Patriarchal whiteness, self-determination and Indigenous women : the invisibilty of structural priviledge and the visability of oppression

Indigenous self-determination is the recognised right of all peoples to freely determine their political status, and pursue their economic, social and cultural development. Unfinished Constitutional Business? offers fresh insights into the ways communities can chart their own course and realise self-determination. Because the history of colonisation is emotionally charged, the issue has been clouded by a rhetoric that has sometimes obstructed analysis.

“I want to see the Queen” : experiences of service use by ageing people with an intellectual disability

People with intellectual disability are a relatively new but growing minority group within Australia's ageing population. Disability policies point to the equal right of people with disabilities to a quality of life similar to that of other citizens. Disability services are increasingly required to provide individualised and responsive services, irrespective of age, for people with lifelong disabilities. The present study explored the everyday lives of older people with intellectual disability in Victoria and Queensland, examining their experiences of using disability services and the ways in which services responded to their ageing. The aim of the study was to inform practice and service development for older people with intellectual disability. The findings suggest that services facilitate important social relationships with other service users and staff. Most older people had a sense of belonging and led busy but directionless lives in two disconnected worlds. Their lives were subject to significant external present-focused control. Yet, despite this, neither services nor family members took responsibility for ensuring their sense of continuity or supporting the development of plans about their future. The experiences described suggest an urgent need for, but significant challenges in the implementation of, holistic indivdualised planning similar to the UK concept of person-centred planning.

The Equality of Sub-Surface Minerals

Sub-surface minerals are in most cases considered to be the proprietary right of a country should those minerals be found within its borders. PRO169 (Indigenous Peoples’ Rights, International Labour Organization) has recorded instances where the private land of indigenous peoples has been pilfered by a government – often through the sale of a contract to a private company, and without the consent of the people living on that land. Other times, indigenous peoples, the government they find themselves living in, and the company that bought mining rights engage in consultation. But these practices are far from transparent, equitable, or fair as indigenous peoples are often unskilled in contractual law and do not have the same legal resources as the company or government does. This paper argues that the sub-surface minerals found within the territory of indigenous tribes should be legally allocated as theirs.

Advance Directives and the Promotion of Autonomy: a Comparative Australian Statutory Analysis

Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.

Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach?

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.

Improved algebraic cryptanalysis of QUAD, Bivium and Trivium via graph partitioning on equation systems

We present a novel approach for preprocessing systems of polynomial equations via graph partitioning. The variable-sharing graph of a system of polynomial equations is defined. If such graph is disconnected, then the corresponding system of equations can be split into smaller ones that can be solved individually. This can provide a tremendous speed-up in computing the solution to the system, but is unlikely to occur either randomly or in applications. However, by deleting certain vertices on the graph, the variable-sharing graph could be disconnected in a balanced fashion, and in turn the system of polynomial equations would be separated into smaller systems of near-equal sizes. In graph theory terms, this process is equivalent to finding balanced vertex partitions with minimum-weight vertex separators. The techniques of finding these vertex partitions are discussed, and experiments are performed to evaluate its practicality for general graphs and systems of polynomial equations. Applications of this approach in algebraic cryptanalysis on symmetric ciphers are presented: For the QUAD family of stream ciphers, we show how a malicious party can manufacture conforming systems that can be easily broken. For the stream ciphers Bivium and Trivium, we nachieve significant speedups in algebraic attacks against them, mainly in a partial key guess scenario. In each of these cases, the systems of polynomial equations involved are well-suited to our graph partitioning method. These results may open a new avenue for evaluating the security of symmetric ciphers against algebraic attacks.

Dealing with the problem of cybercrime

Lack of a universally accepted and comprehensive taxonomy of cybercrime seriously impedes international efforts to accurately identify, report and monitor cybercrime trends. There is, not surprisingly, a corresponding disconnect internationally on the cybercrime legislation front, a much more serious problem and one which the International Telecommunication Union (ITU) says requires „the urgent attention of all nations‟. Yet, and despite the existence of the Council of Europe Convention on Cybercrime, a proposal for a global cybercrime treaty was rejected by the United Nations (UN) as recently as April 2010. This paper presents a refined and comprehensive taxonomy of cybercrime and demonstrates its utility for widespread use. It analyses how the USA, the UK, Australia and the UAE align with the CoE Convention and finds that more needs to be done to achieve conformance. We conclude with an analysis of the approaches used in Australia, in Queensland, and in the UAE, in Abu Dhabi, to fight cybercrime and identify a number of shared problems.

Towards a relational theory of copyright law

This research provides a systematic and theoretical analysis of the digital challenges to the established exclusive regime of the economic rights enjoyed by authors (and related rightholders) under the law of copyright. Accordingly, this research has developed a relational theory of authorship and a relational approach to copyright, contending that the regulatory emphasis of copyright law should focus on the facilitation of the dynamic relations between the culture, the creators, the future creators, the users and the public, rather than the allocation of resources in a static world. In this networked digital world, the creative works and contents have become increasingly vital for people to engage in creativity and cultural innovation, and for the evolution of the economy. Hence, it is argued that today copyright owners, as content holders, have certain obligations to make their works accessible and available to the public under fair conditions. This research sets forward a number of recommendations for the reform of the current copyright system.

Resident-funded retirement village valuations : complications with the application of the DCF

Retirement village assets are different from traditional residential assets due to their operation in accordance with statutory legislation. Designed for independent living, retirement villages provide either detached or semi-detached residential dwellings with car parking and small private yards with community facilities providing a shared congregational area for village activities and socialising. In essence, the village operator provides the land and buildings to the residents who pay an amount on entry for the right of occupation. On departure from the units an agreed proportion of either the original purchase price or the sale price is paid to the outgoing resident. As ongoing levies are typically offset by ongoing operational expenses the market value of the operator's interest in the retirement village is therefore predominantly based upon the estimated future income from deferred management fees and capital gain upon roll-over receivable by the operator in accordance with the respective residency agreements. Given the lumpiness of these payments, there is general acceptance that the most appropriate approach to valuation is through discounted cash flow (DCF) analysis. There is however inconsistency between valuers across Australia in how they undertake their DCF analysis, leading to differences in reported values and subsequent confusion among users of valuation services. To give guidance to valuers and enhance confidence from users of valuation services this paper investigates the five major elements of DCF methodology, namely cash flows, escalation factors, holding period, terminal value and discount rate.

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).

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

The application of the statutory derivative action in Pt 2F.1A of the Corporations Act to companies in liquidation under Ch 5 : Well oiled machine or is Pt 2F.1A in need of a tune up?

The statutory derivative action was introduced in Australia in 2000. This right of action has been debated in the literature and introduced in a number of other jurisdictions as well. However, it is by no means clear that all issues have been resolved despite its operation in Australia for over 10 years. This article considers the application of Pt 2F.1A of the Corporations Act to companies in liquidation under Ch 5. It demonstrates that the application involves consideration of not only proper statutory interpretation but also policy matters around the role and the supervision by the court of a liquidator once a company has entered liquidation.

Israel's airstrike on Syria's Al-Kibar facility : a test case for the doctrine of pre-emptive self-defence?

This article analyses the legality of Israel’s 2007 airstrike on an alleged Syrian nuclear facility at Al-Kibar—an incident that has been largely overlooked by international lawyers to date. The absence of a threat of imminent attack from Syria means Israel’s military action was not a lawful exercise of anticipatory self-defence. Yet, despite Israel’s clear violation of the prohibition on the use of force there was remarkably little condemnation from other states, suggesting the possibility of growing international support for the doctrine of pre-emptive self-defence. This article argues that the muted international reaction to Israel’s pre-emptive action was the result of political factors, and should not be seen as endorsement of the legality of the airstrike. As such, a lack of opinio juris means the Al-Kibar episode cannot be viewed as extending the scope of the customary international law right of self-defence so as to permit the use of force against non-imminent threats. However, two features of this incident—namely, Israel’s failure to offer any legal justification for its airstrike, and the international community’s apparent lack of concern over legality—are also evident in other recent uses of force in the ‘war on terror’ context. These developments may indicate a shift in state practice involving a downgrading of the role of international law in discussions of the use of force. This may signal a declining perception of the legitimacy of the jus ad bellum, at least in cases involving minor uses of force.

Right to the city, desire for the suburb?

The 2000s have been a lively decade for cities. The Worldwatch Institute estimated that 2007 was the first year in human history that more people worldwide lived in cities than the countryside. Globalisation and new digital media technologies have generated the seemingly paradoxical outcome that spatial location came to be more rather than less important, as combinations of firms, industries, cultural activities and creative talents have increasingly clustered around a select node of what have been termed “creative cities,” that are in turn highly networked into global circuits of economic capital, political power and entertainment media. Intellectually, the period has seen what the UCLA geographer Ed Soja refers to as the spatial turn in social theory, where “whatever your interests may be, they can be significantly advanced by adopting a critical spatial perspective”. This is related to the dynamic properties of socially constructed space itself, or what Soja terms “the powerful forces that arise from socially produced spaces such as urban agglomerations and cohesive regional economies,” with the result that “what can be called the stimulus of socio-spatial agglomeration is today being assertively described as the primary cause of economic development, technological innovation, and cultural creativity”

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.