Immediate indefeasibility : is it under threat?

Immediate indefeasibility has been adopted in Australia for close to 40 years. Recently however, and against the backdrop of economic fragility and global deregulation, there has been a polite questioning of its place. In Australia, some may argue that case law developments and legislative reform have placed indefeasibility under the microscope — in New Zealand, a similar telescoping by the respected views of their Law Commission. This note examines these reforms. It concludes that these reforms do not place immediate indefeasibility under threat. Rather, they modify and adapt the doctrine to fit within the context of contemporary financial instruments. Nevertheless, changes have so far been piecemeal, and its time for a consistent and logical examination of this issue to occur on the national, rather than the stage of each state.

The high road or the low road? Alternatives for Australia's future

The OECD suggests that countries now have a choice. They can focus on development based on either:  competition via investment in technology and innovation - which is important in high knowledge industries and high innovation economies, or  competition via exchange rates and wages - which is important in industries producing standardised, lower-tech goods and services. The first route will maximise higher-skilled, higher-paid employment growth and living standards. Given the lack of control over the exchange rate, the second route requires competition based on wages. It is essential to understand that markets themselves won’t shift a country from one path to the other. These conclusions arise from the OECD’s recognition that technical progress - the creation of new products or the adoption of more efficient methods of production - is the main source of economic growth and enhanced quality of life. Technological change is, the OECD suggests, ...also the engine for job creation as higher wages and profits resulting from technology-induced productivity gains and lower prices lead to increased demand for new products from existing as well as new industries (1997: 4).Further, Competitiveness in high-technology industries is mainly driven by technology factors and much less by wage and exchange rate movements, while the reverse is true in low-technology industries (OECD 1996e: 12). The OECD has shown that sound macroeconomic conditions, such as the low inflation and reduced public sector debt visible in almost all member countries in the 1990s, are not enough to deal with high levels of unemployment and the need to increase levels of income: If economic performance is to improve, additional structural reform, which can increase innovation and the diffusion of technologies within and among national economies, seems necessary (OECD 1997: 4 Emphasis added).

Towards the adoption of low-cost rail level crossing warning devices in regional areas of Australia : a review of current technologies and reliability issues

This paper discusses major obstacles for the adoption of low cost level crossing warning devices (LCLCWDs) in Australia and reviews those trialed in Australia and internationally. The argument for the use of LCLCWDs is that for a given investment, more passive level crossings can be treated, therefore increasing safety benefits across the rail network. This approach, in theory, reduces risk across the network by utilizing a combination of low-cost and conventional level crossing interventions, similar to what is done in the road environment. This paper concludes that in order to determine if this approach can produce better safety outcomes than the current approach, involving the incremental upgrade of level crossings with conventional interventions, it is necessary to perform rigorous risk assessments and cost-benefit analyses of LCLCWDs. Further research is also needed to determine how best to differentiate less reliable LCCLWDs from conventional warning devices through the use of different warning signs and signals. This paper presents a strategy for progressing research and development of LCLCWDs and details how the Cooperative Research Centre (CRC) for Rail Innovation is fulfilling this strategy through the current and future affordable level crossing projects.

An example of developing a business model for information and communication technologies (ICT) adoption on construction projects – the National Museum of Australia project

Effective use of information and communication technologies (ICT) is necessary for delivering efficiency and improved project delivery in the construction industry. Convincing clients or contracting organisations to embrace ICT is a difficult task, there are few templates of an ICT business model for the industry to use. ICT application in the construction industry is relatively low compared to automotive and aerospace industries. The National Museum of Australia project provides a unique opportunity for investigating and reporting on this deficiency in publicly available knowledge. Concentrates on the business model content and objectives, briefly indicates the evaluation framework that was used to evaluate ICT effectiveness.

Assessment reform and educational change in Australia

This chapter addresses the changing climate of assessment policy and practice in Australia in response to global trends in education and the mounting accountability demands of standards-driven reform. Queensland, a State of Australia, has a tradition of respecting and trusting teacher judgment through the practice of, and policy commitment to, externally moderated school-based assessment. This chapter outlines the global trends in curriculum and assessment reform, and then analyzes the impact of international comparisons on national policy. The creation of the Australian Curriculum, Assessment and Reporting Authority (ACARA) together with the intent of establishing a standards-referenced framework raises tensions and challenges for teachers’ practice. The argument for sustaining confidence in teacher-based assessment is developed with reference to research evidence pertaining to the use of more authentic assessments and moderation practices for the purposes of improving learning, equity and accountability. Evidence is drawn from local studies of teacher judgment practice and used to demonstrate these developments and in so doing illuminate the complex issues of engaging the demands of policy while sustaining confidence in teacher assessment.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Order supported by law : the enforcement of norms in virtual communities

As online social spaces continue to grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This article examines two issues that go to the core of egitimate governance in online communities: how are rules enforced and punishments imposed, and how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally ultimately backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult conceptual gap between criminal law and the predominantly compensatory remedies of contractual doctrine. When theorists have addressed the need for the rules of virtual communities to be enforced, a dichotomy has generally emerged between the appropriate role of criminal law for 'real' crimes, and the private, internal resolution of 'virtual' or 'fantasy' crimes. In this structure, the punitive effect of internal measures is downplayed and the harm that can be caused to participants by internal sanctions is systemically undervalued.

Policy into practice : adoption of hazard mitigation measures by local government in Queensland : a collaborative research project between Queensland University of Technology and Emergency Management Queensland in association with Local Government of Queensland Disaster Management Alliance

The focus of the present research was to investigate how Local Governments in Queensland were progressing with the adoption of delineated DM policies and supporting guidelines. The study consulted Local Government representatives and hence, the results reflect their views on these issues. Is adoption occurring? To what degree? Are policies and guidelines being effectively implemented so that the objective of a safer, more resilient community is being achieved? If not, what are the current barriers to achieving this, and can recommendations be made to overcome these barriers? These questions defined the basis on which the present study was designed and the survey tools developed. While it was recognised that LGAQ and Emergency Management Queensland (EMQ) may have differing views on some reported issues, it was beyond the scope of the present study to canvass those views. The study resolved to document and analyse these questions under the broad themes of: • Building community capacity (notably via community awareness). • Council operationalisation of DM. • Regional partnerships (in mitigation/adaptation). Data was collected via a survey tool comprising two components: • An online questionnaire survey distributed via the LGAQ Disaster Management Alliance (hereafter referred to as the “Alliance”) to DM sections of all Queensland Local Government Councils; and • a series of focus groups with selected Queensland Councils

Closing the gap between policy and 'Law' : Indigenous homelands and a working future

The Northern Territory Government's Working Future: Outstations/Homelands (2009) policy statement gives effect to the Council of Australian Government's Closing the Gap policy on Indigenous housing and remote service delivery. These policies mark a radical shift in public policy that winds back the outstations and homelands movement that began in the 1970's. This paper examines Indigenous homelands policy and considers whether these policies are consistent with the Indigenous human rights and in particular the United Nations Declaration on the Rights of Indigenous Peoples (2007), which Australia endorsed in 2009. The author argues that the current homelands policy breaches a number of Indigenous human rights and promotes assimiliation by forcing Indigenous Australians to relocate to access basic services such as health, housing and education. As a consequence these policies are counter-intuitive to the overall Closing the Gap goals of improving Indigenous health outcomes because they fail to take into account the importance of country and culture to Indigenous wellbeing. She concludes that Australian governments need to formulate a homelands policy that is consistent with Indigenous human rights and in particular the right of self determination, enjoyment of culture and protection against forced assimilation.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.