Review of Public Trustee Files - Families and generational asset transfers: Making and challenging wills in contemporary Australia

The Public Trustee file review was designed to address research questions relating to will disputes and socio-cultural and family norms, expectations and obligations that underpin challenges to wills. Findings from this review will augment the earlier review of all adjudicated succession law cases in Australia between January and December 2011. The research team obtained 139 cases for the review. Within the reviewed cases, parties generally needed some kind of formalised assistance to resolve disputes and almost a third ended up going to court. Most claims launched to contest wills were successful i.e. led to a change in distribution. The existence of poor and/or complex personal relationships between beneficiaries, disputants and/or the deceased were a feature of most cases involving will disputes, particularly where disputes were escalated to court. There are significant costs of will contestation both for the estate and the individuals involved in disputes. Previous research has identified that in addition to the direct costs is the indirect cost of extending the time for probate of the will. This review highlights that one of the most significant costs of will contestation is the damage to familial relationships that appears to both drive and be worsened by contestation. Findings of this review highlight the role of Public Trustees in providing financial management and advocacy services to protect and support vulnerable people in the community such as those with impaired capacity, as well as offering services such as will drafting and deceased estate administration.

The high price of drug patents: Australia, patent law, pharmaceutical drugs and the Trans-Pacific Partnership

This week, the secrecy surrounding an independent Australian report on patent law and pharmaceutical drugs has been lifted, and the work has been published to great acclaim...

A fair use project for Australia: Copyright law and creative freedom

This essay provides a critical assessment of the Fair Use Project based at the Stanford Center for Internet and Society. In evaluating the efficacy of the Fair Use Project, it is worthwhile considering the litigation that the group has been involved in, and evaluating its performance. Part 1 outlines the history of the Stanford Center for Internet and Society, and the aims and objectives of the Fair Use Project. Part 2 considers the litigation in Shloss v. Sweeney over a biography concerning Lucia Joyce, the daughter of the avant-garde literary great, James Joyce. Part 3 examines the dispute over the Harry Potter Lexicon. Part 4 looks at the controversy over the Shepard Fairey poster of President Barack Obama, and the resulting debate with Associated Press. Part 5 of the essay considers the intervention of the Fair Use Project as an amicus curiae in the ‘Column case’. Part 6 explores the participation of the Fair Use Project as an amicus curiae in the litigation over 60 Years Later, an unauthorised literary sequel to J.D. Salinger’s The Catcher in the Rye. Part 7 of the essay investigates the role of the Fair Use project in disputes over copyright law and musical works. Part 8 investigates the role of the Fair Use Project as an advocate in disputes over copyright law, fair use, documentary films, and internet videos. The conclusion has main three arguments. First, it contends that Australia should establish a Fair Use Project to support creative artists in litigation over copyright exceptions. Second, it maintains that Australia should adopt a flexible, open-ended defence of fair use, and draw upon the rich jurisprudence in the United States on the fair use doctrine. Finally, this paper argues that support should be given at an international level to the proposal for a Treaty on Access to Knowledge.

Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

Family law reform and domestic violence: Lessons from Australia

This chapter reviews recent changes in family law related to domestic violence and the research on their impact in Australia.

The fight for fair use in Australia: Copyright law in an age of cloud computing

Fair Use Week has celebrated the evolution and development of the defence of fair use under copyright law in the United States. As Krista Cox noted, ‘As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise, and its long history demonstrates its importance in promoting access to information, future innovation, and creativity.’ While the defence of fair use has flourished in the United States, the adoption of the defence of fair use in other jurisdictions has often been stymied. Professor Peter Jaszi has reflected: ‘We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the “secret sauce” of U.S. cultural competitiveness.’ Jurisdictions such as Australia have been at a dismal disadvantage, because they lack the freedoms and flexibilities of the defence of fair use.

Litigiousness in Australia: Lessons from comparative law

How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.

Arson-associated homicide in Australia: A five year follow-up

Arson homicides are rare, representing only two percent of all homicides in Australia each year. In this study, data was collected from the AIC’s National Homicide Monitoring Program (NHMP) to build on previous research undertaken into arson-associated homicides (Davies & Mouzos 2007) and to provide more detailed analysis of cases and offenders. Over the period 1989 to 2010, there were 123 incidents of arson-associated homicide, involving 170 unique victims and 131 offenders. The majority of incidents (63%) occurred in the victim’s home and more than half (57%) of all victims were male. It was found that there has been a 44 percent increase in the number of incidents in the past decade. It is evident that a considerable proportion of the identified arson homicides involved a high degree of premeditation and planning. These homicides were commonly committed by an offender who was well known to the victim, with over half of the victims (56%) specifically targeted by the offender. This paper therefore provides a valuable insight into the nature of arson homicides and signposts areas for further investigation.

American lessons: Implementing fair use in Australia

This article discusses the recent Australian Law Reform Commission report proposing a fair use defense to copyright infringement in Australia. It examines the experience of fair use cases in the United States and draws three lessons from the jurisprudential history. First, it suggests that decisions in fair use can only really be understood within a theoretical framework, and that unless we import that framework into Australia any fair use defense will not work as expected. Secondly, the article argues that the area where fair use jurisprudence appears to be most helpful, in dealing with “transformative” works, is actually much more limited than outsiders to the US would expect. And finally, it suggests that any implementation of a factor related to market substitution should take account of the gaming of the system that has gone on in the US.

The persistence of biofilm-associated antibiotic resistance of Staphylococcus aureus isolated from clinical bovine mastitis cases in Australia

The aim of this investigation was to determine the persistence of biofilm-associated antibiotic resistance developed by methicillin-sensitive Staphylococcus aureus (MSSA), of different capsular types, during biofilm formation. Because of superiority of the tissue culture plate (TCP) over the Congo Red Agar (CRA) method for measuring biofilm formation, it was used to determine the persistence of the antibiotic resistance developed by the isolates in biofilms. The antibiotic resistance was found to persist for 3-4 wk post-propagation as planktonic subcultures. Interestingly, some strains even developed resistance to vancomycin and/or teicoplanin. However, no association of either biofilm formation or persistent antibiotic resistance with the major capsular phenotype was observed. These observations highlight the potential significance of (a) determining the antibiograms of S. aureus subcultured from biofilms developed in vitro using the TCP method as well as from planktonic cultures for formulation of an optimal therapeutic strategy, and (b) continuing to identify predominant non-capsular antigens contributing to biofilm formation, regardless of the capsular phenotype for the development of an effective potentially broad-spectrum vaccine for prevention of bovine mastitis caused by S. aureus.

Effect of temperature and precipitation on salmonellosis cases in South-East Queensland, Australia: An observational study

Objective Foodborne illnesses in Australia, including salmonellosis, are estimated to cost over $A1.25 billion annually. The weather has been identified as being influential on salmonellosis incidence, as cases increase during summer, however time series modelling of salmonellosis is challenging because outbreaks cause strong autocorrelation. This study assesses whether switching models is an improved method of estimating weather–salmonellosis associations. Design We analysed weather and salmonellosis in South-East Queensland between 2004 and 2013 using 2 common regression models and a switching model, each with 21-day lags for temperature and precipitation. Results The switching model best fit the data, as judged by its substantial improvement in deviance information criterion over the regression models, less autocorrelated residuals and control of seasonality. The switching model estimated a 5°C increase in mean temperature and 10 mm precipitation were associated with increases in salmonellosis cases of 45.4% (95% CrI 40.4%, 50.5%) and 24.1% (95% CrI 17.0%, 31.6%), respectively. Conclusions Switching models improve on traditional time series models in quantifying weather–salmonellosis associations. A better understanding of how temperature and precipitation influence salmonellosis may identify where interventions can be made to lower the health and economic costs of salmonellosis.

(Failed) voluntary euthanasia law reform in Australia: Two decades of trends, models and politics

Within Australia, there have been many attempts to pass voluntary euthanasia (VE) or physician-assisted suicide (PAS) legislation. From 16 June 1993 until the date of writing, 51 Bills have been introduced into Australian parliaments dealing with legalising VE or PAS. Despite these numerous attempts, the only successful Bill was the Rights of the Terminally Ill Act 1995 (NT), which was enacted in the Northern Territory, but a short time later overturned by the controversial Euthanasia Laws Act 1997 (Cth). Yet, in stark contrast to the significant political opposition, for decades Australian public opinion has overwhelmingly supported law reform legalising VE or PAS. While there is ongoing debate in Australia, both through public discourse and scholarly publications, about the merits and dangers of reform in this field, there has been remarkably little analysis of the numerous legislative attempts to reform the law, and the context in which those reform attempts occurred. The aim of this article is to better understand the reform landscape in Australia over the past two decades. The information provided in this article will better equip Australians, both politicians and the general public, to have a more nuanced understanding of the political context in which the euthanasia debate has been and is occurring. It will also facilitate a more informed debate in the future.

Chlamydia prevalence in young attenders of rural and regional primary care services in Australia: a cross-sectional survey.

OBJECTIVE To estimate chlamydia prevalence among 16-29-year-olds attending general practice clinics in Australia. DESIGN, PARTICIPANTS AND SETTING A cross-sectional survey was conducted from May 2010 to December 2012. Sexually experienced 16-29-year-olds were recruited from 134 general practice clinics in 54 rural and regional towns in four states and in nine metropolitan clinics (consecutive patients were invited to participate). Participants completed a questionnaire and were tested for chlamydia. MAIN OUTCOME MEASURE Chlamydia prevalence. RESULTS Of 4284 participants, 197 tested positive for chlamydia (4.6%; 95% CI, 3.9%-5.3%). Prevalence was similar in men (5.2% [65/1257]; 95% CI, 3.9%-6.4%) and women (4.4% [132/3027]; 95% CI, 3.5%-5.2%) (P = 0.25) and high in those reporting genital symptoms or a partner with a sexually transmissible infection (STI) - 17.0% in men (8/47; 95% CI, 2.8%-31.2%); 9.5% in women (16/169; 95% CI, 5.1%-13.8%). Nearly three-quarters of cases (73.4% [130/177]) were diagnosed in asymptomatic patients attending for non-sexual health reasons, and 83.8% of all participants (3258/3890) had attended for non-sexual health reasons. Prevalence was slightly higher in participants from rural and regional areas (4.8% [179/3724]; 95% CI, 4.0%-5.6%) than those from metropolitan areas (3.1% [17/548]; 95% CI, 1.5%-4.7%) (P = 0.08). In multivariable analysis, increasing partner numbers in previous 12 months (adjusted odds ratio [AOR] for three or more partners, 5.11 [95% CI, 2.35-11.08]), chlamydia diagnosis in previous 12 months (AOR, 4.35 [95% CI, 1.52-12.41]) and inconsistent condom use with most recent partner (AOR, 2.90 [95% CI, 1.31-6.40]) were significantly associated with chlamydia in men. In women, increasing partner numbers in previous 12 months (AOR for two partners, 2.59 [95% CI, 1.59-4.23]; AOR for three or more partners, 3.58 [95% CI, 2.26-5.68]), chlamydia diagnosis in previous 12 months (AOR, 3.13 [95% CI, 1.62-6.06]) and age (AOR for 25-29-year-olds, 0.23 [95% CI, 0.12-0.44]) were associated with chlamydia. CONCLUSIONS Chlamydia prevalence is similar in young men and women attending general practice. Testing only those with genital symptoms or a partner with an STI would have missed three-quarters of cases. Most men and women are amenable to being tested in general practice, even in rural and regional areas.