Decentralisation of EC Competition Law Enforcement and General Principles of Community Law. Research Papers in Law, 4/2004

From the Introduction. By virtue of Council Regulation No. 1/2003, as of 1st May 2004 the full application of EC competition law will be entrusted to national competition authorities (hereinafter NCAs) and national courts. The bold reform of EC competition law enforcement adheres to the system of executive federalism1 which characterises the EC legal system. The repartition of competences within the Community allocates implementation of Community law mainly at Member States level. Pursuant to Article 10 EC, they are responsible for the implementation of the measures which have been adopted at Community level for the achievement of the objectives specified in the EC Treaty. Consequently, the attainment of the Community objectives depends very much upon the cooperation of national authorities, which act in accordance with their own national procedural rules.2 The various national procedural rules present themselves as conduits through which Community law is implemented and enforced. While as a rule Community law is not designed to alter national procedural rules, the Community legal order cannot afford to leave national procedural rules untouched when they are liable to hamper the effective application of Community law....For reason of space, this contribution intends only to highlight some aspects of Regulation No. 1/2003 with regard to which general principles of Community law are able to condition national procedural rules.

Homing devices in choice of Tort Law: Australian, British and Canadian Approaches

Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (the lex loci delicti). All three countries abandoned some species of the rule in Phillips v Eyre, which required some reference to the law of the forum (the lex fori) as well as the lex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply the lex fori in cross-border tort cases - and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadian lex loci delicti regimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of the lex fori was formally allowed by use of a 'flexible exception' in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries. © 2006 Oxford University Press.

Engaging Students in the Implementation of Criterion Referenced Assessment in First Year Law

The Queensland University of Technology (QUT) University Academic Board approved a new QUT Assessment Policy in September 2003, which requires a criterion-referenced approach as opposed to a norm-referenced approach to assessment across the university(QUT,MOPP,2003). In 2004, the QUT Law School embarked upon a process of awareness raising about criterion-referenced assessment amongst staff and from 2004 – 2005 staggered the implementation of criterion-referenced assessment in all first year core undergraduate law units. This paper will briefly discuss the benefits and potential pitfalls of criterion referenced assessment and the context for implementing it in the first year law program, report on student’s feedback on the introduction of criterion referenced assessment and the strategies adopted in 2005 to engage students more fully in criterion referenced assessment processes to enhance their learning outcomes.

Contemporary consumer law : the role and effectiveness of regulation in consumer protection

This issue of the Griffith Law Review focuses on consumer law, and the pervasive nature of this area of law. We are all consumers, but do not necessarily identify as such, nor are we a homogeneous group. The boundaries of

Termination of a minor’s pregnancy : critical issues for consent and the criminal law

The recent Supreme Court decision of Queensland v B [2008] 2 Qd R 562 has significant implications for the law that governs consent and abortions. The judgment purports to extend the ratio of Secretary, Department of Health and Community Services (NT) v JWB and SMB (1991) 175 CLR 218 (Marion’s Case) and impose a requirement of court approval for terminations of pregnancy for minors who are not Gillick-competent. This article argues against the imposition of this requirement on the ground that such an approach is an unjustifiable extension of the reasoning in Marion’s Case. The decision, which is the first judicial consideration in Queensland of the position of medical terminations, also reveals systemic problems with the criminal law in that State. In concluding that the traditional legal excuse for abortions will not apply to those which are performed medically, Queensland v B provides further support for calls to reform this area of law.

'Homophobia' in the university classroom : law and justice students' conceptualizations of queer identity

Heteronormative discourses provide the most common lens through which sexuality is understood within university curricula. This means that sexuality is discussed in terms of categories of identity, with heterosexuality accorded primacy and all ‘others’ indeed ‘othered.’ This paper reports on research carried out by the authors in a core first year university justice class, in which students of law and/or justice were required to engage with, discuss, and reflect on discourses on sexuality. It uses a poststructural framework to identify how students understand non-heterosexualities and how they personally relate to queer identities, in the sense that it asks questions about gender and sexual identity, and the discourses surrounding them. It was found that strongly negative attitudes to non-heterosexualities are quite resistant to challenge, and that some students express being confronted with queerness as a deep-seated fear of being drawn into otherness against their will. The result was that, while many students were able to unpack their attitudes towards queerness and engage in critical reflection and re-evaluation of their attitudes, students with strongly negative views towards non-heterosexualities conversely refused to engage at all, typically perceiving even the engagement itself as a threat to their core heterosexual identity. However, the authors caution against relying on the idea that students are simply “homophobic” to explain this reluctance, as this term does not necessarily account for the complexity of the discourses that inform students’ reactions in this context. This “homophobia” may simply be related to a way of performing gender and sexual identity as opposed to overt discrimination and fear.

Cyber bullying in schools and the law : is there an effective means of addressing the power imbalance?

Cyber bullying – or bullying through the use of technology – is a growing phenomenon which is currently most commonly experienced by young people and the consequences manifested in schools. Cyber bullying shares many of the same attributes as face-to-face bullying such as a power imbalance and a sense of helplessness on the part of the target. Not surprisingly, targets of face-to-face bullying are increasingly turning to the law, and it is likely that targets of cyber bullying may also do so in an appropriate case. This article examines the various criminal, civil and vilification laws that may apply to cases of cyber bullying and assesses the likely effectiveness of these laws as a means of redressing that power imbalance between perpetrator and target.

Assessment of online discussion forums for law students

This paper goes beyond the existing literature and explores the innovative topic of designing criterion-referenced assessment for online discussion forums. There are several benefits of embedding online discussion forums into subjects including engaging students in collaborative learning, and encouraging deeper analysis, critical thinking and reflection. Using the assessment principles of validity, reliability and transparency, this paper offers a range of practical strategies to tutors who plan to develop criterion-referenced assessment as opposed to norm-referenced assessment for online discussion forums, applies the assessment principles in the context of an undergraduate law subject, and exemplars a rubric for an online discussion forum in a work placement subject.

The doctrine of double effect

• The doctrine of double effect is an exception to the general rule that taking active steps that end life is unlawful. • The essence of the doctrine at common law is intention. • Hastening a patient’s death through palliative care will be lawful provided the primary intention is to relieve pain, and not cause death, even if that death is foreseen. • Some States have enacted legislative excuses that deal with the provision of palliative care. • These statutory excuses tend to be stricter than the common law as they impose other requirements in addition to having an appropriate intent, such as adherence to some level of recognised medical practice.

Re-envisioning sovereignty : the end of Westphalia?

Fables of sovereignty / Wayne Hudson Sovereignty discourse and practice : past and future / Joseph Camilleri Guises of sovereignty / Gerry Simpson Westphalian and Islamic concepts of sovereignty in the Middle East / Amin Saikal Wither sovereignty in Southeast Asia today? / See Seng Tan Ambivalent sovereignty : China and re-imagining the Westphalian ideal / Yongjin Zhang Confronting terrorism : dilemmas of principle and practice regarding sovereignty / Brian L. Job Sovereignty in the 21st century : security, immigration, and refugees / Howard Adelman State sovereignty and international refugee protection / Robyn Lui Do no harm : towards a Hippocratic standard for international civilisation / Neil Arya Sovereignty and the global politics of the environment : beyond Westphalia? / Lorraine Elliott Westphalian sovereignty in the shadow of international justice? a fresh coat of paint for a tainted concept / Jackson Nyamuya Maogoto Development assistance and the hollow sovereignty of the weak / Roland Rich Corruption and transparency in governance and development : reinventing sovereignty for promoting good governance / C. Raj Kumar Re-envisioning economic sovereignty : developing countries and the International Monetary Fund / Ross P. Buckley Trust, legitimacy, and the sharing of sovereignty / William Maley Sovereignty as indirect rule / Barry Hindess Indigenous sovereignty / Paul Keal Civil society in a post-statist circumstance / Jan Aart Scholte.

The Conceptual Basis of Personal Information in Australian Privacy Law

Australian privacy law regulates how government agencies and private sector organisations collect, store and use personal information. A coherent conceptual basis of personal information is an integral requirement of information privacy law as it determines what information is regulated. A 2004 report conducted on behalf of the UK’s Information Commissioner (the 'Booth Report') concluded that there was no coherent definition of personal information currently in operation because different data protection authorities throughout the world conceived the concept of personal information in different ways. The authors adopt the models developed by the Booth Report to examine the conceptual basis of statutory definitions of personal information in Australian privacy laws. Research findings indicate that the definition of personal information is not construed uniformly in Australian privacy laws and that different definitions rely upon different classifications of personal information. A similar situation is evident in a review of relevant case law. Despite this, the authors conclude the article by asserting that a greater jurisprudential discourse is required based on a coherent conceptual framework to ensure the consistent development of Australian privacy law.