Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.

Populism, law and order and the crimes of the 1%

The article examines the evidence of endemic financial crime in the global financial crisis (GFC), the legal impunity surrounding these crimes and the popular revolt against these abuses in the financial, political and legal systems. This is set against a consideration of the development since the 1970s of a conservative politics championing de-regulation, unfettered markets, welfare cuts and harsh law and order policies. On the one hand, this led to massively increased inequality and concentrations of wealth and political power in the hands of the super-rich, effectively placing them above the law, as the GFC revealed. On the other, a greatly enlarged, more punitive criminal justice system was directed at poor and minority communities. Explanations in terms of the rise of penal populism are helpful in explaining these developments, but it is argued they adopt a limited and reductionist view of populism, failing to see the prospects for a progressive populist politics to re-direct political attention to issues of inequality and corporate and white collar criminality.

Risks for HIV infection among male street laborers in urban Vietnam

Risks for HIV infection remain unknown in male street laborers. This research investigates patterns of self-reported risk behaviors among these men in urban Vietnam. In a cross-sectional survey using a social mapping technique, 450 men, mostly low-skilled and unregistered migrant laborers across 13 districts in Hanoi were approached for interviews. The study revealed that male street laborers were at high risk of acquiring and transmitting HIV. One in every 12 men reported homosexual or bisexual behavior. These men on average had three sexual partners within the preceding year, and condom use was inconsistent. Close to 95 % of the men had reported sexual encounters with regular partners. One-third with commercial sex workers (CSW) and 24.2 % with casual partners, but just under one-third had ever used condoms with regular partners and CSWs and very few (17.6 %) with casual partners at their last sexual encounter. 17.11 % used illicit drugs sometimes, with 66.7 % of them frequently sharing injecting equipment with peers. These men had limited HIV knowledge; 51.4 % incorrectly believed that, once you trust your partner, you no longer need to use condoms and 42.4 % believed that you can tell by looking at someone if they have HIV. Access to HIV prevention was also limited; only 19.8 % of men had been tested for HIV during the previous 12 months, almost 10 % of whom neither returned for the result nor knew their HIV status. The study provides interesting directions for future research and suggests ways to effectively design prevention strategies for these men.

Shadow boxing with an imaginary enemy : a response to "Law and Order Blues"

In our rejoinder to Don Weatherburn's paper,"Law and Order Blues", we do not take issue with his advocacy of the need to take crime seriously and to foster a more rational approach to the problems it poses. Where differences do emerge is (1) with his claim that he is willing to do so whilst we (in our different ways) are not; and (2) on the question of what this involves. Of particular concern is the way in which his argument proceeds by a combination of simple misrepresentation of the positions it seeks to disparage, and silence concerning issues of real substance where intellectual debate and exchange would be welcome and useful. Our paper challenges, in turn, the misrepresentation of Indermaur's analysis of trends in violent crime, the misrepresentation of Hogg and Brown's Rethinking Law and Order, the misrepresentation of the findings of some of the research into the effectiveness of punitive policies and the silence on sexual assault in "Law and Order Blues". We suggest that his silence on sexual assault reflects a more widespread unwillingness to acknowledge the methodological problems that arise in the measurement of crime because such problems severely limit the extent to which confident assertions can be made about prevalence and trends.

Implementing open licensing in government open data initiatives : a review of Australian government practice

As support grows for greater access to information and data held by governments, so does awareness of the need for appropriate policy, technical and legal frameworks to achieve the desired economic and societal outcomes. Since the late 2000s numerous international organizations, inter-governmental bodies and governments have issued open government data policies, which set out key principles underpinning access to, and the release and reuse of data. These policies reiterate the value of government data and establish the default position that it should be openly accessible to the public under transparent and non-discriminatory conditions, which are conducive to innovative reuse of the data. A key principle stated in open government data policies is that legal rights in government information must be exercised in a manner that is consistent with and supports the open accessibility and reusability of the data. In particular, where government information and data is protected by copyright, access should be provided under licensing terms which clearly permit its reuse and dissemination. This principle has been further developed in the policies issued by Australian Governments into a specific requirement that Government agencies are to apply the Creative Commons Attribution licence (CC BY) as the default licensing position when releasing government information and data. A wide-ranging survey of the practices of Australian Government agencies in managing their information and data, commissioned by the Office of the Australian Information Commissioner in 2012, provides valuable insights into progress towards the achievement of open government policy objectives and the adoption of open licensing practices. The survey results indicate that Australian Government agencies are embracing open access and a proactive disclosure culture and that open licensing under Creative Commons licences is increasingly prevalent. However, the finding that ‘[t]he default position of open access licensing is not clearly or robustly stated, nor properly reflected in the practice of Government agencies’ points to the need to further develop the policy framework and the principles governing information access and reuse, and to provide practical guidance tools on open licensing if the broadest range of government information and data is to be made available for innovative reuse.

An examination of the liability of a construction contract certifier who gets it wrong

Construction contracts often provide that decisions under the contract will be made by a certifier. This paper reviews the liability issues when a certifier makes a mistake. We do that in light of recent pronouncements by the High Court of Australia and the New South Wales Court of Appeal on negligence. We look at this question in the context of traditional construction contract arrangements and also consider the implications for Public Private Partnerships and the typical contract arrangements entered into to facilitate these transactions.

Organized crime and the environment

It has been recognized for some time that the liberalization of trade policies has had deleterious impacts on the world’s natural environment. The rapid expansion of globalized goods and services continues to create a human footprint with longlasting environmental consequences (White 2010). It is a footprint that represents rapid human activity and with it has come new commercial opportunities, not only for global businesses but also for organized criminal networks. Both the acceleration and by-products of global trade have created new markets as well as underground economies. As the opening quotation reveals, transnational environmental crime must become a policing priority as organized criminal...

Reconsidering the agency of a privately appointed receiver and manager in three specific circumstances

Where a secured lender elects to appoint a receiver and manager, the appointment document standardly provides for the receiver and manager to act as the agent of the debtor. This article considers the significance of this agency in the context of three specific issues that have the potential to arise in the receivership of a corporate borrower across all Australian jurisdictions.

Health and guardianship law : the decision of X v the Sydney Children's Hospitals Network [2013] NSWCA 320 : mature minors and the refusal of blood products

This recent decision of the New South Wales Court of Appeal considers the scope of the parens patriae jurisdiction in cases where the jurisdiction is invoked for the protection of a Gillick competent minor. As outlined below, in certain circumstances the law recognises that mature minors are able to make their own decisions concerning medical treatment. However, there have been a number of Commonwealth decisions which have addressed the issue of whether mature minors are able to refuse medical procedures in circumstances where refusal will result in the minor dying. Ultimately, this case confirms that the minor does not necessarily have a right to make autonomous decisions; the minor’s right to exercise his or her autonomous decision only exists when such decision accords with what is deemed to be in his or her best interests.

Academic legal research and academic research capacity enhancement working topic : "purposes and objectives of law schools beyond educating students (research, capacity building,community service and outreach)"

One of the main objectives of law schools beyond educating students is to produce viable legal research. The comments in this paper are basically confined to the Australian context, and to examine this topic effectively, it is necessary to briefly review the current tertiary research agenda in Australia. This paper argues that there is a need for recognition and support for an expanded legal research framework along with additional research training for legal academics. There also needs to be more effective methods of measuring and recognising quality in legal research. This method needs to be one that can engender respect in an interdisciplinary context.

Agents as intermediaries : when do they compete with their suppliers?

In cases involving allegations of price fixing under the former s 45A of the Trade Practices Act 1974 (Cth), it was necessary to prove that at least two parties to the arrangement or understanding at issue were “in competition with each other”. The same requirement is contained in the cartel provisions of the Competition and Consumer Act 2010 (Cth) (CCA) that replaced s 45A. The so-called “competition condition” is set out in s 44ZZRD (4) of the CCA. Where a supplier enters into vertical supply arrangements with agents or brokers, problems can arise if the supplier also has a downstream presence. At that functional level there may be a horizontal and therefore competitive dimension, and the competition condition may be satisfied. In such circumstances, great care will need to be taken in any discussions between the supplier and its downstream agents or distributors about the prices, discounts, allowances, rebates or credits that the agent or distributor may charge. Whether agents or brokers competed with their suppliers in vertical supply arrangements arose for consideration in two decisions handed down by the Federal Court in Brisbane...

Forrest v ASIC : a ‘perfect storm’

The policy objectives of the continuous disclosure regime augmented by the misleading or deceptive conduct provisions in the Corporations Act are to enhance the integrity and efficiency of Australian capital markets by ensuring equality of opportunity for all investors through public access to accurate and material company information to enable them to make well-informed investment decisions. This article argues that there were failures by the regulators in the performance of their roles to protect the interests of investors in Forrest v ASIC; FMG v ASIC (2012) 247 CLR 486: ASX failed to enforce timely compliance with the continuous disclosure regime and ensure that the market was properly informed by seeking immediate clarification from FMG as to the agreed fixed price and/or seeking production of a copy of the CREC agreement; and ASIC failed to succeed in the High Court because of the way it pleaded its case. The article also examines the reasoning of the High Court in Forrest v ASIC and whether it might have changed previous understandings of the Campomar test for determining whether representations directed to the public generally are misleading.

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.