Law papers

Exploring juvenile fitness for trial in Queensland

Jodie O'Leary et al. — Wed, 10 Apr 2013 22:51:24 PDT

Constitutionalised racism: Why Australia needs its own Section 6

Danielle Ireland-Piper — Thu, 28 Feb 2013 14:55:38 PST

Development through sport: Fans and critics of the new player on the field

Danielle Ireland-Piper — Mon, 25 Feb 2013 22:33:38 PST

Literature on international aid and development espouses the principle of ‘do no harm’. In that context, there has been an increased interest in, and incident of, Development through Sport (DTS) initiatives. As with all new players in an old game, the DTS movement has both its fans, and critics. This paper seeks to acknowledge the benefits advocated by fans; engage with its critics; and propose means by which to reconcile the two. In so doing, the distinction is made between ‘Sport Development’, and ‘Development through Sport’. The paper concludes that goodwill, while commendable, is not enough achieve sustainable development goals. Willingly or otherwise, the reality is that DTS operates in a highly politicised environment. Therefore, the DTS movement must engage with the broader development community, and embrace best practice mechanisms. The recipient community must be given an element of ownership and responsibility, and donors should deliver programs in a culturally appropriate manner. Ultimately, the DTS movement must take on board and consider the constructive criticism being offered. However, it should not be discouraged by each and every naysayer. DTS can move forward in its own right, and in its own way, while still embracing the broader discourse on development practice and delivery.

Abuse of process in cross-border cases: Moti v The Queen

Danielle Ireland-Piper — Sun, 24 Feb 2013 18:17:49 PST

In a majority of six to one, the High Court in Moti v The Queen concluded that the act of state doctrine does not preclude findings as to the legality of the conduct of a foreign government, where such a finding is determinative of an abuse of process. The decision is a welcome addition to existing international jurisprudence on due process rights in prosecutions of extraterritorial conduct. In turn, it is a reminder that operating extraterritorially does not mean operating without accountability.

An evaluation of the rules of conduct governing legal representatives in mediation: Challenges for rule drafters and a response to Jim Mason

Bobette Wolski — Tue, 29 Jan 2013 20:39:27 PST

This article provides a comparative analysis of the rules of conduct governing legal representatives in Australia, the United States of America and the United Kingdom as they apply to a range of ethical issues in mediation. The analysis has four main aims. First, it clarifies the position in Australia and the USA - the Australian and American mediation communities have not introduced separate codes for ‘mediation advocates’ as Mason recently suggested. But some provisions have been made for mediation practice. The second aim is to tease out from these provisions learning points for policy makers and rule drafters. Amongst the points to consider is whether or not, and under what circumstances, mediators should be regarded as courts, or as third parties for the purpose of the rules. Third, the analysis provides some grounds for arguing that the current rules of conduct are appropriate for legal representatives in mediation. Fourth, it identifies challenges associated with proposals to introduce rules which require legal representatives to participate in mediation in good faith in a non-adversarial manner according to higher standards of honesty and candour. The article concludes by identifying a number of assumptions which permeate the literature on this topic.

A step too far in consumer credit protection: Are external dispute resolution schemes wielding the Sword of Damocles?

Francina Cantatore et al. — Wed, 12 Dec 2012 22:20:04 PST

Under existing consumer credit legislation, all credit providers are required to be licensed with the Australian Securities and Investments Commission. Membership of an external dispute resolution scheme – either the Credit Ombudsman Service Limited (COSL) or the Financial Ombudsman Service– is compulsory for license holders. As members, credit providers are subject to the Rules and Constitutions of the respective schemes, a requirement which has far-reaching effects on commercial dealings. This article explores the scope of COSL’s powers, finding these to be excessively wide, and inherently unfair towards credit providers. The principal contention of the article is that, instead of providing a dispute resolution service, COSL imposes a “tyranny” on credit providers obliged to comply with the scheme’s onerous and oppressive rules.

Authors, copyright and the digital evolution

Francina Cantatore — Wed, 12 Dec 2012 21:52:20 PST

Copyright law has been constantly evolving in response to economic demands, in an attempt to balance utilitarian principles with the changing times and technological advances. However, unprecedented advances in technology have challenged legislature globally and are having a disruptive effect on traditional publishing models and the copyright provisions that underpin them. It is in this uncharted terrain that authors and publishers find themselves, with the legislature adopting a reactive position, trying to deal with copyright infringement problems as they present themselves on the one hand, and accommodating public demand for access to creative works on the other. This article focuses on the challenges presented by such a transitional environment from Australian authors’ perspectives and considers how the development of a digital publishing arena has impacted on authors’ copyright expectations. These findings are based on responses obtained from 156 published Australian authors in a national online survey and 20 in-depth semi-structured interviews with authors and publishers. In gathering and interpreting the views, opinions and impressions of those most affected by copyright, copyright structures and the changing publishing industry, the research aimed to provide new insights into Australian copyright in written works. Significantly, the findings provide a snapshot of Australian authors’ perspectives on copyright issues at a pivotal point in history when authors find themselves between the old and the new, grappling with the realities of traditional expectations and digital advances in publishing.

Improving the governance of superannuation funds in Australia

Kenneth Levy et al. — Tue, 16 Oct 2012 23:27:28 PDT

Extract:

Prior to 1945 superannuation was the exception rather than the rule. Individual pensions were uncommon and generally either self funded by the employer as in the case of banks and the public service or were effected through contractual arrangements such as insurance or purchased annuities. A national culture focussed on the availability of the Australian Government pension and a reluctance to embrace the concept of superannuation by many employers and employees. Limitations on trustee investment inhibited the growth of superannuation funds.¹

Goods and consumer issues

Michael Weir — Mon, 15 Oct 2012 18:36:54 PDT

Extract:

As well as supplying services, many practitioners supply substances such as vitamins, food supplements and herbs to their clients. The Commonwealth government wants to ensure that these substances are not harmful to users, are manufactured properly, perform as represented and are advertised in a way that does not mislead the users. The Therapeutic Goods Act 1989 (Cth) (’TGA’) or state equivalents apply to many of these substances. Most professional activities are exempt if certain criteria apply, but it is vital for the practitioner to know what these criteria are in order to stay within the law. The chapter provides a general overview of some of the provisions likely to be relevant to complementary medicine practitioners. As the TGA is complex and very specific in relation to how it may impact on particular substances and practices, practitioners should seek independent legal advice on any matters that apply directly to their practice.
This chapter will also discuss consumer legislation such as the Sale of Goods Acts, Competition and Consumer Act 2010 (formerly the Trade Practices Act) and Fair Trading Acts, which affect the way a practitioner may market and advertise their goods and services. Like any business, practitioners need to avoid representations that are false, misleading or deceptive to their clients. In addition this chapter will briefly deal with the provisions of the national Australian Consumer Law, which may impact upon the enforceability of consumer contracts entered into by complementary medicine practitioners where the terms of that contract could be seen as unfair.

Restricted acts and protected titles

Michael Weir — Mon, 15 Oct 2012 18:11:10 PDT

Extract:

A health professional uses all available techniques to resolve the health concerns of a client. This legitimate aim does not permit a practitioner to perform acts that must only be performed by specified registered professionals. Penalties may also apply to unregistered practitioners who are representing that they are registered or using titles that must only be used by registered professionals.