Section 46:where we have been and where we are going: a review of the recent debate

Two recent reviews of Part IV of the Trade Practices Act (Commonwealth) (1974) have looked specifically at the operation of Section 46 of this Act and have come to very different conclusions concerning its efficacy. The Dawson review (2003) argued that no change to S 46 was required as the courts were providing sufficient guidance in the application of the legislation in this respect. The Senate Committee review (2004) came to different conclusions arguing that the Act needed clarification in regard to certain sections. These reports highlight the controversy that has surrounded this section of the Trade Practices Act for the past thirty years. The aim of this paper is to consider these reviews and evaluate the extent to which the High Court has been able to provide guidance in the application of legislation that prohibits the misuse of market power.

Disinterested truth: legitimation of the doctrine of tenure post-Mabo

This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post-Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post-Mabo tenure lacks both legal and social legitimacy and the 'disinterested' perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence.

Enforcement of arbitral awards where the seat of the arbitration is Australia, how the Eisenwerk decision might still be a sleeping assassin

This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.

Doing it in the courts : opening research to public scrutiny

This paper analyses the positioning of researchers and their research by the courts in legal complaints brought against educational authorities. Over the past decade at least eleven formal complaints related to deaf children's access to native sign language in education have been lodged with the Human Rights and Equal Opportunity Commission.

This ongoing legal action has brought a pedagogical debate over educational policy into the courts. The most recent case to reach the Federal Court of Australia was taken by the families of two deaf children against a state educational authority, allegedly for failing to provide the children with an adequate education. The complainants called for teachers fluent in Auslan (Australian Sign Language) or interpreters to be employed alongside mainstream teachers.

As a researcher in this field, I have acted as an expert witness in eight of these cases, tendered my thesis as evidence, and been cross-examined in the Federal Court. Court transcripts from the two most recent cases provide the data for an analysis of the way in which legal counsel position researchers (as 'advocates', having vested interests, representing lobby groups) and interpret their research to support the legal arguments being made.

Toward a new understanding of the social impact of the arts

Australia was pivotal in placing empirical study of the social impact of the arts on the map, and yet, a lack of continued robust research has meant that it no longer holds this place. Despite a general acceptance within the arts and health industries that the arts can have positive social impacts, there is little robust evidence to prove this. This paper reviews existing research, finding three primary debates around meaning, methodology, and mastery. This paper recommends a holistic approach to arts impact studies that juxtapose the social and intrinsic impacts. This paper is part of a larger research project into the impact of the arts that will redeem Australia’s place as leaders in social impact of the arts studies.

Occupational distress in nursing : a psychoanalytic reading of the literature

Occupational stress in nursing has attracted considerable attention as a focus for research and as a consequence multiple objects of nurses' stress, or 'stressors', have been identified. This paper puts into question the dominant conceptual and methodological approach to occupational stress in nursing research by both foregrounding the notion of anxiety and juxtaposing it with the notion of 'stress'. It is argued that the notion of 'stress' and the domination of the questionnaire have produced a narrow reading of the topic. Some of the literature on occupational stress/anxiety in nursing is reviewed and our analysis illustrates how the identified objects of stress have a tendency to multiply contingent on the number of studies undertaken. Thus definitive objects of nurses' stress remain elusive. We argue that a return to the notion of 'anxiety' and methodological approaches other than empirical ones can bring both depth and breadth to the consideration of occupational distress in nursing. Further, we argue that the object of 'anxiety' is unconscious, thus unknown, and given this, a more informative approach is to map nurses' response to anxiety, the discursive formations arising out of anxiety, rather than attempt to define those objects of anxiety.

Projections to the preoptic area from the paraventricular nucleus, acuate nucleus and the bed nucleus of the stria terminalis are unlikely to be involved in stress-induced suppression of GnRH secretion in sheep

Stress compromises reproductive function and the major physiological system activated during stress is the hypothalamo-pituitary-adrenal axis. Corticotrophin-releasing hormone and arginine vasopressin (AVP), which are produced in neurones of the paraventricular nucleus (PVN), drive the hypothalamo-pituitary-adrenal axis and are also implicated in the suppression of the reproductive axis. We used retrograde tracing and Fos labelling to map the projections from the PVN to the preoptic area (POA) where most gonadotrophin releasing hormone (GnRH) neurones are found. Fluorogold (FG) injections were made into the POA of gonadectomised male and female sheep (n = 5/sex), the animals were stressed and the brains recovered for histochemistry. All animals responded to stress with an increase in the number of Fos-labelled nuclei in the PVN. Few retrogradely labelled cells of the PVN were activated by stress. Dual labelling showed that very few FG-labelled cells also stained for corticotrophin-releasing hormone, none for AVP or enkephalin. Dual labelling for FG and Fos in the bed nucleus of the stria terminalis (BNST) and the arcuate nucleus showed that no FG-labelled cells in the BNST and only few in the ARC were activated by stress. No sex differences were observed in the activation of FG-labelled cells in any of the nuclei examined. We conclude that, although cells of the PVN, BNST and/or arcuate nucleus may affect reproduction via the GnRH cells of the POA, this is unlikely to involve direct input to the POA. If cells of these regions are involved in GnRH suppression during stress, this may occur via interneuronal pathways.

Modification of the visual background increases the conspicuousness of golden-collared manakin displays

Effective visual communication requires signals that are easy to detect, transmit, receive, and discriminate. Animals can increase the probability that their visual signals would be detected by evolving signals that contrast with their visual background. Animals can further enhance this contrast by behaviorally modifying the existing visual background. Male golden-collared manakins (Manacus vitellinus) clear leaf litter from the ground to form courts, which are used as display arenas. Using reflectance measures of the signal (male plumage) and the visual background (cleared court and adjacent litter), the irradiance measures of ambient light during display, and published measures of photoreceptor sensitivity of a Passerine, we test the hypothesis that court-clearing augments the contrast between male plumage and the visual background. We find that the chromatic and brightness contrasts of golden patches used during courtship are greater against the cleared court than against adjacent litter. In addition, we find that cleared courts provide a less variable background for these color patches, resulting in displays that consistently contrast the visual background. These results suggest that behavioral modification of the visual background may act to increase the conspicuousness of colorful male plumage during display, providing an explanation for why golden-collared manakins, and possibly other species, build or clear display courts.

Vigilant pleasure as autoethnography : the life of the tea mind as critical history

I examine tea as cultural practice by exploring how it is implicated in the formation of individual subjectivities and national identity. While using the experience of learning and consuming tea lore as a foreigner as my explicit point of entry, I analyse how tea transmission practices are represented in Japanese films. My readings of these films are supported by a survey of the historical applications of tea as part of a project of national invention. Against tea's self-representation as purely cultural, I draw attention to this ideological silencing of its economic and political effects by claiming that institutionalised tea pedagogy has been a major player in a nationally distinctive discourse of transience. My thesis argues that autoethnography can be used to bring into view the ideological foundations of various social practices organised around tea sites and texts. Once ideology is visible autoethnography may mediate the effects of dominant discourses by making a modest form of private resistance possible. As a performance of critical and effective history, I explore the limits of consciously resisting institutionalised power by reflecting on how discourses of tea and social theory intersect in my autoethnographic account of tea experiences. I begin by locating my subjectivity in tea. After outlining how tea is useful to me in psychological, domestic and professional contexts, I survey autoethnographic writing and critical forms of textual analysis. Given that traditions of textual analysis set limits to what can be comprehended, I note that considerations of the role of subjectivity are sometimes absent from several modes of textual analysis. I contend that more delicate forms of textual analysis are possible when multiple forms of subjectivity are explicitly addressed. Subjectivity is emphasised as I move between performances of being a cultural insider of tea subculture and an ethnic and linguistic outsider of daily life in Japan when I examine the connections linking tea anecdotes, film narratives, individual tales and national myths. From the position of tea culture insider and consumer of social theory I examine the relationship between national culture and individual subjectivity. I identify internal contradictions in tea transmission practices and consider how tea pedagogy and its cult of personality are addressed in tea films. The thesis concludes by considering the utility of identities in a global economy and comment on recent theories addressing the ethical self and social practices. It is on this basis that I claim the readings advanced in the earlier chapters map the pleasures and limits of employing autoethnography as a form of private resistance against the dominant discourses of tea, nation, and leisure.

One line lacks density : A study of the associations between cartographic representation and ontology

One way to represent and communicate density in the spatial disciplines including architecture, town planning and geography is through the map, plan or aerial photograph. These media and tools are generally perceived to be objective and analytical modes of practice. But what else do these modes of representation mediate? The paper will respond to this question by exploring notions of ontology, notions of dwelling and being in relation to lines and drawing techniques. A map or plan is an image, in addition to a mode of communication, and affects visual pleasure. As proposals of an unbuilt world and documents of existing environment, drawings contain lines of desire. The thesis is that the lines provide a corporeal framework for an imaginary projection between the viewer and a ‘real’ built environment. The paper becomes focussed on the specifics of the ‘green line’ that has represented post-war Beirut, and is typical of representation of sites of conflict.

In the plans of post-war Beirut an almost straight line running from the top to the bottom of the page is highlighted and represents a trajectory from the Place des Martyr to the Pine Forest. To descend from this metaphoric height of the map into the streets of Beirut is to confront urban density, traffic congestion, pollution exacerbated by dust, and a lack of greenery. During the war much of the fighting occurred across this marker, and since, it has been described as an empty neutral space due to the destruction of edifices on either side, and is often proposed as the only appropriate site for building projects of national significance. Is its emptiness an a priori condition of imaginary projections? Will it remain forever empty of the density everywhere else in Beirut? Who wants to dwell there?
This paper will examine the several nuances of the ‘green line’ and what role it plays between representation and defining ontological environments.

Therapeutic Jurisprudence, juvenile justice and the UN Convention on the Rights of the Child : do they coexist?

The UN Convention on the Rights of the Child provides children and young people with over 40 substantive rights, the five outcomes of which are living a healthy lifestyle, staying safe, enjoying and achieving, making a positive contribution, and economic wellbeing. Moreover, Article 3 dictates that all organizations concerned with children should work towards what is best of each child. It is not clear how these rights translate to the care of children and young people who come before the courts (particularly those who are subsequently incarcerated). A review of the literature suggests that while best practice guidelines for the treatment and rehabilitation of adult offenders has moved forward, there is little consensus about how this might be achieved for young people. Therapeutic Jurisprudence (TJ) needs to extend beyond its current considerations of the rights of children and young people, and to expand its focus to the extent to which international human rights standards are complied with in the cases of juveniles in the criminal justice system. This presentation will (a) explore the extent to which current practices in juvenile justice are consistent with the UN's Convention and (b) whether the adoption a rehabilitative and treatment approach based on a TJ framework might serve to improve outcomes for young people and ensure their rights are not being violated.

Remedying discrimination : the limits of the law and the need for a systemic approach

Very few discrimination complaints reach the courts each year. As with other civil litigation, the reasons for this include the cost of pursuing litigation and, particularly for complainants, the risk of losing or receiving less than the complainant could have negotiated prior.

Drawing on interviews with lawyers and non-legal advocates in Victoria and an analysis of successful cases in three jurisdictions, this article examines the remedy the court is likely to award in a successful discrimination complaint and considers the effect of this on the eradication of discrimination in society. A comprehensive examination of the remedies awarded in successful discrimination complaints in Victoria over a three year period shows that courts are most likely to order compensation at modest amounts and complainants are not regularly awarded their costs. A comparison with Queensland and the federal system reveals a similar experience. Even in those jurisdictions where wider remedies are available, courts rarely take the opportunity to make broad orders which could affect other similarly situated individuals or deter would-be respondents.

While it is necessary to remedy the complainant’s experience, it is also necessary to address broader, systemic discrimination and a compensation award cannot do this. Remedying discrimination with compensation is primarily a problem because it is reactive. Compensation does not address other instances of discrimination in society or achieve systemic change nor does it encourage compliance because the respondent is not required to take anticipatory action to prevent another complaint.

Based on the interpretive principles and extensive remedies provided in South Africa’s recent anti-discrimination and a study of remedies ordered by the South African Equality Courts and the Irish Equality Tribunal, the article proposes reforms to Australia’s anti-discrimination legislation to enable courts to make wider orders which target other instances of discrimination in addition to remedying the complainant’s experience.

Measurement of aqueous film thickness between charged mercury and mica surfaces : a direct experimental probe of the Poisson-Boltzmann distribution

A stable aqueous electrolyte film is formed between a mercury drop and a flat mica surface due to electrical double-layer repulsion when a negative potential is applied to the mercury. Film thickness has been measured as a function of applied potential while keeping the film pressure constant. By making measurements in this way, it is possible to map the data directly according to the Poisson-Boltzmann equation. An excellent fit to the data is obtained, providing direct evidence for this classical equation and its use as the basis of the Gouy-Chapman model of the diffuse double layer in electrolyte solutions.

Professional autonomy of Victorian surgeons in the context of law and ethics

An analysis of legislation and court decisions demonstrates that the privilege of autonomous decision making by surgeons in Victoria has become progressively constrained. Factors that have led to this include workforce issues and the protection of the public combined with increasing involvement of the courts in questions involving medical ethics.

Narrating heritage's living stories : a comparative study of China's Suojia ecomuseum and Australia's Melbourne living museum of the West

The Ecomusée, as emerged in France in the 1970s, is a form of open-air museum that aims to maintain collections in their original environments with local communities serving as curators and managing their own heritage. This approach and philosophy implies and is dependent upon democratic principles in the conservation and interpretation processes. Since the 1990s, China has adopted the ecomusée concept for the conservation of selected ethnic villages to relieve tensions between poverty and heritage conservation. However, does this concept really work in China? To answer this question, the Suojia Ecomuseum, the first such initiative - has been selected as a case study and assessed using the mixed methodologies of on-site observation, documentation and semistructured interviews. This process has identified several issues and problems associated with this ecomuseum. It demonstrates that Suojia Ecomuseum has not achieved international benchmarks, neither philosophical nor practical expectations have been met. This conclusion challenges the internationally acknowledged notion that all ecomuseums develop and are operated using a bottom-up approach, that they were all community-based and democratic. These discrepancies lead to other questions about the differences between ecomuseums in China and elsewhere. In order to map and compare the differences between ecomuseums in China and in Western democracies, a detailed survey was undertaken using Melbourne’s Living Museum of the West, Australia. Applying the same methodologies as in China, a comparable examination was undertaken as to its background, objectives, management structures, programs and activities, and project outcomes as well as problems. The differences between Suojia Ecomuseum and Melbourne’s Living Museum are then explained and shown. They demonstrate quite diverse organisations with different objectives and management structures relating to different cultural and natural resources. However, the unexpected finding was that the futures of both ecomuseums relied on the financial support and passion of younger generations and hence were vulnerable.