Speaking too soon : the sabotage of bail reform in New South Wales

Within just over one month of coming into operation in May 2014, the new Bail Act 2013 (NSW), a product of long-term law reform consideration, was reviewed and then amended after talk-back radio ‘shock jock’ and tabloid newspaper outcry over three cases. This article examines the media triggers, the main arguments of the review conducted by former New South Wales (NSW) Attorney General John Hatzistergos, and the amendments, with our analysis of the judicial interpretation of the Act thus far providing relevant background. We argue that the amendments are premature, unnecessary, create complexity and confusion, and, quite possibly, will have unintended consequences: in short, they are a mess. The whole process of reversal is an example of law and order politics driven by the shock jocks and tabloid media, the views of which, are based on fundamental misconceptions of the purpose of bail and its place in the criminal process, resulting in a conflation of accusation, guilt and punishment. Other consequences of the review and amendments process recognised in this article include the denigration of judicial expertise and lack of concern with evidence and process; the disproportionate influence of the shock jocks, tabloids and Police Association of NSW on policy formation; the practice of using retired politicians to produce ‘quick fix’ reviews; and the political failure to understand and defend fundamental legal principles that benefit us all and are central to the maintenance of a democratic society and the rule of law. The article concludes with some discussion of ways in which media and political debate might be conducted to produce more balanced outcomes.

Integrated reporting and directors’ concerns about personal liability exposure: Law reform options

Integrated reporting () holds significant promise as a new reporting paradigm that is holistic, strategic, responsive, material, and relevant across multiple time frames. However, its uptake in Australia is being hampered by directors’ concerns about personal liability exposure, particularly for forward-looking statements that subsequently prove to be unfounded. This article seeks to illuminate the bases for these liability concerns by outlining the similarities between and the operating and financial review requirements under the Corporations Act 2001 (Cth), and the relevant grounds for liability for misleading and deceptive disclosures, and breach of directors’ duties. In light of this discussion, this article proposes four possible reform options, ranging from minor adaptations to the Framework to far-reaching reforms of the Corporations Act. As assurance is desirable to ensure that reliance can be placed on integrated reports, the development of a legal safe harbour for auditors of forward-looking information is also canvassed.

The Jean Chretien Pledge to Africa act: Patent law and humanitarian aid

This article evaluates the implementation of the WTO General Council Decision in 2003, which resolved that developed nations could export patented pharmaceutical drugs to member states in order to address public health issues - such as HIV/AIDS, tuberculosis, malaria and other epidemics. The Jean Chretien Pledge to Africa Act 2004 (Canada) provides authorisation for the export of pharmaceutical drugs from Canada to developing countries to address public health epidemics. The European Union has issued draft regulations governing the export of pharmaceutical drugs. A number of European countries - including Norway, the Netherlands, France, and Switzerland - are seeking to pass domestic legislation to give force to the WTO General Council Decision. Australia has shown little initiative in seeking to implement such international agreements dealing with access to essential medicines. It is argued that Australia should implement humanitarian legislation to embody the WTO General Council Decision, emulating models in Canada, Norway, and the European Union. Ideally, there should be no right of first refusal; the list of pharmaceutical drugs should be open-ended; and the eligible importing countries should not be limited to members of the WTO.

Blame it on Rio: Biodiscovery, native title, and traditional knowledge

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter-locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular, it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, informed consent, benefit-sharing, and ministerial discretion. The use of Indigenous Land Use Agreements in the context of access to genetic resources is also explored. Part 2 considers the role played by native title law in dealing with tangible and intangible property interests. The High Court decision in Western Australia v Ward considers the relationship between native title rights and cultural knowledge. The Federal Court case of Neowarra v Western Australia provides an intriguing gloss on this High Court decision. Part 3 looks at whether traditional knowledge of biodiversity can be protected under intellectual property law. It focuses upon reforms such as Senator Aden Ridgeway's proposed amendments to the Plant Breeder's Rights Act 1994 (Cth), and the push to make disclosure of origin a requirement of patent law.

Collective land system in China: Congenital flaw or acquired irrational weakness?

With the level of urbanization in China now exceeding 50%, its collective rural land system is under increasing pressure, creating conditions in which there is increasing conflict between the efficient use of land for agricultural purposes and its retention as security for the rural population. This paper first examines the fundamental nature of China's collective land system by analyzing the collectivization history of China, then provides a comprehensive appraisal of the strengths and weaknesses of the collective land system's role in history and the challenges it faces in modern times. The main changes needed for the current collective system are identified as (1) the establishment of a new transfer mechanism for potential collective construction land, (2) the completion of land rights verification and consolidation work, and (3) the endowment of villagers with more rights to enjoy the distribution of land incremental value. The paper's main contribution is to question the relevance of collective rural land system in contemporary China, where a shift is now taking place from one of pure economic development to one involving more social concerns, and propose potential viable amendments to integrate the need for both perspectives.

Litigiousness in Japan: Land of the rising law suit?

For over two decades, Japanese politicians and bureaucrats have struggled to resurrect a lifeless economy. With the 1990s marred by crippling financial crisis, a spate of corporate insolvencies, ongoing scandals in Japan’s premier economic ministries, rising unemployment and low to negative growth, policy-makers responded with successive legislative reforms aimed at restructuring public administration and private governance of the economy. The Big Bang financial reforms, large-scale reform of Japanese corporate law, and a restructured bureaucracy are representative examples of this reform effort.

Submission on NSW Attorney-General's Discussion Paper on Amendment of Limitation of Actions Act 1969 to remove time limit for civil claims for child abuse

The New South Wales Attorney-General and Justice Policy Division released a Discussion Paper about reform of the Limitation of Actions Act 1969. The key question was whether and how to amend the statute to better provide access to justice for civil claimants in child abuse cases. This submission draws on published literature and multidisciplinary research to support the Discussion Paper's Option A, namely, to abolish the time limit for civil claims for injuries in criminal child abuse cases, and for this to be made retrospective.

Submission to Queensland Law Reform Commission WP 73 Review of Child Protection Mandatory Reporting Laws for the Early Childhood Education and Care Sector

In 2015 the QLRC is conducting an inquiry into whether to extend legislative mandatory reporting duties for physical abuse and sexual abuse to early childhood education and care practitioners. The current legislation does not require these practitioners to report suspected cases of significant harm from physical or sexual absue to child welfare agencies. Based on the literature, and a multidisciplinary analysis, our overall recommendation is that we endorse the extension to selected early childhood education and care practitioners of Queensland’s current mandatory reporting duty in the Child Protection Act 1999 s 13E.

Inconsistencies in and the inadequacies of the family counselling and FDR confidentiality and admissibility provisions: The need for reform

In this article the author discusses issues arising from counselling and family dispute resolution (FDR) in relation to confidentiality and admissibility, such as whether an admission of abuse to a child, or a threat to harm the other parent, can be disclosed by the counsellor or family dispute resolution practitioner (FDRP) and used in court proceedings. It is found that the admissibility provisions in the Family Law Act 1975 (Cth) are far more narrowly defined than the confidentiality requirements and have been interpreted strictly by the courts. There are competing policy considerations: the strict “traditionalist” approach, that people can have absolute faith in the integrity of counsellors and mediators and in the confidential nature of the process, must be balanced against a more “protectionist” stance, being the individual rights of victims to have all relevant information placed before the court and to be protected from violence and abuse. It is suggested that legislative reform is required to ensure that courts balance these considerations appropriately and don’t compromise the safety of victims of abuse and family violence.

Central America: Labor Reports and Child Labor Reports Pursuant to the Trade Act of 2002, Section 2102(c)(8)-(9)

[Excerpt] These comments are in response to the “Request for Information Concerning Labor Rights in Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua and their Laws Governing Exploitative Child Labor” published at 68 Fed. Reg. 19580 (April 21, 2003). This Request for Information was issued pursuant to Section 2102(c)(8) and (9) of the Trade Act of 2002, Pub. L. 107-210, which requires the President, with respect to any proposed trade agreement, to submit to Congress a “meaningful labor rights report” and a “report describing the extent to which the country or countries that are parties to the agreement have in effect laws governing exploitative child labor.”

Sustainable Grazing in the Channel Country Floodplains (phase 2) : A technical report on findings between March 2003 and June 2006

‘Sustainable Grazing in the Channel Country Floodplains’ was initiated by industry to redress the lack of objective information for sustainable management in the floodplains of Cooper Creek and the Diamantina and Georgina Rivers. The project has maintained links with the grazing community and has extensively drawn upon expert local experience and knowledge. The project has provided tools for managers to better anticipate the size of beneficial flooding arising from rains in the upper catchment and to more objectively assess the value of the pasture resulting from flooding. The latest information from the project has enabled customisation of the EDGENetwork™ Grazing Land Management training package for the Channel Country. In combination, these tools will assist in making earlier cattle stocking decisions, including when cattle may need to be mustered out of floodplain paddocks, how many additional cattle will be required to take advantage of the flood–grown pasture, and the timing of cattle turnoff. These will reduce costs by providing a greater lead time to plan cattle movements and purchases, and may enhance the sustainability of the resource base by better matching cattle numbers with the feed on offer.

Suomen maatalouden tuottamat kasvihuonekaasujen päästöt eri politiikkaskenaarioissa

Climate change is the single biggest environmental problem in the world at the moment. Although the effects are still not fully understood and there is considerable amount of uncertainty, many na-tions have decided to mitigate the change. On the societal level, a planner who tries to find an eco-nomically optimal solution to an environmental pollution problem seeks to reduce pollution from the sources where reductions are most cost-effective. This study aims to find out how effective the instruments of the agricultural policy are in the case of climate change mitigation in Finland. The theoretical base of this study is the neoclassical economic theory that is based on the assumption of a rational economic agent who maximizes his own utility. This theoretical base has been widened towards the direction clearly essential to the matter: the theory of environmental eco-nomics. Deeply relevant to this problem and central in the theory of environmental economics are the concepts of externalities and public goods. What are also relevant are the problems of global pollution and non-point-source pollution. Econometric modelling was the method that was applied to this study. The Finnish part of the AGMEMOD-model, covering the whole EU, was used for the estimation of the development of pollution. This model is a seemingly recursive, partially dynamic partial-equilibrium model that was constructed to predict the development of Finnish agricultural production of the most important products. For the study, I personally updated the model and also widened its scope in some relevant matters. Also, I devised a table that can calculate the emissions of greenhouse gases according to the rules set by the IPCC. With the model I investigated five alternative scenarios in comparison to the base-line scenario of Agenda 2000 agricultural policy. The alternative scenarios were: 1) the CAP reform of 2003, 2) free trade on agricultural commodities, 3) technological change, 4) banning the cultivation of organic soils and 5) the combination of the last three scenarios as the maximal achievement in reduction. The maximal achievement in the alternative scenario 5 was 1/3 of the level achieved on the base-line scenario. CAP reform caused only a minor reduction when com-pared to the base-line scenario. Instead, the free trade scenario and the scenario of technological change alone caused a significant reduction. The biggest single reduction was achieved by banning the cultivation of organic land. However, this was also the most questionable scenario to be real-ized, the reasons for this are further elaborated in the paper. The maximal reduction that can be achieved in the Finnish agricultural sector is about 11 % of the emission reduction that is needed to comply with the Kyoto protocol.

Traditionally Protected Forests and Sacred Forests of Zigua and Gweno Ethnic Groups in Tanzania

In Tanzania, indigenous forests can still be found whose existence is based on the management systems of precolonial society. This study covers material from over 900 forests. There are similar types of forests elsewhere in Africa, and similar forests can also be found in indigenous cultures on every continent. In this study they are called traditionally protected forests (TPFs). They have a high level of endemism and a rich biodiversity. The field study was carried out during the years 1997-2003 using participatory methods. An active debate is going on concerning the capacity of local communities to manage their environment. The role of indigenous people and their institutions in the development of the physical environment is a central issue in the debate. This study discusses the opportunities that the local people have had to decide on how to conserve, maintain, utilise, and manage their environment during different political periods. The study explains what kinds of changes have taken place in these forests and institutions in northeastern Tanzania among the matrilinear Zigua and patrilinear Gweno ethnic groups. About 2% of the land area of the communities was still protected by the precolonial structures. The communities have established their protection systems for different reasons, not only because of their beliefs but also because of different secular and clearly environmentally motivated reasons. There are different TPF types. Less than half of them are directly related to spirituality, and more than half are not. In earlier research elsewhere, it has been commonly understood that spiritual reasons played the main role in the protection of these environments. This study is also part of the postcolonial geographical discussion on the precolonial landscape and environmental management which was started by Carl Sauer. In the Zigua case study villages, only two out of five first comer clans have performed rain rituals in the past 30 years. Many of the most respected sacred sites do not have a ritual maker or even a person who knows how to perform rituals any longer. The same is happening with male initiation rites. In all case study villages there have been illegal cuts in the TPFs, but variations can be seen between the communities. The number of those who neither respect indigenous regulations nor accept indigenous penalties is growing. Positive developments have also taken place. Nowadays, the Forest Act of 2002 is in effect, which works as a cornerstone of community-based land ownership and also allows elders to protect TPFs, and by-laws are created with the support of different projects. Moreover, during the field study it was found that many young people are ignorant about their village's TPF sites, but interested in learning about their history and values.

Child Abuse and Neglect: A Socio-legal Study of Mandatory Reporting in Australia - Report for the ACT Government

This report presents the results of a study exploring the law and practice of mandatory reporting of child abuse and neglect in the Australian Capital Territory. Government administrative data over a decade (2003-2012) were accessed and analysed to map trends in reporting of different types of child abuse and neglect (physical abuse, sexual abuse, emotional abuse, and neglect) by different reporter groups (both mandated reporters e.g., police, teachers, doctors, nurses depending on the jurisdiction, and non-mandated reporters e.g., family members, neighbours, depending on the jurisdiction), and the outcomes of these reports (whether investigated, and whether substantiated or not). The study was funded by the Australian Government and administered through the Government of Victoria.