Rethinking corporate governance and law in China : the theories, rules and practices

Economic reforms have transformed China into a modern economy - this requires greater emphasis on regulating markets and governing corporations to ensure economic growth continues. Yet, legal reforms are not as straightforward as transplanting Western models; more modification to suit Chinese political land cultural considerations needs to be incorporated. Likewise privatisation of the telecommuications sector does not mean that government influence in the new corporations cease. This is not necessarily negative as long as safeguards are in place. Plainly further reforms to the law and governance will be needed. Given that Confucian philosophy continues to play a central role in Chinese society and values, developing laws and governance practices from Confucian principles will arguably be appropriate for modern China.

Reparations for Indigenous People: International and Comparative Perspectives

Published in concomitance with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, this volume brings together a group of renowned legal experts and activists from different parts of the world who, from international and comparative perspectives, investigate the right of indigenous peoples to reparation for breaches of their individual and collective rights. The first part of the book is devoted to general aspects of this important matter, providing a comprehensive assessment of the relevant international legal framework and including overviews of the topic of reparations for human rights violations, the status of indigenous peoples in international law, and the vision of reparations as conceived by the communities concerned. The second part embraces a comprehensive investigation of the relevant practice at the international, regional, and national level, examining the best practices of reparations according to the ideologies and expectations of indigenous peoples and offering a comparative perspective on the ways in which the right of these peoples to redress for the injuries suffered is realized worldwide. The global picture painted by these contributions provides a view of the status of relevant international law that is synthesized in the two final chapters of the book, which include a concrete example of how a judicial claim for reparation is to be structured and prescribes the best practices and strategies to be adopted in order to maximize the opportunities for indigenous peoples to obtain effective redress. As a whole, this volume offers a comprehensive vision of its subject matter in international and comparative law, with a practical approach aimed at supporting legal academics, administrators, and practitioners in improving the avenues and modalities of reparations for indigenous peoples

Teachers reporting child sexual abuse : towards evidence-based reform of law, policy and practice

This report presents the results of the largest study ever conducted into the law, policy and practice of primary school teachers’ reporting of child sexual abuse in New South Wales, Queensland and Western Australia. The study included the largest Australian survey of teachers about reporting sexual abuse, in both government and non-government schools (n=470). Our research has produced evidence-based findings to enhance law, policy and practice about teachers’ reporting of child sexual abuse. The major benefits of our findings and recommendations are to: • Show how the legislation in each State can be improved; • Show how the policies in government and non-government school sectors can be improved; and • Show how teacher training can be improved. These improvements can enhance the already valuable contribution that teachers are making to identify cases of child sexual abuse. Based on the findings of our research, this report proposes solutions to issues in seven key areas of law, policy and practice. These solutions are relevant for State Parliaments, government and non-government educational authorities, and child protection departments. The solutions in each State are practicable, low-cost, and align with current government policy approaches. Implementing these solutions will: • protect more children from sexual abuse; • save cost to governments and society; • develop a professional teacher workforce better equipped for their child protection role; and • protect government and school authorities from legal liability.

The Changing world and service problems in bankruptcy

In an age where financial transactions are conducted worldwide and mobility of citizens throughout the world is common, lawyers seeking to serve Bankruptcy Notices and Creditor’s Petitions encounter many problems. To assist lawyers in overcoming some of the service problems that are arising as a result of this changing world, a number of recent cases are considered that highlight a number of issues, including American Express Australia Limited v Michaels [2010] FMCA 103, Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7, Battenberg v Restom & Ors (2005) 223 ALR 692; upheld by the Full Federal Court in Battenberg v Restrom and Ors (2006) 149 FCR 128 at 133; [2006] FCAFC 20 and Envee Energy Pty Ltd (In Liquidation) v Stockford [2007] FMCA 1426. While the fact situation of every bankruptcy case will differ, recent decisions may assist lawyers in dealing effectively with bankruptcy matters in these times of transition. Lawyers can facilitate completion of the litigious process within the relevant legislative framework in order to satisfy their responsibility to clients and to the Court by considering this case law.

Health law : scope, sources and forces

• For the purposes of this chapter, “health law” encapsulates regulation of the medical and health professions, the administration of health services and the maintenance of public health to the extent that it is connected to the provision of health services. • There are diverging views as to whether health law can be regarded as a discrete “area of law”. • Health law draws on other areas of law such as tort law, criminal law and family law. It is also draws upon other disciplines, most notably medical and health ethics. • Social and economic forces have influenced the development and direction of health law, and these forces may become even more influential as the century develops. • The increasingly globalised world has implications for Australia’s health systems and raises questions and creates commitments in respect of the international community. • Technological developments, including in respect of treatment, diagnosis and information management, create ongoing challenges for health law. • Patient rights, human rights and consumerism are increasingly key drivers in the development of health law. • Health law is significant to contemporary Australian society because of the gravity of the topics that fall within its ambit, its social relevance to so many aspects of human existence and endeavour, the important role it plays in protecting the vulnerable, and the extent to which it engages with fundamental principles of justice.

Drugs, dental professionals and the law

Dentists have the privilege of possessing, administering and prescribing drugs, including highly addictive medications, to their patients. But because drugs are often vulnerable to being abused by all members of society, including dentists and their patients, and because drugs can be dangerous, they are tightly regulated in Canada by the federal and provincial/territorial governments. Regulatory and professional dental bodies also provide guidance for their members about how to best administer and prescribe drugs. This chapter outlines the regulation by federal and provincial/territorial governments in this area, examines the professional practice requirements set out by regulatory/professional bodies and the issue of drug abuse by dental professional and patients. It is important to note from the outset that governmental and professional regulations, policies and practices differ from province to province and territory to territory. This chapter aims to alert dentists to possible legal and professional issues surrounding the possession, administration and prescription of drugs. For detailed specific information about regulation, policies, ethical standards and professional practice standards in Canada or their province/ territory, dentists should contact their insurer or professional association.

Regulating IVF and pre-implantation tissue-typing for the creation of "saviour siblings" : a harm analysis

Scientific discoveries, developments in medicine and health issues are the constant focus of media attention and the principles surrounding the creation of so called ‘saviour siblings’ are of no exception. The development in the field of reproductive techniques has provided the ability to genetically analyse embryos created in the laboratory to enable parents to implant selected embryos to create a tissue-matched child who may be able to cure an existing sick child. The research undertaken in this thesis examines the regulatory frameworks overseeing the delivery of assisted reproductive technologies (ART) in Australia and the United Kingdom and considers how those frameworks impact on the accessibility of in vitro fertilisation (IVF) procedures for the creation of ‘saviour siblings’. In some jurisdictions, the accessibility of such techniques is limited by statutory requirements. The limitations and restrictions imposed by the state in relation to the technology are analysed in order to establish whether such restrictions are justified. The analysis is conducted on the basis of a harm framework. The framework seeks to establish whether those affected by the use of the technology (including the child who will be created) are harmed. In order to undertake such evaluation, the concept of harm is considered under the scope of John Stuart Mill’s liberal theory and the Harm Principle is used as a normative tool to judge whether the level of harm that may result, justifies state intervention or restriction with the reproductive decision-making of parents in this context. The harm analysis conducted in this thesis seeks to determine an appropriate regulatory response in relation to the use of pre-implantation tissue-typing for the creation of ‘saviour siblings’. The proposals outlined in the last part of this thesis seek to address the concern that harm may result from the practice of pre-implantation tissue-typing. The current regulatory frameworks in place are also analysed on the basis of the harm framework established in this thesis. The material referred to in this thesis reflects the law and policy in place in Australia and the UK at the time the thesis was submitted for examination (December 2009).

The role of the rule of law in virtual communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values. In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

Law autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.

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.

Retracing the Roots and Ideals of Confucian Principles of Governance: the Art of Regulating Governance without Legal Rules in Chinese Societies

Confucius was and still is one of the most eminent Chinese philosophers. Such is the importance of Confucius’s teachings; it had influenced all aspects of social life in Chinese societies. In the post-Enron, post-Worldcom, and post-Global Financial Crisis era there are raising doubts in the mantra of the so-called conventional wisdom about law and economic order. Whilst many recent publications offered solutions to those problems like advocating for more laws, rules or reforms in regulatory institutions to enhance the regulation of corporate governance. What Confucius advocated was a non-legal, social mode of regulation based on moral ideals that should be embedded into the minds of every person. Whilst this is an ancient concept from primitive societies, its relevance and merits could be seen in modern Chinese societies like Hong Kong. In essence, Confucian principles of governance build on relational and paternalistic order based on moral ideals.

Mooting and technology : to what extent does using technology improve the mooting experience for students?

It is generally acknowledged that mooting is an effective way to enhance the teaching of practical skills in legal education as well as to provide an authentic learning experience with links to the real world. However, there are a number of impediments to students participating in mooting; in particular being located off-campus, inexperience and lack of time. It has been suggested that technology may be a means of overcoming these impediments. However the use of technology in mooting has not been tested. This paper will report on a trial of the use of Second Life and Elluminate and videoconferencing as platforms for the conduct of moots. The trials identified limitations in the use of technology for mooting in particularly in relation to the development of advocacy skills. The paper will conclude that these limitations can be overcome by careful consideration of the appropriate technology to be used depending on the context and the objectives to be achieved by the moot. It will also suggest that in order to provide an authentic use of online communication technology in a court setting, the best available technology should be used for the conduct of moot competitions.

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.