Alternative systems for Intellectual Property in the digital age

This paper investigates the current turbulent state of copyright in the digital age, and explores the viability of alternative compensation systems that aim to achieve the same goals with fewer negative consequences for consumers and artists. To sustain existing business models associated with creative content, increased recourse to DRM (Digital Rights Management) technologies, designed to restrict access to and usage of digital content, is well underway. Considerable technical challenges associated with DRM systems necessitate increasingly aggressive recourse to the law. A number of controversial aspects of copyright enforcement are discussed and contrasted with those inherent in levy based compensation systems. Lateral exploration of the copyright dilemma may help prevent some undesirable societal impacts, but with powerful coalitions of creative, consumer electronics and information technology industries having enormous vested interest in current models, alternative schemes are frequently treated dismissively. This paper focuses on consideration of alternative models that better suit the digital era whilst achieving a more even balance in the copyright bargain.

An analysis of the Brisbane residential property market and the global financial crisis

The period from 2007 to 2009 covered the residential property boom from early 2000, to the property recession following the Global Financial Crisis. Since late 2008, a number of residential property markets have suffered significant falls in house prices, buth this has not been consistent across all market sectors. This paper will analyze the housing market in Brisbane Australia to determine the impact, similarities and differences that the4 GFC had on range of residential sectors across a divesified property market. Data analysis will provide an overview of residential property prices, sales and listing volumes over the study period and will provide a comparison of median house price performance across the geographic and socio-economic areas of Brisbane.

The regulation of insurance intermediaries in the Australian financial services market

The insurance industry discharges a critical role in the Australian economy and is a significant part of the Australian financial services market. The industry relies upon intermediaries, the principal types being brokers and agents, to promote, arrange and distribute their products and services in the market. The pivotal role that they play in this context and sensitivities associated with the consumer oriented products, such as house and contents insurance, has ensured close regulatory attention. Of particular importance was the passage of the Insurance (Agents and Brokers) Act 1984 (Cth), a comprehensive attempt to address the responsibilities of intermediaries as well as particular problem areas associated with the handling of money. However, with the introduction of financial services and market reform early in the new millennium this insurance intermediary specific regulatory approach was abandoned in favour of a market-wide strategy; that is, market reform was based upon across-the-board licensing, disclosure, conduct and fairness standards, and all financial products and services are now regulated at a generic level under Ch 7 of the Corporations Act 2001 (Cth). This article briefly explores the categories of insurance intermediaries and the relevant distinctions between them but focuses mainly upon the regulatory context in which they operate. This context transcends a strictly legal framework as the regulatory body, the Australian Securities and Investments Commission (ASIC), has sought to inform and guide the market through Policy Statements and Regulatory Guides. The usefulness of these guides as an adjunct to the legislation in explaining the scope and operation of regulatory framework is examined. In addition, the article looks at the self-regulatory and dispute resolution practices in this area and their impact. In conclusion an assessment of this across-the-board regulatory regime is advanced.

Construction 2020 - A vision for Australia's Property and Construction Industry

Construction 2020 is a national initiative undertaken by CRC for Construction Innovation to focus its ongoing leadership of the Australian property and construction industry in applied research and best contribute to the industry's national and international growth and competitiveness. It is the first major report on the long-term outlook for the industry since the late 1990s. The report identifies nine key themes for the future of the property and construction industry. These visions describe the major concerns of the industry and the improved future working environment favoured by its stakeholders. The first and clearest vision, agreed across the industry, is that environmentally sustainable construction the creation of buildings and infrastructure that minimise their impact on the natural environment is an area of huge potential. Here technologies like Construction Innovation's LCADesign can make a big difference. This is a calculator that works out automatically from 3D computer-aided design the environmental costs of materials in a building all at the push of a button. By working with industry, we'd expect to have a comprehensive set of eco-design tools for all stages of the construction life cycle, to minimise energy use, greenhouse and other forms of waste or pollution. Other significant areas of focus in the report include the development of nationally uniform codes of practice, new tools to evaluate design and product performance, comparisons with overseas industries, and a worldwide research network to ensure that Australian technology is at the cutting edge.

Malaysia high-rise residential property management : 2004-2010 trends and scenario

Property management requires an understanding of infrastructure management, service life planning and quality management. Today, people are beginning to realize that effective property management in high-rise residential property can sustain the property value and maintaining high returns on their investment. The continuous growth of high-rise residential properties indicates that there is a need for an effective property management system to provide a sustainable high-rise residential property development. As intensive as these studies are, they do not attempt to investigate the correlation between property management systems with the trends of Malaysia high-rise residential property development. By examining the trends and scenario of Malaysia high-rise residential property development, this paper aims to gain an understanding of impacts from the effectiveness of property management in this scope area. Findings from this scoping paper will assist in providing a greater understanding and possible solutions for the current Malaysian property management systems for the expanding high-rise residential unit market. With current high rise units in excess of 1.3 million and increasing, the need for more cost effective management systems are of highly important to the Malaysian Property Industry.

Whole life cycle costing for Malaysia residential property development : the cultural environment

As knowledge of the residential development costing impact on resource and budgeting use increase, developers are moving towards more sustainable solution by implementing whole life cycle costing. Property management requires an understanding of infrastructure management, service life planning and quality management. Today, people are beginning to realize that effective property management in high-rise residential property can sustain the property value and maintain high returns on their investment. The continuous growth of high-rise residential properties indicates that there is a need for an effective property management system to provide a sustainable high-rise residential property development. For such reasons, this paper attempts to study the culture that have been applied due the residential property development in Malaysia as to improve to the best and sustainable practice in providing the best cost effectiveness management system in residential property development.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.

Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

Implications of the National Rental Affordability Scheme on the valuation of residential property

The provision of shelter is a basic need and in Australia there has been a history of home ownership. However recent economic growth and rising construction costs, particularly over the past decade, has placed home ownership out of reach for some. In response to increased affordability pressures, the Australian Federal Government established the National Rental Affordability Scheme (NRAS) in 2008. The aim of establishing the NRAS initiative is to stimulate the supply of new affordable rental dwellings, targeting 50,000 new properties by June 2012, through the provision of a National Rental Incentive for each “approved” dwelling. To be approved the dwelling must be newly constructed and subsequently rented to eligible low and moderate income households at rentals no greater than 80 percent of market rates. There is a further requirement that the accommodation be provided as part of the scheme for no less than 10 years. The requirement to provide new residential accommodation at below market rentals for no less than 10 years has an impact on value and as such the valuation methodologies employed. To give guidance to valuers this paper investigates the scheme, the impact on value and expectations for the future.

Property Agents and Motor Dealers Act : strike three

The Tourism, Racing and Fair Trading (Miscellaneous Provisions) Act 2002 (“the Act”) which was passed on 18 April 2002 contains a number of significant amendments relevant to the operation of the Property Agents and Motor Dealers Act 2000. The main changes relevant to property transactions are: (i) Changes to the process for appointment of a real estate agent and consolidation of the appointment forms; (ii) Additions to the disclosure obligation of agents and property developers; (iii) Simplification of the process for commencing the cooling off period; (iv) Alteration of the common law position concerning when the parties are bound by a contract; (v) Removal of the requirement for a seller’s signature on the warning statement to be witnessed; (vi) Retrospective amendment of s 170 of the Body Corporate and Community Management Act 1997; (vii) Inclusion of a new power to allow inspectors to enter the place of business of a licensee or a marketeer without consent and without a warrant; and (viii) Inclusion of a new power for inspectors to require documents to be produced by marketeers. The majority of the amendments are effective from the date of assent, 24 April 2002, however, some of the amendments do not commence until a date fixed by proclamation. No proclamation has been made at the time of writing (2 May 2002). Where the amendments have not commenced this will be noted in the article. Before providing clients with advice, practitioners should carefully check proclamation details.

Property Agents and Motor Dealers Act : take two

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions commenced on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent, 21 September 2001.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365. On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).

Property Agents and Motor Dealers Act (Qld) : disclosure, cooling-off and marketeers

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions are expected to commence on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent (21 September 2001).