Withholding and withdrawing life-sustaining treatment in a patient's best interests : Australian judicial deliberations

•Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. •A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested. •There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. •Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.

Rendering to Caesar and God : St Paul, the natural law tradition and the authority of law

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.

Health and guardianship law : guardianship and administration application in the matter of MDC [2014] QCAT 338

The recent decision of the Queensland Civil and Administrative Tribunal (QCAT) in Guardianship and administration application in the matter of MDC [2014] QCAT 338, provides an important ruling on the limits of who can be appointed as an enduring power of attorney under the Powers of Attorney Act 1998 (Qld). In particular, the tribunal adopted a broad interpretation of the term "health provider" when considering the limits on who can be appointed as an enduring power of attorney under the legislation...

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Voluntary palliated starvation : A lawful and ethical way to die?

Increasingly, individuals want control over their own destiny. This includes the way in which they die and the timing of their death. The desire for self-determination at the end of life is one of the drivers for the ever-increasing number of jurisdictions overseas that are legalising voluntary euthanasia and/or assisted suicide, and for the continuous attempts to reform state and territory law in Australia. Despite public support for law reform in this field, legislative change in Australia is unlikely in the near future given the current political landscape. We argue that there may be another solution which provides competent adults with control over their death and to have any pain and symptoms managed by doctors, but which is currently lawful and consistent with prevailing ethical principles. ‘Voluntary palliated starvation’ refers to the process which occurs when a competent individual chooses to stop eating and drinking, and receives palliative care to address pain, suffering and symptoms that may be experienced by the individual as he or she approaches death. In this article, we argue that, at least in some circumstances, such a death would be lawful for the individual and doctors involved, and consistent with principles of medical ethics.

Class participation as a learning and assessment strategy in law : facilitating students’ engagement, skills development and deep learning

Assessment has widely been described as being ‘at the centre of the student experience’. It would be difficult to conceive of the modern teaching university without it. Assessment is accepted as one of the most important tools that an educator can deploy to influence both what and how students learn. Evidence suggests that how students allocate time and effort to tasks and to developing an understanding of the syllabus is affected by the method of assessment utilised and the weighting it is given. This is particularly significant in law schools where law students may be more preoccupied with achieving high grades in all courses than their counterparts from other disciplines. However, well-designed assessment can be seen as more than this. It can be a vehicle for encouraging students to learn and engage more broadly than with the minimums required to complete the assessment activity. In that sense assessment need not merely ‘drive’ learning, but can instead act as a catalyst for further learning beyond what a student had anticipated. In this article we reconsider the potential roles and benefits in legal education of a form of interactive classroom learning we term assessable class participation (‘ACP’), both as part of a pedagogy grounded in assessment and learning theory, and as a platform for developing broader autonomous approaches to learning amongst students. We also consider some of the barriers students can face in ACP and the ways in which teacher approaches to ACP can positively affect the socio-emotional climates in classrooms and thus reduce those barriers. We argue that the way in which a teacher facilitates ACP is critical to the ability to develop positive emotional and learning outcomes for law students, and for teachers themselves.

‘Works well with others’ : examining the different types of small group learning approaches and their implications for law student learning outcomes

In the current regulatory climate, there is increasing expectation that law schools will be able to demonstrate students’ acquisition of learning outcomes regarding collaboration skills. We argue that this is best achieved through a stepped and structured whole-of-curriculum approach to small group learning. ‘Group work’ provides deep learning and opportunities to develop professional skills, but these benefits are not always realised for law students. An issue is that what is meant by ‘group work’ is not always clear, resulting in a learning regime that may not support the attainment of desired outcomes. This paper describes different types of ‘group work', each associated with distinct learning outcomes. It suggests that ‘group work’ as an umbrella term to describe these types is confusing, as it provides little indication to students and teachers of the type of learning that is valued and is expected to take place. ‘Small group learning’ is a preferable general descriptor. Identifying different types of small group learning allows law schools to develop and demonstrate a scaffolded, sequential and incremental approach to fostering law students’ collaboration skills. To support learning and the acquisition of higherorder skills, different types of small group learning are more appropriate at certain stages of the program. This structured approach is consistent with social cognitive theory, which suggests that with the guidance of a supportive teacher, students can develop skills and confidence in one type of activity which then enhances motivation to participate in another.

Questions and Answers : Contract Law [5th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

Using law to identify, manage and prevent child maltreatment

This chapter identifies ways in which laws are capable of responding to child maltreatment, both as an immediate regulator of conduct, and as an influence on a society’s cultural development and approach to children’s welfare. Informed by practices and experiences in selected common law systems, the chapter provides examples of legal mechanisms that can inform discussion of optimal strategies to identify and manage child maltreatment in many different societies. Both positive and negative aspects of these mechanisms are noted. While controversies arise as to what kinds of laws are best in preventing and responding to child maltreatment, and even, more fundamentally, whether there is a role for law in protecting children, this chapter offers evidence that a variety of legal tools can be employed to address child abuse and neglect, for any cultural setting in which there is willingness to act to prevent and treat its various forms.

Emissions Trading and WTO Law: A Global Analysis

Emissions trading schemes have been introduced throughout the world in order to achieve an environmental end. In the pursuit of reducing greenhouse gas emissions, these schemes will have a direct impact on the global economy. This book examines the details of emissions trading schemes through the lens of the World Trade Organization (WTO) law. Emissions trading schemes both implemented and proposed will be deconstructed to understand whether they will have a single uniform legal status within the WTO law, or indeed whether the legal status of the units of trade will differ on a case-by-case basis. This book examines non-discrimination provisions and exceptions within four significant WTO ‘covered agreements’. This analysis will be undertaken with a goal to understand how emissions trading scheme measures may be labelled and treated by WTO dispute settlement bodies. Moreover, the narrative of this publication demonstrates where decisions must be made by WTO Members in relation to the legal treatment of emissions trading units and liabilities. The aim of the book is to consider the issues associated with emissions trading that arise within the existing WTO law. This monograph will consider emissions trading schemes through the lens of WTO law to establish how these schemes will be defined, where they may potentially breach the non-discrimination provisions of the law and, whether the WTO law should be amended through Member agreement in order to accommodate these schemes. The book is an adaptation of a PhD thesis, which is an analysis of one emissions trading framework – the Australian Clean Energy Package – using WTO law as the theoretical framework. The aim of the proposed monograph is to increase the scope of analysis from the Clean Energy Package to emissions trading schemes more generally. It is envisaged that to do this effectively, examples of frameworks that have been proposed and implemented by various WTO members must be used as case studies for both WTO compliance and non-compliance.

Rediscovering law students as citizens: Critical thinking and the public value of legal education

In a series of publications over the last decade, Australian National University Professor Margaret Thornton has documented a disturbing change in the nature of legal education. This body of work culminates in a recently published book based on interviews with 145 legal academics in Australia, the United Kingdom, New Zealand and Canada. In it, Thornton describes a feeling of widespread unease among legal academics that society, government, university administrators and students themselves are moving away from viewing legal education as a public good which benefits both students and society. Instead, legal education is increasingly being viewed as a purely private good, for consumption by the student in the quest for individual career enhancement.

The ethics of corporate governance: A (South)African perspective

Purpose – The purpose of this paper is to review the developments in South African corporate governance since the end of apartheid, with a view to identifying themes and points of convergence and/or divergence with other models. Design/methodology/approach – The paper presents a critical review of South African corporate governance in the context of political and economic developments. Where relevant, aspects of corporate governance theory (in particular the stakeholder and shareholder debate) are considered in the South African context. Findings – South African corporate governance can be seen to broadly follow Anglo‐American examples with the notable exception of the stakeholder approach of the two King reports. This approach emphasises the responsibilities of companies to various stakeholders and encourages stakeholder engagement as an integral element of company strategy. There has not, however, been any substantial incorporation of stakeholder interests into formal corporate governance structures such as board structure and financial reporting. Practical implications – The ongoing consideration of corporate governance developments in South Africa is important for its continued development in the country and the region. Originality/value – A review of South African corporate governance is timely given the probable release of the third King report in 2009, together with new company legislation.

The high price of drug patents: Australia, patent law, pharmaceutical drugs and the Trans-Pacific Partnership

This week, the secrecy surrounding an independent Australian report on patent law and pharmaceutical drugs has been lifted, and the work has been published to great acclaim...

Who owns your body? Patricia Piccinini and the future of bioethics

This article analyses some popular cultural representations of biotechnology, especially the artistic work of the Australian artist Patricia Piccinini to reflect on the role of law, technology and ethics in relation to bodily material. Her view that "with creation...comes an obligation to care for the result", so evident in her poignant pictures, is a sober reminder to us of our responsibilities in regulating new technologies.

The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319