Judicial intervention in the affairs of unincorporated religious associations in New South Wales

The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies. Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied. Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’. Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature. This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales. In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Addressing the impediments copyright imposes on the use of patent specifications and prior art documents to improve patent quality

This article considers from an Australian perspective the impediments that copyright law places in the path of those who seek to use patent specifications and non-patent prior art documents in ways that are necessary to the proper functioning of the patent system. Until recently, copyright law in Australia had limited the uses to which members of the public could put patent specifications in that country. Those impediments have been removed as a result of an important legislative change to the way in which copyright in patent specifications can be enforced. The change gives the public a greater freedom to make use of patent specifications than it enjoyed before, and removes unwarranted restrictions upon the ways in which the public can reuse valuable information. However, what the amendment does not address is the impediments copyright imposes on using non-patent prior art documents in ways that advance the public interest.

Punishment Avoidance and Intentional Risky Driving Behaviour : What are the Implications for ‘Getting Away with it’?

Every motorised jurisdiction mandates legal driving behaviour which facilitates driver mobility and road user safety through explicit road rules that are enforced by regulatory authorities such as the Police. In road safety, traffic law enforcement has been very successfully applied to modify road user behaviour, and increasingly technology is fundamental in detecting illegal road user behaviour. Furthermore, there is also sound evidence that highly visible and/or intensive enforcement programs achieve long-term deterrent effects. To illustrate, in Australia random breath testing has considerably reduced the incidence and prevalence of driving whilst under the influence of alcohol. There is, however, evidence that many road rules continue to be broken, including speeding and using a mobile phone whilst driving, and there are many instances where drivers are not detected or sufficiently sanctioned for these transgressions. Furthermore, there is a growing body of evidence suggesting that experiences of punishment avoidance – that is, successful attempts at avoiding punishment such as drivers talking themselves out of a ticket, or changing driving routes to evade detection –are associated with and predictive of the extent of illegal driving behaviour and future illegal driving intentions. Therefore there is a need to better understand the phenomenon of punishment avoidance to enhance our traffic law enforcement procedures and therefore safety of all road users. This chapter begins with a review of the young driver road safety problem, followed by an examination of contemporary deterrence theory to enhance our understanding of both the experiences and implications of punishment avoidance in the road environment. It is noteworthy that in situations where detection and punishment remain relatively rare, such as on extensive road networks, the research evidence suggests that experiences of punishment avoidance may have a stronger influence upon risky driving behaviour than experiences of punishment. Finally, data from a case study examining the risky behaviour of young drivers will be presented, and the implications for ‘getting away with it’ will be discussed.

Actinidia DRM1 : an intrinsically disordered protein whose mRNA expression is inversely correlated with spring budbreak in Kiwifruit

Intrinsically disordered proteins (IDPs) are a relatively recently defined class of proteins which, under native conditions, lack a unique tertiary structure whilst maintaining essential biological functions. Functional classification of IDPs have implicated such proteins as being involved in various physiological processes including transcription and translation regulation, signal transduction and protein modification. Actinidia DRM1 (Ade DORMANCY ASSOCIATED GENE 1), represents a robust dormancy marker whose mRNA transcript expression exhibits a strong inverse correlation with the onset of growth following periods of physiological dormancy. Bioinformatic analyses suggest that DRM1 is plant specific and highly conserved at both the nucleotide and protein levels. It is predicted to be an intrinsically disordered protein with two distinct highly conserved domains. Several Actinidia DRM1 homologues, which align into two distinct Actinidia-specific families, Type I and Type II, have been identified. No candidates for the Arabidopsis DRM1-Homologue (AtDRM2) an additional family member, has been identified in Actinidia.

Homologs of FT, CEN and FD respond to developmental and environmental signals affecting growth and flowering in the perennial vine kiwifruit

FLOWERING LOCUS T (FT) and CENTRORADIALIS (CEN) homologs have been implicated in regulation of growth, determinacy and flowering. The roles of kiwifruit FT and CEN were explored using a combination of expression analysis, protein interactions, response to temperature in high-chill and low-chill kiwifruit cultivars and ectopic expression in Arabidopsis and Actinidia. The expression and activity of FT was opposite from that of CEN and incorporated an interaction with a FLOWERING LOCUS D (FD)-like bZIP transcription factor. Accumulation of FT transcript was associated with plant maturity and particular stages of leaf, flower and fruit development, but could be detected irrespective of the flowering process and failed to induce precocious flowering in transgenic kiwifruit. Instead, transgenic plants demonstrated reduced growth and survival rate. Accumulation of FT transcript was detected in dormant buds and stem in response to winter chilling. In contrast, FD in buds was reduced by exposure to cold. CEN transcript accumulated in developing latent buds, but declined before the onset of dormancy and delayed flowering when ectopically expressed in kiwifruit. Our results suggest roles for FT, CEN and FD in integration of developmental and environmental cues that affect dormancy, budbreak and flowering in kiwifruit.

Identification and characterization of flowering genes in kiwifruit : sequence conservation and role in kiwifruit flower development

Background Flower development in kiwifruit (Actinidia spp.) is initiated in the first growing season, when undifferentiated primordia are established in latent shoot buds. These primordia can differentiate into flowers in the second growing season, after the winter dormancy period and upon accumulation of adequate winter chilling. Kiwifruit is an important horticultural crop, yet little is known about the molecular regulation of flower development. Results To study kiwifruit flower development, nine MADS-box genes were identified and functionally characterized. Protein sequence alignment, phenotypes obtained upon overexpression in Arabidopsis and expression patterns suggest that the identified genes are required for floral meristem and floral organ specification. Their role during budbreak and flower development was studied. A spontaneous kiwifruit mutant was utilized to correlate the extended expression domains of these flowering genes with abnormal floral development. Conclusions This study provides a description of flower development in kiwifruit at the molecular level. It has identified markers for flower development, and candidates for manipulation of kiwifruit growth, phase change and time of flowering. The expression in normal and aberrant flowers provided a model for kiwifruit flower development.

Kiwifruit floral gene APETALA2 is alternatively spliced and accumulates in aberrant indeterminate flowers in the absence of miR172

In Arabidopsis, the identity of perianth and reproductive organs are specified by antagonistic action of two floral homeotic genes, APETALA2 (AP2) and AGAMOUS (AG). AP2 is also negatively regulated by an evolutionary conserved interaction with a microRNA, miR172, and has additional roles in general plant development. A kiwifruit gene with high levels of homology to AP2 and AP2-like genes from other plant species was identified. The transcript was abundant in the kiwifruit flower, particularly petal, suggesting a role in floral organ identity. Splice variants were identified, all containing both AP2 domains, including a variant that potentially produces a shorter transcript without the miRNA172 targeting site. Increased AP2 transcript accumulation was detected in the aberrant flowers of the mutant 'Pukekohe dwarf' with multiple perianth whorls and extended petaloid features. In contrast to normal kiwifruit flowers, the aberrant flowers failed to accumulate miR172 in the developing whorls, although accumulation was detected at the base of the flower. An additional role during dormancy in kiwifruit was proposed based on AP2 transcript accumulation in axillary buds before and after budbreak.

Dormant but migratory tumour cells in desmoplastic stroma of invasive ductal carcinomas

Mortality in breast cancer is linked to metastasis and recurrence yet there is no acceptable biological model for cancer relapse. We hypothesise that there might exist primary tumour cells capable of escaping surgery by migration and resisting radiotherapy and chemotherapy to cause cancer recurrence. We investigated this possibility in invasive ductal carcinoma (IDC) tissue and observed the presence of solitary primary tumour cells (SPCs) in the dense collagen stroma that encapsulates intratumoural cells (ICs). In IDC tissue sections, collagen was detected with either Masson's Trichrome or by second harmonics imaging. Cytokeratin-19 (CK-19) and vimentin (VIM) antibodies were, respectively, used to identify epithelial-derived tumour cells and to indicate epithelial to mesenchymal transition (EMT). Confocal/multiphoton microscopy showed that ICs from acini were mainly CK-19 +ve and were encapsulated by dense stromal collagen. Within the stroma, SPCs were detected by their staining for both CK-19 and VIM (confirming EMT). ICs and SPCs were subsequently isolated by laser capture microdissection followed by multiplex tandem-PCR studies. SPCs were found to be enriched for pro-migratory and anti-proliferative genes relative to ICs. In vitro experiments using collagen matrices at 20 mg/cm 3, similar in density to tumour matrices, demonstrated that SPC-like cells were highly migratory but dormant, phenotypes that recapitulated the genotypes of SPCs in clinical tissue. These data suggest that SPCs located at the breast cancer perimeter are invasive and dormant such that they may exceed surgical margins and resist local and adjuvant therapies. This study has important connotations for a role of SPCs in local recurrence.

Fatty acid synthesis and pyruvate metabolism pathways remain active in dihydroartemisinin induced dormant ring stages of Plasmodium falciparum

Artemisinin (ART) based combination therapy (ACT) is used as the first line treatment of uncomplicated falciparum malaria worldwide. However, despite high potency and rapid action there is a high rate of recrudescence associated with ART monotherapy or ACT long before the recent emergence of ART resistance. ART induced ring stage dormancy and recovery has been implicated as possible cause of recrudescence; however, little is known about the characteristics of dormant parasites including whether dormant parasites are metabolically active. We investigated the transcription of 12 genes encoding key enzymes in various metabolic pathways in P. falciparum during dihydroartemisinin (DHA) induced dormancy and recovery. Transcription analysis showed an immediate down regulation for 10 genes following exposure to DHA, but continued transcription of 2 genes encoding apicoplast and mitochondrial proteins. Transcription of several additional genes encoding apicoplast and mitochondrial proteins, particularly genes encoding enzymes in pyruvate metabolism and fatty acid synthesis pathways, were also maintained. Additions of inhibitors for biotin acetyl CoA carbozylase and enoyl-acyl carrier reductase of the fatty acid synthesis pathways delayed the recovery of dormant parasites by 6 and 4 days, respectively following DHA treatment. Our results demonstrate most metabolic pathways are down regulated in DHA induced dormant parasites. In contrast fatty acid and pyruvate metabolic pathways remain active. These findings highlight new targets to interrupt recovery of parasites from ART-induced dormancy and to reduce the rate of recrudescence following ART treatment.

An efficient eAuction potocol

A secure protocol for electronic, sealed-bid, single item auctions is presented. The protocol caters to both first and second price (Vickrey) auctions and provides full price flexibility. Both computational and communication cost are linear with the number of bidders and utilize only standard cryptographic primitives. The protocol strictly divides knowledge of the bidder's identity and their actual bids between, respectively, a registration authority and an auctioneer, who are assumed not to collude but may be separately corrupt. This assures strong bidder-anonymity, though only weak bid privacy. The protocol is structured in two phases, each involving only off-line communication. Registration, requiring the use of the public key infrastructure, is simultaneous with hash-sealed bid-commitment and generates a receipt to the bidder containing a pseudonym. This phase is followed by encrypted bid-submission. Both phases involve the registration authority acting as a communication conduit but the actual message size is quite small. It is argued that this structure guarantees non-repudiation by both the winner and the auctioneer. Second price correctness is enforced either by observing the absence of registration of the claimed second-price bid or, where registered but lower than the actual second price, is subject to cooperation by the second price bidder - presumably motivated through self-interest. The use of the registration authority in other contexts is also considered with a view to developing an architecture for efficient secure multiparty transactions

Cut here : reshaping the ABC

Monday’s announcement that the ABC will make 80 positions redundant is just the latest move in an enforced process of change to the public service broadcaster. It has a long way yet to run. The announcement finally put the lie to Tony Abbott’s election eve pledge, live on national television, that there would be “no cuts to the ABC or SBS”. In concert with other recent announcements, it seems clear that public broadcasting – and in particular the ABC – is squarely in the government’s sights.

Submission: Towards a Stronger and More Efficient IP Rights System : Getting the Balance Right

1. In March 2009, the Australian Government, through IP Australia its administrator of Intellectual Property Rights (IPR) acquired by registration or grant, issued two consultation papers for comment by interested stakeholders. 2. The Consultation Papers have invited written submissions directed towards the object of the paper, namely encouraging discussion on certain proposed changes and their impact on business and innovation. 3. I understand the invitation to make written submissions is predominantly in the areas raised by the Consultation Papers and the questions posed. However, I have made a brief reference to several other areas of concern with the current Australian patent law, which in my opinion inhibit innovation and therefore come under the wider agenda of the government to work toward a stronger and more efficient IP rights system. 4. In this regard, the Consultation Papers indicate that if the IPR are less likely to be invalidated and more likely to be enforced, this confidence will reflect in a greater investment in research leading to innovation. 5. This submission relates to the Balance Paper.

The urgent need for career preview: Student expectations and graduate realities in music and dance

Unlike the work available in many creative disciplines, musicians and dancers have the possibility of full-time, company-based employment; however, participants far outweigh the number of available positions. As a result, many graduates become ‘enforced entrepreneurs’ as they shape their work to meet personal and professional needs. This paper first explores the career projections of 58 music and dance students who were surveyed in their first week of post-secondary study. It then contrasts these findings with the reality of graduate careers as reported by five of that cohort four years later. In contrast with the students’ overwhelming focus on performance roles, the graduate cohort reported a prevalence of portfolio careers incorporating both creative and non-creative roles. The paper characterises the notion of a performing arts ‘career’ as a messy concept fraught with misunderstanding. Implications include the need to heighten students’ career awareness and position intrinsic satisfaction as a valued career concept.

Stem-like cells with luminal progenitor phenotype survive castration in human prostate cancer

Castration is the standard therapy for advanced prostate cancer (PC). Although this treatment is initially effective, tumors invariably relapse as incurable, castration-resistant PC (CRPC). Adaptation of androgen-dependent PC cells to an androgen-depleted environment or selection of pre-existing,CRPC cells have been proposed as mechanisms of CRPC development. Stem cell (SC)-like PC cells have been implicated not only as tumor initiating/maintaining in PC but also as tumor-reinitiating cells in CRPC. Recently, castration-resistant cells expressing the NK3 homeobox 1 (Nkx3-1) (CARNs), the other luminal markers cytokeratin 18 (CK18) and androgen receptor (AR), and possessing SC properties, have been found in castrated mouse prostate and proposed as the cell-of-origin of CRPC. However, the human counterpart of CARNs has not been identified yet. Here, we demonstrate that in the human PC xenograft BM18, preexisting SC-like and neuroendocrine (NE) PC cells are selected by castration and survive as totally quiescent. SClike BM18 cells, displaying the SC markers aldehyde dehydrogenase 1A1 or NANOG, coexpress the luminal markers NKX3-1, CK18, and a low level of AR (ARlow) but not basal or NE markers. These CR luminal SC-like cells, but not NE cells, reinitiate BM18 tumor growth after androgen replacement. The ARlow seems to mediate directly both castration survival and tumor reinitiation. This study identifies for the first time in human PC SC-/CARN-like cells that may represent the cell-of-origin of tumor reinitiation as CRPC. This finding will be fundamental for refining the hierarchy among human PC cancer cells and may have important clinical implications.