Authorship, authenticity and intellectual property in Australian Aboriginal art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists’ relationship different to other artists’ individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006–8.

'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

Greening Australian workplaces : workers and the environment

Workers have in the past have been seen as a hindrance to environmental reform. This has been primarily because of the fear of job loss. The job versus the environment dichotomy that has placed workers and trade unions against environmentalists is unhelpful and believed by many as outdated. Internationally, trade unions have worked together with the United Nations and other international bodies to ensure that the rights of workers have not been ignored in the climate change debate. Significantly workers are now seen as part of the answer. Workers are not a hindrance to environmental reform. Rather they are an important part of finding solutions to climate change and wider environmental sustainability measures in our community. The United Nations Environmental Programme report titled ‘Labour and the Environment; A Natural Synergy’ examines how workers and their representative trade unions can make a significant contribution towards promoting action on climate change and wider environmental sustainability measures in the workplace. The report outlines three broad recommendations which countries can implement to foster a growing ‘synergy’ between the interests of labour and protection of the environment. The advantage of the report is that it discusses the recommendations in the context of existing laws and general regulatory structures common to many countries including Australia. The first two recommendations draw upon labour laws whilst the third is in the area of company law. The first recommendation is the use of enterprise bargaining to incorporate clauses which protect and promote the environment in enterprise agreements commonly called ‘green friendly’ clauses. The second recommendation is the use of occupational health and safety laws as a vehicle for the promotion of environmental standards in the workplace. The third recommendation is the active engagement of corporate social responsibility principles by companies. This article discusses the recommendations in the context of Australian law.

Extending the Workers' Compensation Act 1987 (N.S.W.) to include independent contractors and to allow more highly paid workers to insure fully their income, with particular reference to engineers

In mid-1987, the existing workers’ compensation system in New South Wales was replaced by a new Scheme, called ‘WorkCover’. While WorkCover solved a number of the financial problems that had plagued its predecessor, its enactment created other issues. Furthermore, WorkCover has failed to deal with a number of gaps in providing compensation for occupational injuries, most notably those suffered by independent contractors. By combining a study of aspects of industrial law and industrial relations, this thesis will examine some of those problems and gaps, in particular: (a) Should WorkCover be amended to enable independent contractors to come within its ambit? (b) Should there be additional insurance cover available (known as ‘top-up’ insurance) to insure those parts of workers’ wages presently left unprotected by WorkCover? (c) Should workers be permitted to take out another form of ‘top-up’ insurance to increase the quantum of death cover presently provided by the Scheme? (d) Should independent contractors who arc permitted to enter WorkCover also be permitted to obtain the extended cover set out in (b) and (c) above? Where appropriate, the thesis compares WorkCover to the workers’ compensation schemes in other Australian jurisdictions. It develops each of the matters referred to above by referring to the results of the writer’s survey of members of the Institution of Engineers (NSW Branch) which was conducted in May and June 1991.

Death and late-stage dementia in institutions : a cultural analysis

The first purpose of this study was to describe the deaths of fifteen nursing home residents with late-stage dementia. The devastating effect of dementia on a person has been called a ‘living death’ (Woods, 1989). The caring which occurs when someone is going through this process in a nursing home was recorded and analysed. In analysing this act of caring, the second purpose was to look for the origins of the structures and the sources of pressure that shaped the context and therefore helped determine the behaviour of the various groups under observation. These groups were residents and their relatives, the staff of the nursing home and the treating doctors. Before commencing observations and carrying out this study, an understanding needed to be developed of: the condition of dementia as it is perceived by health professionals and presented in the media; the institutions in which the majority of people with dementia end their days; the background and conditions of the staff who nurse in them; the models of care that guide and determine policies; and the conceptions of life and death which underpin relevant laws and moral standpoints. Accordingly, in part 1. chapter 1 the history, causes, pathology and effects of dementing conditions are examined. Relevant medical and lay literature including media influences are examined which pertain to the subject of death and dementia and nursing home care. The history of this institutional care is briefly examined together with the growth of the discipline of gerontological nursing. Chapter 2 discusses some of the effects of this history on present day care and the concept of emotional work being carried out within the present day aged care public policy regulations. The moral arguments surrounding illness and dying in Australian society today are briefly discussed. Chapter 3 describes the conceptual framework for the study, the ethnographic method that has been employed and an outline of critical theory as the basis for analysis. The chapter concludes by recounting the practical steps taken to arrange the field work, secure the consent of participants, record data and gather documents, and outlines the ethical considerations given to the undertaking of the study. Chapter 4 describes the context in which the study took place and the first tentative exploration of the culture from an etic perspective. Part 2 describes the death trajectories observed and raises some questions about alternative strategies that may have been considered within a different paradigm of caring. In chapter 5 the death trajectories of each of the fifteen residents in the study are described, each written with a particular emphasis to illustrate aspects of the culture of care that emerged through thematic analysis. Observations, comments and feelings from staff and family are wound in and around these case studies. Chapter 6 looks more closely at the impact of policy and institutional pressure on the milieu in which these deaths took place. Part 3 draws conclusions from the observations and makes suggestions for emancipatory change as viewed from the author's standpoint of critical ethnographic analysis. In the final chapter an argument is presented for policy change that leads a movement towards palliative care practices for people with late-stage dementia. Approaches to implementation of palliative care will need to take account of any expression by the resident such as an advanced directive, indicating a preferred approach to treatment in the period prior to death; a need for a better understanding of such issues as the significance of body breakdown, the manifestations of pain and electrolyte imbalances; the surrounding ethical complexities and shift in public opinion, and perhaps, most of ail, the culture of the institutions in which this dying will take place. A definition of late-stage dementia which might be used in determining patterns of care is set out. A discussion about changes in practice which relate lo communication with treating doctors, the administering of antibiotics, the relief of pain, the mobilisation of residents and the provision of food and water takes place in light of the evidence found. The discussion of these issues is raised in the form of debate. Each aspect needs more rigorous analysis and information so that evidence-based practice, rather than care which is value-laden and emotional, can be used when treatment decisions are made for people with late-stage dementia.

Guest editors' introduction: active citizenship and social accountability

By active citizenship, we [Oxfam] mean that combination of rights and obligations that link individuals to the state, including paying taxes, obeying laws, and exercising the full range of political, civil, and social rights. Active citizens use those rights to improve the quality of political or civic life, through involvement in the formal economy or formal politics, or through the sort of collective action that historically has allowed poor and excluded groups to make their voices heard. [… .]

At an individual level, active citizenship means developing self-confidence and overcoming the insidious way in which the condition of being relatively powerless can become internalised. In relation to other people, it means developing the ability to negotiate and influence decisions. And when empowered individuals work together, it means involvement in collective action, be it at the neighbourhood level, or more broadly. Ultimately, active citizenship means engaging with the political system to build an effective state, and assuming some degree of responsibility for the public domain. (Green 2008: 12, 19)

Carrier's liability under the Hague, Hague-Visby and Hamburg Rules

Provides a critical analysis of the carrier's liability under the Hague, Hague-Visby and Hamburg Rules. Focusing on Australian and English jurisprudence, the work also demonstrates that, quite contrary to prevailing opinions, the Hamburg Rules do not materially change (still less increase) the carrier's existing liability.

Why has the rising economic tide failed to float the disability employment boat? A call to action : business,community, government and people power

It is well established that people with disabilities are under-represented in the workforce. Disability labour market scholars agree that there is a significant gap between labour market participation of people with disabilities and people without disabilities, with on-going labour market disadvantage widely reported. All indicate that notwithstanding the recent economic growth of Western economies, the employment rate for people with disabilities has not improved. This paper draws on the findings of three recent research projects on disability employment in Australia and on data from contemporary literature on workplace discrimination and proposes that a combination of more robust social inclusion policies and legislation, revitalised supported employment models, intensive social marketing, and radical disability advocacy is required.

Improving the effectiveness of the Sex Discrimination Act: recommendations from the 2008 Senate Inquiry

One way to characterise the Rudd Government’s first year in office would be by the flurry of inquiries and reports that it commissioned. Three related to gender equality. The Productivity Commission conducted an inquiry into a national paid maternity, paternity and parental leave scheme and the House of Representatives Standing Committee on Employment and Workplace Relations conducted an inquiry into pay equity. This article is concerned with a third inquiry — the Senate Standing Committee on Legal and Constitutional Affairs (the committee) inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) (SDA) in eliminating discrimination and promoting gender equality. These inquiries were not the Rudd Government’s only activities in relation to sex discrimination and gender equality. It also enacted legislation which removed discrimination against same sex couples from 68 Commonwealth laws and announced its intention to accede to the Optional Protocol to the International Convention on the Elimination of All Forms of Discrimination against Women.

An agent-based approach to value theory and wealth distribution in economics

Any attempt to model an economy requires foundational assumptions about the relations between prices, values and the distribution of wealth. These assumptions exert a profound influence over the results of any model. Unfortunately, there are few areas in economics as vexed as the theory of value. I argue in this paper that the fundamental problem with past theories of value is that it is simply not possible to model the determination of value, the formation of prices and the distribution of income in a real economy with analytic mathematical models. All such attempts leave out crucial processes or make unrealistic assumptions which significantly affect the results. There have been two primary approaches to the theory of value. The first, associated with classical economists such as Ricardo and Marx were substance theories of value, which view value as a substance inherent in an object and which is conserved in exchange. For Marxists, the value of a commodity derives solely from the value of the labour power used to produce it - and therefore any profit is due to the exploitation of the workers. The labour theory of value has been discredited because of its assumption that labour was the only ‘factor’ that contributed to the creation of value, and because of its fundamentally circular argument. Neoclassical theorists argued that price was identical with value and was determined purely by the interaction of supply and demand. Value then, was completely subjective. Returns to labour (wages) and capital (profits) were determined solely by their marginal contribution to production, so that each factor received its just reward by definition. Problems with the neoclassical approach include assumptions concerning representative agents, perfect competition, perfect and costless information and contract enforcement, complete markets for credit and risk, aggregate production functions and infinite, smooth substitution between factors, distribution according to marginal products, firms always on the production possibility frontier and firms’ pricing decisions, ignoring money and credit, and perfectly rational agents with infinite computational capacity. Two critical areas include firstly, the underappreciated Sonnenschein-Mantel- Debreu results which showed that the foundational assumptions of the Walrasian general-equilibrium model imply arbitrary excess demand functions and therefore arbitrary equilibrium price sets. Secondly, in real economies, there is no equilibrium, only continuous change. Equilibrium is never reached because of constant changes in preferences and tastes; technological and organisational innovations; discoveries of new resources and new markets; inaccurate and evolving expectations of businesses, consumers, governments and speculators; changing demand for credit; the entry and exit of firms; the birth, learning, and death of citizens; changes in laws and government policies; imperfect information; generalized increasing returns to scale; random acts of impulse; weather and climate events; changes in disease patterns, and so on. The problem is not the use of mathematical modelling, but the kind of mathematical modelling used. Agent-based models (ABMs), objectoriented programming and greatly increased computer power however, are opening up a new frontier. Here a dynamic bargaining ABM is outlined as a basis for an alternative theory of value. A large but finite number of heterogeneous commodities and agents with differing degrees of market power are set in a spatial network. Returns to buyers and sellers are decided at each step in the value chain, and in each factor market, through the process of bargaining. Market power and its potential abuse against the poor and vulnerable are fundamental to how the bargaining dynamics play out. Ethics therefore lie at the very heart of economic analysis, the determination of prices and the distribution of wealth. The neoclassicals are right then that price is the enumeration of value at a particular time and place, but wrong to downplay the critical roles of bargaining, power and ethics in determining those same prices.

Research on human embryos and cloning : difficulties of legislating in a changing environment and model approaches to regulation

It is difficult to regulate rapidly changing fields of science. New technologies are not anticipated and legislation becomes inadequate. Legislative definitions are also problematic. This article begins with consideration of such difficulties in the context of research on human embryos and cloning. It considers problems with past legislative definitions in Australia, the new regulatory regime, and whether that regime now sets clear boundaries. It is found that problems still exist – some terms are not adequately defined and boundaries for research prove unclear. Three regulatory approaches are therefore discussed. Legislation based on strict definitions is compared to a legislative model that leaves terms undefined. The third model – which combines framework legislation with the oversight of a regulatory authority – is seen as most suitable. However, problems with this model are recognised and suggestions made regarding how to ensure the “framework” remains workable and effective.

Intellectual property, creativity and innovation : IP models and the political economy of developing Asia

In advanced capitalist societies, intellectual property laws protecting such subject matter as copyright and patents are justified by a combination of theories, which include the provision of economic incentives to foster creativity and innovation and the prevention of unfair competition. IP academics and policy makers have differing views about the appropriate balance between these objectives and public interest considerations such as health, education and the protection of the environment. These different views entered the policy debate in Asian developing countries in connection with an unprecedented introduction and expansion of IP laws over the last 25 years. This paper will use case studies of law reform from Asia, in particular Southeast Asia, to show that the policy considerations of governments in reforming their laws were often quite different from the standard rationale mentioned above. As much of the IP was, at least initially, held by foreigners and introduced to attract foreign investment, national development considerations were joined with the more commonly quoted objectives to promote the rights, creativity and innovation of individuals. Such national development objectives at times coincided and at other times collided with official explanations and received wisdom about the effects of stronger IP rights.

Especially in the early postcolonial period, copyright laws and other IP laws were frequently restricted or simply not implemented, if they conflicted with development policies in areas such as education or public health. Such policies were slowly changing in the wake of WTO-TRIPS and other international agreements. Nevertheless, the implementation and enforcement of the IP laws has been uneven. Specialised institutions such as courts and IP administering agencies compete with other branches of government and administration for limited funding and a rich repertoire of informal dispute settlement procedures has kept the number of court cases relatively low. In some countries, censorship laws have influenced freedom of expression and led to quite idiosyncratic interpretations of intellectual property laws. Governments often also retain a role in the assessment of licensing and technology transfer contracts. And while there are many programs to foster individual creativity, in most cases R & D activities are still largely taking place in government institutions and this has influenced the thinking about intellectual property rights and creativity in the context of employment.

The paper uses a few case studies to examine the implementation of IP laws in selected Asian developing countries to point to the quite different institutional setting for IP law reform in comparison to European or American models. It reaches some tentative conclusions as to the likely effects on creativity and innovation under these different circumstances.