Appropriation in the name of art: is a quotation exception the answer?

The Australian Law Reform Commission is at present considering the scope of exceptions to copyright infringement. Its consideration will no doubt be influenced to some degree by the outcome in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444; (2011) 90 IPR 50 which concerned the quotation of a musical phrase in a later musical work. This article addresses the problem of creative appropriations and the extent to which a quotation exception, consistent with Art 10 of the Berne Convention, should be incorporated into Australian law. In doing so it considers the practical application of such a quotation exception in European jurisdictions (most notably Germany) and suggests the form in which such an exception might be incorporated into Australian law.

Mandatory jury directions in sexual assault trials in Victoria: less a model than a cautionary tale?

 Jury directions in relation to the issue of consent in trials of sexual offence cases are mandated in two jurisdictions in Australia (Victoria and the Northern Territory). The Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, has recommended that provisions similar to those in Victoria should be contained in relevant legislation in all States and Territories. However, a recent series of cases in Victoria has revealed significant problems in relation to the mandatory jury directions. These difficulties have generated increasingly elaborate and complex directions. The complexity of these directions not only presents considerable challenges for judges but also may overwhelm, rather than assist, members of the jury. The Court of Appeal of Victoria has called for “urgent and wholesale reform”. In the light of these concerns, it is suggested that the Victorian mandatory directions do not provide a model for other jurisdictions. Rather, the Victorian experience can be seen as a cautionary tale of the problems and pitfalls of such directions. Recently, the Victorian government has passed the Jury Directions Act 2013. This Act sets out “guiding principles” that should determine the content, and use, of jury directions. These guiding principles should form the basis for any jury directions with respect to sexual offences.

Retrials of persons acquitted of indictable offences in England and Australia: exceptions to the rule against double jeopardy

Jury directions in relation to the issue of consent in trials of sexual offence cases are mandated in two jurisdictions in Australia (Victoria and the Northern Territory). The Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, has recommended that provisions similar to those in Victoria should be contained in relevant legislation in all States and Territories. However, a recent series of cases in Victoria has revealed significant problems in relation to the mandatory jury directions. These difficulties have generated increasingly elaborate and complex directions. The complexity of these directions not only presents considerable challenges for judges but also may overwhelm, rather than assist, members of the jury. The Court of Appeal of Victoria has called for "urgent and wholesale reform". In the light of these concerns, it is suggested that the Victorian mandatory directions do not provide a model for other jurisdictions. Rather, the Victorian experience can be seen as a cautionary tale of the problems and pitfalls of such directions. Recently, the Victorian government has passed the Jury Directions Act 2013. This Act sets out "guiding principles" that should determine the content, and use, of jury directions. These guiding principles should form the basis for any jury directions with respect to sexual offences.

Investigating genetic discrimination in Australia: Opportunities and challenges in the early stages

Genetic discrimination, defined as the differential treatment of individuals or their relatives on the basis of actual or presumed genetic differences, is an emerging issue of interest in academic, clinical, social and legal contexts. While its potential significance has been discussed widely, verified empirical data are scarce. Genetic discrimination is a complex phenomenon to describe and investigate, as evidenced by the recent Australian Law Reform Commission inquiry in Australia. The authors research project, which commenced in 2002, aims to document the multiple perspectives and experiences regarding genetic discrimination in Australia and inform future policy development and law reform. Data are being collected from consumers, employers, insurers and the legal system. Attempted verification of alleged accounts of genetic discrimination will be a novel feature of the research. This paper overviews the early stages of the research, including conceptual challenges and their methodological implications.

Privacy, dataveillance, and crime prevention

Whether privacy is an adequate legal safeguard against intrusive government or private sector activity remains open for further exploration. The criminal law has always imposed limits on the ability of police to enter private premises and seize property associated with criminal activity, while preserving the rights of “mass private” property owners and their agents to selectively exclude people from entering or remaining on their premises. The appropriate balance between these issues and “the right to be let alone” is often determined by judicial rulings in individual cases. However, the balance between a claimant’s personal rights to be free from undue surveillance and the broader public interest in preventing crime or promoting safety is not always clear. New forms of personal data collection and dissemination through ICTs reconfigure the balance between private and public knowledge (Australian Law Reform Commission 2008), while social network analysis is increasingly deployed by law enforcement agencies to detect and prevent crime. Our ongoing research interrogates how the concept of privacy can be reconciled with the growing use of dataveillance, data mining, and social network analysis to prevent crime and antisocial behavior.

Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.

Mining Law Reform Act of 1991 and the Minerals Policy Review Commission Act of 1991 : hearing before the Subcommittee on Mineral Resources Development and Production of the Committee on Energy and Natural Resources, United States Senate, One Hundred Second Congress, first session, on S. 433 ... S. 785 ... June 11, 1991.

Item 1040-A, 1040-B (MF).

Female genital mutilation : Australian law, policy and practical challenges for doctors

As long ago as 1994, the Family Law Council accepted it was likely that female genital mutilation (FGM) was being conducted in Australia. In 2010, doctors and hospitals reported that it is being conducted and that they are seeing female patients who have experienced FGM. It is impossible to obtain precise data about the extent to which it is performed in Australia, but data indicates that FGM is a relevant issue for Australian medical practitioners. The medical profession has an interest in this topic because its members may be asked to conduct FGM, advise those considering it, or treat female patients with effects from the practice. This article provides a background on the practice of FGM, explains the relevant Australian law, considers whether the current legal prohibition on FGM is justified, and discusses the practical challenges facing individual practitioners and the profession. To inform further discussions about methods of responding to demand for FGM, reference is made to strategies being promoted in African nations to abolish this cultural practice.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Wrong way go back! Rediscovering the path for charity law reform

Problems with charity law jurisprudence persist. The difficulties arose in the 20th century and are fundamental to the way the doctrine is presently theorised. They grew out of the approach taken in Pemsel’s Case to the categorisation of the ‘spirit and intendment’ of the Preamble to the Statute of Charitable Uses. Recent statutory reforms, such as the Charities Act 2006 (Eng&W), have compounded the underlying problems rather than resolving them. This paper aims to stimulate thinking about a new foundation for charity jurisprudence – while the approach may seem radical, the paper argues that these new foundations can be discerned underlying the current jurisprudence. The difficulties can be overcome by rediscovering the underlying jurisprudence which is disregarded in the current approach to categorisation. Giving voice, in contemporary language, to that foundational jurisprudence, this paper provides a way out of the current problems. It also provides an alternative way of conceptualising the doctrine of charitable purpose to guide reform.

Cutting the Gordian knot of futility : a case for law reform on unilateral withholding and withdrawal of potentially life-sustaining treatment

In this paper, we propose law reform with respect to the unilateral withholding or withdrawal of potentially life-sustaining treatment in Australia and New Zealand. That is, where a doctor withholds or withdraws potentially life-sustaining treatment without consent from a patient or a patient’s substitute decision-maker (where the patient lacks capacity), or authorisation from a court or tribunal, or by operation of a statute or justifiable government or institutional policy. Our proposal is grounded in the core values that do (or should) underpin a regulatory framework on an issue such as this; these values are drawn from existing commitments made by Australia and New Zealand through legislation, the common law, and conventions and treaties. It is also grounded in a critical review of the law on unilateral withholding and withdrawal as well as the legal context within which this issue sits in Australasia. We argue that the current law is inconsistent with the core values and develop a proposal for a legal response to this issue that more closely aligns with the core values it is supposed to serve.