Cigarettes will kill you: The High Court of Australia and the plain packaging of tobacco products

Tobacco, says the World Health Organization (WHO), is “the only legal consumer product that kills when used exactly as intended by the manufacturer.” With a view to discouraging smoking and giving effect to the WHO Framework Convention on Tobacco Control, the Australian Parliament passed the Tobacco Plain Packaging Act 2011 (Cth), in November of that year. The legislation was supported by all the major political parties.

A Submission to the Senate Legal and Constitutional Affairs Committee on the Copyright Amendment (Online Infringement) Bill 2015 (Cth)

The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited — as well as copyright industries — have been clamouring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There has been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect,recognising that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favoured by Turnbull. In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don’t make money: * Complaining about piracy. * Calling your customers thieves. * Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests. This submission considers a number of key elements of the Coalition Government’s Copyright Crackdown. Part 1 examines the proposals in respect of the Copyright Amendment (Online Infringement) Bill 2015 (Cth). Part 2 focuses upon the proposed Copyright Code. Part 3 considers the question of safe harbours for intermediaries. Part 4 examines the question of copyright exceptions – particularly looking at the proposal of the Australian Law Reform Commission for the introduction of a defence of fair use. Part 5 highlights the recommendations of the IT Pricing Inquiry and the Harper Competition Policy Review in respect of copyright law, consumer rights, and competition law.

Principles of taxation law 2015 [8th edition]

"Taxation law can be an incredibly complex subject to absorb, particularly when time is limited. Written specifically for students, Principles of Taxation Law 2014 brings much needed clarity to this area of law. Utilising many methods to make this often daunting subject achievable, particular features of the 2014 edition include: seven parts: overview and structure, principles of income, deductions and offsets, timing issues, investment and business entities, tax avoidance and administration, and indirect taxes; clearly structured chapters within those parts grouped under helpful headings;flowcharts, diagrams and tables, end of chapter practice questions, and case summaries; an appendix containing all of the up to date and relevant rates; and the online self-testing component mentor, which provides questions for students of both business and law. Every major aspect of the Australian tax system is covered, with chapters on topics such as goods and services tax, superannuation, offsets, partnerships, capital gains tax, trusts, company tax and tax administration.All chapters have been thoroughly revised"-- Publishers website

Protective legal regulation for home-based workers in Australian textile, clothing and footwear supply chains

Supply chain outsourcing has posed problems for conventional labour regulation, which focuses on employers contracting directly with workers, particularly employees. These difficulties have been exacerbated by the traditional trifurcated approach to regulation of pay and conditions, work health and safety and workers’ compensation. This paper analyses the parallel interaction of two legal developments within the Australian textile, clothing and footwear industry. The first is mandatory contractual tracking mechanisms within state and federal labour laws and the second is the duties imposed by the harmonised Work Health and Safety Acts. Their combined effect has created an innovative, fully enforceable and integrated regulatory framework for the textile, clothing and footwear industry and, it is argued, other supply chains in different industry contexts. This paper highlights how regulatory solutions can address adverse issues for workers at the bottom of contractual networks, such as fissured workplaces and capital fragmentation, by enabling regulators to harness the commercial power of business controllers at the apex to ensure compliance throughout the entire chain.

Health and guardianship law: Children, consent and the refusal of blood products: A recent Queensland case

This column provides a summary of the recent decision of The Hospital v T [2015] QSC 185

Estate contestation in Australia: An empirical study of a year of case law

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

Four stories about copyright law and appropriation art

This article considers copyright law and the art of appropriation in an Australian context. It tells four stories about Australian artists - Imants Tillers, Gordon Bennett, Juan Davila and Tracey Moffatt. The stories examine the postmodern critique of copyright law, indigenous copyright and self-determination, the introduction of moral rights, and copyright, photography and film. The article concludes that the work of such contemporary artists has practical implications for the reform of copyright law.

Re-thinking ancillary: Australian screen content in education

The use of Australian screen content in Australian schools and universities is undergoing rapid change due to digital and online distribution capacity on the supply side and digital and online affordance embedded in student cultures. This paper examines the ways in which Australian screen content and its distribution are beginning to adapt to educational usage. Issues facing content rights holders, distribution companies and emerging digital platforms reflect broad-based digital disruption patterns. Learning opportunities that can coincide with the growth in uptake of Australian screen content in Australia's education sector are not immune to the challenges posed by emerging digital consumption behaviours and issues of sustainability. At the same time, the growth in the use of digital and online screen content learning resources, under current copyright conditions, poses significant increases in the underlying cost structure for educational interests. This paper examines the innovations occurring in both the supply and the demand sides of Australian screen content and the expanded learning opportunities arising out of emerging digital affordances. Precedents in the UK are explored that demonstrate how stronger connections can be forged between nationally produced film and media content and a national curriculum. While addressing recent issues arising out of the Australian Law Review Commission's inquiry into copyright in the digital economy, the purpose of this discussion is not to assess policy debates about fair use versus fair dealing. What is clear, however, is that independent research is required that draws upon research-based evidence with an aim to better understanding the needs of the education sector against the transformative shifts taking place in digital-based learning materials and their modes of delivery.

The Australian litigation landscape - Oral and Maxillofacial Surgery and general dentistry (oral surgery procedures): An analysis of litigation cases

Background: There are persistent concerns about litigation in the dental and medical professions. These concerns arise in a setting where general dentists are more frequently undertaking a wider range of oral surgery procedures, potentially increasing legal risk. Methods: Judicial cases dealing with medical negligence in the fields of general dentistry (oral surgery procedure) and Oral and Maxillofacial Surgery were located using the three main legal databases. Relevant cases were analysed to determine the procedures involved, the patients’ claims of injury, findings of negligence, and damages awarded. A thematic analysis of the cases was undertaken to determine trends. Results: Fifteen cases over a twenty-year period were located across almost all Australian jurisdictions (eight cases involved general dentists; seven cases involved Oral and Maxillofacial Surgeons). Eleven of the fifteen cases involved determinations of whether or not the practitioner had failed in their duty of care; negligence was found in six cases. Eleven of the fifteen cases related to molar extractions (eight specifically to third molar). Conclusions: Dental and medical practitioners wanting to manage legal risk should have regard to circumstances arising in judicial cases. Adequate warning of risks is critical, as is offering referral in appropriate cases. Pre-operative radiographs, good medical records, and processes to ensure appropriate follow-up are also important.

Litigiousness in Australia: Lessons from comparative law

How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.

Pioneering use of narrative method in a first-year law course to provide an authentic, inquiry-based entry into the discipline of law

Law is saturated with stories. People tell their stories to lawyers; lawyers tell their client's stories to courts; and legislators develop regulation to respond to their constituent's stories of injustice or inequality. My approach to first-year legal education respects this narrative tradition. Both my curriculum design and assessment scheme in the compulsory first-year subject Australian Legal System deploy narrative methodology as the central teaching and learning device. Throughout the course, students work on resolving the problems of four hypothetical clients. Like a murder mystery, pieces of the puzzle come together as students learn more about legal institutions and the texts they produce, the process of legal research, the analysis and interpretation of primary legal sources, the steps in legal problem-solving, the genre conventions of legal writing style, the practical skills and ethical dimensions of professional practice, and critical inquiry into the normative underpinnings and impacts of the law. The assessment scheme mirrors this design. In their portfolio-based assignment, for example, students devise their own client profile, research the client's legal position and prepare a memorandum of advice.

Saviour Siblings and the Regulation of Assisted Reproductive Technology: Harm, Ethics and Law

Advances in the field of Assisted Reproductive Technology (ART) have been revolutionary. This book focuses on the use of ARTs in the context of families who seek to conceive a matching sibling donor as a source of tissue to treat an existing sick child. Such children have been referred to as ‘saviour siblings’. Considering the legal and regulatory frameworks that impact on the accessibility of this technology in Australia and the UK, the work analyses the ethical and moral issues that arise from the use of the technology for this specific purpose. The author claims the only justification for limiting a family’s reproductive liberty in this context is where the exercise of reproductive decision-making results in harm to others. It is argued that the harm principle is the underlying feature of legislative action in Western democratic society, and as such, this principle provides the grounds upon which a strong and persuasive argument is made for a less-restrictive regulatory approach in the context of ‘saviour siblings’.

Twelve not so angry men: Masculinities and the perceptions of the 'off-field' violence involved in Australian body contact sports

Recently, media 'scandals' have pervaded a number of Australian body contact sports, in particular rugby league, rugby union and Australian rules football. Utilising the theoretical framework of masculinities, this research interviews footballers to gauge their perceptions of this media attention and how it compares to their own perspectives regarding off-field violence. Drawing inspiration from James Messerschmidt's (2000) 'Nine Lives' study and R.W. Connell's (1995) theoretical masculinities framework, in-depth, semi-structured interviews—known as life histories—were conducted with 12 footballers. Twelve life histories were completed with four men from each of the three major Australian football codes, namely Australian rules football, rugby union and rugby league. The research explores linkages between masculinity, body contact sport and engagement (or lack thereof) in violence 'off field'.

The Role of the Law in Communicating Patient Safety

This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, et al’s (2006) preventing, knowing and responding theoretical framework is adopted to classify the different elements of patient safety law. Rather than setting out all relevant patient safety laws in detail, this chapter highlights key legal strategies which are employed to: prevent the occurrence of patient safety incidents (preventing); support the discovery and open discussion of patient safety incidents when they do occur (knowing),; and guide responses after they occur (responding) (Downie, Lahey, Ford, et al 2006). The law is increasingly being invoked to facilitate open discussion of and communication surrounding patient safety. After highlighting some legal strategies used to communicate patient safety, two practice examples are presented. The practice examples highlight different aspects of patient safety law and are indicative of communication issues commonly faced in practice. The first practice example focuses on the role of the Ccoroner in communicating patient safety. This example highlights the investigative role of the law in relation to patient safety (knowing). It also showcases the preventing responding and preventing elements in respect of the significant number of communication errors that can occur in a multi-disciplinary, networked health system. The main focus of the second practice example is responding example illustrates how the law responds to health service providers’ and professionals’ miscommunication (and subsequent incidents) during treatment, however it also touches upon knowing and preventing.