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.

The role of human rights in environmental governance : the challenge of climate change

The role of human rights in environmental governance is increasingly gaining attention. This is particularly the case in relation to the challenge of climate change, where there is growing recognition of a real threat to human rights. This chapter argues in favour of greater reference to human rights principles in environmental governance. It refers to the experiences of Torres Strait Islanders to demonstrate the impact of climate change on human rights, and the many benefits which can be gained from a greater consideration of human rights norms in the development of strategies to combat climate change. The chapter also argues that a human rights perspective can help address the underlying injustice of climate change: that it is the people who have contributed least to the problem who will bear the heaviest burden of its effects.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

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.

Reality bytes : technology in real world legal education

The use of technology for purposes such as communication and document management has become essential to legal practice with practitioners and courts increasingly relying on various forms of technology. Accordingly, legal practitioners need to be able to understand, communicate with, and persuade their audience using this technology. Technology skills are therefore an essential and integral part of undergraduate legal education, and given the widening participation agenda in Australia and consequent increasing diversity of law students, it must also be available to all students. To neglect this most crucial part of modern legal education is to fail in a fundamental aspect of a University’s obligation not just to its students, but ultimately to our students’ potential employers and their future clients. This paper will consider how law schools can facilitate the development of technology skills by using technology to facilitate mooting in settings that replicate legal practice. In order to assess the facilities at the disposal of universities, the authors surveyed the law schools in Australia about their equipment in and use of electronic moot court rooms. The authors also conducted and evaluated an internal mooting competition using Elluminate, an online communication platform available to students through Blackboard. Students were able to participate wherever they were located without the need to attend a moot court room. The results of the survey and evaluation of the Elluminate competition will be discussed. The paper will conclude that while it is essential to teach technology skills as part of legal education, it is important that the benefits and importance of using technology be made clear in order for it to be accepted and embraced by the students. Technology must also be available to all students considering the widening participation in higher education and consequent increasing diversity of law students.

Access to protection for 'Offshore Entry Persons' aka asylum seekers

In 2001, amendments to the Migration Act 1958 (Cth) made possible the offshore processing of protection claims. The same amendments also foreshadowed the processing of claims by ‘offshore entry persons’ in Australia according to non-statutory procedures. After disbanding offshore processing the then Rudd Labor Government commenced processing of protection claims by ‘offshore entry persons’ in Australia under the Refugee Status Assessment process (RSA). The RSA process sought to substitute well established legislative criteria for the grant of a protection visa, as interpreted by the courts, with administrative guidelines and decision-making immune from judicial review. This approach was rejected by the High Court in the cases M61 and M69. This article analyses these developments in light of Australia’s international protection obligations, as well as considering the practical obstacles that continue to confront offshore entry persons as they pursue judicial review of adverse refugee status determinations after the High Court’s decision.

A preliminary theory of dark network resilience

A crucial contemporary policy question for governments across the globe is how to cope with international crime and terrorist networks. Many such “dark” networks—that is, networks that operate covertly and illegally—display a remarkable level of resilience when faced with shocks and attacks. Based on an in-depth study of three cases (MK, the armed wing of the African National Congress in South Africa during apartheid; FARC, the Marxist guerrilla movement in Colombia; and the Liberation Tigers of Tamil Eelam, LTTE, in Sri Lanka), we present a set of propositions to outline how shocks impact dark network characteristics (resources and legitimacy) and networked capabilities (replacing actors, linkages, balancing integration and differentiation) and how these in turn affect a dark network's resilience over time. We discuss the implications of our findings for policymakers.

Transfer of Title by a Non-Owner : Personal Property Securities Act 2009 (Cth) exceptions to the nemo dat quod non habet rule

The fundamental personal property rule – no one can transfer a better title to property than they had – is subject to exceptions in the Sale of Goods legislation, which aim to protect innocent buyers who are deceived by a seller’s apparent physical possession of property. These exceptions cover a limited range of transactions and are restrictive in their operation. Australia now has national legislation - the Personal Property Securities Act 2009 (Cth) - which will apply to many transactions outside the scope of the Sale of Goods Act and which includes rules for sales by non-owners which will provide exceptions to the nemo dat quod non habet rule for many common commercial transactions. This article explores the effect of the Personal Property Securities Act 2009 (Cth) on the Sale of Goods exceptions, explains that the new provisions are so wide that there is little continuing relevance for the Sale of Goods Act exceptions, and indicates where they may still apply.

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.

Sociopathic attitudes to road safety

Injuries and deaths due to unsafe driving practices are a substantial health and socioeconomic burden to the community. Young socially disadvantaged males who are involved in a lifestyle of risky behaviour, crime and motor vehicle accidents seem unaffected by educational campaigns to improve safer driving. The aim is to develop a driving and social behavioural profile that may explain the lack of effectiveness of road safety advertising and suggest ways to refine educational strategies to reduce the risky lifestyle and associated harms among those most vulnerable, the 15-25 year olds. The procedure involved a quantitative and qualitative analysis through questionnaires, surveys and focus groups involving a comparison of populations (n = 668) by age, gender and socioeconomic status in three discrete Australian sites. Information gathered included issues related to road safety awareness, knowledge of advertising, personal and peer group attitudes as well as driving and life style history. The results indicate that within the community a highly visible profile of strong anti-social road safety activities by an educationally and economically disadvantaged sub-culture exists and this group seem impervious to road safety advertising and education initiatives. As the overall unsafe driving and risky antisocial behaviour is significant among 15-25 year olds within the community the solution is seen to be community based. A long-term (five to ten year) program has been posited; promoting community partnerships through consultative and local action committees at all levels creating locally designed formal and informal educational and mutual support programs.

Refusal of medical treatment : a child's prerogative?

Society has a need for children to be able to make health care decisions. Homeless children need access to health care. Parents may not be accessible or competent to consent to their child’s health care. The familial relationship may have broken down. Children may not want their parents to know about drug, alcohol or pregnancy related issues. There is legal and academic support for the right of children to make autonomous decisions with respect to their health care. However what these decisions cover and who can make them is not clear. Whether or not a minor has capacity and is therefore competent to consent to medical treatment is a question of law. Some states of Australia have enacted legislation, while others rely on the common law to determine this issue. At common law a minor is capable of giving consent to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed. Known as ‘Gillick competence’ this is a well known principle of law. The question posed by this paper is whether the decision of a ‘Gillick competent’ child can and should be overridden by the court?

The mobile phone : the new communication drum of Papua New Guinea

This thesis examines the role of mobile telephony in rural communities in Papua New Guinea (PNG). It is a threshold study which reports on research conducted in the earliest stages of mobile phone adoption in these areas. It explores the ways in which this new technology changes people’s lives, social structures and relationships. The research focuses on non-urban communities, which previously had little or no access to modern communication technologies, but which are in some cases still using traditional forms of communication such as drums. It has found that the introduction of mobile telecommunications has generally been viewed positively, although several negative concerns have been strongly felt. Specific benefits related to enhanced communication with relatives and friends living away from home villages, and use of the technology in time-critical emergencies or crises. Difficulties have arisen with respect to the cost of owning and operating a handset, as well as financial and logistical challenges when recharging handset batteries, particularly in areas with no mains electricity supply. Perceived damaging effects of mobile phone access related to sex, crime and pornography. The changes taking place are described through a social lens, by foregrounding the perceptions of villagers. The perspectives of key informants, such as telecommunication company managers, are also discussed. Employing the technique of triangulation (using different methods and sources) has helped to validate the findings of the research project. The sources constantly overlap and agree on the main themes, such as those outlined above. PNG is a developing country which performs poorly on a wide range of development indicators. A large majority of the people live outside of the major towns and cities. It is therefore worthwhile investigating the introduction of mobile phone technology in rural areas. These areas often have poor access to services, including transport, health, education and banking. Until 2007, communities in such regions fell outside of mobile phone coverage areas. In the case of all ten villages discussed in this thesis, there has never been any landline telephone infrastructure available. Therefore, this research on mobile phones is in effect documenting the first ever access to any kind of phone in these communities. This research makes a unique contribution to knowledge about the role of communication in PNG, and has implications for policy, practice and theory. In the policy arena, the thesis aids understanding of the impact which communication sector competition and regulation can have on rural and relatively isolated communities. There are three practical problems which have emerged from the research: cost, battery recharging difficulties and breakage are all major obstacles to uptake and use of mobile telephony in rural communities. Efforts to reduce usage costs, enable easier recharging, and design more robust handsets would allow for increased utilisation of mobile phones for a range of purposes. With respect to the realm of theory, this research sits amongst the most recent scholarship in the mobile phone field, located within the broader communication theory area. It recommends cautionary reading of any literature which suggests that mobile phones will reduce poverty and increase incomes in poor, rural communities in developing countries. Nonetheless, the present research adds weight to mobile phone studies which suggest that the primary advantages of mobile phones in such settings are for the satisfactions of communication of itself, and for social interaction among loved ones.

Facilitating Malaysia towards innovative society : arguing the case for open access policy

The Malaysian National Innovation Model blueprint states that there is an urgent need to pursue an innovation-oriented economy to improve the nation’s capacity for knowledge, creativity and innovation. In nurturing a pervasive innovation culture, the Malaysian government has declared the year 2010 as an Innovative Year whereby creativity among its population is highly celebrated. However, while Malaysian citizens are encouraged to be creative and innovative, scientific data and information generated from publicly funded research in Malaysia is locked up because of rigid intellectual property licensing regimes and traditional publishing models. Reflecting on these circumstances, this paper looks at, and argue why, scientific data and information should be made available, accessible and re-useable freely to promote the grassroots level of innovation in Malaysia. Using innovation theory as its platform of argument, this paper calls for an open access policy for publicly funded research output to be adopted and implemented in Malaysia. Simultaneously, a normative analytic approach is used to determine the types of open access policy that ought to be adopted to spur greater innovation among Malaysians.