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.

The international regulation of sustainable forest management : doctrinal concepts, governing institutions and implementation

The overarching objective of the research was to identify the existence and nature of international legal principles governing sustainable forest use and management. This research intended to uncover a set of forest legal considerations that are relevant for consideration across the globe. The purpose behind this, is to create a theoretical base of international forest law literature which be drawn upon to inform future international forestry research. This research will be of relevance to those undertaking examination of a particular forest issue or those focusing on forests in a particular region. The thesis explains the underlying legal issues in forest regulation, the dominant international regulatory approaches and makes suggestions as to how international and national forest policy could be improved.

Out of time: The moral temporality of sex, crime and taboo

This paper discusses the relationship between law and morality. Morality does not necessarily coincide with the law, but it contributes to it. An act may be legal but nevertheless considered to be immoral in a particular society. For example, the use of pornography may be considered by many to be immoral. Nevertheless, the sale and distribution of non-violent, non-child related, sexually explicit material is legal (or regulated) in many jurisdictions. Many laws are informed by, and even created by, morality. This paper examines the historical influence of morality on the law and on society in general. It aims to develop a theoretical framework for examining legal moralism and the social construction of morality and crime as well as the relationship between sex, desire and taboo. Here, we refer to the moral temporality of sex and taboo, which examines the way in which moral judgments about sex and what is considered taboo change over time, and the kinds of justifications that are employed in support of changing moralities. It unpacks the way in which abstract and highly tenuous concepts such as ‘‘desire’’, ‘‘art’’ and ‘‘entertainment’’ may be ‘‘out of time’’ with morality, and how morality shapes laws over time, fabricating justifications from within socially constructed communities of practice. This theoretical framework maps the way in which these concepts have become temporally dominated by heteronormative structures such as the family, marriage, reproduction, and longevity. It is argued that the logic of these structures is inexorably tied to the heterosexual life-path, charting individual lives and relationships through explicit phases of childhood, adolescence and adulthood that, in the twenty-first century, delimit the boundaries of taboo surrounding sex more than any other time in history.

Absence of malice: Constructing the female sex offender

It could be argued that all crimes have a general moral basis, condemned as ‘wrong’ or ‘bad’ in the society in which they are proscribed, however, there are a specific group of offences in modern democratic nations which bear the brunt of the label, crimes against morality. Included within this group are offences related to prostitution and pornography, homosexuality and incest, as well as child sexual abuse. While the places where sex and morality meet have shifted over time, these two concepts continue to form the basis of much criminal legislation and associated criminal justice responses. Offenders of sexual mores are positioned as the reviled corruptors of innocent children, the purveyors of disease, an indictment on the breakdown of the family and/or the secularisation of society, and a corruptive force (Davidson 2008, Kincaid 1998). Other types of offending may divide public and political opinion, but the consensus on sex crimes appears constant.

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment : part 3 (Victoria)

This is the final article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Victoria. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals’ legal knowledge in this area. The article examines the level of training that medical professionals receive on issues such as refusal of treatment certificates and substitute decision-making, and the available empirical evidence as to the state of medical professionals’ knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Victoria. The article also draws together themes from the series as a whole, including conclusions about the need for more and better medical education and about law reform generally.

From the bottom-up : redesigning the international legal response to anthropogenic climate change

The design of the Kyoto Protocol renders it incapable of effectively responding to the problem of anthropogenic climate change. Therefore, this article explores the opportunity to construct a new, principled legal approach to respond to climate change that is premised on nationally derived legal responses. To do so, this article considers the theoretical foundation of the international legal response to climate change – Hardin's "The Tragedy of the Commons‟ – and the systemic design faults of the Kyoto Protocol. This article also suggests four principles – a judicious mix of legal instruments, flexibility, intrinsic legal coherence, and quantifiable and achievable targets for the reduction of greenhouse gas intensity – that are necessary to guide the creation of a nationally derived legal response to climate change. This approach is intended to provide the catalyst for new bilateral and multilateral arrangements that can, with the passing of time, generate sufficient momentum to drive the creation of a new and effective cooperative international legal framework to mitigate anthropogenic climate change.

Duty of care for mental harm suffered by rescuers

In Wicks v State Rail Authority NSW; Sheehan v State Rail Authority NSW [2010] HCA 22 (16 June 2010) the duty of care owed to rescuers, who were police officers, at a train derailment, was considered in conjunction with the interpretation of the Civil Liability Act (NSW) 2002.

Social Impact of Mining Survey : Aggregate Results Queensland Communities

This is the final report from a study into the social impact of mining in Queensland.

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.

Challenging the assumptions of positivism : an analysis of the concept of society in Sampi on behalf of the Bardi and Jawi people v Western Australia [2010] and Bodney v Bennell [2008]

The requirement to prove a society united by a body of law and customs to establish native title rights has been identified as a major hurdle to achieving native title recognition. The recent appeal decision of the Federal Court in Sampi on behalf of the Bardi and Jawi People v Western Australia [2010] opens the potential for a new judicial interpretation of society based on the internal view of native title claimants. The decision draws on defining features of legal positivism to inform the court’s findings as to the existence of a single Bardi Jawi society of ‘one people’ living under ‘one law’. The case of Bodney v Bennell [2008] is analysed through comparitive study of how the application of the received positivist framework may limit native title recognition. This paper argues that the framing of Indigenous law by reference to Western legal norms is problematic due to the assumptions of legal positivism and that an internal view based on Indigenous worldviews, which see law as intrinsically linked to the spiritual and ancestral connection to country, is more appropriate to determine proof in native title claims.

A changing landscape : The mortgagee's power of sale in Queensland

In Australia, the extent of a mortgagee’s duty when exercising power of sale has long been the subject of conjecture. With the advent of the global financial crisis in the latter part of 2008, there has been some concern to ensure that the interests of mortgagors are adequately protected. In Queensland, concern of this type resulted in the enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld). This amending legislation operates to both extend and strengthen the operation of s 85 of the Property Law Act 1974 (Qld) which regulates the mortgagee’s power of sale in Queensland. This article examines the impact of this amending legislation which was hastily introduced and passed by the Queensland Parliament without consultation and which introduces a level of prescription in relation to a sale under a prescribed mortgage which is without precedent elsewhere in Australia.