Good faith in contractual performance and enforcement : Australian doctrinal hurdles

In the ongoing and spirited debate about the relative merits of an obligation of good faith in contractual performance and enforcement, widely divergent views have been expressed about the appropriateness and content of the putative obligation. However, relatively less time has been devoted to discussion of the sparseness of tools available to facilitate doctrinal development and the hurdles necessarily imposed by such limited doctrinal resources. This article seeks to examine the Australian doctrinal position against the backdrop of good faith as it finds application in the wider global context.

Babies, bodies and entitlement: gendered aspects of access to citizenship in the Republic of Ireland

Since the mid-1990s, automatic citizenship for children born in the Republic has been a source of growing debate against a backdrop of increasing immigration and the peace process. In June 2004, the debate culminated in a referendum, opening the way to a constitutional amendment that attaches residence qualifications to the hitherto unfettered entitlement to citizenship available through ius soli. Arguments for the amendment were couched in terms of a threat posed by Third World women having babies in Ireland to obtain residence, and a putative obligation to the EU to harmonise citizenship laws. This article explores how pregnant foreign women’s bodies became a site of perplexity about the borders of the twenty-first century Irish nation. It is therefore suggested that neither the ‘racial state’ theories nor feminist theories of the nation-state account fully for this. On closer inspection, the seemingly sui generis case of the Irish referendum is therefore fruitful in that it demands further reflection in terms of bridging gaps in the existing theory.

Truth, obligation and ethics in the propagation of democracy

In this paper I present an analysis of the language used by the National Endowment for Democracy (NED) on its website (NED, 2008). The specific focus of the analysis is on the NED's high usage of the word “should” revealed in computer assisted corpus analysis using Leximancer. Typically we use the word “should” as a term to propose specific courses of action for ourselves and others. It is a marker of obligation and “oughtness”. In other words, its systematic institutional use can be read as a statement of ethics, of how the NED thinks the world ought to behave. As an ostensibly democracy-promoting institution, and one with a clear agenda of implementing American foreign policy, the ethics of NED are worth understanding. Analysis reveals a pattern of grammatical metaphor in which “should” is often deployed counter intuitively, and sometimes ambiguously, as a truth-making tool rather than one for proposing action. The effect is to present NED's imperatives for action as matters of fact rather than ethical or obligatory claims.

The stewardship paradigm : an enquiry into the ethical obligation associated with being in control of resorces

The resource allocation and utilization discourse is dominated by debates about rights particularly individual property rights and ownership. This is due largely to the philosophic foundations provided by Hobbes and Locke and adopted by Bentham. In our community, though, resources come not merely with rights embedded but also obligations. The relevant laws and equitable principles which give shape to our shared rights and obligations with respect to resources take cognizance not merely of the title to the resource (the proprietary right) but the particular context in which the right is exercised. Moral philosophy regarding resource utilisation has from ancient times taken cognizance of obligations but with ascendance of modernity, the agenda of moral philosophy regarding resources, has been dominated, at least since John Locke, by a preoccupation with property rights; the ethical obligations associated with resource management have been largely ignored. The particular social context has also been ignored. Exploring this applied ethical terrain regarding resource utilisation, this thesis: (1) Revisits the justifications for modem property rights (and in that the exclusion of obligations); (2) Identifies major deficiencies in these justifications and reasons for this; (3) Traces the concept of stewardship as understood in classical Greek writing and in the New Testament, and considers its application in the Patristic period and by Medieval and reformist writers, before turning to investigate its influence on legal and equitable concepts through to the current day; 4) Discusses the nature of the stewardship obligation,maps it and offers a schematic for applying the Stewardship Paradigm to problems arising in daily life; and, (5) Discusses the way in which the Stewardship Paradigm may be applied by, and assists in resolving issues arising from within four dominant philosophic world views: (a) Rawls' social contract theory; (b) Utilitarianism as discussed by Peter Singer; (c) Christianity with particular focus on the theology of Douglas Hall; (d) Feminism particularly as expressed in the ethics of care of Carol Gilligan; and, offers some more general comments about stewardship in the context of an ethically plural community.

Removing barriers to protection at the exported border : visas, carrier sanctions, and international obligation

Asylum is being gradually denuded of the national institutional mechanisms (judicial, legislative and administrative) that provide the framework for a fair and effective asylum hearing. In this sense, there is an ongoing ‘denationalization’ or ‘deformalization’ of the asylum process. This chapter critically examines one of the linchpins of this trend: the erection of pre-entry measures at ports of embarkation in order to prevent asylum seekers from physically accessing the territory of the state. Pre-entry measures comprise the core requirement that foreigners possess an entry visa granting permission to enter the state of destination. Visa requirements are increasingly implemented by immigration officials posted abroad or by officials of transit countries pursuant to bilateral agreements (so-called ‘juxtaposed’ immigration controls). Private carriers, which are subject to sanctions if they bring persons to a country who do not have permission to enter, also engage in a form of de facto immigration control on behalf of states. These measures constitute a type of ‘externalized’ or ‘exported’ border that pushes the immigration boundaries of the state as far from its physical boundaries as possible. Pre-entry measures have a crippling impact on the ability of asylum seekers to access the territory of states to claim asylum. In effect, states have ‘externalized’ asylum by replacing the legal obligation on states to protect refugees arriving at ports of entry with what are perceived to be no more than moral obligations towards asylum seekers arriving at the external border of the state.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

UCPR r243 - notice of non-party disclosure - obligation to state allegation to which documents sought are directly relevant

In Deppro Pty Ltd v Hannah [2008] QSC 193 one of the matters considered by the court related to the requirement in r 243 of the Uniform Civil Procedure Rules 1999 (Qld) that a notice of non-party disclosure must “state the allegation in issue in the pleadings about which the document sought is directly relevant.”The approach adopted by the issuing party in this case of asserting that documents sought by a notice of non-party disclosure are relevant to allegations in numbered paragraphs in pleadings, and serving copies of the pleadings with the notice, is not uncommon in practice. This decision makes it clear that this practice is fraught with danger. In circumstances where it is not apparent that the non-party has been fully apprised of the relevant issues the decision suggests an applicant for non-party disclosure who has not complied with the requirements of s 243 might be required to issue a fresh, fully compliant notice, and to suffer associated costs consequences.

Is there an international obligation to prosecute pirates

Combating piracy at sea and apprehending pirates have been a long-standing problem for the global community. Increasing acts of piracy off the coast of Somalia have prompted the UN Security Council to intervene in the matter. The Council, through several resolutions, has authorised states to take action against Somali pirates in the territorial waters and land territory of Somalia and recently adopted a resolution urging all states to fully implement relevant international conventions in their domestic legal systems. However, despite the Security Council's intervention in the matter most states are still reluctant to prosecute Somali pirates in their domestic courts. Considering the most recent Security Council resolution and existing international law, this article examines whether there is an international obligation to criminalise piracy under domestic legal frameworks and to prosecute pirates in domestic courts. It submits that existing international law arguably imposes an obligation to prosecute pirates, at least in certain circumstances, and the recently adopted Security Council resolution reinforces this obligation.

Identification of TFG (TRK-fused gene) as a putative metastatic melanoma tumor suppressor gene

High density SNP arrays can be used to identify DNA copy number changes in tumors such as homozygous deletions of tumor suppressor genes and focal amplifications of oncogenes. Illumina Human CNV370 Bead chip arrays were used to assess the genome for unbalanced chromosomal events occurring in 39 cell lines derived from stage III metastatic melanomas. A number of genes previously recognized to have an important role in the development and progression of melanoma were identified including homozygous deletions of CDKN2A (13 of 39 samples), CDKN2B (10 of 39), PTEN (3 of 39), PTPRD (3 of 39), TP53 (1 of 39), and amplifications of CCND1 (2 of 39), MITF (2 of 39), MDM2 (1 of 39), and NRAS (1 of 39). In addition, a number of focal homozygous deletions potentially targeting novel melanoma tumor suppressor genes were identified. Because of their likely functional significance for melanoma progression, FAS, CH25H, BMPR1A, ACTA2, and TFG were investigated in a larger cohort of melanomas through sequencing. Nonsynonymous mutations were identified in BMPR1A (1 of 43), ACTA2 (3 of 43), and TFG (5 of 103). A number of potentially important mutation events occurred in TFG including the identification of a mini mutation ‘‘hotspot’’ at amino acid residue 380 (P380S and P380L) and the presence of multiple mutations in two melanomas. Mutations in TFG may have important clinical relevance for current therapeutic strategies to treat metastatic melanoma.