Health Law's Kaleidoscope : Health Law Rights in a Global Age

Within contemporary society the themes of globalization, health and regulation interlock in complex patterns, changing in response to the mix of cultural differences, regulatory preferences and available resources. To turn the kaleidoscope and to change the mix is to change the pattern. This book is about those patterns as they arise in the contemporary legal, health and ethical context, exploring the transformations and challenges brought by technological change and the regulatory options in the contemporary global village.

When should private property rights give way to the public interest?

Since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 it has been recognised that corporations with substantial market power are subject to special responsibilities and restraints that corporations without market power are not. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 McHugh A-CJ, Gummow, Callinan and Heydon JJ in their joint reasons stated (at [76]), that s 46 of the Competition and Consumer Act 2010 (Cth) (CCA) can operate not only to prevent firms with substantial market power from doing prohibited things, but also compel them positively to do things they do not want to do. Their Honours also stated (at [126]) that the proposition that a private property owner who declines to permit competitors to use the property is immune from s 46 is “intrinsically unsound”. However, the circumstances in which a firm with substantial power must accommodate competitors, and private property rights give way to the public interest are uncertain. The purpose of this Note is to consider recent developments in two areas of the CCA where the law requires private property rights to give way to the public interest. The first part of the Note considers two recent cases which clarify the circumstances in which s 46 of the CCA can be used to compel a firm with substantial market power to accommodate a competitor and allow the competitor to make use of private property rights in the public interest. Secondly, on 12 February 2014 the Minister for Small Business, the Hon Bruce Billson,released the Productivity Commission’s Final Report, on the National Access Regime in Pt IIIA of the CCA (National Access Regime, Inquiry Report No 66, Canberra). Pt IIIA provides for the processes by which third parties may obtain access to infrastructure owned by others in the public interest. The Report recommends that Pt IIIA be retained but makes a number of suggestions for its reform, some of which will be briefly considered.

Raising levels of awareness of rights and obligations in the provision of financial product advice to retail clients

In September-December 2012, 548 financial planning retail clients and 77 financial advisers responded to online surveys addressing consumer satisfaction with financial planning services and the provision of information concerning regulatory and rights issues. Retail clients commented on areas related to the best interests duty in s 961B of the Corporations Act 2001 (Cth), in particular the extent to which advisers considered their clients’ financial objectives and lifestyle situations, and the client-centredness of the financial advice they received. Retail clients also indicated their level of awareness of their substantive rights in relation to receiving advice, the legal obligations imposed on advisers, and whether they would access internal and external complaints processes if warranted. Advisers reported on the extent to which they provide clients with information relating to their substantive rights, and complaints processes available to them. Responses were analysed in relation to client demographics (e.g., age, gender, education), and experience of financial advice. This article reports on the findings of the surveys and their implications for financial planners.

Reason is too large : analogy and precedent in law

Hunter argues that cognitive science models of human thinking explain how analogical reasoning and precedential reasoning operate in law. He offers an explanation of why various legal theories are so limited and calls for greater attention to what is actually happening when lawyers and judges reason, by analogy, with precedent.

Professional Responsibility and Legal Ethics in Queensland [2nd Ed.]

Professional Responsibility and Legal Ethics in Queensland offers a proven, practical approach to identifying and resolving ethical issues that may arise in daily legal practice in Queensland. It is an excellent resource for practitioners and students alike who need to navigate relevant legislation and understand legal ethics through accessible, problem-based scenarios. The introduction of the Australian Solicitors Conduct Rules and Barristers’ Rule 2011, and changes to enforcement mechanisms where breaches have occurred, make the Second Edition essential reading for solicitors, barristers and law students in Queensland. Diverse practice structures, the enactment of the new rules, and other legislative developments will affect lawyers’ work and the way they must interact with their clients, with each other and with the court. Providing detailed explanation and analysis of these changes, the authors explain the ethical and regulatory environment for Queensland lawyers as the national legal services market continues to evolve.

The IKBALS project: multi-modal reasoning in legal knowledge based systems

In attempting to build intelligent litigation support tools, we have moved beyond first generation, production rule legal expert systems. Our work integrates rule based and case based reasoning with intelligent information retrieval. When using the case based reasoning methodology, or in our case the specialisation of case based retrieval, we need to be aware of how to retrieve relevant experience. Our research, in the legal domain, specifies an approach to the retrieval problem which relies heavily on an extended object oriented/rule based system architecture that is supplemented with causal background information. We use a distributed agent architecture to help support the reasoning process of lawyers. Our approach to integrating rule based reasoning, case based reasoning and case based retrieval is contrasted to the CABARET and PROLEXS architectures which rely on a centralised blackboard architecture. We discuss in detail how our various cooperating agents interact, and provide examples of the system at work. The IKBALS system uses a specialised induction algorithm to induce rules from cases. These rules are then used as indices during the case based retrieval process. Because we aim to build legal support tools which can be modified to suit various domains rather than single purpose legal expert systems, we focus on principles behind developing legal knowledge based systems. The original domain chosen was theAccident Compensation Act 1989 (Victoria, Australia), which relates to the provision of benefits for employees injured at work. For various reasons, which are indicated in the paper, we changed our domain to that ofCredit Act 1984 (Victoria, Australia). This Act regulates the provision of loans by financial institutions. The rule based part of our system which provides advice on the Credit Act has been commercially developed in conjunction with a legal firm. We indicate how this work has lead to the development of a methodology for constructing rule based legal knowledge based systems. We explain the process of integrating this existing commercial rule based system with the case base reasoning and retrieval architecture.

Globalisation and Health : Challenges for Health Law and Bioethics

This timely collection explores ethical and legal dilemmas in healthcare arising from globalization. Conflicts between public interests and individual rights, the challenge of regulating professionals and access to health services, and the effects of a global market all feature prominently in contemporary debates in this area. As a result of globalization, issues in health law and bioethics can no longer be understood solely within political boundaries that define traditional notions of individuals and communities. Rather, solutions for emerging problems require a global conception of rights and obligations, including the re-evaluation of ethical frameworks and legal regimes that currently govern exchanges in healthcare. Leading scholars in bioethics, law, medicine and philosophy from various jurisdictions engage these themes in this volume, and demonstrate the need for transnational solutions in a global age of healthcare.

Near knowledge : inductive learning systems in law

Induction is an interesting model of legal reasoning, since it provides a method of capturing initial states of legal principles and rules, and adjusting these principles and rules over time as the law changes. In this article I explain how Artificial Intelligence-based inductive learning algorithms work, and show how they have been used in law to model legal domains. I identify some problems with implementations undertaken in law to date, and create a taxonomy of appropriate cases to use in legal inductive inferencing systems. I suggest that inductive learning algorithms have potential in modeling law, but that the artificial intelligence implementations to date are problematic. I argue that induction should be further investigated, since it has the potential to be an extremely useful mechanism for understanding legal domains.

Beyond rule based reasoning - the meaning and use of cases

Commercial legal expert systems are invariably rule based. Such systems are poor at dealing with open texture and the argumentation inherent in law. To overcome these problems we suggest supplementing rule based legal expert systems with case based reasoning or neural networks. Both case based reasoners and neural networks use cases-but in very different ways. We discuss these differences at length. In particular we examine the role of explanation in existing expert systems methodologies. Because neural networks provide poor explanation facilities, we consider the use of Toulmin argument structures to support explanation (S. Toulmin, 1958). We illustrate our ideas with regard to a number of systems built by the authors