Copyright in patent specifications and prior art documents: Addressing legitimate rights of user

One of the recent Raising the Bar amendments has removed impediments imposed by copyright law that may have limited the uses to which IP Australia and members of the public could have lawfully put patent specifications without seeking permission from the copyright owner. What the amendment does not do, however, is extend the same protections to those who wish to use prior art documents in ways that benefit the patent system and further the public interest.

Scared straight : boot camps for Queensland

The Liberal National Party (‘LNP’) ‘tough on youth crime’ policy mantra was well publicised in the months leading up to the 2012 Queensland state election. 1 Boot camp trials were espoused as a quick-fix panacea — a way of addressing youth offending. The idea was particularly favoured in the far northern regions of the state. In line with the new government’s policy, the Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012 (Qld) (‘the Bill’) had a speedy passage through the unicameral Queensland parliament. It was introduced on 1 November 2012, scrutinised by the Legal Affairs and Community Safety Committee (‘LACSC’) which sought community feedback, and reported back to Parliament within the given timeframe of three weeks. The Bill received assent early December and the provisions commenced in January 2013. This article examines the legislative changes implemented in Queensland. It analyses the issues prompting the amendments such as the perception that parts of Queensland were in the grip of a ‘soaring juvenile crime rate’, the conservative government’s ‘tough stance’ policy towards youth offending, and the transfer of youth justice ‘solutions’ such as ‘boot camps’ among jurisdictions. The article assesses the evidence base for boot camp orders as an option in sentencing young offenders and concludes by raising serious concerns about pursuing such a narrow hardline approach to youth justice.

Copyright and computer generated materials : is it time to reboot the discussion about authorship?

Computer generated materials are ubiquitous and we encounter them on a daily basis, even though most people are unaware that this is the case. Blockbuster movies, television weather reports and telephone directories all include material that is produced by utilising computer technologies. Copyright protection for materials generated by a programmed computer was considered by the Federal Court and Full Court of the Federal Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd. The court held that the White and Yellow pages telephone directories produced by Telstra and its subsidiary, Sensis, were not protected by copyright because they were computer-generated works which lacked the requisite human authorship. The Copyright Act 1968 (Cth) does not contain specific provisions on the subsistence of copyright in computer-generated materials. Although the issue of copyright protection for computer-generated materials has been examined in Australia on two separate occasions by independently-constituted Copyright Law Review Committees over a period of 10 years (1988 to 1998), the Committees’ recommendations for legislative clarification by the enactment of specific amendments to the Copyright Act have not yet been implemented and the legal position remains unclear. In the light of the decision of the Full Federal Court in Telstra v Phone Directories it is timely to consider whether specific provisions should be enacted to clarify the position of computer-generated works under copyright law and, in particular, whether the requirement of human authorship for original works protected under Part III of the Copyright Act should now be reconceptualised to align with the realities of how copyright materials are created in the digital era.

Transnational Whiteness Matters

"The collection contributes to transnational whiteness debates through theoretically informed readings of historical and contemporary texts by established and emerging scholars in the field of critical whiteness studies. From a wide range of disciplinary perspectives, the book traces continuity and change in the cultural production of white virtue within texts, from the proud colonial moment through to neoliberalism and the global war on terror in the twenty-first century. Read together, these chapters convey a complex understanding of how transnational whiteness travels and manifests itself within different political and cultural contexts. Some chapters address political, legal and constitutional aspects of whiteness while others explore media representations and popular cultural texts and practices. The book also contains valuable historical studies documenting how whiteness is insinuated within the texts produced, circulated and reproduced in specific cultural and national locations."--Google eBook

The border adjustments of the Australian clean energy package

Climate change is a global challenge. For this reason, it has been suggested that a global solution is necessary. In Australia the Clean Energy Package has been introduced with a purpose of reducing Australia’s greenhouse gas emissions inventory, and responding to international obligations. This Package contains the institutional framework for an emissions trading scheme. The Package also includes amendments for other existing legal arrangements. These arrangements include a greenhouse gas emissions price on certain imported products. With this in mind the purpose of this paper is twofold. First, to consider the border adjustments and import charges of the Clean Energy Package and determine whether these comply with the rules of the World Trade Organization. Second, to analyse whether a border tax adjustment could be included in the Package for emissions intensive trade exposed (EITE) products. This paper concludes that, although the existing arrangements appear to comply with the WTO legal requirements, a border adjustment on EITE products could not be implemented in a manner that would comply with these rules.

The double risk of primitivism

This essay examines the possibilities for practices that appeal to the primitive in the contemporary cultural context. The idea of the primitive is driven by a desire to challenge the limitations of Western culture, while at the same time attracting the charge of promoting Eurocentrism. This essay investigates this double risk and how artists have sought to evade it, confound it, or accentuate it.

The contributions of solar ultraviolet radiation exposure and other determinants to Serum 25-Hydroxyvitamin D concentrations in Australian adults : the AusD study

The Quantitative Assessment of Solar UV [ultraviolet] Exposure for Vitamin D Synthesis in Australian Adults (AusD) Study aimed to better define the relationship between sun exposure and serum 25-hydroxyvitamin D (25(OH)D) concentration. Cross-sectional data were collected between May 2009 and December 2010 from 1,002 participants aged 18-75 years in 4 Australian sites spanning 24° of latitude. Participants completed the following: 1) questionnaires on sun exposure, dietary vitamin D intake, and vitamin D supplementation; 2) 10 days of personal ultraviolet radiation dosimetry; 3) a sun exposure and physical activity diary; and 4) clinical measurements and blood collection for 25(OH)D determination. Our multiple regression model described 40% of the variance in 25(OH)D concentration; modifiable behavioral factors contributed 52% of the explained variance, and environmental and demographic or constitutional variables contributed 38% and 10%, respectively. The amount of skin exposed was the single strongest contributor to the explained variance (27%), followed by location (20%), season (17%), personal ultraviolet radiation exposure (8%), vitamin D supplementation (7%), body mass index (weight (kg)/height (m)2) (4%), and physical activity (4%). Modifiable behavioral factors strongly influence serum 25(OH)D concentrations in Australian adults. In addition, latitude was a strong determinant of the relative contribution of different behavioral factors.

Mandatory sentencing : a criminological perspective

This paper will give a ‘criminological perspective’ on mandatory sentencing. It will however largely avoid the issues of the effect of mandatory sentencing provisions on the judicial process and judicial independence, as this has already been covered by Sir Anthony Mason. It will also avoid the legal issues concerning the constitutional, human rights and international law aspects of mandatory sentencing which will be covered by later speakers. The aim will be to give a brief overview of research which evaluates the effects of mandatory sentencing provisions in terms of the available evidence of whether they meet their stated aims of deterrence, selective incapacitation and the reduction of crime rates. This will be done in two parts, first in relation to the more extensive experiment in mandatory sentencing in the USA which has provided some of the impetus and metaphors ("three strikes") for recent Australian developments; and second the recent mandatory sentencing provisions in Western Australia (WA) and the Northern Territory (NT). Evidence from both the US and WA (NT is hard to assess because of the lack of proper monitoring and criminal statistics) indicates that mandatory sentencing does not produce the effects of deterrence, selective incapacitation and crime reduction which are its stated justifications and does produce a range of damaging side effects in terms of distortion of the judicial process, wildly disproportionate sentencing, additional financial and social cost and deepening social exclusion of individuals and particular communities. So what is left are the less acknowledged underpinnings of mandatory sentencing in the form of the symbolic politics of law and order, the politics of social exclusion and a displacement of racial anxieties and hostilities onto the terrain of the legal. In fashioning this necessarily brief overview a number of sources have been heavily drawn upon, in particular the excellent work by Neil Morgan from UWA (Morgan, 1995;1999; 2000); Dianne Johnson and George Zdenkowski in their detailed report to the Senate Inquiry (2000); and a number of articles appearing in 1999 in an excellent special issue of the UNSW Law Journal, all of which are highly recommended for further reading.

The epidemiology of basal cell carcinoma

Basal cell carcinoma (BCC) is a skin cancer of particular importance to the Australian community. Its rate of occurrence is highest in Queensland, where 1% to 2% of people are newly affected annually. This is an order of magnitude higher than corresponding incidence estimates in European and North American populations. Individuals with a sun-sensitive complexion are particularly susceptible because sun exposure is the single most important causative agent, as shown by the anatomic distribution of BCC which is in general consistent with the levels of sun exposure across body sites. A distinguishing feature of BCC is the occurrence of multiple primary tumours within individuals, synchronously or over time, and their diagnosis and treatment costs contribute substantially to the major public health burden caused by BCC. A primary knowledge gap about BCC pathogenesis however was an understanding of the true frequency of multiple BCC occurrences and their body distribution, and why a proportion of people do develop more than one BCC in their life. This research project sought to address this gap under an overarching research aim to better understand the detailed epidemiology of BCC with the ultimate goal of reducing the burden of this skin cancer through prevention. The particular aim was to document prospectively the rate of BCC occurrence and its associations with constitutional and environmental (solar) factors, all the while paying special attention to persons affected by more than one BCC. The study built on previous findings and recent developments in the field but set out to confirm and extend these and propose more adequate theories about the complex epidemiology of this cancer. Addressing these goals required a new approach to researching basal cell carcinoma, due to the need to account for the phenomenon of multiple incident BCCs per person. This was enabled by a 20 year community-based study of skin cancer in Australians that provided the methodological foundation for this thesis. Study participants were originally randomly selected in 1986 from the electoral register of all adult residents of the subtropical township of Nambour in Queensland, Australia. On various occasions during the study, participants were fully examined by dermatologists who documented cumulative photodamage as well as skin cancers. Participants completed standard questionnaires about skin cancer-related factors, and consented to have any diagnosed skin cancers notified to the investigators by regional pathology laboratories in Queensland. These methods allowed 100% ascertainment of histologically confirmed BCCs in this study population. 1339 participants had complete follow-up to the end of 2007. Statistical analyses in this thesis were carried out using SAS and SUDAAN statistical software packages. Modelling methods, including multivariate logistic regressions, allowed for repeated measures in terms of multiple BCCs per person. This innovative approach gave new findings on two levels, presented in five chapters as scientific papers: 1. Incidence of basal cell carcinoma multiplicity and detailed anatomic distribution: longitudinal study of an Australian population The incidence of people affected multiple times by BCC was 705 per 100,000 person years compared to an incidence rate of people singly affected of 935 per 100,000 person years. Among multiply and singly affected persons alike, site-specific BCC incidence rates were far highest on facial subsites, followed by upper limbs, trunk, and then lower limbs 2. Melanocytic nevi and basal cell carcinoma: is there an association? BCC risk was significantly increased in those with forearm nevi (Odds Ratios (OR) 1.43, 95% Confidence Intervals (CI) 1.09-1.89) compared to people without forearm nevi, especially among those who spent their time mainly outdoors (OR 1.6, 95%CI 1.1-2.3) compared to those who spent their time mainly indoors. Nevi on the back were not associated with BCC. 3. Clinical signs of photodamage are associated with basal cell carcinoma multiplicity and site: a 16-year longitudinal study Over a 16-year follow-up period, 58% of people affected by BCC developed more than one BCC. Among these people 60% developed BCCs across different anatomic sites. Participants with high numbers of solar keratoses, compared to people without solar keratoses, were most likely to experience the highest BCC counts overall (OR 3.3, 95%CI 1.4-13.5). Occurrences of BCC on the trunk (OR 3.3, 95%CI 1.4-7.6) and on the limbs (OR 3.7, 95%CI 2.0-7.0) were strongly associated with high numbers of solar keratoses on these sites. 4. Occurrence and determinants of basal cell carcinoma by histological subtype in an Australian community Among 1202 BCCs, 77% had a single growth pattern and 23% were of mixed histological composition. Among all BCCs the nodular followed by the superficial growth patterns were commonest. Risk of nodular and superficial BCCs on the head was raised if 5 or more solar keratoses were present on the face (OR 1.8, 95%CI 1.2-2.7 and OR 4.5, 95%CI 2.1-9.7 respectively) and similarly on the trunk in the presence of multiple solar keratoses on the trunk (OR 4.2, 95%CI 1.5-11.9 and OR 2.2, 95%CI 1.1-4.4 respectively). 5. Basal cell carcinoma and measures of cumulative sun exposure: an Australian longitudinal community-based study Dermal elastosis was more likely to be seen adjacent to head and neck BCCs than trunk BCCs (p=0.01). Severity of dermal elastosis increased on each site with increasing clinical signs of cutaneous sun damage on that site. BCCs that occurred without perilesional elastosis per se, were always found in an anatomic region with signs of photodamage. This thesis thus has identified the magnitude of the burden of multiple BCCs. It does not support the view that people affected by more than one BCC represent a distinct group of people who are prone to BCCs on certain body sites. The results also demonstrate that BCCs regardless of site, histology or order of occurrence are strongly associated with cumulative sun exposure causing photodamage to the skin, and hence challenge the view that BCCs occurring on body sites with typically low opportunities for sun exposure or of the superficial growth pattern are different in their association with the sun from those on typically sun-exposed sites, or nodular BCCs, respectively. Through dissemination in the scientific and medical literature, and to the community at large, these findings can ultimately assist in the primary and secondary prevention of BCC, perhaps especially in high-risk populations.

The Politics and Legality of Prisoner Disenfranchisement in Australian Federal Elections

To remove the right of prisoners to vote does many things. … It signals that whatever the prisoner says is not of interest to those at the top, that you are not interested in talking to them or even listening to them, that you want to exclude them and that you have no interest in knowing about them. INTRODUCTION In June 2006, Australia passed legislation disenfranchising all prisoners serving full-time custodial sentences from voting in federal elections. This followed a succession of changes dating from 1983 that alternately extended and restricted the prisoner franchise. In 1989 and 1995, the Australian Labor Party (ALP) federal government prepared draft legislation removing any restrictions on prisoner voting rights in federal elections; the measures were defeated and withdrawn. With the 2006 legislation, the Howard Coalition government (composed of the Liberal and National parties) successfully achieved the total disenfranchisement it first sought in 1998. This chapter examines the politics and legality of the 2006 disenfranchisement. This will be approached, first, by briefly outlining the key provisions of the Commonwealth Electoral Act 1918, offering a short legislative history of prisoner franchise, and examining some of the key constitutional issues. Second, the 2006 disenfranchisement introduced in the Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006 will be examined in greater detail, particularly in terms of the manner in which it was achieved and the arguments that were mobilized both in support of and against the change.

A spatial-indexing model for measuring neighbourhood-level land-use and transport integration

Significant attention has been given in urban policy literature to the integration of land-use and transport planning and policies—with a view to curbing sprawling urban form and diminishing externalities associated with car-dependent travel patterns. By taking land-use and transport interaction into account, this debate mainly focuses on how a successful integration can contribute to societal well-being, providing efficient and balanced economic growth while accomplishing the goal of developing sustainable urban environments and communities. The integration is also a focal theme of contemporary urban development models, such as smart growth, liveable neighbourhoods, and new urbanism. Even though available planning policy options for ameliorating urban form and transport-related externalities have matured—owing to growing research and practice worldwide—there remains a lack of suitable evaluation models to reflect on the current status of urban form and travel problems or on the success of implemented integration policies. In this study we explore the applicability of indicator-based spatial indexing to assess land-use and transport integration at the neighbourhood level. For this, a spatial index is developed by a number of indicators compiled from international studies and trialled in Gold Coast, Queensland, Australia. The results of this modelling study reveal that it is possible to propose an effective metric to determine the success level of city plans considering their sustainability performance via composite indicator methodology. The model proved useful in demarcating areas where planning intervention is applicable, and in identifying the most suitable locations for future urban development and plan amendments. Lastly, we integrate variance-based sensitivity analysis with the spatial indexing method, and discuss the applicability of the model in other urban contexts.

Unintended consequences : satellite policy and Indigenous television

This article examines two instances of media policy involving satellite transmission and Indigenous television: the introduction of the Viewer Access Satellite Television (VAST) platform in 2010 and the introduction of AUSSAT in the mid-1980s. The government’s failure to provide community and Indigenous broadcasters with an access regime at the time of AUSSAT resulted in Australia’s first and only Indigenous commercial television licensee, Imparja. Over a quarter of a century later, Imparja now forms part of the joint-venture company that runs VAST, a key component of Australia’s digital switchover planning. During the passage of the legislative amendments required to establish VAST, the issue of access resurfaced – this time in relation to Australia’s national and community Indigenous television channels. The article recounts the events leading up to the 2010 Bill, and examines the intended and unintended consequences of satellite policy in relation to Indigenous media, including equalisation and transparency of government funding programs.

The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

The use of headings and marginal notes in interpreting Queensland legislation : appearances can be deceptive

This article considers the rules relating to the use of marginal notes and headings in interpreting Queensland legislation, both in its original form and in reprinted legislation. It also examines the application of the principles of construction as to the use of section headings in the interpretation of provisions of the Criminal Code 1899 (Qld). Finally, it suggests that amendments should be made to the Acts Interpretation Act 1954 (Qld) in order to clarify the position as to the status of marginal notes and headings in statutory interpretation.

Time for a national approach to donor conception in Australia

There is a growing recognition of the interests and rights of individuals conceived using donated gametes in assisted reproductive technology to information about their biological parentage. In Australia these rights vary between jurisdictions according to differing statutory provisions. In February 2011 the Senate's Legal and Constitutional Affairs References Committee published its report on Donor Conception Practices in Australia. The report recommended the development of a nationally consistent approach to donor conception and recommended the enactment of legislation in those Australian jurisdictions without legislation regulating donor conception. This editorial reviews the Senate Committee report and its recommendations and supports calls for a nationally harmonised approach to donor conception in Australia.