Understanding the legal implications of data sharing, access and reuse in the Australian research landscape

Researchers are increasingly involved in data-intensive research projects that cut across geographic and disciplinary borders. Quality research now often involves virtual communities of researchers participating in large-scale web-based collaborations, opening their earlystage research to the research community in order to encourage broader participation and accelerate discoveries. The result of such large-scale collaborations has been the production of ever-increasing amounts of data. In short, we are in the midst of a data deluge. Accompanying these developments has been a growing recognition that if the benefits of enhanced access to research are to be realised, it will be necessary to develop the systems and services that enable data to be managed and secured. It has also become apparent that to achieve seamless access to data it is necessary not only to adopt appropriate technical standards, practices and architecture, but also to develop legal frameworks that facilitate access to and use of research data. This chapter provides an overview of the current research landscape in Australia as it relates to the collection, management and sharing of research data. The chapter then explains the Australian legal regimes relevant to data, including copyright, patent, privacy, confidentiality and contract law. Finally, this chapter proposes the infrastructure elements that are required for the proper management of legal interests, ownership rights and rights to access and use data collected or generated by research projects.

Reality bytes : technology in real world legal education

The use of technology for purposes such as communication and document management has become essential to legal practice with practitioners and courts increasingly relying on various forms of technology. Accordingly, legal practitioners need to be able to understand, communicate with, and persuade their audience using this technology. Technology skills are therefore an essential and integral part of undergraduate legal education, and given the widening participation agenda in Australia and consequent increasing diversity of law students, it must also be available to all students. To neglect this most crucial part of modern legal education is to fail in a fundamental aspect of a University’s obligation not just to its students, but ultimately to our students’ potential employers and their future clients. This paper will consider how law schools can facilitate the development of technology skills by using technology to facilitate mooting in settings that replicate legal practice. In order to assess the facilities at the disposal of universities, the authors surveyed the law schools in Australia about their equipment in and use of electronic moot court rooms. The authors also conducted and evaluated an internal mooting competition using Elluminate, an online communication platform available to students through Blackboard. Students were able to participate wherever they were located without the need to attend a moot court room. The results of the survey and evaluation of the Elluminate competition will be discussed. The paper will conclude that while it is essential to teach technology skills as part of legal education, it is important that the benefits and importance of using technology be made clear in order for it to be accepted and embraced by the students. Technology must also be available to all students considering the widening participation in higher education and consequent increasing diversity of law students.

Reasonable adjustment and the assessment of students with disabilities: Australian legal issues and trends

Student assessment is particularly important, and particularly controversial, because it is the means by which student achievement is determined. Reasonable adjustment to student assessment is of equal importance as the means of ensuring the mitigation, or even elimination, of disability related barriers to the demonstration of student achievement. The significance of reasonable adjustment is obvious in the later years of secondary school, and in the tertiary sector, because failure to adjust assessment may be asserted as the reason a student did not achieve as well as anticipated or as the reason a student was excluded from a course and, as a result, from future study and employment opportunities. Even in the early years of schooling, however, assessment and its management are a critical issue for staff and students, especially in an education system like Australia’s with an ever increasing emphasis on national benchmarks testing. This paper will explain the legislation which underpins the right to reasonable adjustment in education in Australian schools. It will give examples of the kinds of adjustment which may be made to promote equality of opportunity in the area of assessment. It will also consider some of the controversies which have confronted, or which, it may be speculated, are likely to confront Australian education institutions as they work towards compliance with reasonable adjustment laws.

Neural interface systems : a new legal frontier?

In an age where digital innovation knows no boundaries, research in the area of brain-computer interface and other neural interface devices go where none have gone before. The possibilities are endless and as dreams become reality, the implications of these amazing developments should be considered. Some of these new devices have been created to correct or minimise the effects of disease or injury so the paper discusses some of the current research and development in the area, including neuroprosthetics. To assist researchers and academics in identifying some of the legal and ethical issues that might arise as a result of research and development of neural interface devices, using both non-invasive techniques and invasive procedures, the paper discusses a number of recent observations of authors in the field. The issue of enhancing human attributes by incorporating these new devices is also considered. Such enhancement may be regarded as freeing the mind from the constraints of the body, but there are legal and moral issues that researchers and academics would be well advised to contemplate as these new devices are developed and used. While different fact situation surround each of these new devices, and those that are yet to come, consideration of the legal and ethical landscape may assist researchers and academics in dealing effectively with matters that arise in these times of transition. Lawyers could seek to facilitate the resolution of the legal disputes that arise in this area of research and development within the existing judicial and legislative frameworks. Whether these frameworks will suffice, or will need to change in order to enable effective resolution, is a broader question to be explored.

Self-Government and the fashioning of resilient personae : legal education, criminal justice, and the government of mental health

This paper explores attempts to shape resilient personae through relations of self-government, and highlights the way that this features as part of advanced liberal forms of rule. As an example of this process, it focuses on the way that undergraduate law students are encouraged to fashion resilient personae throughout their legal studies, so as to avoid, or effectively respond to, experiences that may have a detrimental effect on their mental health. This paper argues that the production of such resilience relies on students being encouraged to take up psychologically- and biomedically-infused subject positions, becoming well-disciplined subjects, entrepreneurs of the self, and even virtuous persons. It highlights that the fashioning of resilient personae in this way involves extensions to the targets and practices of self-government and reinforces advanced liberal government. The paper then suggests how insights into fashioning resilience in this context can inform further research on resilience, particularly resilience produced within criminal justice professionals.

Drawing the line : the legal status and treatment of the 17-year-old accused in Queensland

Seventeen year olds who come into contact with the police in Queensland are classified as adults and are not afforded the protections available under the Youth Justice Act 1992 (Qld) (YJA). As with any other adult, their offences are dealt with under a raft of legislative provisions including the Criminal Code 1889 (Qld) (the Code), the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) and the Penalties and Sentences Act 1992 (Qld) (PSA). This article argues that this situation is unfair and contravenes international human rights agreements which Australia has ratified, in particular the United Nations Convention on the Rights of the Child (CROC). Article 1 of that Convention defines a child as a person under the age of 18. The youth offences legislation in Queensland only applies to those who have not yet turned 17. This article examines the effects of this anomaly in Queensland, focusing in particular on the pre-adjudication treatment of ‘17 year old adults’.

Legal issues in carbon farming : biosequestration, carbon pricing, and carbon rights

This paper critically analyses the proposed Australian regulatory approach to the crediting of biological sequestration activities (biosequestration) under the Australian Carbon Farming Initiative and its interaction with State-based carbon rights, the national carbon-pricing mechanism, and the international Kyoto Protocol and carbon-trading markets. Norms and principles have been established by the Kyoto Protocol to guide the creation of additional, verifiable, and permanent credits from biosequestration activities. This paper examines the proposed arrangements under the Australian Carbon Farming Initiative and Carbon Pricing Mechanism to determine whether they are consistent with those international norms and standards. This paper identifies a number of anomalies associated with the legal treatment of additionality and permanence and issuance of carbon credits within the Australian schemes. In light of this, the paper considers the possible legal implications for the national and international transfer, surrender and use of these offset credits.

Governing depression in Australian legal education : power, psychology and advanced liberal government

Legal educators in Australia have increasingly become concerned with the mental health of law students. The apparent risk posed by legal education to a student’s mental health has led to the deployment of a variety of measures to address these problems. By exploring these measures as productive power relations attempting to shape law students, this paper outlines how this government of depression is achieved, and the potential costs of these power relations. It examines one central Australian text offering advice about how students and law student societies can address depression, and argues that doing so not only involves students adopting particular practices of self-government to shape their legal personae, but also relies on an extension of the power relations of legal education. In addition, this paper will link this advice — which privatises the issue of depression, responsibilises individuals and communities, privileges psychological expertise, and seeks to govern ‘at a distance’ — to broader forms of social administration that presently characterise many Western societies. Doing so allows legal educators to reflect on the effects of their attempts to govern depression, and to consider new ways of altering the power relations of legal education.

The emergence of JD in the Australian Legal Education marketplace and its impact on academic standards

Over the last decade there has been an expansion in the number of Juris Doctor (JD) courses in the Australian legal education marketplace. Across the board it is graduate-entry, but it is currently offered in undergraduate, postgraduate and ‘hybrid’ forms. In this article we will discuss recent research conducted as part of an Australian Learning and Teaching Council grant. This project included an exploration of whether JD courses in Australia were applying different and higher level academic standards to those operating in Bachelor of Laws degrees. Our research findings reveal justification for concerns about the academic standards of some JD courses, particularly where masters level students were being taught alongside their undergraduate counterparts. They also provide some insights into perceptions in the marketplace of JD graduates. Finally, we will discuss the future viability of such courses in light of recent revisions to the Australian Qualifications Framework.

Legal Profession Act 2007 s 319 - Whether costs agreement made after trial valid and enforceable - whether agreement had retrospective operation

The decision in QCOAL Pty Ltd v Cliffs Australia Coal Pty Ltd [2010] QSC 479 involved an examination of a number of issues relating to the assessment of costs under the Legal Profession Act 2007 (Qld). The decision highlights a range of issues which, in slightly different circumstances, may have deprived the successful party of the right to recover costs by reference to the costs agreement.

Female genital mutilation : legal, attitudinal and practical reform

Female genital mutilation (FGM) is a cultural practice common in many Islamic societies. It involves the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from less damaging incisions to actual removal of genitalia and narrowing or even closing of the vagina. While often thought to be required by religion, FGM both predates and has no basis in the Koran. Rather, it is a cultural tradition, motivated by a patriarchal social desire to control female bodies to ensure virginity at marriage (preserving family honour), and to prevent infidelity by limiting sexual desire. In the USA and Australia in 2010, peak medical bodies considered endorsing the medical administration of a ‘lesser’ form of FGM. The basis for this was pragmatic: it would be preferable to satisfy patients’ desire for FGM in medically-controlled conditions, rather than have these patients seek it, possibly in more severe forms, under less safe conditions. While arguments favouring medically-administered FGM were soon overcome, the prospect of endorsing FGM illuminated the issue in these two Western countries and beyond. This paper will review the nature of FGM, its physical and psychological health consequences, and Australian laws prohibiting FGM. Then, it will scan recent developments in Africa, where FGM has been made illegal by a growing number of nations and by the Protocol to the African Charter on Human and Peoples’ Rights 2003 (the Maputo Protocol), but is still proving difficult to eradicate. Finally, based on arguments derived from theories of rights, health evidence, and the historical and religious contexts, this paper will ask whether an absolute human right against FGM can be developed.

Practice and procedure : a recent Court of Appeal case examines the meaning of 'third party payer' in terms of Part 3.4 of the Legal Profession Act 2007.

In Legal Services Commissioner v Wright [2010] QCA 321 the Queensland Court of Appeal allowed an appeal from the first instance decision. The decision involved the construction of “third party payer” in Part 3.4 of the Legal Profession Act 2007 (Qld).

Designing a capstone experience for Australian legal education

Literature suggests that universities, and law schools in particular, are not engaging final year students in a genuine capstone experience which supports the development of their professional identity and their transition out of university. Students in their final year also face significant transition issues which are just as challenging as those facing first year students entering the tertiary environment (Jervis & Hartley, 2005, 314)...