The borders that law sets on entertainment

It is natural for those involved in entertainment to focus on the art. However, like any activity in even a free society, those involved in entertainment industries must operate within borders set by the law. This article examines the main areas of law that impact entertainment in an Australian context. It contrasts the position in relation to freedom of expression in Australia with that in the United States, which also promotes freedom of expression in a free society. It then briefly canvases the main limits on entertainment productions under Australian law.

Technology : new horizons in teaching law

17.1 Up until the 1990s the methods used to teach the law had evolved little since the first law schools were established in Australia. As Keyes and Johnstone observed: In the traditional model, most teachers uncritically replicate the learning experiences that they had when students, which usually means that the dominant mode of instruction is reading lecture notes to large classes in which students are largely passive. Traditional legal education has been described in the following terms: Traditionally law is taught through a series of lectures, with little or no student involvement, and a tutorial programme. Sometimes tutorials are referred to as seminars but the terminology used is often insignificant: both terms refer to probably the only form of student participation that takes place throughout these students‘ academic legal education. The tutorial consists of analysing the answers, prepared in advanced (sic), to artificial Janet and John Doe problems or esoteric essay questions. The primary focus of traditional legal education is the transmission of content knowledge, more particularly the teaching of legal rules, especially those drawn from case law. This approach has a long pedigree. Writing in 1883, Dicey proposed that nothing can be taught to students of greater value, either intellectually or for the purposes of legal practice, than the habit of looking on the law as a series of rules‘.

Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation

Abstract Objective Involuntary commitment and treatment (IC&T) of people affected by mental illness may have reference to considerations of dangerousness and/or need for care. While attempts have been made to classify mental health legislation according to whether IC&T has obligatory dangerousness criteria, there is no standardised procedure for making classification decisions. The aim of this study was to develop and trial a classification procedure and apply it to Australia's mental health legislation. Method We developed benchmarks for ‘need for care’ and ‘dangerousness’ and applied these benchmarks to classify the mental health legislation of Australia's 8 states and territories. Our focus was on civil commitment legislation rather than criminal commitment legislation. Results One state changed its legislation during the course of the study resulting in two classificatory exercises. In our initial classification, we were able to classify IC&T provisions in legislation from 6 of the 8 jurisdictions as being based on either ‘need for care’ or ‘dangerousness’. Two jurisdictions used a terminology that was outside the established benchmarks. In our second classification, we were also able to successfully classify IC&T provisions in 6 of the 8 jurisdictions. Of the 6 Acts that could be classified, all based IC&T on ‘need for care’ and none contained mandatory ‘dangerousness’ criteria. Conclusions The classification system developed for this study provided a transparent and probably reliable means of classifying 75% of Australia's mental health legislation. The inherent ambiguity of the terminology used in two jurisdictions means that further development of classification may not be possible until the meaning of the terms used has been addressed in case law. With respect to the 6 jurisdictions for which classification was possible, the findings suggest that Australia's mental health legislation relies on ‘need for care’ and not on ‘dangerousness’ as the guiding principle for IC&T. Keywords: Involuntary commitment; Mental health legislation; Dangerousness; Australia

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.

The right to be green: using human rights law to achieve environmental protection

The relationship between the environment and human rights has long been recognised. It is now largely accepted that a ‘good’ environment is a necessary precondition for the enjoyment of a wide range of human rights, including the right to health, the right to an adequate standard of living, and even the right to life. It has even been suggested that as humans we all possess a right to live in an environment of a certain standard, based on the intrinsic value of the natural world to all human beings. In this context much has been written regarding the important role that the environment plays in human lives. This paper looks at the flip-side of this discussion, and examines what human rights can do for the environment. It is argued that, while there are valid criticisms for linking environmental protection too strongly to human needs, there is nonetheless much to be gained from using human rights law as a framework to achieve environmental protection.

Human rights and environmental wrongs : achieving environmental justice through human rights law

The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

A review of optimization techniques used in the design of fibre composite structures for civil engineering applications

Fibre composite structures have become the most attractive candidate for civil engineering applications. Fibre reinforced plastic polymer (FRP) composite materials have been used in the rehabilitation and replacement of the old degrading traditional structures or build new structures. However, the lack of design standards for civil infrastructure limits their structural applications. The majority of the existing applications have been designed based on the research and guidelines provided by the fibre composite manufacturers or based on the designer’s experience. It has been a tendency that the final structure is generally over-designed. This paper provides a review on the available studies related to the design optimization of fibre composite structures used in civil engineering such as; plate, beam, box beam, sandwich panel, bridge girder, and bridge deck. Various optimization methods are presented and compared. In addition, the importance of using the appropriate optimization technique is discussed. An improved methodology, which considering experimental testing, numerical modelling, and design constrains, is proposed in the paper for design optimization of composite structures.

Expansion of support for first year law students : an overview from a first year coordinator

In the context of government funding and targets for increased participation in higher education and equity groups, as well as attrition rates, the literature on first year higher education highlights the importance of appropriate levels of support for students transitioning to higher education. In the law school context, support of first year students is also important in the response to the high levels of stress among law students. It is therefore necessary for universities to provide a variety of support to first year students from both a student perspective and a curriculum perspective. This paper explores the process of investigating the expansion of student support, including peer support programs, staff led programs, appointing a first year coordinator and developing a curriculum plan. These programs promote engagement and ensure a cohesive and integrated first year experience from both curriculum design and student experience perspectives. This paper will explain the process undertaken at QUT of expanding support for first year law students, overview the program details and will reflect on the feedback from students, peer facilitators and staff of expanding support for first year law students at QUT. The paper will conclude with recommendations for improvement to the program.

Providing a law degree for the 'real world' : perspective of an Australian law school

This paper focuses on the ‘real world’ approach to the degree achieved through the first year program, embedding and scaffolding law graduate capabilities through authentic and valid assessment and work integrated learning to assist graduates with transition into the workplace.

Uncetainty in claiming damages for defects in property

In Project Management Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 the appellant sought leave to join its parent company party (Project Management Company No 1) as a plaintiff to the proceedings and to amend its statement of claim. It was argued that the parent company had suffered the loss claimed in the proceedings, rather than the appellant. Rule 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 (Qld) allows a court at any stage of the proceeding to order that ‘a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding’ be include as a party. To determine this issue, the Court of Appeal had to review the law relevant to the proceedings – a claim in negligence for pure economic loss, in particular, the principles espoused by the High Court in Bryan v Maloney(1995) 182 CLR 609 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

The role of property law in environmental management

Market-based environmental regulation is becoming increasingly common within international and national frameworks. In order for market-based regimes to attract sufficient levels of stakeholder engagement, participants within such schemes require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is associated with property-based interests. This article explores the property-related issues connected with the operation of environmental markets. Relevant property-related considerations include examining the significant role that market-based regulation is playing in connection with the environment; examining the links between property rights and markets; exploring the legal definition of property; analysing the rights and powers associated with environmental interests in land; advancing theory on the need for landholder responsibilities in relation to land and examining the legal mechanisms used to recognise environmental property rights, including the registration thereof.

Relationship management as a strategy for supply chain engagement in the civil engineering construction industry

Many studies into construction procurement methods reveal evidence of a need to change the culture and attitude in the construction industry, transition from traditional adversarial relationships to cooperative and collaborative relationships. At the same time there is also increasing concern and discussion on alternative procurement methods, involving a movement away from traditional procurement systems. Relational contracting approaches, such as partnering and relationship management, are business strategies that align the objectives of clients, commercial participants and stakeholders. It provides a collaborative environment and a framework for all participants to adapt their behaviour to project objectives and allows for engagement of those subcontractors and suppliers down the supply chain. The efficacy of relationship management in the client and contractor groups is proven and well documented. However, the industry has a history of slow implementation of relational contracting down the supply chain. Furthermore, there exists little research on relationship management conducted in the supply chain context. This research aims to explore the association between relational contracting structures and processes and supply chain sustainability in the civil engineering construction industry. It endeavours to shed light on the practices and prerequisites for relationship management implementation success and for supply sustainability to develop. The research methodology is a triangulated approach based on Cheung.s (2006) earlier research where questionnaire survey, interviews and case studies were conducted. This new research includes a face-to-face questionnaire survey that was carried out with 100 professionals from 27 contracting organisations in Queensland from June 2008 to January 2009. A follow-up survey sub-questionnaire, further examining project participants. perspectives was sent to another group of professionals (as identified in the main questionnaire survey). Statistical analysis including multiple regression, correlation, principal component factor analysis and analysis of variance were used to identify the underlying dimensions and test the relationships among variables. Interviews and case studies were conducted to assist in providing a deeper understanding as well as explaining findings of the quantitative study. The qualitative approaches also gave the opportunity to critique and validate the research findings. This research presents the implementation of relationship management from the contractor.s perspective. Findings show that the adaption of relational contracting approach in the supply chain is found to be limited; contractors still prefer to keep the suppliers and subcontractors at arm.s length. This research shows that the degree of match and mismatch between organisational structuring and organisational process has an impact on staff.s commitment level and performance effectiveness. Key issues affecting performance effectiveness and relationship effectiveness include total influence between parties, access to information, personal acquaintance, communication process, risk identification, timely problem solving and commercial framework. Findings also indicate that alliance and Early Contractor Involvement (ECI) projects achieve higher performance effectiveness at both short-term and long-term levels compared to projects with either no or partial relationship management adopted.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.