University of New South Wales Faculty of Law Research Series 2008

The rule of law and ‘the three integrations’

Martin Krygier — Thu, 13 Nov 2008 15:33:09 PST

Implementing human rights in the Pacific through the work of national human rights institutions: the experience of Fiji

Catherine Renshaw et al. — Tue, 04 Nov 2008 21:48:08 PST

The Harms and Wrongs of Stealing: The Harm Principle and Dishonesty in Theft

Alex Steel — Thu, 30 Oct 2008 16:46:57 PDT

In ‘On the Nature and Rationale of Property Offences’ A P Simester and G R Sullivan argue that the Harm Principle can be used to justify property offences. This article provides a critique of that essay. It begins with an overview of the Harm Principle and some key criticisms of it. It then considers Simester and Sullivan’s argument that the conduct proscribed by property offences causes harm to the property regime generally. The article suggests that this is an overly broad notion of harm on which to base criminalisation, and one that fails to adequately identify which particular breaches of property rights should be criminalised. The article suggests that criminality requires breach of a specific moral wrong and that for property offences this is the concept of dishonesty. Thus, contrary to Simester and Sullivan, it is argued that dishonesty is a core criminal concept that cannot be removed from such offences. The article goes on to suggest that instead of searching for broad abstract forms of harm, it may be useful to consider theft as a overarching offence that prohibits a number of more specific harms that correspond to lived experience. These harms could include the potential for violence in non-consensual takings, and the abuse of trust in fraudulent conversions.

What about the worker?! The move toward establishing a system of rights for employees

Joellen Riley — Thu, 30 Oct 2008 16:42:06 PDT

This paper will consider whether a system based on private contracting by individuals has the capacity to develop a right to fair treatment at work; the extent to which common law principles are able to contribute to that development; some of the inadequacies of enforcement under the common law; and the need for additional support from other non-legal forms of ‘soft’ regulation. In particular, the paper will conclude with some observations on a current project of the Australian Institute of Employment Rights to develop a system of accreditation for employers who comply with a proposed Charter of Employment Rights. My subject is the establishment of a new system of rights for employees, or more accurately still, the establishment of a new approach to framing and recognising workers’ rights.

Indigenous Rights and the Constitution: Making the Case for Constitutional Reform

Megan Davis — Thu, 30 Oct 2008 16:36:38 PDT

This article considers the slow momentum toward Constitutional recognition of Indigenous peoples. It will consider the difficulty in changing the Australian Constitution and canvass why Indigenous Australians will need to be more specific in articulating the importance of Indigenous recognition in the operative provisions of the Constitution. Indigenous peoples know that our rights are inherent and that few jurisdictions actually require Indigenous peoples to justify their recognition. We also know that the evidence is strong from comparative common law jurisdictions that constitutional recognition does result in better outcomes in employment, health, education and women’s wellbeing. Yet given the inertia of the state in recognising Indigenous rights and because of the tenor of debate on Indigenous issues in Australia, we must establish the causal relationship between rights recognition and improving the wellbeing of Indigenous peoples’ lives.

Therefore, this paper argues that in advocating for constitutional reform, we need to emphasise the connection between dealing with disadvantage - an urgent and immediate priority - and the ‘big picture’ in terms of addressing unfinished business between Indigenous peoples and the state. The Indigenous community is diverse enough in leadership and expertise and committed enough to work toward both outcomes.

Permanent borrowing and lending: a new view of section 6 Theft Act 1968

Alex Steel — Thu, 30 Oct 2008 16:29:35 PDT

This paper considers the meaning and interpretation of the extended definition of “intention of permanently depriving” in the English Theft Act 1968 s 6. The article analyses the various judicial interpretations of the section, pointing out that a lack of reporting of decisions has led to inconsistent approaches to the section. The article uses transcripts of the full judgments to provide a detailed consideration of each case’s reasoning.

Drawing on these reasons, a new way of approaching the section is suggested. On this approach the section is primarily one that deems certain actions to amount to an intention to permanently deprive. Finders of fact should begin with a consideration of whether the accused acts in a way that can objectively be characterised as a pawning or a lending to a third party, or a borrowing that amounts to an outright taking. If none of these criteria apply only then does attention turn to the question of whether the intentions of accused is such as to “treat the thing as his own to dispose of regardless of the other’s rights”. It is suggested that, contrary to current approaches, the first limb of s 6 is in fact a residuary basis for liability.

Beyond a Federal Structure: Is a Constitutional Commitment to a Federal Relationship Possible?

Andrew Lynch et al. — Wed, 15 Oct 2008 19:42:01 PDT

The galvanising purpose of Federation was the creation of the Commonwealth and the distribution of power between it and the former colonies, simultaneously elevated to Statehood. But beyond this simple fact, consensus about Australian federalism has traditionally been elusive and is, if anything, only increasingly so. While the contemporary political debate over federal reform proceeds from a shared sense that our existing arrangements have manifest shortcomings, there is far from unanimity as to which of its particular features are strengths, and which are deficiencies.

The structure of this paper is as follows. In Part II, the range of understandings as to the character of the federal relationship between Australian governments is canvassed. Consideration is given to the views of the Constitution’s Framers and commentators, but most centrally to members of the High Court since these have brought about great change in federal arrangements. The significance of the Court’s marked preference for adhering only to constitutional structure and its inability or unwillingness to develop ‘a federal jurisprudence’ is examined in two respects. First, the effect of the Court’s arid Engineers’ Case methodology has been to reject any suggestion that fidelity to a concept of ‘federal balance’ is consistent with both the contents and purpose of the Constitution and also the principles of divided government. Particular consideration is given to the limitations of a commitment to federalism in only a structural sense, as revealed by the judicial reasons of the majority and dissenting judges in the recent case of New South Wales v Commonwealth. Second, the tension between competing assumptions of the kind of federal system established by the Commonwealth Constitution has produced an unstable and uncertain environment for the development of cooperative schemes between the Commonwealth and States. In Part III we consider how an attempt to ‘constitutionalise’ the relationship between the tiers of government as one underpinned by cooperation and respect would impact on the Court’s approach. Drawing on foreign constitutions, and adapting these in light of Australia’s politico-legal conditions and history, we suggest how a commitment to cooperative federalism might best be shaped for possible inclusion in the Commonwealth Constitution.

Anti-Censorship, Benevolent Payloads and Human Rights

Alana Maurushat — Thu, 09 Oct 2008 23:12:27 PDT

The APEC Asia-Pacific Privacy Initiative – a new route to effective data protection or a trojan horse for self-regulation?

Nigel Waters — Thu, 09 Oct 2008 23:05:27 PDT

Asia Pacific Economic Cooperation (APEC) is a grouping of 21 member economies in the Asia Pacific Region which between them account for more than 40% of world population and 50% of world GDP (including Russia, China and the United States). It was established in 1989 to facilitate economic growth, cooperation, trade and investment in the region. The APEC Privacy Framework was adopted by Ministerial Declaration in October 2004, after a two year development by a Privacy Subgroup of the APEC Electronic Commerce Steering Group, with the Implementation section added a year later. The Subgroup has continued to meet regularly to progress implementation of the Framework. The current emphasis is on a number of linked Pathfinder projects, in one of more of which 14 of the 21 APEC member economies are currently participating.

This paper considers the APEC Privacy Framework; its strengths and weaknesses; and its interrelationship with other international privacy instruments.

On clarifying the role of originality and fair use in 19th century UK jurisprudence: appreciating "the humble grey which emerges as the result of long controversy"

Kathy Bowrey — Wed, 01 Oct 2008 19:01:07 PDT

Understanding nineteenth century precedent is one of the more difficult tasks in copyright today. This paper considers why the nineteenth century cases and treatises failed to clearly identify what the author owns of “right” and the implications for the criterion of originality and for determining infringement today.

The China Dilemma: Internet Censorship and Corporate Responsibility

Justine Nolan — Thu, 25 Sep 2008 17:30:39 PDT

Warm Waters and Cold Shoulders: Jostling for Jurisdiction in Polar Oceans

Rosemary Rayfuse — Sat, 20 Sep 2008 22:20:20 PDT

In May 2008 the five Arctic coastal states adopted the Ilullisat Declaration in which they asserted their role as stewards, for the international community, of the Arctic Ocean ecosystem. This paper discusses the legal basis for their claim to stewardship with particular reference to the high seas portion of the central Arctic Ocean, and their assertion that no need exists for a new comprehensive legal regime in respect of those high seas waters. It is argued that while the high seas regime of the Arctic may be extensive, it is not comprehensive. Thus, the legitimacy of the claim to stewardship rests on the willingness and ability of the Arctic coastal states to work to fill the lacunae and address the shortcomings in the legal regime for the high seas of the central Arctic Ocean.

Teaching - intensive appointments in law schools. Is this the way to recognise and value excellence in teaching?

Jill Cowley — Mon, 08 Sep 2008 23:14:04 PDT

The intense focus by government and universities on research has been pressed most often at the expense of quality learning and teaching in universities. There is some irony here. The core purpose of universities is the provision of both research and education, such purpose being identified in all the universities’ statutes. For example s6 of the University of New South Wales Act 1989 (NSW), the objects section, provides that both education and research are principal functions. Nowhere in this objects provision (or in any of the other university statutes) is there any suggestion of subservience of one function to another. Further, one only has to ask graduates what they remember and value from their years at law school to realise that it is the teaching which informs their view – both the excellent and the abysmal. Research, on the other hand, is often equated with a closed door and sign indicating that the occupant is on leave. The suggestion, therefore, of the appointment of certain staff to teaching-intensive, or teaching-only, positions is somewhat curious. If the objective of the exercise is to recognise and value excellence in teaching, then the models proposed do not satisfy that objective. This paper examines the ways in which universities value education and whether excellence in legal education can be advanced by the appointment of teaching-intensive academic staff.

Substantial Truth in Defamation Law

Meiring de Villiers — Fri, 22 Aug 2008 00:08:32 PDT

Therapeutic cloning in Australia: One small stem from man, one giant leap for mankind

Irene Nemes — Thu, 21 Aug 2008 17:29:34 PDT

In 2002 the Australian Parliament enacted legislation which prohibited both therapeutic and reproductive embryonic cloning. Just four years later, in December 2006, this same legislation was amended, reversing the prohibition on therapeutic cloning, while retaining the ban on reproductive cloning. The Prime Minister, sensing the political mood, allowed a conscience vote. This contrasted with his decision several months earlier against introducing any changes to the 2002 Act, despite 54 recommendations having been made by a Statutory Review Committee. Approval of the legislation had as much to do with the careful drafting of the provisions as with any rational, social or scientific factor. The legislation is narrow in scope, retains an absolute prohibition on reproductive cloning and contains strict regulations with heavy criminal penalties. The Act requires a review after three years. A number of questions remain. Does stem cell research demand a global rather than a local approach, by way of an international Covenant? Does the legal status of a cloned embryo need further examination? Will the embryo have a separate legal standing recognised by law? These are some of the questions which will need addressing as the law tries to keep up with science.

New Methodologies for Quantifying Licence-Based Commons on the Web

Ben Bildstein — Thu, 14 Aug 2008 23:36:31 PDT

Current practice in quantifying online commons lacks rigorous methodology. One example of this is in Creative Commons' own data about the growth and state of Creative Commons licensing. Closed,proprietary search engine web services are used to gather approximations to counts of web pages that link to licence URLs. While this data is a useful starting point to get some feel for the current state of Creative Commons-licensed works online, the methodology makes many implicit assumptions. These include: that every licensed work links to a Creative Commons licence; that non-licensed works do not link to the licences; and that proprietary search engines are capable of providing reliable data on links to arbitrary URLs.

This methodology fails to capture some licensed works works that can have valid plain English licence statements, proper embedded RDF metadata and the appropriate Creative Commons licence mark, but simply fail to link to the licence URL. Nor does this initial methodology generalise well to other categories of documents in the broader commons, such as free software licences or unannotated public domain works, where the mechanism that creates the public rights is not a link to a URL.

Analysis of the commons as a body of reusable documents, or analysis of the success of the commons movement, requires reasonable data: data about which licences are being used, which ones are most popular in the current environment, and how different media (including image, text, sound, software and others) compare in the make-up of the commons.

This paper proposes using raw web crawler data to do analysis with a reliable methodology. Preliminary experiments and analysis are performed with the purpose of contrast with existing quantification methodologies. Methodological issues about online commons quantification are raised and discussed, including the fundamental methodological question of what constitutes a single creative work on the web:while current practice counts individual web pages (that link to licences), this metric can not easily be applied to media such as motion picture, software, sound and images. Without such a discussion, any data would have only indicative value.

The paper concludes with a discussion of the many areas of potential future work in the quantification of online commons from deep web and OAIPMH-compliant databases, to embedded RDF metadata and compressed files, to copies of the full text of licenses as part of the licensed work.

Continuing Problems with Film Copyright

Michael Handler — Thu, 07 Aug 2008 23:35:05 PDT

It is hardly controversial to suggest that British and Australian film copyright law is at present incoherent and conceptually confused. Much of this problem stems from the consistent failure of both countries to recognise that films, being the product of an interdependent relationship between collaborative artistic creation and economic investment, are not susceptible to straightforward categorisation as copyright subject matter. Yet the dynamics of the film and television industry appear to be such that irrespective of the way in which the law classifies films as copyright subject matter, the relevant party seeking to commercialise the film will, generally speaking, end up with all relevant rights to exploit the film. This is likely to occur primarily through contract rather than through the operation of legislative designations of authorship and/or ownership of copyright. I wish to suggest that notwithstanding this narrative of film copyright ownership, there are good reasons for continuing to question the way in which films are conceptualised under British and Australian copyright law. In particular, I will challenge the assumption that contract can always be relied on to put parties in their desired positions, seek to justify the argument that there is ongoing value in correctly identifying and granting rights to the contributors to a film, and explore the issue of potential non-compliance with the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights. These reasons suggest that it is worth considering alternatives to the current system of protection in the UK and Australia and, in particular, what it might mean to protect ‘cinematographic works’ in addition to ‘film fixations’, which in turn raises difficult, although not intractable, questions of identifying the contours of the cinematographic work and the author(s) of such a work.

The Standard of Proof in Complementary Protection Cases: Comparative Approaches in North America and Europe

Jane McAdam — Thu, 07 Aug 2008 23:28:28 PDT

Though the title of this paper implies a technical and comparative legal analysis of the standard of proof in complementary protection claims vis-à-vis Convention refugee claims, this is only part of its substance. Indeed, while the standard of proof has become a central distinguishing feature in the Canadian context between attaining protection as a ‘refugee’ or as a ‘person in need of protection’, this debate has been largely absent from the EU arena. Nevertheless, high evidentiary burdens, combined with a haphazard consideration of the three possible grounds for subsidiary protection in the EU, mean that as in Canada, subsidiary protection status cannot be regarded as a residual status for people who would be Convention refugees but for the absence of a nexus with one of the five Convention grounds. Accordingly, this paper focuses on the legal impediments to obtaining subsidiary protection in the EU that have manifested themselves in the 18 months since the Qualification Directive entered into force for the EU Member States. Its particular issue is article 15(c), which extends protection to those facing ‘a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. This paper examines how article 15(c) has been interpreted in the jurisprudence of a number of EU Member States and demonstrates why it is not functioning effectively as a complementary form of protection.

Making progress in tax simplification: a comparison of the United States, Australia, New Zealand and the United Kingdom

Margaret McKerchar et al. — Thu, 07 Aug 2008 23:20:54 PDT

Trade Mark Dilution in Australia?

Michael Handler — Thu, 07 Aug 2008 23:01:26 PDT

Since the Trade Marks Act 1995 (Cth) came into force there has been an ongoing debate over whether it affords owners of well-known registered marks specific protection against the dilution of their marks. However, there have been relatively few sustained attempts by commentators on either side of this debate to argue their cases in detail. In a recent article, Maurice Gonsalves and Patrick Flynn have contended that for a variety of reasons the infringement provision contained in s.120(3) of the Act is, without doubt, an explicit anti-dilution provision. I wish to suggest that this argument is misplaced. Rather, a careful analysis of the legislative history of s.120(3), combined with a close reading of its text and a consideration of how it operates within the Act as a whole, reveals that the provision has a more limited scope than that envisaged by Gonsalves and Flynn. Equally importantly, an investigation of the meaning of s.120(3) helps to shed light on broader questions as to how various provisions of the Act intersect with each other, and, more generally, how the Australian registered trade mark system ought to function as a whole – issues that have not to date received the attention that they deserve.