: Blur limits increased more quickly for the higher order aberrations than for defocus as the criterion changed from just noticeable to just troublesome and then to just objectionable.

Governmentality and the reflection of legal educators : assessment practices as a case study

This paper presents a conceptual framework, informed by Foucault’s work on governmentality, which allows for new kinds of reflection on the practice of legal education. Put simply, this framework suggests that legal education can be understood as a form of government that relies on a specific rationalisation and programming of the activities of legal educators, students, and administrators, and is implemented by harnessing specific techniques and bodies of ‘know-how’. Applying this framework to assessment at three Australian law schools, this paper highlights how assessment practices are rationalised, programmed, and implemented, and points out how this government shapes students’ legal personae. In particular, this analysis focuses on the governmental effects of pedagogical discourses that are dominant within the design and scholarship of legal education. It demonstrates that the development of pedagogically-sound regimes of assessment has contributed to a reformulation of the terrain of government, by providing the conditions under which forms of legal personae may be more effectively shaped, and extending the power relations that achieve this. This analysis provides legal educators with an original way of reflecting on the power effects of teaching the law, and new opportunities for thinking about what is possible in legal education.

Entertainment industries at university : designing a curriculum

Universities have not traditionally trained students to work as producers in the entertainment industries. This key entertainment role involves balancing creativity, business and legal skills in order to generate and run entertainment projects. Queensland University of Technology has recently introduced a program to train students for these jobs. The program is interdisciplinary, drawing on expertise from the Creative Industries, Law and Business faculties. This Scholarship of Teaching and Learning (SOTL) article details the course learning outcomes developed from extensive industry and academic consultation, and addresses some of the difficulties involved in developing such an interdisciplinary teaching program.

12 fingers or one, it’s how you play? Genetic discrimination in the Australian workforce

For quite some time, debate has raged about what the human race can and should do with its knowledge of genetics. We are now nearly 60 years removed from the work of Watson and Crick who determined the structure of deoxyribonucleic acid (DNA), yet our opinions as how best to employ scientific knowledge of the human genome, remain as diverse and polarised as ever. Human judgment is often shaped and coloured by popular media and culture, so it should come as no surprise that box office movies such as Gattaca (1997) continue to play a role in informing public opinion on genetics. In order to perform well at the box office, movies such as Gattaca take great liberty in sensationalising (and even distorting) the implications that may result from genetic screening and testing. If the public’s opinion on human genetics is strongly derived from the box office and popular media, then it is no wonder that the discourse on human genetics is couched in the polar parlances of future utopias or future dystopias. When legislating in an area like genetic discrimination in the workforce, we must be mindful of not overplaying the causal link between genetic predisposition towards a disability and an employee’s ability to perform the inherent requirements of their job. Genetic information is ultimately about people, it is not about genes. Genetic discrimination is ultimately about actions, it is not about the intrinsic value of genetic information.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

The Australian response to climate change : business as usual or legal innovation?

Through international agreement to the United Nations Framework Convention on Climate Change and the Kyoto Protocol the global community has acknowledged that climate change is a global problem and sought to achieve reductions in global emissions, within a sufficient timeframe, to avoid dangerous anthropogenic interference with the climate system. The sheer magnitude of emissions reductions required within such an urgent timeframe presents a challenge to conventional regulatory approaches both internationally and within Australia. The phenomenon of climate change is temporally and geographically challenging and it is scientifically complex and uncertain. The purpose of this paper is to analyse the current Australian legal response to climate change and to examine the legal measures which have been proposed to promote carbon trading, energy efficiency, renewable energy, and carbon sequestration initiatives across Australia. As this paper illustrates, the current Australian approach is clearly ineffective and the law as it stands overwhelmingly inadequate to address Australia’s emissions and meet the enormity of the challenges posed by climate change. Consequently, the government should look towards a more effective legal framework to achieve rapid and urgent transformations in the selection of energy sources, energy use and sequestration initiatives across the Australian community.

Analysis of cardiac and epileptic signals using higher order spectra

The theory of nonlinear dyamic systems provides some new methods to handle complex systems. Chaos theory offers new concepts, algorithms and methods for processing, enhancing and analyzing the measured signals. In recent years, researchers are applying the concepts from this theory to bio-signal analysis. In this work, the complex dynamics of the bio-signals such as electrocardiogram (ECG) and electroencephalogram (EEG) are analyzed using the tools of nonlinear systems theory. In the modern industrialized countries every year several hundred thousands of people die due to sudden cardiac death. The Electrocardiogram (ECG) is an important biosignal representing the sum total of millions of cardiac cell depolarization potentials. It contains important insight into the state of health and nature of the disease afflicting the heart. Heart rate variability (HRV) refers to the regulation of the sinoatrial node, the natural pacemaker of the heart by the sympathetic and parasympathetic branches of the autonomic nervous system. Heart rate variability analysis is an important tool to observe the heart's ability to respond to normal regulatory impulses that affect its rhythm. A computerbased intelligent system for analysis of cardiac states is very useful in diagnostics and disease management. Like many bio-signals, HRV signals are non-linear in nature. Higher order spectral analysis (HOS) is known to be a good tool for the analysis of non-linear systems and provides good noise immunity. In this work, we studied the HOS of the HRV signals of normal heartbeat and four classes of arrhythmia. This thesis presents some general characteristics for each of these classes of HRV signals in the bispectrum and bicoherence plots. Several features were extracted from the HOS and subjected an Analysis of Variance (ANOVA) test. The results are very promising for cardiac arrhythmia classification with a number of features yielding a p-value < 0.02 in the ANOVA test. An automated intelligent system for the identification of cardiac health is very useful in healthcare technology. In this work, seven features were extracted from the heart rate signals using HOS and fed to a support vector machine (SVM) for classification. The performance evaluation protocol in this thesis uses 330 subjects consisting of five different kinds of cardiac disease conditions. The classifier achieved a sensitivity of 90% and a specificity of 89%. This system is ready to run on larger data sets. In EEG analysis, the search for hidden information for identification of seizures has a long history. Epilepsy is a pathological condition characterized by spontaneous and unforeseeable occurrence of seizures, during which the perception or behavior of patients is disturbed. An automatic early detection of the seizure onsets would help the patients and observers to take appropriate precautions. Various methods have been proposed to predict the onset of seizures based on EEG recordings. The use of nonlinear features motivated by the higher order spectra (HOS) has been reported to be a promising approach to differentiate between normal, background (pre-ictal) and epileptic EEG signals. In this work, these features are used to train both a Gaussian mixture model (GMM) classifier and a Support Vector Machine (SVM) classifier. Results show that the classifiers were able to achieve 93.11% and 92.67% classification accuracy, respectively, with selected HOS based features. About 2 hours of EEG recordings from 10 patients were used in this study. This thesis introduces unique bispectrum and bicoherence plots for various cardiac conditions and for normal, background and epileptic EEG signals. These plots reveal distinct patterns. The patterns are useful for visual interpretation by those without a deep understanding of spectral analysis such as medical practitioners. It includes original contributions in extracting features from HRV and EEG signals using HOS and entropy, in analyzing the statistical properties of such features on real data and in automated classification using these features with GMM and SVM classifiers.

Striving to realise the European idea : judging the news media’s accounts of how the Berlin Wall gave impetus to a new order across Europe

The 1990 European Community was taken by surprise, by the urgency of demands from the newly-elected Eastern European governments to become member countries. Those governments were honouring the mass social movement of the streets, the year before, demanding free elections and a liberal economic system associated with “Europe”. The mass movement had actually been accompanied by much activity within institutional politics, in Western Europe, the former “satellite” states, the Soviet Union and the United States, to set up new structures – with German reunification and an expanded EC as the centre-piece. This paper draws on the writer’s doctoral dissertation on mass media in the collapse of the Eastern bloc, focused on the Berlin Wall – documenting both public protests and institutional negotiations. For example the writer as a correspondent in Europe from that time, recounts interventions of the German Chancellor, Helmut Kohl, at a European summit in Paris nine days after the “Wall”, and separate negotiations with the French President, Francois Mitterrand -- on the reunification, and EU monetary union after 1992. Through such processes, the “European idea” would receive fresh impetus, though the EU which eventuated, came with many altered expectations. It is argued here that as a result of the shock of 1989, a “social” Europe can be seen emerging, as a shared experience of daily life -- especially among people born during the last two decades of European consolidation. The paper draws on the author’s major research, in four parts: (1) Field observation from the strategic vantage point of a news correspondent. This includes a treatment of evidence at the time, of the wishes and intentions of the mass public (including the unexpected drive to join the European Community), and those of governments, (e.g. thoughts of a “Tienanmen Square solution” in East Berlin, versus the non-intervention policies of the Soviet leader, Mikhail Gorbachev). (2) A review of coverage of the crisis of 1989 by major news media outlets, treated as a history of the process. (3) As a comparison, and a test of accuracy and analysis; a review of conventional histories of the crisis appearing a decade later.(4) A further review, and test, provided by journalists responsible for the coverage of the time, as reflection on practice – obtained from semi-structured interviews.

Parliamentary committees are important in developing policy: evidence from a Queensland case study

Abstract This paper uses a case study to identify the impact of a Queensland parliamentary committee on policy. In 2003, the Travelsafe Committee undertook two inquiries investigating young driver and rider issues. In 2007, the Queensland Parliament passed legislation that provided the power to make regulations that changed the graduated driver licensing laws in Queensland. The analysis of the second reading speeches for this bill suggests that parliamentary committees can help set the agenda for government policy. The role of the Travelsafe Committee in this process was recognised by both government and non-government members of Parliament and by those that had been, or were currently, members of the committee and by those that had no membership experience of the Travelsafe Committee prior to the debate of the legislation. This paper suggests that in order for committees to successfully participate in policy work they need to have strong ideas, work to a consistently high standard and the chair needs to be dedicated to the work of the committee. This case study indicates the importance of parliamentary committees in the policy work of a parliament.

Catch me if you can : the effective service of bankruptcy documents in a changing world

This article discusses some recent judicial decisions to assist legal practitioners to overcome some of the problems encountered when serving Bankruptcy Notices and Creditor’s Petitions. Some of the issues covered in the discussion are: What the valid last-known address of the debtor can be, whether a Bankruptcy Notice can be validly served by email on a debtor who is located outside Australia, whether service of a Bankruptcy Notice is valid when the debtor is outside Australia when service on the debtor occurs in Australia, whether the creditor’s failure to obtain leave for service of a Bankruptcy Notice can be excused, what can be done regarding personal service of a Creditor’s Petition when a debtor is outside Australia and whether the Court can set aside a sequestration order. The article goes on to place the issues in the context of broader bankruptcy policies noting that effective service of bankruptcy documents is challenging in a world where mobility of debtors is global and new modes of communication ever changing.

Delivering value for money in the procurement of public sector major infrastructure : a new first-order decision making model

The significant challenge faced by government in demonstrating value for money in the delivery of major infrastructure resolves around estimating costs and benefits of alternative modes of procurement. Faced with this challenge, one approach is to focus on a dominant performance outcome visible on the opening day of the asset, as the means to select the procurement approach. In this case, value for money becomes a largely nominal concept and determined by selected procurement mode delivering, or not delivering, the selected performance outcome, and notwithstanding possible under delivery on other desirable performance outcomes, as well as possibly incurring excessive transaction costs. This paper proposes a mind-set change in this particular practice, to an approach in which the analysis commences with the conditions pertaining to the project and proceeds to deploy transaction cost and production cost theory to indicate a procurement approach that can claim superior value for money relative to other competing procurement modes. This approach to delivering value for money in relative terms is developed in a first-order procurement decision making model outlined in this paper. The model developed could be complementary to the Public Sector Comparator (PSC) in terms of cross validation and the model more readily lends itself to public dissemination. As a possible alternative to the PSC, the model could save time and money in preparation of project details to lesser extent than that required in the reference project and may send a stronger signal to the market that may encourage more innovation and competition.