bluuebunny/crossref_metadata_2025 huggingface dataset:
Practising Law in Australia in 2010
Authors: Chisholm John
Published: April 2016

Thankyou very much for the kind invitation to talk to you briefly tonight on "Practising Law in 2010." What a broad topic – where does one start? One thing about making future predictions is when I leave here tonight you will have absolutely no idea whether I am right or wrong, and all of you will have long forgotten about what I say to be bothered hunting me down in six years time if my predictions turn out to be bunkum. A word of caution though, as a soothsayer my credentials may not be all that inviting. When clearing out some old papers recently I came across one I wrote in 1992 as a then Managing Partner for a partners' conference, and I made two bold statements to my fellow partners. Number one. I told them that the paperless office was 'just around the corner' and therefore we should spend a significant amount of dollars in updating our firm's IT infrastructure, hardware and software. The cost of doing this would be in part be offset by future paper savings!
Understanding Australia’s Human Rights Obligations in Relation to Transsexuals: Privacy and Marriage in the Australian Context
Authors: David Fiona , Blight Jake
Published: April 2016

This article examines recent European jurisprudence on the rights of transsexuals to privacy and marriage. The authors argue that Australia’ s obligations under the ICCPR should be understood in light of this jurisprudence. On this basis, Australia is obliged to ensure that its authorities: (a) legally recognise the changed gender of post-operative transsexuals; and (b) permit the marriage of post-operative trans- sexuals to persons of the opposite gender to their re-assigned gender. The authors note the continuing uncertainty around the extension of these rights to transsexuals who have not had ‘surgery’ but argue in favour of extending ICCPR rights in this way. The authors also consider the legal situation regarding privacy and marriage for transsexuals in Australia. Like the international jurisprudence, Australian laws have not dealt with the situation of transsexuals who have not had surgery. The authors argue that legal distinctions based on the surgical model are more about providing certainty than they are about ensuring the rights and dignity of the people affected. Given Australia’s human rights obligations, it would be more appropriate for consideration to be given to the full range of social and cultural factors that affect whether a person is considered to be a man or a woman.
TWISTING THE KNIFE- DISCRIMINATION IN THE LAW
Authors: GURNEY KAREN
Published: April 2016

[Of the many different variations that can occur in human sexual formation, trans- sexualism no doubt remains the least understood by the wider Australian commu- nity. As a consequence, the process of attaining human rights to legal status, privacy, dignity and freedom from discrimination for those who experience this unusual condition has been a slow and sometimes frustrating one. The article seeks to introduce the reader to some of the more recent developments in the interna- tional jurisprudence of transsexualism and the underlying medical evidence that has supported them. It also offers criticism of the belated attempt by the State of Victoria, with the Births, Deaths & Marriages Registration (Amendment) Act 2004, to establish certain statutory rights in this regard. While the legislation was en- acted with the stated and very laudable purpose of providing for the correction of birth records on the Register of Births of those people with transsexualism who have altered their phenotypic sex by hormonal medication and surgery, the article argues it has also served to remove other equally important rights already won and proposes that a final remedy will only be found, as on previous occasions, in the courts.] 
Reviewing Public Reason: A Critique of Rawls’ Political Liberalism and the Idea of Public Reason
Authors: Patterson Rachael
Published: April 2016

This article provides a critical review of Rawls’ effort in Political Liberalism to construct a political theory of justice compatible with the fact of reasonable pluralism. Particular attention is given to the ‘idea of public reason’ and political liberalism’s liberal neutrality. It is argued that because of its liberal neutrality, political liberalism would preclude people from endorsing at least some reasonable comprehensive views and, therefore, as a theory it lacks the necessary stability required to be as successful as Rawls claims.
International Economic Law by Andreas Lowenfeld (New York: Oxford University Press, 2003) 824 Pages (Softcover). Price US$45.00. ISBN: 0 199264112
Authors: Friedman Elliot
Published: April 2016

Andreas Lowenfeld, Herbert and Rose Rubin Professor of International Economic Law at New York University School of Law, notes in the acknowledgement page to International Economic Law that the editors of Oxford University Press approached him to write a ‘treatise on International Economic Law’.1 This statement is slightly misleading. Although Lowenfeld addresses a great number of areas coming under the general umbrella of international economic law, his work is not an exhaustive treatment of the entire subject. As he notes in the introduction, ‘the book is designed not primarily as a work of reference but rather as an integrated whole.’2 Indeed, it is doubtful whether any one author possesses the necessary expertise to deal comprehensively with the entire corpus of international economic law, regulating as it does areas as broad-ranging as, for example, goods, intellectual property, sanitary and phytosanitary measures, antidumping and investment.3
ETHICS - THE ADVERSARIAL SYSTEM AND BUSINESS PRACTICE*
Authors: NETTLE GEOFFREY
Published: April 2016

[This article is an edited version of a lecture delivered in November 2004 to Melbourne University Juris Doctor students. It takes as its starting point the argument that the ethics of the adversarial legal system ill accord with the norms of society and that we should discard it in favour of the inquisi- torial system. That view is contrasted with the school of thought which takes the ethical superiority of the adversarial system as given and with the idea that increasing commercialisation of the legal profession may be leading us away from the nobler traditions of the adversarial system.] 
Crime and Justice: A Review of Research (Vol. 30) EDITED BY MICHAEL TONRY (CHICAGO, UNIVERSITY OF CHICAGO PRESS, 2003) 521 PAGES. PRICE: US$54.00. ISBN: 0 226 80862 9
Authors: RENAUD GILLES
Published: April 2016

In what might well be the most robust and valuable contribution to date, Volume 30 of Crime and Justice A Review of Research provides a signal understanding of the state of inquiry and knowledge surrounding some of the most significant crimino- logical debates yet undertaken, with ground-breaking attention to the emerging areas of international trafficking in stolen vehicles and the question of police profil- ing. 
NOT QUITE A BRAVE NEW WORLD: VICTORIA’S OCCUPATIONAL HEALTH AND SAFETY ACT 2004
Authors: ADAMS K LEE
Published: April 2016

[This article provides a concise overview of the Victoria’s new Occupa- tional Health and Safety Act 2004 (“OHSA 2004”). After outlining the Maxwell Report on which much of the OHSA 2004 is based, the article ex- amines the principal legislative provisions of the Act, especially those that differ from the Occupational Health and Safety Act 1985 (Vic) (“1985 Act”). Analysis of the legislation evaluates some positive developments, as well as suggests amendments. Although the OHSA 2004 contains numer- ous alterations in its scheme as compared to the 1985 Act, these changes are unlikely to usher in a brave new world of occupational health and safety regulation in Victoria.] 
MULTIPLE PRINCIPLES AND THE OBLIGATION TO OBEY THE LAW
Authors: AHIAUZU NKIRUKA
Published: April 2016

[George Klosko’s multiple principle theory of political obligation is a re- cent formulation for the existence of a general obligation to obey the law. In the paper, I argue that the generality requirement of the obligation to obey the law gives rise to normative and factual problems of, respectively, motivation and comprehensiveness. I aim to show that whereas the multi- ple principle theory may solve the factual problem of the generality re- quirement, it does not solve its normative problem which I characterise as a first-personal implication of the question, ‘why should I obey the law?’] 
ANOTHER MODEST PROPOSAL
Authors: MANDERSON DESMOND
Published: April 2016

[In essays first published earlier this year in mainstream Australian media to considerable fanfare, Bagaric and Clarke, two Australian academics, develop a modest proposal for the justification of torture under excep- tional circumstances. This essay rebuts the proposal and defends the abso- lute prohibition against torture. Their attempt to abstract torture from the social context – including the “war on terror” – in which the question of government sanctioned torture is now being raised, is condemned as in- genuous. A rhetorical analysis further demonstrates that the authors them- selves do not believe their argument is either hypothetical or limited. Furthermore, when the actual “defence of torture” is examined, it is shown to be illogical, incoherent, and lacking any sophisticated under- standing of the nature, purpose, or effects of torture. This is not the first time that half-baked reasoning and careless analogies have been devel- oped in order to defend the indefensible. Drawing on Voltaire and Jona- than Swift as well as Guantanamo Bay, this essay puts an important social issue into its immediate and its larger historical context.] 
A CRITICAL EVALUATION OF THE KOORI COURT DIVISION OF THE VICTORIAN MAGISTRATES’ COURT
Authors: MCASEY BRIDGET
Published: April 2016

[The Koori Court Division of the Magistrates’ Court in Victoria has been in operation since 2002. This article seeks to assess its development and operation, with the perspective that the Division has the potential to ad- dress problems Aboriginal people face in the criminal justice system and society generally. The author takes the view, however, that to fulfil this po- tential, the Division’s development and operation must function in a way that makes some effort to adjust the power imbalance between the Abo- riginal and non-Aboriginal community, The author sees a critical ap- proach to an evaluation of the Division as crucial, considering the background of treatment Aboriginal people have received at the hands of the criminal justice system and Australian society as a whole, and the negative impact of previous government policies.] 
W. WESLEY PUE AND DAVID SUGARMAN, LAWYERS & VAMPIRES CULTURAL HISTORIES OF LEGAL PROFESSIONS (OXFORD: HART PUBLISHING, 2003) 399 PAGES ISBN: 1-84113-312-4
Authors: RENAUD GILLES
Published: April 2016

As is noted in the preface, this “book seeks to develop understandings of the his- torical and social functions of legal professions on a comparative basis and through interpretative lenses sensitive to the urges of ‘cultural history”. The editors go on to note the “essence of a comparative ‘cultural history’ of legal professions is the pursuit of an understanding transcending the spatial, temporal or disciplinary boxes that conventionally constrain scholarship.” 
Police Liability for Negligent Investigations: When Will a Duty of Care Arise?
Authors: Shircore Mandy
Published: April 2016

In 1988 in Hill v Chief Constable of West Yorkshire, the House of Lords denied a duty of care was owed by police to a victim of a serial murderer. The case was interpreted as immunity from negligence actions for police when involved in the suppression and investigation of crime’. Recent cases in Australia and the United Kingdom have confirmed that while blanket immunity from negligence actions for police involved in investigatory functions does not exist, plaintiffs alleging negligence will face considerable difficulties establishing a duty of care was owed. The recent cases provide an opportunity to re-examine the appropriate tests to apply in determining the existence and scope of police duty of care and to reassess the policy grounds underlying the decisions. In doing so the article argues that Australian courts should avoid the UK approach of applying a
broad exclusionary rule particular to police, as sufficient safeguards already exist in the Australian High Court’s duty of care formulation for public authorities.
Preparing Australia's Future Lawyers: An Exposition of Changing Values Over Time In The Context Of Teaching About Ethical Dilemmas
Authors: Evans Adrian , Palermo Josephine
Published: April 2016

This study investigated what values may be influential to decision making in relation to ethical behaviour for early career lawyers. It adopted a longitudinal approach to investigate how values develop or degrade over time as final year law students move into their first two years of employment or further study. To this end, the study investigated the role that tertiary education and employers fulfill in building and perpetuating ‘appropriate’ professional values? Results demonstrate that, in general, ethical behaviour was not uniformly reinforced over time in the workplace. The undertaking of pro bono work stands out here. Results suggested that certain behaviour relevant values may develop or degrade over the early years of the
Australian lawyer’s career. The implications of results are discussed in the contexts of ethics education in a tertiary context and the continuing education and regulation of the legal profession.
Driving While Disqualified or Suspended under s 30 of the Road Safety Act 1986 (Vic): Abolition of the Mandatory Sentencing Provision?
Authors: Coleman Belinda
Published: April 2016

In an earlier article in 2001, Edney and Bagaric argued that the mandatory sentencing of persons to imprisonment pursuant to s 30 of the Road Safety Act 1986 (Vic) for second or subsequent offences of Driving While Disqualified or Suspended cannot be justified and that reform is required. Since then the topic of mandatory sentencing for Driving While Disqualified or Suspended has assumed even greater importance having regard to (a) an increase in the number of administrative ways a person can now have their licence cancelled or disqualified; (b) the availability of recent empirical data demonstrating the number of persons sentenced to imprisonment for this offence; (c) the results of a major review of Victorian sentencing law and (d) an increase in the different ways a sentence of imprisonment can in fact (and in law) be served. In view of these developments, this article re-examines the use of mandatory sentencing for Driving While Disqualified or Suspended and argues that the arguments put forward by Edney and Bagaric are even more compelling five years down the track.
Incorporation of Unusual or Unreasonable Terms Into Contracts: The Red Hand Rule and Signed Documents
Authors: Kapnoullas Steve , Clarke Bruce
Published: April 2016

This article analyses case law relating to the red hand rule. In  particular, there is an examination of the decision of the High Court in Toll v Alphapharm Pty Ltd. The judgment of the court signals a clear answer as to whether the red hand rule applies to signed documents. In this context, the authors also consider whether section 52 of the Trade Practices Act, and statutory provisions relating to unconscionability, are available to protect consumers against unusual or unreasonable clauses incorporated into signed contracts. Two recent cases involving share trader David Tweed are also analysed.
Erosion of Access to Abortion in the United States: Lessons for Australia
Authors: Dean Rebecca
Published: April 2016

Since the legalisation of abortion in the United States (US) in 1973, access to abortion has been restricted and under attack from multiple fronts. From a pro-choice perspective, this article analyses the way women’s access to abortion has been eroded in the US. This article considers: Roe v Wade and chronicles the subsequent cases decided by the US Supreme Court which have gradually dismantled its holding; the various US state and federal legislative restrictions on abortion and their impact on access to abortion; the new composition of the US Supreme Court and the consequences for women’s access to legal abortion; and a brief overview of abortion in Australia. Awareness of anti-choice tactics used to restrict access to abortion in the US may prevent a similar erosion of abortion rights in Australia.
Eliminating Privileges Enjoyed by Foreign Investors in China: Rationality and Ramifications Under a Unified Tax Code
Authors: Zhang Xiaoyang
Published: April 2016

The enterprise income tax law in China has for a long time been characterized by the co-existence of two tax codes applied to foreign investment enterprises and indigenous enterprises respectively. Tax privileges granted to foreign investors give rise to the inequality of tax treatment among enterprises in the country. Under the newly released Enterprise Income Tax Law, a unified tax code is to be applied to all enterprises alike, and tax impetus is no longer reserved for foreign investors. This is a move towards developing a platform on which all enterprises in China can compete equally in terms of taxation. A way forward is contemplated over integrating current laws on foreign investment enterprises into the general domain of the commercial law regime, in order that those mutually exclusive legal regulations presently applied to foreign investment enterprises and their local counterparts can eventually be unified in the same way as in the field of taxation.
Defamation and the Moral Community
Authors: Baker Roy
Published: April 2016

This paper presents the key findings of a major empirical investigation into defamation law and social attitudes. It examines the way in which the law decides whether a publication is defamatory, and the consequences for that
process of a phenomenon known as the third-person effect: the tendency for individuals to perceive the adverse impact of a communication as greater on others than on themselves. It argues that, as a result of this tendency, defamation law unnecessarily and unfairly silences speech on the basis of
protection to reputation, even though little or no reputational harm would actually occur. What is more, defamation law perpetuates regressive attitudes and could do more to promote a just and inclusive society.
Women in the Queensland Legal Workplace: a Snapshot
Authors: Hutchinson Terry , Skousgaard Heather
Published: April 2016

In addition to collating details of the demographic and working habits of over 2500 QLS members, the Queensland Law Society’s Equalising Opportunities in the Law Committee 2003 Membership Survey Report focused on the nature and prevalence of discrimination and harassment in the Queensland legal workplace. Primary areas of concern to the
respondents included discrimination or harassment on the basis of gender, age, family responsibilities, pregnancy and marital status. The results of this survey firmly demonstrate that promoting diversity in the Queensland legal
workplace should be made a priority. Efforts to amend the Law Council of Australia Model Conduct Rules are ongoing. Providing this is done, will it be sufficient? What else needs to be changed to improve the situation and improve opportunities for diversity in the legal profession?
Facts, Threats and Reds: Common Law Constitutionalism and the Rule of Law
Authors: Morss John
Published: April 2016

In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere.
Shielding Critical Infrastructure Information-Sharing Schemes from Competition Law
Authors: Corones Stephen , Lane Bill
Published: April 2016

Because the majority of critical infrastructure is now owned or operated by the private sector, governments have implemented schemes to facilitate the exchange of information between private sector owners and operators, to ensure that it is protected from terrorist attack. The operation of these information-sharing schemes has the potential to contravene the competition law provisions contained in Division 1 and Division 2 of Part IV of the Trade Practices Act 1974 (Cth) (TPA). In light of these matters, this article considers whether there is a need for a specific statutory defence in the TPA in order to ensure that such arrangements can operate effectively and encourage the frank exchange of this type of information. The article examines the existing voluntary self-regulatory scheme adopted in Australia in 2003 and compares it with similar schemes in the United States where there is a move away from voluntary self-regulation towards a mandatory regulatory model with a specific legislated defence to shield critical infrastructure information-exchange arrangements from antitrust laws.
When is a Code a Code?
Authors: Hemming Andrew
Published: April 2016

This paper will develop the proposition that criminal codes in Australia are misnamed because they fail the fundamental test for a code of comprehensively stating the criminal law in one statute. This contention applies to all codes from the Griffith Codes of Queensland, Western Australia, Tasmania and the Northern Territory to the more recently minted Criminal Code 1995 (Cth). The reason for such failure is that all the codes are too sparsely written, and, due to inadequate definitional detail or statement of the appropriate tests to be applied, judges are required to have recourse to the common law to ‘fill in the blanks’ left by the code. It is here argued that a code needs to be structured with the objective of keeping statutory interpretation within the four corners of the code. Bland injunctions that recourse to the common law is permissible only when the meaning is uncertain or where a prior technical meaning existed are wholly inadequate.
The paper sets out a series of examples which cover both offences and defences (such as causation and provocation) and which are intended to demonstrate the appropriate level of detail required to meet the conventional definition of a true code without sacrificing clarity. These examples should be viewed as templates for use in a variety of contexts, supporting the proposition that clarity, not confusion, can result from more detailed drafting. Drafting of this kind, which is directed at incorporating the relevant tests that the legislature accepts as appropriate, reduces reliance on secondary material such as second reading speeches. Secondly, it firmly tilts the legislature-judiciary ‘partnership’ in favour of the legislature (as a true code should) leaving the judiciary to explain the tests to the jury rather than to select which tests are appropriate. In this way at least consistency within a code, rather than uniformity across codes, can be promoted.
Control Orders Post 9-11 and Human Rights in the United Kingdom, Australia and Canada: A Kafkaesque Dilemma?
Authors: Bachmann Sascha-Dominik , Burt Matthew
Published: April 2016

This article aims to assess the impact that the European Convention of Human Rights, incorporated into British law through the Human Rights Act 1998, has had on the control order regime in the United Kingdom. It will discuss recent British jurisprudence on the topical question of whether there can be a true balance between the civil liberties of an individual and the need to protect state and society from a continuing terrorist threat. The article compares the UK’s present control order system of summer 2010 with similar legislation, which the Commonwealth jurisdictions of Australia and Canada have enacted to protect their nations from the threat of terrorism. It will conclude with a discussion of possible reforms as well as other security measures which have been identified as alternatives to control orders and which form the basis of present UK governmental initiatives to limit the scope and impact of anti terrorism legislation.
Professional Services and Rural Services Poverty
Authors: Martin Paul , Williams Jacqueline , Kennedy Amanda
Published: April 2016

It is a fact that rural people suffer from professional services deprivation relative to their urban counterparts. Access to legal services is one form of this deprivation. Whilst often understood as a workforce problem, the issue has broader implications for the economic and social welfare of communities and the professionals who try to serve their needs. In particular the inability to access sufficient ‘knowledge services’ lies at the heart of many problems of rural social exclusion, the cost of which falls inevitably on those who are less mobile, or less capable of securing wealth. This paper takes a systemic look at rural professional services delivery, placing legal services in their larger context as part of the (often incomplete) professional network that supports communities. It outlines the systemic problem and aspects of the specific issues for rural professional services. It presents the results from a survey and a summit organised to discuss the issues that span various professions, and outlines some of the directions that the legal profession might take.
Bush Lawyers in New South Wales and Queensland: A Spatial Analysis
Authors: McDougall Kevin , Mortensen Reid
Published: April 2016

This article deals with the effect that different structures for the legal profession might have on supporting legal practice. There is a particular focus on Queensland, and its Law Society’s claim that conveyancing protection is important infrastructure for practice in the bush. A spatial analysis was undertaken to compare the availability of legal services in Queensland and New South Wales (where non-lawyer conveyancing is allowed) in 2008. Areas in the two states classified according to the Accessibility/Remoteness Index of Australia (ARIA) were compared, and it was found that NSW had an equal or marginally better provision of legal services in all ARIA categories. The implications that this has for conveyancing protection, and other differences between the states (the earlier availability of incorporated law practices (ILPs) and the higher number of regional law schools in NSW) are discussed. Only a comprehensive longitudinal analysis can more strongly isolate the likely effect, if any, of conveyancing protection, ILPs and regional law schools on bush practice. However, the suggestion is that the differences in legal infrastructure — including conveyancing protection — are less important for supporting legal services in the bush than social considerations (family, lifestyle, professional development, gender, employment patterns and salary) are likely to be.
Insights into Gender, 'Rurality' and the Legal Practice Experience
Authors: Mundy Trish
Published: April 2016

There has been a sustained focus over the past two decades on the status and position of women lawyers in the Australian legal profession. However, limited attention has been given to the particular experiences and retention of women lawyers in rural, regional and remote (RRR) legal practice. Feminist scholarship has highlighted the gendered way in which rural social space shapes understanding of identity and experience, suggesting the need to explore the ways in which the ‘othering’ of women in ‘rural’ space might bear on their legal practice experience. This article seeks to explore the intersection of gender and rurality in the context of RRR practice and the relevance of this intersection to the legal practice experience. It highlights some particular issues for women in RRR practice, considers ways in which gender is constructed in rural space and, through the case study examples of two female rural/regional lawyers, offers some experiential insights into the intersections of law, gender and ‘rurality’.
Board Diversity or Gender Diversity? Perspectives from Europe, Australia and South Africa
Authors: Du Plessis Jean , Saenger Ingo , Foster Richard
Published: April 2016

Board diversity has been a hot topic for several years. However, it is only in recent years that pertinent questions have been asked about what is actually meant by board diversity and what would constitute a board with an ideal diversity. In the past the debate on board diversity has always been dominated by the lack, or very low numbers, of females on boards. This has been a fact in most countries with sophisticated corporate law and corporate governance systems in place. The issue of female representation on boards still dominates the board diversity debate, but other forms of diversity, including age, cultural, nationality and race have also become part of the debate. The quest is to find answers to questions like whether a diversified board would be better, and whether diversified boards will ensure a better return for investors; in other words, whether there is a ‘business case’ to be made out to have diversity on a board. Many studies have been done, but the answer is still evasive. This is not totally unexpected as the criteria used for these studies differ and the circumstances and complexities of business are such that a final conclusion will probably never be reached. In this article we focus on the board diversity debate in Europe, Australia and South Africa – three completely different parts of the world. In addition we devote Part V to put the topic of board diversity in a broader context, but paying particular attention to gender diversity.
Providing Legal Services to Rural and Regional Small Business: Gaps and Opportunities
Authors: Coverdale Richard , Jordan Lucinda , Du Plessis Jean
Published: April 2016

This article examines the findings from a survey of 207 regional small businesses and 68 regional lawyers that explored the small business experience of accessing legal services in rural and regional Victoria. In particular, it considers small business expectations of local legal practices, their degree of satisfaction with existing legal services and identifies current and potential demand and supply gaps. By doing so it seeks to determine potential areas in which regional law firms can improve, expand and refine their services in response to the current and emerging demands on them and the communities they serve.
"Responsibility" to Provide: Family Provision Claims in Victoria
Authors: Renwick Samantha
Published: April 2016

Family provision legislation was introduced in Victoria in 1906 to allow the court to order provision from the estate of a deceased person whose will did not make adequate provision for the proper maintenance and support of a person for whom the deceased had a moral duty to provide. The first version of the legislation allowed only widows and children to claim; it underwent little reform until 1997 when a major amendment to the Administration and Probate Act 1958 (Vic) removed the statutory list of eligible applicants, and replaced it with the jurisdictional question, ‘Did the deceased have a responsibility to provide?’ This in theory means that ‘anyone’ can make a claim, including those without a close family relationship with the deceased. This article examines a selection of judgments handed down under the new provisions, with the aim of showing the range of applicants who are now eligible to apply and examining the particular features of their relationship with the deceased that determined the success of their claims. This is in light of the current Victorian Law Reform Commission Inquiry into Succession Law that questions whether eligibility should be limited to certain types of relationship, and whether costs should continue to be paid out of the estate.
Insights for Legal Reasoning from Studies of Literary Adaptation and Intertextuality
Authors: Raitt George
Published: April 2016

Legal theorists advance conflicting theories to explain judicial reasoning, for example, that judges’ decisions are constrained but not determined by legal materials, that judges do not apply legal principles but make value judgments, and that they make pragmatic judgments based on an assessment of the consequences of their decisions. Like cases should be decided alike, but theorists disagree on the role of analogy in legal reasoning and how one determines which similarities and differences are relevant. Judicial decisions revise and adapt previously decided cases. The concept of fidelity to precedent in legal reasoning can be illuminated by recent research into fidelity to source in adaptation studies. Research into literary adaptations shows that similarity and difference are not mutually exclusive and that an analysis of differences may undermine determinations of relevant similarity. By reading decided cases as intertextually situated adaptations, underlying views of the world that might not otherwise be evident in judicial reasoning can be interrogated.
Governance, Representation and the 'Monstrous Regiment': Is the Collective Feminine?
Authors: Morss John
Published: April 2016

Alternatives to the individualistic emphasis of liberal theory focus attention on collective dimensions of social life with implications for legal and political analysis of the state, of representation, and of international law. In this context, relationships between the individual–collective dichotomy and the dichotomy of gender demand attention because of the claimed affiliations of individualism with social understandings of masculinity.
Police Misconduct as a Breach of Public trust: the Offence of Misconduct in Public Office
Authors: Davids Cindy , McMahon Marilyn
Published: April 2016

Until relatively recently, the common law offence of misconduct in public office has been regarded as anachronistic. The offence was perceived to have been supplanted by specific statutory offences that could more appropriately deal with criminal conduct by public officials. However, there has been a revival of the offence with successful prosecutions occurring in Australia, England and Hong Kong. Many of these contemporary cases have involved police officers. Examination of these cases reveals that the circumstances in which misconduct in public office has been identified have been diverse, including the unauthorised disclosure of confidential information, the use of false search warrants and the sexual exploitation of vulnerable persons. In many instances, police officers were charged with other criminal offences in addition to charges relating to misconduct in public office. The matters prosecuted as misconduct in public office typically involved matters that were serious and/or could not be adequately prosecuted as other criminal offences or as breaches of police regulations governing conduct. Consequently, despite the proliferation of statutory criminal offences in the 20th century it appears that there continues to be a place for the offence of misconduct in public office. It criminalises misconduct by police officers that may not be adequately dealt with by other offences and recognises the public trust dimension of wrongdoing by these officials. However, a continuing and fundamental challenge is to determine the appropriate definition and scope of the offence.
Making the Fun Stop: Youth Justice Reform in Queensland
Authors: Hutchinson Terry
Published: April 2016

In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.
International Labour Law Standards Concerning Collective Bargaining in Public Essential Services
Authors: Carabetta Giuseppe
Published: April 2016

Labour standards adopted under the auspices of the ILO constitute the principal international influences on public sector collective bargaining; it is those standards that are the subject of this article. Focusing on the position of essential public sector employees, ILO principles concerning collective bargaining, dispute settlement and the right of workers to withdraw their services as part of bargaining are examined. Particular attention is devoted to the application of ILO standards to essential public sector employees and police officers; and the extent to which Australian law complies with these standards. The ILO supervisory bodies have acknowledged that restrictions on the general right of workers to collectively bargain and to strike can be justified in the case of essential public employees, but only on a minimal or proportional analysis. The ILO has also emphasised that any restrictions on the right to strike must be compensated by adequate, impartial and speedy conciliation and arbitration processes. It is shown, however, that with respect to essential public employees and police officers operating under the Fair Work Act 2009 (Cth), Australian law falls short on both of these scores, with a resultant uncertainty regarding the right of these workers to bargain collectively.
International Food Standards and WTO Law
Authors: Maidana-Eletti Mariela
Published: April 2016

Standards are used in all realms of human activity in order to specify the characteristics of a product, or its manufacture. In the process, they fulfil a range of functions, such as lowering risks, increasing trust and facilitating predictability in a given market. Standards reduce information costs for market players, which in turn allows for a more efficient functioning of the market. For international trade in foodstuffs, harmonisation of the wide variety of food standards is essential in order to facilitate the global food-sourcing trend. As traditional market access barriers are dismantled, non-tariff measures offer a tool for the potential protection of domestic products, thus calling for effective forms of food governance. This article explores the legal implications of international standards under the TBT Agreement in the light of the WTO Appellate Body’s case law. It further analyses the role played by international standard-setting organisations, such as the CAC and the ISO, in predicting the outcome of pending WTO disputes. Against this backdrop, this article also attempts to shed light on the current legal debate surrounding the use of private food standards within the SPS Committee.
Well-Known Trade Marks, Foreign Investment And Local Industry: A Comparison Of China And Indonesia
Authors: Antons Christoph , Wang Kui Hua
Published: April 2016

Strengthened protection for well-known trade marks in accordance with the TRIPS Agreement is an important issue for developing countries, which has led to trade pressures from industrialised nations in the past. ‘Trade mark squatting’, referring to the registration in bad faith of foreign well-known marks in order to sell them back to their original owners, is a much discussed phenomenon in this context. This article outlines the history and development of well-known trade marks and the applicable law in China and Indonesia. It looks not just at foreign and international brands subjected to ‘trade mark squatting’, but also at how local enterprises are using the system. Rather remarkably in view of the countries’ turbulent histories, local well-known marks have a long history and are well respected for their range of products. They are not normally affected by the ‘trade mark squatting’ phenomenon and are rarely the subject of disputes. Enhanced protection under the TRIPS Agreement is especially relevant for international brands and the article shows the approaches in the two countries. In China, government incentives assist the proliferation of nationally well-known and locally ‘famous’ marks. In Indonesia, lack of implementing legislation has left the matter of recognition to the discretion of the courts.
Assange and WikiLeaks: Secrets, Personas and the Ethopoetics of Digital Leaking
Authors: Munro Andrew
Published: April 2016

This article suggests a rhetorical orientation for some future work in persona studies. In this paper, I maintain that persona studies can usefully contribute to the close description of complexes of discursive events. In particular, I contend that persona studies can enhance efforts in the humanities to describe discursive events involving public figures who have achieved a degree of fame or notoriety. The descriptive purchase of persona studies is maximised, I argue, when we foreground its rhetorical and semiotic postulates.To make this case, I read the figure of Julian Assange rhetorically. By focussing on questions of ethos and ethopoesis – the performative, discursive construction of full human character – I show that Julian Assange can be usefully read as a particular, digitally inflected instantiation of the persona of the information activist.In this instance, persona studies helps us to read the constitutive relation between digital leaking and issues of secrecy and publicity, and to understand the fortunes of the figure of Julian Assange in terms of Assange’s particular performance of the persona of the digital information activist.
Occupy Conversations — Talking Portraits (2013/15)
Authors: Bishop Cameron
Published: April 2016

This ‘work is based around a series of remediations – paintings reanimated through film; a dialogue recontextualised through two paintings; a film remade through a montage of images. Translating content through media in this way re-materialises and radicalizes these works. When the seemingly lighthearted dialogue between Sigrid Thorton and Brian Dennehy in The Man From Snowy River II is decontextualized we notice their topic of discussion is not only strangely to secure pastoral land, but more ominously the commodification of the female body. Bishop offers a second lens through which to view this exchange when he videos a couple in the same poses as Thomas Bock’s paintings’ Manalargenna (1837) and Eliza Langhorne (1849) rehearsing the dialogue. Translated to this medium the dialogue is sutured to a history of violent dispossession – a far cry from the romantic notion of pioneering Australia envisioned through the film’.[1]There is an occupation at play here, of the body as a medium for an other’s ideologies, only they are confused in the merging of technologies and subjectivities. These two can only ever rehearse their identities.
[1] Luciana Pangrazio, ‘Flatpak Australia’, catalogue essay in Cameron Bishop: Heteromania, Academy Gallery, University of Tasmania, 2013.
Section Introduction: When Are You Most Like Your Self?
Authors: D'Cruz Glenn
Published: April 2016

What is the ‘self’? Is it a category of identity, a state of being, an object of contemplation? Is the self another name for soul, psyche, spirit, mind or body? And what gives us our ‘sense of self’? DNA? Ideology? God? These vexed questions continue to occupy the minds of scholars and artists in a variety of disciplines and creative practices, for the ‘self’ is a key term of distinction — one that confers us with a unique sense of identity.
Lipstick Bullets: Labour and Gender in Professional Gamer Self-Branding
Authors: Zolides Andrew
Published: April 2016

With the growing professionalisation of electronic sports (or e-sports), the individuals who compete are, like their more “traditional” sport counterparts, becoming celebrities. Actual competition is a fraction of the labour a professional gamer undertakes to earn a living and generate a self-brand—there are also complex arrangements involving sponsorships, team-memberships, and digital reputation management. Indeed, taking part in e-sports can be understood as another mode of celebrity-creation within a particular fan community. A key vector to the persona formation of professional gamers is gender. Female professional gamers must navigate additional hurdles in the creation and management of their brand and attempts to commoditise their personas. Female gamers carefully negotiate and perform their gender while maintaining their status as a competitor and influencer in gaming’s highly masculinised culture. This performativity places these young women in a precarious position not just in terms of economic stability, but also in terms of their gendered identity. This paper compares the online personas of professional gamers Matt “NaDeSHoT” Haag and Kelly “MrsViolence” Kelley, analysing their social media presences and mainstream media appearances. Reframing the labour of professional gamers as one of building a commodifiable work persona can help us better understand the economically precarious position in which professional gamers, particularly young women, find themselves.
Depraved, Distracted, Disabled, or Just “Pack Rats”? Workplace Hoarding Personas in Physical and Virtual Realms
Authors: Oravec Jo Ann
Published: April 2016

This article provides some potential directions in exploring the construction of the persona of the “hoarder” and addresses how such a persona can move to the foreground of an individual’s set of workplace-related personas. Hoarding throws into relief some critical concerns about the social standings of individuals in workplaces and the extent to which they have autonomous expression. The article frames hoarding in terms of its capacity to externalize particular social issues (such as environmental problems) and generate public discourse, and examines both physical hoardings (books and papers in academic and office settings, for example) and hoardings of virtual goods (such as digital music, video files, and pornographic images). Virtual hoardings have been constructed as problematic as they create barriers to the free flow of information in the workplace and can challenge organizational interests related to intellectual property concerns. Hoarding as a whole is becoming more tightly circumscribed as a workplace and community condition, in part because the ability to manage physical and virtual items in confined settings is considered central to many forms of competent societal functioning.An assortment of human resource management initiatives to mitigate hoarding concerns has developed, including the consideration of hoarding as a disability. However, hoarding behavior is increasing creating problems for those who are searching for simple definitions or straightforward diagnostic criteria. This article also provides some structures for analysis of the class-related and economic dimensions of workplace hoarding personas, and explores potential implications of lifelogging initiatives and hoarding acceptance approaches.