Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the child's best interests. His Honour did, however, find that due to the way in which particular provisions of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the 'parent' of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of 'father', and in some jurisdictions 'parent', rather than merely being a 'donor'.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

Selection, exclusion and assimilation: the project lambert of 1931 on the reform of French immigration policy

The unemployment crisis of 1926-7 focused attention onto the question of immigration. Historians of this period have generally focused on the crisis of public policy and popular antipathies towards foreigners; more recently historians have become attuned to voices of racism. Less attention has been paid to attempts to redress the policy weaknesses through a new legislative regime on immigration. This paper reviews one such proposal, made by Charles Lambert, a deputy from the Rhone, in 1931. Instrumental in a revision of the naturalization law in 1927 to encourage the assimilation of foreigners through the acquisition of French citizenship, Lambert proposed a comprehensive statute on immigration to select “desirable” foreigners and exclude the “undesirables” to promote the assimilation of the “better” elements. The paper argues that his rationale betrays a profound fear of mounting French weakness in the face of economic and demographic decline, and grave anxieties for the future health of the French nation.

The new law of Torts

An essential text for tort law students, this is the first to comprehensively cover recent tort reform legislation as enacted in each Australian jurisdiction, and to deal with the impact these reforms have had on the common law. Both authors from Deakin University, Victoria.

Indonesia in 2006 : cautious reform

Indonesia in 2006 appeared to be stabilizing after several years of political and economic upheaval. Cautious reforms continued, but official corruption remained problematic. It appeared that the Aceh conflict was over. At year's end, Indonesia still faced many daunting problems but appeared to be charting a steadier course.

Effect of labour market reform on women in the Australian banking industry

[No Abstract]

Regulatory and enabling approaches to corporate law enforcement : patterns of litigation 1986-2002 and the effect of recent reforms in New Zealand, Australia and the United Kingdom

Enforcement of corporate rights and duties may follow either a ‘regulatory’ or ‘enabling’ model. If a regulatory approach is taken, enforcement action will generally be undertaken by regulatory agencies such as, in New Zealand, the Registrar of Companies and Securities Commission, the Australian Securities and Investments Commission (ASIC) or the Department of Trade and Industry (DTI) in the United Kingdom. If an enabling approach is chosen, enforcement action will more often be by private parties such as company shareholders, directors or creditors. When New Zealand's company law was reformed in 1993, a primarily private enforcement regime was adopted, consisting of a list of statutory directors' duties and an enhanced collection of shareholder remedies, based in part upon North American models and including a statutory derivative action. Public enforcement was largely confined to administrative matters and the enforcement of the disclosure requirements of New Zealand's securities law. While the previous enforcement regime was similarly reliant on private action, the law on directors' duties was less accessible, and shareholder action was hindered by the majority rule principle and the rule in Foss v Harbottle. This approach is in contrast with that used in Australia and the United Kingdom, where public agencies have a much more prominent enforcement role despite recent and proposed reforms to directors' duties and shareholder remedies. These reforms are designed to improve the ability of private parties to enforce corporate rights and duties. A survey of enforcement litigation in New Zealand since 1986 indicates that the object of a primarily enabling enforcement regime seems to have been achieved, and may well have been achieved even without the 1993 reform package. Private enforcement has, in fact, been much more prevalent than public enforcement since well before the enactment of the new legislation. Most enforcement action both before and after the reform was commenced by shareholders and shareholder/directors, and most involved closely held companies. Public enforcement was largely undertaken in areas such as securities law, where the wider public interest was affected. Similar surveys of Australian and United Kingdom enforcement litigation reveal a proportionally much greater reliance on public bodies to enforce corporate rights and duties, indicating a more regulatory approach. The ASIC and DTI enforced a wider range of provisions, affecting both closely and widely held companies, than those subject to public enforcement in New Zealand. Publicly enforced provisions in Australia and the United Kingdom include directors' duties and provisions dealing with disqualification from managing companies, as well as securities law requirements.

Relationship between workplace reform and workforce participation

This thesis sought to advance understanding of the politics of workplace reform, explaining the respective roles of management and employees and how they relate. The literature on workplace reform usually argues that reform is predicated on greater workforce participation in managerial decisions. More specifically, different approaches to workplace reform can be aligned to different forms of participation. Thus quality management can be associated with direct forms of participation, institutional workplace reform may depend on representative forms, and best practice may require a combination of both. This thesis uses empirical evidence to explore this alignment between the different approaches to workplace reform and forms of participation. The period chosen for empirical study is approximately 1985-1992 - an era of rapid innovation in workplace reform for Australian manufacturing. Three workplaces were chosen for intensive study from automotive component manufacturers because that industry was itself a laboratory for workplace reform and also because these firms exemplified different approaches to competitiveness and reform. Three approaches to workplace reform - quality management, institutional workplace reform, and best practice - were distinguished to capture the range of Australian practice at that time. Similarly two approaches to workplace participation were distinguished - direct and representative - to reflect the range of observable practices at that time and to represent competing philosophies. Direct participation illustrated an approach founded in managerial context of the political status quo, whilst representative forms were considered to permit a pluralist shift of power to enable employees to manage in place of management. The three case studies depict companies sharing the competitive crisis of their industry. From this stems the impetus for workplace reform. At this point the firms diverged in their choice of competitive strategies for workplace reform. The case studies reveal, at the superficial level, a match between the chosen approaches to workplace reform and forms of participation. Basically, quality management is associated with direct employee participation, institutional workplace reform with collective bargaining and representative consultative committees, and best practice with both. However when the implementation of reform and participation are examined this match becomes less significant. One firm, Auto Air, achieved highly effective outcomes in both reform and participation. Another firm, Auto Electrical, failed in both. The thesis concluded that the relationship between forms of participation and reform is less significant than the effective implementation of policy. Unitarist or pluralist approaches to power distribution count less than managerial capacity to integrate successive reform initiatives and their commitment to workforce participation hi change.

Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

Rebellion and reform in Indonesia : Jakarta's security and autonomy polices in Aceh

Armed separatist movements in Papua, East Timor and Aceh have been a serious problem for Indonesia's central government. This book examines the policies of successive Indonesian governments to contain secessionist forces, focusing in particular on Jakarta's response towards the armed separatist movement in Aceh. Unlike other studies of separatism in Indonesia, this book concentrates on the responses of the central government rather than looking only at the separatist forces. It shows how successive governments have tried a wide range of approaches, including military repression, offers of autonomy, peace talks and a combination of these. It discusses the lessons that have been learned from these different approaches and analyzes the impact of the tsunami, including the successful accommodation of former rebels within an Indonesian devolved state structure and the expanding implementation of Islamic law.

Retribution, deterrence and reform : the dilemmas of plagiarism management in universities

Universities face constant scrutiny about their plagiarism management strategies, policies and procedures. A resounding theme, usually media inspired, is that plagiarism is rife, unstoppable and university processes are ineffectual in its wake. This has been referred to as a 'moral panic' approach (Carroll & Sutherland-Smith, forthcoming; Clegg, 2007) and suggests plagiarism will thwart all efforts to reclaim academic integrity in higher education. However, revisiting the origins of plagiarism and exploring its legal evolution reveals that legal discourse is the foundation for many plagiarism management policies and processes around the world. Interestingly, criminal justice aims are also reflected in university plagiarism management strategies. Although universities strive for deterrence of plagiarism in a variety of ways, the media most often calls for retribution through increasingly tougher penalties. However, a primary aim of the justice system, sustainable reform, is not often reported in the media or visible in university policies or processes. Using critical discourse analysis, this paper examines the disjunction between media calls for increased retribution in the wake of moral panic and institutional responses to plagiarism. I argue that many universities have not yet moved to sustainable reform in plagiarism management.

Intellectual property law in Southeast Asia : Recent legislative and institutional developments

Over the last few decades, countries belonging to the Association of Southeast Asian Nations (ASEAN) all had to revise their intellectual property systems. These revisions resulted at first from bilateral pressure of major trading partners such as the US and EU, then from the WTO-TRIPS Agreement and more recently from bilateral Free Trade Agreements. To observe the IP developments in ASEAN over this period is interesting, because this group of countries covers developed (Singapore), developing as well as least developed countries. All countries had to reform their outdated laws from the colonial era in very short time. However, in comparison to the early 1980s, important differences with regards to intellectual property policies have emerged in recent years.

This article will briefly sketch the developments in individual ASEAN countries and after that examine some broader trends in law making, IP administration, enforcement and the court system. It concludes that the ASEAN enlargement process has created a very diverse picture with regards to IP. With the fast pace of the legislative development, countries have been struggling to keep up with the creation of the institutional and administrative framework. Progress in the ASEAN harmonisation process has been limited. Statistics indicate that some of the new laws have been reasonably well received at the domestic level, while the patent sector remains foreign dominated.

Is there a need to reform the corporate class action procedure in Australia?

This article argues for a need to reform the corporate class action procedure in Australia. The reason is that the statutory procedure for an “opt out” class action is beginning to appear more like an “opt in” class action. The confusion relates to the poor drafting of Part IVA of the Federal Court of Australia Act 1976, which contains the class action procedure. The involvement of a commercial litigation funder has also contributed to the complexity in the interpretation of the law. The article provides a review of why s 33J and s 33E are conceptually difficult to apply. It highlights the key areas that require legislative amendments in order for the class action procedure to operate more effectively.

Creative choices : changes to Australian copyright law and the future of the public domain

Changes to Australian copyright law introduced under the Australia–United States Free Trade Agreement will diminish the public domain, criminalise common copyright infringing practices and locally introduce significant portions of the controversial 1998 American Digital Millennium Copyright Act. This paper examines these imminent changes to Australian copyright law, with specific attention to the potential effects of the extended duration of copyright protection and the introduction of technological anti-circumvention measures. It argues that public domain-enhancing activities are crucial for sustaining cultural creativity and technological innovation, and discusses the potential role of the Creative Commons movement in establishing economically viable and legal alternatives to the current model of trade-oriented copyright reform.