Legal issues: Disciplinary proceedings for inappropriate prescription of opioid medications by medical practitioners in Australia (2010-2014)

An analysis of 32 cases reported between July 2010 and September 2014 byprofessional disciplinary tribunals in New South Wales and Victoria againstmedical practitioners found guilty of inappropriately prescribing Sch 8 medications(mainly opioids) and Sch 4 drugs (mainly benzodiazepines) demonstrated, among others, a lengthy delay between the occurrence of the miscreant conduct and the conclusion of disciplinary proceedings. The study also raised questions about the appropriateness of utilising common criminal law theories of punishment and deterrence by non-judicial tribunals.

Overcoming barriers in the criminal court system : Examining the challenges faced when interviewing legal stakeholders

This collection contributes to, advances and consolidates discussions of the range of methods and approaches in criminology through the presentation of diverse international case studies in which the authors reflect upon their experiences ...

The payment of dividends : legal confusion, complexities and the need for comprehensive reform

Submissions have closed on exposure draft legislation intending to amend thetest for payment of dividends under s 254T of the Corporations Act 2001 (Cth).Until 2010, a dividend could only be paid out of profits of a company. Sincethen, the dividends provision has been repealed and replaced with a newprovision, which allows a company to pay dividends if it satisfies an “assetsgreater than liabilities”, “fair and reasonable to shareholders” and “no materialprejudice to creditors” test. This article first examines why the profits test wasomitted from s 254T, before examining the current dividends provision,identifying the shortcomings of the 2010 reforms and critically evaluating theprovisions proposed to replace the current s 254T. The article then considersinternational developments, with a focus on New Zealand and a look at SouthAfrica, as examples of dividends tests in overseas jurisdictions, beforeproposing how to address the current confusion and uncertainty. The articleconcludes that the proposed amendments to s 254T will only partly addressexisting problems. Thus, comprehensive reform in this area of the Australiancorporation’s law is recommended.

Re-Imagining Practical Legal Training Practitioners – Soldiers for ‘Vocationalism’, or Double Agents?

I adopt a constructivist approach in order to study Australian PLT practitioners’ engagement with scholarship of teaching and learning (SoTL) in institutional practical legal training (PLT). Drawing on Bourdieu’s reflexive sociology and Certeau’s heterological science, I argue PLT is enclosed by discursive operations that constrain PLT practitioners’ engagement with SoTL. I contend SoTL could address a knowledge gap in practice research in law and legal education. I propose to re-imagine PLT teaching work by conceptualising it as an emergent professional trajectory, engaged in practice research, teaching and learning. By considering ways in which structures are inscribed into legal education practice, and conversely, whether practice can modify such structures, I re-imagine PLT practitioners as double agents or resistance fighters, enriching legal education through SoTL as practice research.

Imago veritas falsa: for a (post-)Schmittian decisionist theory of law, legal reasoning, and judging

For decades, while approaching the ‘normativism/pragmatism’ divide and discussing the legitimacy of (and opportunity for) the judge to act as a ‘social engineer’, socio-legal scholars have tried to ascertain whether the jurist should also consider the impact of his/her activity on society at large, and if so, why and to what extent. The present contribution understands instead the law in terms of a structurally incomplete image (imago veritas falsa) which always needs the decisive intervention of the legal interpreter to exercise its performative instances. In particular, by adopting an unconventional theoretico-philosophical approach that transcends the classic boundaries of foundationalist metaphysics as expressed by the dichotomy of Western logic, this paper argues for the necessity of a tertium comparationis capable of explaining that the real essence of law, legal reasoning, and judging is neither that of normativism, nor of pragmatism, but rather of (post-)Schmittian decisionism.

Educating law students for rural and regional legal practice: embedding place consciousness in law curricula

As with other professions, the declining rates of recruitment and retention of lawyers in rural and regional Australia is of significant concern. Whilst the causes of this vary between communities, common depictions of the rural and regional lawyer’s role indicate that employment as a lawyer in such areas is characterised by unique personal and professional challenges. Nonetheless, employment as a rural and regional lawyer also offers practitioners rewarding opportunities and lifestyle benefits. Research from other disciplines indicates that the challenges inherent in rural and regional professional practice may be alleviated, and benefits more easily harnessed, via place conscious discipline-specific curriculum that sensitises tertiary students to, and prepares them for, the rural and regional career context.Largely oriented towards substantive content to satisfy external accrediting bodies, undergraduate legal education does not typically acknowledge the ‘places’in which graduates will practice as professionals. This article argues however that there is scope to incorporate place within legal education, and documents an innovative curriculum development project which embeds place consciousness to better prepare law students for employment in rural and regional legal practice.Drawing upon methods from other disciplines, the project team designed a curriculum package which aims to sensitise students to the rural and regional legal practice context, and equip them with the skills to overcome challenges and take advantage of the opportunities available in a rural or regional professional career.

An investigation of the developmental assumptions underlying age-based legal criteria in the Children’s Court.

This thesis investigated developmental trends in the psychological abilities presumed to underpin the doli incapax presumption in Victoria, Australia. Findings from this study questioned the utility of the doli incapax presumption as it currently stands, and highlighted the need for a purpose-built interview protocol when assessing young people's culpability.

How does the cookie crumble? legal costs under a uniform interpretation of the United Nations Convention on Contracts for the International Sale of Goods

A family owned Mexican company, Zapata Hermanos Sucesores, S.A. ("Zapata"), sold approximately US$950,000 worth of cookie tins over a period of four years to the Maurice Lenell Cooky Company ("Lenell"), an American company that produced baked goods. Lenell failed to pay Zapata for the cookie tins so Zapata sought legal advice and instituted legal proceedings against Lenell for breach of contract in the Federal District Court of Illinios. The cookie tin sale contracts were governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Zapata succeeded in its Federal District Court claim and, as part of the Court's order, was awarded US$550,000 as foreseeable loss under Article 74 of the CISG, being the amount of legal fees incurred by Zapata in bringing proceedings against Lenell. On appeal to the Federal Appellate Court, however, the award of legal fees was overturned. The parties now find themselves contesting a leave application to appeal to the Supreme Court of the United States of America in a much anticipated debate over who should pay the lawyers.

Principals and legal risks: contrasting perspectives

There has been an increasing awareness across many jurisdictions of potential legal issues that might arise in schools. These issues range from bullying to sexual misconduct, from injury to negligence. In a recent study in Singapore, despite the increased attention to such issues, school principals displayed a range of attitudes toward legal risk and a diverse range of strategies to minimise it. The findings were compared to those from a small scale study of senior educators in Australia in order to ascertain commonalities and differences of view. This paper summarises those views and suggests some basic principles to help those in positions of leadership to avert unwanted legal attention.

Legal pluralism and progressive constitutionalism: An introduction to the South African challenge for post-national governace

The aim of this article is to contribute to the current academic debate on pluralistmechanisms of post-national governance as a particular type of ‘stateless law’. Moreprecisely, this article is conceived as an introduction to aid further research on the shape(and extent) that post-national governance may eventually assume (and reach) in SouthAfrica. Attention is, therefore, paid to legal pluralism as a key factor of pluralist settings ofpost-national government. An overview of the essence and features of post-nationalgovernance is provided, and a brief comparison is made between hard hierarchical andsoft-networked forms of governance. In pursuing the suggested roadmap, reference is madeto the current European landscape on post-national governance, which is ontologicallyinevitable in discussing the essence, structure, aims, challenges and limitations ofpost-national governance. Moreover, the necessity of adopting a comparative modusinvestigandi is due to the circumstance that although South Africa and the EuropeanUnion (EU) share important elements (e.g., legal pluralism, financial instability andfuture common challenges), South Africa has an extremely progressive constitution — aresult that the EU has been unable to achieve formally. Thus, while explaining whySouth Africa may represent fertile ground for such an architecture of governance, this articlediscusses why the South African Constitution may be a ‘value add’ that may help post-national governance avoid the difficulties thus far encountered on the Europeancontinent.

The restorative role of apology in resolving medical disputes: Lessons from Chinese legal culture

This article is the first exploration of the Chinese notion of apology from a comparative legal perspective. By reviewing the significance of apology in the context of Chinese culture, the article presents a three-dimensional structure of apology that, in contrast to the understanding the research community now has, defines acknowledgement of fault, admission of responsibility, and offer of reparation as three essential elements of an apology. It is the combination of these three elements that enables apology to serve as a form of reparation. The article further places the three-dimensional apology in the context of the Chinese concept of "the relations of humanity," arguing that an apology accompanying admission of fault and responsibility may help to restore the harmony of relations and, by so doing, resolve medical disputes positively.