Anthony, T 2009, 'Blackstone's Commentaries on Colonialism: Australian Judicial Interpretations' in Wilfred Prest (ed), Blackstone and his Commentaries Biography, Law, History, Hart, Oxford, pp. 129-150.
Anthony, T 2009, 'Commentaries on Colonialism: Australian Judicial Interpretation' in Wilfred Prest (ed), Blackstone and his Commentaries Biography, Law, History, Hart Publishing, Oxford, UK, pp. 129-150.
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The focus of this chapter is how Australian courts construed Blackstone's doctrines on the processes of and justification for Australian colonisation. It argues that Australian courts took Blackstone's writings on colonialism out of their original context in order to meet the imperatives of British sovereignty. After analysing the use of Blackstone in judgments by the New South Wales Supreme Court from the 1820s to the 1840s, this chapter will then consider how Blackstone's feudal proposition justifying British land colonisation materialised in New South Wales and northern Australia, and was eventually dealt with in native title case law.
Berg, LA, Samson, A, Robinson, PK & Wills, J 2009, 'Economic Migrants, the Banana Supply Chain, and the London Living Wage: Three Cases of Global Civil Society Activism on Poverty' in Fiona Holland (ed), Global Civil Society, Sage Publications, London, UK, pp. 166-185.
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Biber, K 2009, 'Judicial Extracts' in Staines, Biber, K, Arrow & M (eds), The Chamberlain Case: Nation, Law, Memory, Australian Scholarly Publishing, North Melbourne, Australia, pp. 113-151.
Briskman, L & Libesman, T 2009, 'Social work practice and Indigenous Australians' in Swain, P & Rice, S (eds), In the shadow of the law, The Federation Press, Sydney, Australia, pp. 3-19.
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Contemporary expereince of Indigenous children and families who have contact with the child welfare and juvenile justice systems
Castle, D & Ries, NM 2009, 'Epilogue: Future Directions' in Nutrition and Genomics, Elsevier, pp. 281-288.
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Castle, D & Ries, NM 2009, 'Epilogue: Future Directions' in Nutrition and Genomics: Issues of Ethics, Law, Regulation and Communication, pp. 281-288.
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Fox, M & Thomson, M 2009, 'Sexing the cherry: Fixing masculinity' in Sullivan, N & Murray, S (eds), Somatechnics: Queering the Technologisation of Bodies, Ashgate, pp. 107-125.
Karpin, IA & Ellison, D 2009, 'Reproduction without women: Frankenstein and the legal prohibition of human cloning' in Catherine Kevin (ed), Feminism and the Body, Interdisciplinary Perspectives, Cambridge Scholars Publishing, Cambridge, pp. 29-48.
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Putting events in Genesis to one side, the most famous nonconventional act of creation recorded in Western literature occurs in Mary Shelley's Frankenstein.' Painstakingly assembled in Victor's 'workshop of filthy creation', the life that emerges from this gothic setting is not confined to the plot of the novel, but oddly for a creature doomed to sterility and apparent death, produces innumerable copies across a variety of genre and media. Significant among the novels, films, cartoons, games and toys that perpetuate the creature's existence, is its presence as a rhetorical device employed in the language of ethical restraint. When legislators or advocates of varying stripe call for science to just stop, now, Frankenstein (in monster or progenitor form) makes his inevitable appearance
Kassisieh, G & Millbank, J 2009, 'Same-sex couples and their families' in Fallon, M (ed), The law handbook: Your practical guide to the law in New South Wales 11th edition, Redfern Legal Centre, Redfern, pp. 957-992.
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In 2008, significant reforms to state and federal laws have brought greater recognition to same-sex couples and their children. Equal rights and responsibilities have been extended to same-sex couples who are de facto partners across almost all laws throughout Australia, and to lesbian co-parents also in NSW and federal law. This chapter describes recent changes in state and federal law, and how same-sex couples and parents are recognised. The new definitions and their interpretation are outlined, then rights in various substantive areas are discussed.
Lee, K & Prime, J 2009, 'US Telecommunications Law' in Walden, I (ed), Telecommunications Law and Regulation, Oxford University Press, pp. 211-292.
McKeough, J 2009, 'Horses and the Law: the Enduring Legacy of Victoria Park Racing' in Kenyon, A, Richarson, M & Ricketson, S (eds), Landmarks in Australian Intellectual Property Law, Cambridge University Press, Melbourne, Australia, pp. 53-72.
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The Victoria Park Racing and Recreation Ground was a popular racecourse in Sydney in the 1930s. Built on an open fairground, the owners erected a.fence around the track to ensure that only ticket buyers could watch the action or place bets on the races. The defendant, Taylor, built a tower that was uS:d by a Mr Angles to peer over the fence and, using a telephone, broadcast descriptions of the races on radio 2UW. In Victoria Park Racing and Recreation Grounds Company v Taylor (Victoria Park Racing),1 both the neighbour and the broadcaster were sued in nuisance and infringement of property rights by the owners of the racecourse. The High Court dismissed the suit but the minority judgment of Evatt··J foreshadowed the potential problems for those mounting spectacles and events with the advent of television on the horizon.
Millbank, J & Berg, L 2009, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants' in Robson, R (ed), Sexuality and Law - Volume III: Sexual Freedom, Ashgate, Farnham, Surrey, pp. 321-349.
Opeskin, B 2009, 'Nationality and statelessness' in Foundations of International Migration Law, pp. 93-122.
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Nationality is essentially an institution of domestic law, but it has consequences in international law. Under domestic law, a national owes a duty of allegiance to the State, and may be obliged to pay taxes and render military service to that State. A national has the right of permanent residence and the right to participate in public life and, in most States, enjoys social benefits available only to nationals. Under the laws of some States, criminal jurisdiction may be exercised over a national even in respect of crimes committed abroad. Nationality is a key concept in international migration law. The ability of individuals to change their residence to another State, or even to travel abroad temporarily for business or pleasure, is constrained by questions of nationality. Nationality is also important in international law generally. Until the emergence of human rights law in the era of the United Nations, how a State treated its own nationals was regarded as a matter of exclusive domestic jurisdiction and not subject to international law. However, States did have international obligations towards foreign nationals in their territory, and a foreign State could defend the interests of its nationals if they were breached by the host State. Thus, the rights of individuals were mediated through the bond of nationality. The foreign State could act on behalf of its nationals by exercising the right of ‘diplomatic protection’, since an injury to a national was regarded as an injury also to the State of which he or she is a national.
Ries, N 2009, 'Longitudinal Studies Involving Children and Adolescents' in Knoppers, BM, Avard, D & Samuel, J (eds), Paediatric Research in Canada, Les Éditions Thémis.
Ries, NM 2009, 'Risk-Based Regulation of Direct-to-Consumer Nutrigenetic Tests' in Nutrition and Genomics, Elsevier, pp. 85-102.
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Ries, NM 2009, 'Risk-Based Regulation of Direct-to-Consumer Nutrigenetic Tests' in Nutrition and Genomics: Issues of Ethics, Law, Regulation and Communication, pp. 85-102.
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Riley, J 2009, 'Commodifying sheer talent: Perverse developments in the law's enforcement of restrictive covenants' in Arup, C & van Caenegem, W (eds), Intellectual Property Policy Reform: Fostering Innovation and Development, Edward Elgar Pub, pp. 267-284.
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The discussion takes in patents, copyright, trade secrets and relational obligations, considering the design of legislative directives, default principles, administrative practices, contractual terms and license specifications.Providing ...
Riley, J 2009, 'From Industrial Arbitration to Workplace Mediation: Changing Approaches to Dispute Resolution' in Forsyth, A & Stewart, A (eds), Fair Work The New Workplace Laws and the Work Choices Legacy, Federation Press, pp. 186-206.
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This wide-ranging collection is an authoritative and accessible analysis of the profound changes to labour regulation under the Howard and Rudd Governments.
Samuel, J, Ries, N, Malkin, D & Knoppers, BM 2009, 'Biobanks and Children: Comparative International Policies' in Knoppers, BM, Avard, D & Samuel, J (eds), Paediatric Research in Canada, Les Éditions Thémis.
Stoianoff, NP 2009, 'The Recognition of Traditional Knowledge under Australian Biodiscovery Regimes: Why Bother with Intellectual Property Rights?' in Antons, C (ed), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, Kluwer Law International, The Hague, Netherlands, pp. 293-311.
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Stoianoff, NP & Kelly, AH 2009, 'Conserving Native Vegetation on Private Land: Subsidizing Sustainable Use of Biodiversity?' in Deketelaere, K, Milne, JE, Kreiser, L & Ashiabor, H (eds), Critical Issues in Environmental Taxation. International and Comparative Perspectives: Volume IV, Oxford University Press, Oxford, UK, pp. 299-315.
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TheConvention on Biological Diversity1992 (the Biodiversity Convention) has 13.01 asitsprimary objective the conservation ofbiological diversity;' Running a dose second is the objective of sustainable use of biological divcrsity.2 Simultaneous achievement ofsuch objectives often runs contrary to the desires ofJarge landowners in Australia, particularly when such landowners are engaged in primary production industries.
Thorpe, DE 2009, 'Athlete Selection' in Sports Law in Australia, Oxford University Press, Melbourne, Australia, pp. 371-392.
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A systematic exposiition of the laws governing the selection of athletes, professional and amateur for representation. The athletes rights are evaluated in respect of contractual agreement. The contractual agreement is analysed as to implied terms of good faith, honesty and reasonableness - a form of analysis not previously undertaken.
Thorpe, DE 2009, 'Behavioural Misconduct' in Sports Law in Australia, Oxford University Press, Melbourne, Australia, pp. 393-425.
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Original research dealing with the law as it pertains to athletes off-field misconduct. Full exposition and evaluatation of the contractual terms permitting a sports organisation to punish an athlete for misconduct. Including analysis of how the law delas with differing cultural norms.
Thorpe, DE 2009, 'Civil Liability and tort law reform' in Sports Law in Australia, Oxford University Press, Melbourne, Australia, pp. 147-168.
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Civil Liability Acts of various forms were introduced across Australia in 2002. This chapter evaluates the legal implications of these Acts for athletes participating in sport - in particular 'dangerous recreational activities'. The conceptual implications of the wording of the Act is examined in depth and the shortcomings evaluated.
Thorpe, DE 2009, 'Domestic Disciplinary Tribunals' in Sports Law in Australia, Oxford University Press, Melbourne, Australia, pp. 25-66.
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An original and systematic exposition of law as it pertains to domestic sporting tribunals. A case by case study including new sports tribunal forms using 'symbolic prosecution' such as the NRL and AFL tribunals. The chapter deals with the legal implications for athletes faced with hearings before sporting tribunals and explores in detail the opposing needs of the tribunal's convenience against the athlete's need to access a just system.
Thorpe, DE 2009, 'Violence in Sport' in Sports Law in Australia, Oxford University Press, Melbourne, Australia, pp. 67-105.
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A full exposition of the crimial and tort law as it pertains to athlete on-field violence. Original research into proportional violence, unwillingness of the victim to particpate in violence, analysis of the 'intentional' infliction of actual body harm. Is the law purely public policy? Expose of common law inconsistencies in applying crime to sporting violence.
Thorpe, DE, Fridman, S & Davies, C 2009, 'Trade and Competition' in Sports Law in Australia, Oxford University Press, Melbourne, Australia, pp. 272-300.
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A full exposition of the crimial and tort law as it pertains to athlete on-field violence. Original research into proportional violence, unwillingness of the victim to particpate in violence, analysis of the 'intentional' infliction of actual body harm. Is the law purely public policy? Expose of common law inconsistencies in applying crime to sporting violence.
Watson, N 2009, 'The New Protection: Indigenous Women and the Contemporary Australian State' in Dreher, T & Ho, C (eds), Beyond the Hijab Debates: New Conversations on Gender, Race and Religion, Cambridge Scholars Publishing, UK, pp. 105-117.
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Thursday 21 June 2007 is a date indelibly etched in my mind. It had not been a good week for lndigenous Aushalians. Two days earlier a Townsville jury acquitted the police officer charged with the manslaughter of a young Aboriginal man, Mulrunji. Mulrunji had lived on Palm Island, an Aboriginal community in north Queensland with a tragic history. In 1918, the Queensland Government tumed Palm Island into a penal settlement for Indigenous people who dared to question their oppression (Waters 2008: 28). In the years to follow, Palm Island would become notorious for superintendents who administered sadistic punishments and enforced apartheid (Watson 1995:- 149).
Alexander, I 2009, 'THE CONCEPT OF REPRODUCTION AND THE “TEMPORARY AND TRANSIENT” EXCEPTION', The Cambridge Law Journal, vol. 68, no. 3, pp. 520-523.
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Anthony, T 2009, 'Manifestations of Moral Panics in the Sentencing of Palm Islander Lex Wotton', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 466-475.
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This Comment considers the sentencing of Palm Islander man, Lex Patrick Wotton, for his involvement in the protest following the death in custody of Mulrunji. It examines the protest as a response to the police role in the death and the police mishandling of the consequent investigation. The Comment critiques the media trial that paralleled Wotton's court trial. The mainstream media, along with the Queensland Government and police union, produced a moral panic over the Palm Island protest that overshadowed the death in custody. This Comment argues that the court that sentenced Wotton appropriated the moral panic over the offence to remove the death in custody as a sentencing factor.
Anthony, T 2009, 'Quantum of Strategic Litigation - Quashing Public Participation', Australian Journal of Human Rights, vol. 14, no. 2, pp. 1-38.
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The focus of human rights scholars in recent times has been on the state's coercive powers to curtail civil liberties (Fitzpatrick 2003; Roberts 2004, 721–49; Hamilton and Maddison 2007). However, less attention has been given to the increasing role of large corporations in containing resistance. This article will discuss the corporate use of private civil actions to deter and punish protesters. These are known as Strategic Lawsuits Against Public Participation (SLAPPs) and have had many legal guises, including negligence, defamation and nuisance. However, they are most easily identified by their targets: individuals and groups which publicly protest against activities by corporations that undermine human rights or result in damage to the environment. SLAPPs are being used across Western societies not to acquire damages (as many of these cases are not successful, or do not even reach trial), but, rather, to silence the protest and instill fear of a civil action in the minds of current and potential participants. This article looks at the impact of SLAPPs on human rights, particularly those embraced by Art 20 of the Universal Declaration of Human Rights, such as freedom of assembly, association, expression and political participation. Essentially, the article argues that legislation directed to this abuse of legal process is needed to combat SLAPPs. It draws on the experience of the United States and other jurisdictions in developing ‘model’ anti-SLAPP legislation, and the recent enactment in the Australian Capital Territory of similar legislation. It argues specifically that the legislation needs to provide an objective test based on a broad definition of public participation, as well as adequate provisions for summary dismissal, if the anti-SLAPP legislation is to be effective.
Anthony, T 2009, 'Quantum of Strategy: Models to combat Strategic Law Suits Against Public Participation', Australian Journal of Human Rights, vol. 14, no. 2, pp. 1-38.
Anthony, T 2009, 'The Disavowal of Context: Sentencing Lex Wotton', Indigenous Law Bulletin, vol. 7, no. 10, pp. 27-30.
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Almost thirty years ago in the case of R'v Neal (1982),1 members ofthe HighCourt recognised that an Indigenous defendant's assault (swearing and spitting) on a reserve officer inYarrabah, Queensland, needed to be understood in its paternalistic aQd racist context. Two ofthe four High Courtjudges acknowledged. that racist tensio.os onreserves that provoke 'violent' crimes against non-Indigenous officers can be factors that reduce the offender's criminal sentence; because they reduce the culpability of the Indigenous offender.
Berg, L 2009, 'At the Border and Between the Cracks: The Precarious Position of Irregular Migrant Workers Under International Human Rights Law', Melbourne Journal of International Law, vol. 8, no. 1, pp. 1-34.
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This article aims to identify jurisprudence which advances the standards of treatment of unauthorised migrants in the context of often hostile domestic laws and political rhetoric. Due to its universalist and humanist underpinnings, many would consider international human rights law to be a natural source of rights protecting migrant workers. However, human rights doctrine takes a chequered approach to the protection of those living or working in a foreign state without visa authorisation. Even the Migrant Workers Convention recognises states sovereign prerogative over immigration control, and thereby fails to cater to the especially precarious position of irregular migrants who decline to assert their rights for fear of facing sanctions under immigration laws. It is argued that we need to look to regional judicial forums to find international legal doctrine which articulates a progressive legal framework robustly protective of irregular migrants rights. This article canvasses jurisprudence in the regional Human Rights Courts in Europe and the Americas which succeeds, in different ways, at decoupling the absolute discretion of states to regulate border control from the substantive rights of irregular migrants nce present in a host state.
Berg, L & Millbank, J 2009, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants', JOURNAL OF REFUGEE STUDIES, vol. 22, no. 2, pp. 195-223.
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This article draws upon psychological and sociological literature to explore the issues that arise in eliciting and presenting a refugee narrative when the claim is based upon sexual orientation. Rigid notions of homosexual identity may consciously or subconsciously shape decision-makers' approaches in this field. First, we identify psycho-social issues of particular significance to lesbian, gay and bisexual claimants which may act as barriers to eliciting their narrative of self-identity, including: a reluctance to reveal group membership as the basis of a claim, the experience of passing or concealment strategies, the impact of shame and depression on memory, common experience of sexual assault, and sexualization of the identity narrative in the legal process. Secondly, we explore factors which inhibit the reception of such narratives in the legal process. In particular we explore the psychological 'stage model' of sexual identity development and examine the pervasive impact this model has had upon decision-makers' 'pre-understanding' of sexual identity development as a uniform and linear trajectory. © The Author [2009]. Published by Oxford University Press. All rights reserved.
Berg, LA & Loughnan, A 2009, 'Preface - W(h)ither Human Rights?', Public Space: The Journal of Law and Social Justice, vol. 4, pp. 1-2.
Beth, G 2009, 'The Right to Social Security – Addressing Women’s Poverty and Disadvantage', South African Journal on Human Rights, vol. 25, no. 3, pp. 442-466.
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Women in South Africa are generally poorer than men and more vulnerable. They perform the bulk of the caring functions in society, usually without remuneration. Their greater need is reflected in their disproportionate use of the social assistance system. This system is evaluated in terms of the right to social security contained in South Africa's Bill of Rights. The right is explored, interpreted and developed from a feminist legal perspective. The categories of reformism, feminist critique and utopianism are used to 'engender' the right. International law, as well as the emerging jurisprudence on the right to social security, is considered in the reconceptualisation of the right. This article briefly discusses some of the gender dimensions of each of South Africa's three, largest social assistance grants - the Old Age Pension, Child Support Grant and Disability Grant. It points to some of the areas of research and future examination that would assist those attempting to expand the meaning and reach of the right to social security so that it is able to help everyone in South Africa, and in particular, poor women to 'improve their quality of life' and 'free their potential'.
Biber, K 2009, 'Bad Holocaust Art', Law Text, vol. 13, pp. 226-259.
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In 2002 the Jewish Museum in New York exhibited Mirroring Evil, in which contemporary artists represented the Holocaust. Holocaust survivors demonstrated against the exhibition, holding placards in the street outside. An 81 year old survivor of Buchenwald, Isaac Leo Kram, carried a sign that read: `I was there. I testify: Genocide is not art! (Kershaw 2002). A sign at the entrance of the museum warned visitors that some might be upset by the exhibition. The New York press, typically supportive of the citys art institutions when attacked by critics, repeatedly questioned the Museums judgment in holding the exhibition. At the heart of the controversy was grave concern that some of the artworks were testing the limits of how the Holocaust could be represented and remembered.
Biber, K 2009, 'Bad Holocaust Art', LAW TEXT CULTURE, vol. 13, pp. 227-+.
Biber, K 2009, 'Visual jurisprudence: the dangers of photographic identification evidence', Criminal Justice Matters, vol. 78, no. 1, pp. 35-37.
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Biber, K & Dalton, D 2009, 'Making art from evidence: Secret sex and police surveillance in the Tearoom', CRIME MEDIA CULTURE, vol. 5, no. 3, pp. 243-267.
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In 1962, police officers concealed themselves for two weeks in a mens public toilet in Mansfield, Ohio, and filmed men performing illicit homosexual sex acts. The film footage was used to secure convictions for sodomy, and inaugurated a new form of police surveillance of homosexual public sex. In 2008, the visual artist William E. Jones screened the police footage in art galleries around the world, to both critical acclaim and public objection. This article examines the film, both as a prosecutorial artefact and an artwork, to explore what it says about public sex, police surveillance, the criminalization of homosexual practices, visual evidence, and contemporary art.
Booth, T & Townsley, L 2009, 'The Process is the Punishment: The Case of Bail in New South Wales', Current Issues in Criminal Justice, vol. 21, no. 1, pp. 41-58.
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In the context of bail, punitive crime policies in NSW have led to a gradual erosion of the presumption in favour of bail, the conflation of bail conditions and penalty and a steady increase in the number of persons being held on remand. Continuing this punitive turn in crime police, the Bail Act 1978 was recently amended in respect of s22A. It is this amendment and the resultantant changes to the configuration of bail that is the subject of this article.
Burn, JM & Simmons, F 2009, 'Prioritising Protection – A new visa framework for trafficked people', Immigration Review, no. 41, pp. 3-10.
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This article reviews the new changes to the visa framework for victims of human trafficking, which simplify a once complex and uncertain process, make family reunification easier and strengthen access to government support services.
Carney, T 2009, 'Anorexia: A Role for Law in Therapy?1', Psychiatry, Psychology and Law, vol. 16, no. 1, pp. 41-59.
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Dobinson, IR 2009, 'Medical Manslaughter', University of Queensland Law Journal, vol. 28, no. 1, pp. 101-112.
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Dobinson, IR & Thorpe, DE 2009, 'What's Wrong With the Commissioner? Some Lessons from Downunder', Seton Hall Journal of Sports and Entertainment Law, vol. 19, no. 1, pp. 105-148.
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Dorsett, S 2009, 'Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of ‘Barbarous’ Customs in New Zealand in the 1840s', The Journal of Legal History, vol. 30, no. 2, pp. 175-197.
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This paper examines the judicial construction of jurisdiction over Maori in the 1840s in New Zealand. Using new data, including case material and extra-judicial commentary, it examines the first decisions by the New Zealand Supreme Court on crime between Maori (crime 'inter se'). In so doing, it briefly places New Zealand in a broader context of settler colonies, and considers how colonial judges (such as Chapman J of the Supreme Court of New Zealand) fashioned the common law to fit the contingency of local circumstance, thereby playing their part in constituting local sovereignty. Finally, the article also considers the reaction of settlers to Maori crime and these decisions. © 2009 Taylor & Francis.
Edmond, G, Biber, K, Kemp, RI & Porter, G 2009, 'Law's Looking Glass: Expert Identification Evidence Derived from Photographic and Video Images', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 337-377.
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This article offers a critical overview of expert identification evidence based on images. It reviews the Australian case law and then, in an interdisciplinary manner, endeavours to explain methodological, technical and theoretical problems with facial mapping evidence. It suggests that extant admissibility jurisprudence and traditional safeguards associated with expert opinion evidence and the adversarial trial might not adequately protect those accused of committing criminal acts when they are confronted with incriminating expert identification evidence.
Evers, M 2009, 'Overcharging:Are there different rules for solicitors and barristers?', Precedent, vol. 94, pp. 36-39.
Evers, M 2009, 'The ethics of collaborative practice', Current Family Law, vol. 12, no. 2, pp. 139-148.
Evers, M & Harris, J 2009, 'The Duties of In-House Counsel: The Bold, the Bright and the Blurred?', Australian Business Law Review, vol. 37, pp. 267-267.
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Recent cases involving in-house and external lawyers have attracted much media attention, from the C7litigation to the AWB Inquiry. Some of the media commentary and judicial remarks were directed at the role of the internal legal advisers in the conduct of the parties, both before and during litigation. The cases acknowledge the challenges faced by in-house counsel where the duty to client is blended with loyalty to the employer. The requirement for independence is a fundamental principle of the legal profession. The increasing use of in-house counsel challenges this principle. The conflict faced by in-house counsel is predominant in claims for privilege. This article examines the scope for privilege to be claimed in respect of communications involving in-house counsel.
Farrell, J, Ries, NM, Kachan, N & Boon, H 2009, 'Foods and natural health products: Gaps and ambiguities in the Canadian regulatory regime', Food Policy, vol. 34, no. 4, pp. 388-392.
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Fox, M & Thomson, M 2009, 'FORESKIN IS A FEMINIST ISSUE', Australian Feminist Studies, vol. 24, no. 60, pp. 195-210.
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Goldblatt, B 2009, 'Gender, rights and the disability grant in South Africa', Development Southern Africa, vol. 26, no. 3, pp. 369-382.
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South Africa's disability grant is critical for the survival of many disabled people and their families, and is especially important to disabled women, who face further disadvantage because of their family responsibilities, their generally deeper poverty and their greater vulnerability to HIV/AIDS and other illnesses. Valuable engagement between feminism and disability theory offers a useful framework for understanding the needs of disabled women in South Africa's social assistance system. This paper sets out the findings of a study of the disability grant system in two provinces in South Africa. It discusses the administrative problems with the system and the financial and other costs that burden the grant applicants and beneficiaries. It proposes that a comprehensive response to poverty, disability and gender inequality is needed, and makes specific recommendations for an improved system. © 2009 Development Bank of Southern Africa.
Goldblatt, B & McLean, K 2009, 'Introduction: Women And Social And Economic Rights', South African Journal on Human Rights, vol. 25, no. 3, pp. 407-409.
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Goldblatt, BA & McLean, K 2009, 'Special Issue: Women and Social and Economic Rights', South African Journal on Human Rights, vol. 27, no. 3.
Grossi, R 2009, ''Racial Discrimination Protection in Australian Law - A Snapshot'', Legal Date, no. 3.
Grossi, R 2009, ''Same Sex Marriage and the Law'', Legal Date, no. 1.
Grossi, R 2009, ''The Northern Territory Intervention and the Racial Discrimination Act'', Legal Date, vol. 21, no. 1.
Hawes, C 2009, 'Culture, Literature and the Contradictions of Socialist Capitalism in Chinese Corporate Magazines', Asian Studies Review, vol. 34, no. 1, pp. 41-61.
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Most large Chinese corporations publish e-magazines to which employees are encouraged to contribute on various topics, ranging from management and work issues to creative writing and other creative 'cultural' work such as poetry, calligraphy and photography. These e-magazines provide a central venue where employees can learn about what is important to the firm's management. They are one of the major vehicles through which large Chinese corporations promote their organisational cultures to employees and inculcate their corporate values. Yet at the same time, they give employees the opportunity to showcase their own talents to a wide audience within the corporation. A close reading of contributions to the e-magazines of several corporations reveals a combination of sometimes contradictory values, including Western management ideas, socialist-style collectivism and lyrical poetic escapism. This mixture reflects the complexity of 'subcultures' within Chinese corporations in a rapidly transforming society. It also demonstrates that corporate magazines can be both a management tool for improving firm performance and a vehicle for promoting ideals such as the cultural betterment and self-realisation of employees. © 2010 Asian Studies Association of Australia.
Hohmann, J 2009, '‘Igloo as Icon: A Human Rights Approach to Climate Change for the Inuit?’', Transnational Law & Contemporary Problems, vol. 18, no. 2.
Kelly, AH & Stoianoff, NP 2009, 'Biodiversity conservation, local government finance and differential rates: The good, the bad and the potentially attractive', Environmental and Planning Law Journal, vol. 26, no. 1, pp. 5-18.
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Local councils in New South Wales and across Australia are constrained by insufficient financial resources. This inhibits functional expansion and service improvement in non-traditional but growing areas of operation. A ready example is biodiversity conservation, where councils are under pressure to lift their game. The focus here is on local government's key funding source, namely 'rating', and its implications for protecting the natural environment. As a traditional property tax, rating generally falls outside the biodiversity conservation toolbox. This raises the idea of utilising one specific aspect of rating - the categorisation and sub-categorisation of rated land - as a potential mechanism for conservation purposes. In order to achieve this, statutory and policy change is necessary, including review of the longstanding rating benefit given to farmlands. The crux of this article is the potential benefits of introducing a new rating category for conservation purposes.
Kennedy, A 2009, 'MUTILATION AND BEAUTIFICATION', Australian Feminist Studies, vol. 24, no. 60, pp. 211-231.
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Leary, D 2009, 'Bioprospecting in Antarctica and the Arctic. Common Challenges?', The Yearbook of Polar Law Online, vol. 1, no. 1, pp. 145-174.
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AbstractBioprospecting is occurring in the Arctic and Antarctica. This paper considers evidence on the nature and scale of bioprospecting in the Polar Regions. The paper then aims to draw out some of the critical issues in this debate by examining recent developments in the context of the Antarctic Treaty System. After an introduction to the history of the debate on bioprospecting in the Antarctic context it examines the recent Report of the Antarctic Treaty Consultative Meeting (‘ATCM’) Intersessional Contact Group to examine the issue of Biologocal Prospecting in the Antarctic Treaty Area tabled at ATCM XVII in Kiev in June 2008. The paper then concludes with some brief thoughts on the relevance of the Arctic experience to the debate in relation to Antarctica and whether or not there is an ‘Arctic Model’ for a response to the bioprospecting question in Antarctica. It is argued that rather than there being one Arctic model there is in fact a spectrum of models and experiences to choose from.
Leary, D 2009, 'From Bali to Poznan: An assessment of Australia's response to climate change in 2008', Environmental and Planning Law Journal, vol. 26, no. 3, pp. 190-212.
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Australia has moved rapidly from being one of the coalition of the unwilling (that small group of countries whose policy response to climate change was directed by a group of self-confessed climate change sceptics) to a nation that is beginning to take its responsibility to act on climate change seriously and is now playing its part in shaping an effective international response to climate change, but much still remains to be done. This article examines major developments in climate change law and policy in Australia in 2008. This includes the Carbon Pollution Reduction Scheme (CPRS), outlined in the recently released White Paper on the CPRS; the positions adopted by Australia at the 14th Meeting of the Conference of Parties to the United Nations Framework Convention on Climate Change on Reducing Emissions for Deforestation and Degradation (REDD) in developing countries, held in Poznan, Poland; and the role of carbon capture and storage (CCS) in the post-2012 climate change regime. Major structural defects in the CPRS, such as the low medium-term target for emission reductions, the exemption of significant polluters from the CPRS's initial start up phase, the emphasis on the unproven technology of CCS both domestically and in Australia's negotiating stance in the lead up to the crucial Copenhagen meeting in 2009, as well as the failure to engage with the significant opportunities presented by energy efficiency and renewable energy, are all significant weaknesses in Australia's new found engagement with climate change.
Leary, D 2009, 'Looking beyond the International Polar Year: What are the Emerging and Re-emerging Issues in International Law and Policy in the Polar Regions?', The Yearbook of Polar Law Online, vol. 1, no. 1, pp. 1-19.
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AbstractThe International Symposium, ‘Looking beyond the International Polar Year: Emerging and Re-emerging issues in International Law and Policy in the Polar Regions’ (the Symposium) was held on 7–10 September 2008 at the University of Akureyri, Akureryi, Iceland. The Symposium was timed to coincide with the launch of the new postgraduate program in Polar Law offered by the University of Akureyri. The purpose of the Symposium was to examine, in detail, the implications of the challenges faced by the Polar Regions for international law and policy as part of the legacy of the current International Polar Year and to make recommendations on appropriate actions by States, policy makers and other international actors to respond to these emerging and re-emerging challenges. This article summarises the key findings and recommendations of the Symposium. These address the following key issues: climate change; human rights challenges; challenges of new commercial activities in the Polar Regions (such as the exploitation of off shore oil, gas and other minerals, shipping fishing, bioprospecting and tourism); challenges posed by shipping and newly opening sea lanes; threats to specific species and assemblages of species; environmental governance in the Polar Regions; and the inadequate implementation of existing international law and domestic laws. The article also contains a series of recommendations on further legal, scientific and other studies that should be undertaken in the immediate and near term future to better equip governments and policy makers to respond to these emerging issues.
Leary, D & Esteban, M 2009, 'Climate Change and Renewable Energy from the Ocean and Tides: Calming the Sea of Regulatory Uncertainty', The International Journal of Marine and Coastal Law, vol. 24, no. 4, pp. 617-651.
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AbstractWe examine the state of ocean energy in 2009 and consider its potential as a source of renewable energy. We provide a background on the current state of technology and commercial development, and examine the implications for law and policy of the re-emergence of ocean energy as a source of renewable energy in 2009. In the 1970s much of the academic and policy literature highlighted jurisdictional uncertainty surrounding ocean energy under international law. This is not the case today. Although some questions remain with respect to navigation rights, most questions surrounding the nature and extent of coastal State jurisdiction in relation to ocean energy have been resolved by the 1982 United Nations Convention on the Law of the Sea. Instead we argue that one of the biggest challenges faced by ocean energy today is the uncertain state of regulation under domestic legal systems. We highlight issues requiring attention by policy-makers and legislators, including managing hazards to navigation, providing further financial incentives for wide-scale commercialisation of this technology (such as increased research and development funding and feed-in tariffs) and managing ocean energy's relatively benign environmental impacts.
Leary, D, Vierros, M, Hamon, G, Arico, S & Monagle, C 2009, 'Marine genetic resources: A review of scientific and commercial interest', MARINE POLICY, vol. 33, no. 2, pp. 183-194.
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Marine genetic resources both within and beyond national jurisdiction have been the focus of international negotiations in a range of forums in recent years. One recurrent theme throughout these discussions has been the absence of detailed information upon which policy responses to the emerging issue of the conservation and sustainable use of marine genetic resources (especially in areas beyond national jurisdiction) could be based. In an effort to address some of these knowledge gaps, this article examines the level and nature of scientific and commercial interest in marine genetic resources, including in areas beyond national jurisdiction. It also examines the changing perspectives of the scientific community in relation to the potential of marine genetic resources. © 2008 Elsevier Ltd. All rights reserved.
Leary, DK 2009, 'Climate Change and other Human Rights Challenges in the Arctic', Human Rights Defender, vol. 18, no. 2, pp. 14-16.
Leary, DK 2009, 'International Maritime Organization (IMO)', Yearbook of International Environmental Law, vol. 19, no. 2008, pp. 674-680.
Leary, DK & Esteban, M 2009, 'Renewable Energy from the Ocean and Tides: A Viable Renewable Energy Resource in Search of a Suitable Regulatory Framework', Carbon and Climate Law Review, vol. 3, no. 4, pp. 417-425.
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Lee, K 2009, '’Counting the Casualties of Telecom: The Adoption of Part 6 of the Telecommunications Act 1997 (Cth)', Federal Law Review, vol. 37, no. 1, pp. 41-69.
Lee, K 2009, 'Achieving network neutrality: Maintaining competition between content and application providers', AUSTRALIAN JOURNAL OF COMPETITION AND CONSUMER LAW, vol. 17, no. 2, pp. 133-139.
Lenta, P 2009, '“Everyday Abnormality”: Crime and In/security in Ivan Vladislavić's Portrait with Keys', The Journal of Commonwealth Literature, vol. 44, no. 1, pp. 117-133.
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This article focuses on representations of crime, the anxiety it generates and the technologies of security and surveillance employed to keep it at bay in Ivan Vladislavić's Portrait with Keys: Joburg and What-what (2006). Portrait with Keys is a hybrid work, showing the influence of French documenters of the quotidian such as De Certeau, Perec and Lefèbvre. It is an experiment with genre that combines biography, autobiography, historical writing and the essay to explore the everyday life of Johannesburg, the city in which its author lives and works. In this article, I consider Vladislavić's project and reflect on the way in which his depictions of crime, insecurity and security measures are connected to it. I distinguish his treatment of this topic from other attempts to engage with it. Finally, I identify and comment on Vladislavić's ethical and political concerns.
Lenta, P 2009, 'Justice and Reconciliation in Post-Apartheid South Africa, Francois Du Bois and Antje du Bois-Pedain (Eds.): book review', South African Journal of Philosophy= Suid-Afrikaanse Tydskrif vir Wysbegeerte, vol. 28, pp. 259-260.
Lenta, P 2009, 'Review of Du Bois, Francois and Antje du Bois-Pedain (eds.) Justice and Reconciliation in Post-Apartheid South Africa (Cambridge: Cambridge University Press, 2008)', South African Journal of Philosophy, vol. 28, pp. 259-260.
Lenta, P 2009, 'Review of Du Bois, Francois and Antje du Bois-Pedain (eds.)Justice and Reconciliation in Post-Apartheid South Africa(Cambridge: Cambridge University Press, 2008)', South African Journal of Philosophy, vol. 28, no. 2, pp. 259-260.
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Lenta, P 2009, 'Taking diversity seriously: Religious associations and work-related discrimination', South African Law Journal, vol. 126, pp. 827-860.
Lenta, P 2009, 'The Constitution in the Classroom: Law and Education in South Africa 1994-2008, Stu Woolman and Brahm Fleisch: book review', South African Law Journal, vol. 126, pp. 615-617.
Lenta, P 2009, 'What Conditional Amnesty Is Not', Theoria, vol. 56, pp. 44-64.
Li, G & Riley, S 2009, 'Disclosure Requirements And Investor Protection: The Compatibility of Commownealth, State and Territory Laws in Serviced Strata Schemes', Australian Property Law Journal, vol. 16, no. 3, pp. 262-278.
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Policy objectives at the Commonwealth level call for unified and uniform disclosure as part of the law applying to managed investment schemes. Serviced strata schemes are a type of managed investment scheme and are therefore subject to Commonwealth objectives. However, the acquisition of an interest in a serviced strata scheme also comprises the purchase of an interest in real property, which is subject to laws applying in state and territory jurisdictions. The purpose of this article is to examine pre-contract disclosure mechanisms, applying at the state and territory level, to determine their compatibility with policy objectives advanced by the Corporations Act 2001 (Cth).The authors argue that the present regime does not promote a uniform response in accordance with Commonwealth policy. Consequently the authors advocate the adoption of Australia-wide standards in pre-contract disclosure, enabling state and territory disclosure provisions to work in synergy with Commonwealth aims and objectives.
Luker, T 2009, 'Reading the Evidentiary Void: The Body at the Scene of Writing', Griffith Law Review, vol. 18, no. 2, pp. 298-313.
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In Cubillo v Commonwealth (2000), a form of consent with the purported thumbprint of Topsy Kundrilba was found to offer sufficiently persuasive evidence to reject the claim of forcible removal of an Indigenous child. In this landmark action in relation to the Stolen Generations, the thumbprint was imbued with the status of a signature which was interpreted as indicating a motherï½s informed consent to the removal of her son. Drawing on Derridaï½s concept of iterability, I suggest that the thumbprint cannot be read as a signature, and propose an alternative deconstructive reading. I argue that the form of consent exemplifies colonial documentary practices which were implemented in an attempt to make Indigenous subjects legible and to produce subjectivity which conformed to normative white patriarchal order.
Millbank, J 2009, '‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations', International Journal of Refugee Law, vol. 21, no. 1, pp. 1-33.
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Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of 'fast-track' processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group (PSG) ground decisions made on the basis of sexual orientation over the past fifteen years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to found recommendations for structural and institutional change aimed at improving more generally the credibility assessment process in refugee determinations. © The Author (2009). Published by Oxford University Press. All rights reserved.
Millbank, J 2009, 'From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom', The International Journal of Human Rights, vol. 13, no. 2-3, pp. 391-414.
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© 2009 Taylor & Francis. In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim for refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could ‘expect’ refugee applicants to ‘co-operate in their own protection’ by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by ‘choice’. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicant’s claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and Westernised notions of ‘gayness’ as a template against which the applicants were judged.
O'Connell, K 2009, 'The Clean and Proper Body: Genetics, Stigma and Disability Discrimination Law', Australian Journal of Human Rights, vol. 14, no. 2, pp. 139-162.
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The dividing line between the stigmatised and normalised, `clean and proper, body is integral to law. Disability discrimination laws, even as they set out to offer protection to those defined as disabled, entrench the division between normalised self and stigmatised other, projecting onto the `disabled body those abject qualities of incapacity or vulnerability that the privileged normalised body seeks to deny. This seemingly static relationship, however, has the potential to be transformed by the disruptive qualities of the new genetics. Genetic technologies create novel forms of abjection, revealing all bodies as flawed and undermining the fantasy of the clean and proper body. This allows for the possibility of a new approach to disability discrimination laws, based on a more ethical relationship between the normalised and stigmatised body
Opeskin, B 2009, 'Malaria in Pacific Populations: Seen But Not Heard?', Journal of Population Research, vol. 26, no. 2, pp. 175-199.
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Most Pacific Island countries are located in the tropics, where there is an abundance of mosquitoes with the potential to carry debilitating or life-threatening vector-borne diseases. This article examines three Melanesian countries in which malaria is endemic - Papua New Guinea, Solomon Islands and Vanuatu - but the threat posed by the spread of malaria gives the issues a broader significance to the Pacific region. After discussing the spatial distribution and prevalence of malaria in the Pacific, the article examines a number of health interventions through which people have sought to control malaria. Although the disease was nearly eradicated in the Pacific in the 1970s, it is no longer in retreat. The article concludes by examining why there are still grounds for cautious optimism, and the challenges that Pacific Island countries face in reducing the impact of malaria on their populations. There is a need for prompt and concerted action on malaria at the national, regional and international levels if the public health concerns arising from the disease are to be adequately addressed. © Springer Science & Business Media BV 2009.
Opeskin, B & MacDermott, T 2009, 'Resources, Population and Migration in the Pacific: Connecting Islands and Rim', Asia Pacific Viewpoint, vol. 50, no. 3, pp. 353-373.
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This article examines international migration in the Pacific and argues that there should be still greater opportunities for the people of Pacific countries to migrate between their home states and the developed states of the Pacific Rim. The case for borders that are more permeable to human migration is based in part on the common Pacific predicament of poor resource endowments, rapidly growing populations, depletion and degradation of existing resources, and threats posed by anthropogenic climate change. Coupled with this is a history of colonisation that has left some Pacific peoples with liberal access to economic opportunities in developed states by virtue of their citizenship or preferential visa status, while others have no such opportunities. Both New Zealand and the United States have been reasonably generous in facilitating migration from Polynesia and Micronesia. It is Australia that stands out as the Pacific neighbour with the greatest capacity to develop new migration streams. The seasonal worker scheme announced by the Australian Government in August 2008 takes a cautious but valuable step along this path, yet there is scope for further expanding Pacific access by broadening the geographical, temporal and material scope of existing migration arrangements. © 2009 The Authors. Journal compilation © 2009 Victoria University of Wellington.
Peel, E & Thomson, M 2009, 'Editorial Introduction: Lesbian, Gay, Bisexual, Trans and Queer Health Psychology: Historical Development and Future Possibilities', Feminism & Psychology, vol. 19, no. 4, pp. 427-436.
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Rawling, MJ 2009, 'The Impact of Federal Legislation Upon the Scope of State Jurisdictions to Regulate Outwork', Australian Journal of Labour Law, vol. 22, no. 2, pp. 147-160.
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This article examines the potential scope of legal protections for certain outworkers as a result of recently enacted federal legislative provisions. The article begins with an overview of existing legal protections under state and territory laws for independent contractor outworkers labouring in industries outside the textile, clothing and footwear sector protections which survived the Howard governments federal takeover of labour law. The article then examines how the further centralisation of labour law under the Rudd Labor government has affected these existing legal protections. In particular, the article analyses the impact upon these state jurisdiction legal protections from the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) and the Fair Work Act 2009 (Cth).
Redmond, PM 2009, 'Corporate social responsibility: An overview of trends and issues', Reform, vol. Smr2005-06, no. 87, pp. 7-11.
Riley, J 2009, 'The Boundaries of Mutual Trust and Confidence', Australian Journal of Labour Law, vol. 22, no. 1, pp. 73-86.
Riley, J 2009, 'Transfer of business under the Fair Work Act', Commercial Law Quarterly, vol. 23, no. 2, pp. 15-22.
Riley, J 2009, 'Workplace Dispute Resolution under the Fair Work Act: Is there a role for Private Alternative Dispute Resolution Providers?', Australasian Dispute Resolution Journal, vol. 20, no. 4, pp. 236-243.
Riley, S 2009, 'A Weed by any Other Name: Would the Rose Smell as Sweet if it Were a Threat to Biodiversity?', The Georgetown International Environmental Law ..., vol. 22, no. 1, pp. 157-184.
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Defining and determining what amounts to an invasive alien species has always been a challenging task for states. In particular, where a species is regarded as a resource by one product sector or regime, but considered harmful by another sector or regime, States must often balance or compromise competing claims. Such is the case with respect to the emerging issue of biofuels. Biofuels which are plants from which precursor alcohols such as methanol and ethanol are distilled are seen by states as a potential solution to the problems of climate change and the energy crisis. Yet, many plant species that are promoted as efficient sources of biofuels are also amongst the worldâs worst invasive species. Effective IAS regimes need to be based on a variety of features, including the formulation of definitions that clearly articulate the object and parameters of regulation, as well as the political will to make definitions operational by implementing appropriate regulation. Without clarity of definition and political will, regulators face uncertainty with respect to the establishment of meaningful regimes. Although environmental instruments such as the CBD Guiding Principles and the IUCN Guidelines contain definitions of âinvasive alien speciesâ that are wide enough to include species considered a resource, States have not predominantly embraced these approaches. This hesitancy fundamentally reflects a lack of political will on the part of States to regard useful species as an actual or potentially invasive alien species â a situation that is set to reoccur in the case of biofuels.
Riley, S 2009, 'Preventing Transboundary Harm from Invasive Alien Species', Review of European Community and International Environmental Law, vol. 18, no. 2, pp. 198-210.
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The problem of invasive alien species (IAS) is the second biggest threat to biodiversity after loss of habitat. The introduction and spread of IAS can also be a source of transboundary environmental harm. Although customary international law obliges States to prevent transboundary environmental harm, international law does not clearly articulate these obligations in the context of IAS. A potentially helpful mechanism lies in the use of transboundary environmental impact assessment and risk analysis. However, the operation of these processes, within international environmental law, international quarantine law, and international trade law has generated obligations that largely remain soft, ill-defined and inconsistent. This situation is counter productive to preventing or minimizing transboundary harm caused by IAS.
Riley, S & Li, G 2009, 'Disclosure Requirements and Investor Protection: The Compatibility of Commonwealth, State and Territory Laws in Serviced Strata Schemes', Australian Property Law Journal, vol. 16, no. 3, pp. 262-262.
Rodal, R, Ries, NM & Wilson, K 2009, 'Influenza vaccination for health care workers: towards a workable and effective standard.', Health Law J, vol. 17, pp. 297-337.
Sheldon, S 2009, 'A missed opportunity to reform an outdated law', Clinical Ethics, vol. 4, no. 1, pp. 3-5.
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Sheldon, S 2009, 'From ‘absent objects of blame’ to ‘fathers who want to take responsibility’: reforming birth registration law', Journal of Social Welfare and Family Law, vol. 31, no. 4, pp. 373-389.
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Simmonds, A 2009, 'Rebellious Bodies and Subversive Sniggers?', History Australia, vol. 6, no. 2, pp. 39.1-39.16.
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© 2009 Taylor and Francis Group LLC. This article challenges orthodox interpretations of the relationship between laughter and agency among women in nineteenth-century colonial Australia. It seeks to complicate functionalist accounts of laughter and play as always representing a working-class challenge to the imposition of middle-class values: not by denying such accounts, but by opening up debate on the relationship between laughter, class and place. While it is true that laughter could operate as an affront to male authority and the repressive colonial penal system, this article suggests that it was a contested discourse, reliant on social class and a sense of place in the colonial order of things. Through a re-reading of the infamous Cascades bottom-slapping incident, it explores the ways in which womens1 humour and the corporeal expression of their laughter functioned to draw the contours of social class. This article has been peer-reviewed.
Simmonds, AP 2009, 'Friendly fire: forced friendship and violent embraces in British-Tahitian first contact', Melbourne Historical Journal, vol. 37, pp. 115-136.
Simmonds, AP 2009, 'Rebellious bodies and subversive sniggers?: embodying women's humour and laughter in colonial Australia', History Australia, vol. 6, no. 2, pp. 1-16.
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This article challenges orthodox interpretations of the relationship between laughter and agency among women in nineteenth-century colonial Australia. It seeks to complicate functionalist accounts of laughter and play as always representing a working-class challenge to the imposition of middle-class values: not by denying such accounts, but by opening up debate on the relationship between laughter, class and place. While it is true that laughter could operate as an affront to male authority and the repressive colonial penal system, this article suggests that it was a contested discourse, reliant on social class and a sense of place in the colonial order of things. Through a re-reading of the infamous Cascades bottom-slapping incident, it explores the ways in which women¹s humour and the corporeal expression of their laughter functioned to draw the contours of social class. This article has been peer-reviewed.
Sozou, PD, Sheldon, S & Hartshorne, GM 2009, 'Withdrawal of consent by sperm donors', BMJ, vol. 339, no. oct20 3, pp. b4297-b4297.
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Thornton, M & Luker, T 2009, 'THE SPECTRAL GROUND: RELIGIOUS BELIEF DISCRIMINATION', MACQUARIE LAW JOURNAL, vol. 9, pp. 68-88.
Thornton, M & Luker, T 2009, 'The Spectral Ground: Religious Belief Discrimination', Macquarie Law Journal, vol. 9, pp. 71-91.
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This article considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. Religious belief is never defined under anti-discrimination law; it merely has to be 'lawful', which is also not defined. This gives the proscription a permeable character, allowing mainstream Christianity, neoconservatism and other variables to seep in. An analysis of discrimination complaints shows how this occurs metonymically through other proscribed grounds, such as sexuality, ethnicity and race. The phenomenon is most marked post-9/11 in relation to 'Islamophobia'. The proscription of religious vilification and incitement to religious hatred further reveals the tendency of the spectral ground to absorb prevailing political influences.
Thornton, M & Luker, T 2009, 'The Wages of Sin: Compensation for Indigenous Workers', University of New South Wales Law Journal, vol. 32, no. 3, pp. 647-673.
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The exploitative practices by employers that led to the situation of 'stolen wages' of Indigenous Australians, which denied them their rightful employment wages during the 19th and 20th centuries are discussed, as also the legal efforts undertaken by the Indigenous people to rectify the situation. It is suggested that anti-discrimination legislation should be used when considering the resolution of the relevant cases instead of the breach of fiduciary duty clause being used currently.
Tian, Y 2009, 'Impacts of Recent Development of the Madrid System on Australian Users & Recommendations for Future Reform', Macquarie Journal of Business Law, vol. 6, pp. 163-180.
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With the development of the globalization and international trade, the international registration of Trade Marks (TMs) becomes increasingly important for a country to accumulate business fortune and maintain sustainable economic growth. Against this backdrop, the 'tendency towards integration and internationalization ofTM law is consequential'.
Tian, Y 2009, 'Intellectual property (IP) protection versus IP abuses: The recent development of Chinese IP abuse rules and recommendations for foreign technology-driven companies', Computer Law & Security Review, vol. 25, no. 4, pp. 352-366.
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This paper will focus on the recent development of the Chinese IP abuse legislation and its potential impact on IP protection and the operation of technology-driven foreign enterprises in China. Firstly, it will provide a brief overview of the TRIPS's requirements on IPR abuse and technology transfer, and the recent development of IP abuse laws at the domestic level, particularly in the US and the EC. Secondly, by drawing a comparison with similar laws in the US and the EC, this paper will critically examine the recent development of the Chinese laws regarding technology transfer and IP abuse prevention, including both the recently enacted Anti-Monopoly Law 2008 (AML) and other prior-AML regulations. Thirdly, the paper will examine both opportunities and potential risks these laws may bring to foreign IP holders/technology-driven companies when operating in China, particularly focusing on the impact of the IP-related provision in the AML. Recent development in antitrust litigation in which Microsoft is a party, including the recent anti-monopoly investigation against Microsoft in China, will also be examined. Lastly, it will provide some practical suggestions for foreign IP holders and technology-driven companies to operate in China, such as useful defences against potential IP abuse claims, and other strategies for flexibly applying the IP abuse rules and better participating in future IP abuse legislative process in China. © 2009 Dr. Yijun Tian.
Varnham, S & Evers, M 2009, 'Secular, singular and self-expression? Religious freedom in Australian and New Zealand education', IRISH EDUCATIONAL STUDIES, vol. 28, no. 3, pp. 279-296.
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Religious diversity in Australian and New Zealand Education
Vijeyarasa, R 2009, 'Putting Reproductive Rights on the Transitional Justice Agenda: The Need to Redress Violations and Incorporate Reproductive Health Reforms in Post Conflict Development', New England Journal of International and Comparative Law, vol. 15, no. 1, pp. 41-62.
von Tigerstrom, B & Ries, NM 2009, 'Cancer surveillance in Canada: analysis of legal and policy frameworks and tools for reform.', Health Law J, vol. 17, pp. 1-49.
Vrdoljak, AF 2009, 'Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law', European Journal of International Law, vol. 20, no. 4, pp. 1163-1194.
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2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Uni versal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the import ance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experi ence from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment.
Watson, N 2009, 'Of Course It Would Not be Done in Dickson! Why Howard's Battlers Disengaged from the Northern Territory Emergency Response', Borderlands E-Journal, vol. 8, no. 1, pp. 1-19.
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In the name of Aboriginal children, the Howard Government created the Northern Territory Emergency Response (NTER) and thus began a form of apartheid affecting almost seventy per cent of the Northern Territorys Aboriginal population. The NTER facilitated the quarantining of income support payments, the dismantling of protection against unlawful discrimination and the wholesale acquisition of Aboriginal lands. When announcing the NTER, John Howard denied that it was racially motivated, and suggested that had the same circumstances occurred in the middle class suburb of Dickson, similar action would have been taken. While it is outrageous to suggest that any government would ever seize the property interests of middle class families as a response to allegations of child abuse, the Prime Ministers reference to Dickson was nonetheless instructive. This paper will argue that forces within the electorate, such as an obsession with home ownership and the criminalisation of poverty, provided the real impetus for the NTER, rather than genuine crises within Aboriginal communities.
Watson, N 2009, 'Regulating Alcohol: One Step Forward, Two Steps Back?', Indigenous Law Bulletin, vol. 7, no. 11, pp. 27-30.
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Strengthening of alcohol restrictions in Indigenous communities - commitment by Bligh Government to be applauded however the Act reduces the scope for effective partnerships between Government and Indigenous communities - closure of Aborigines Welfare Fund (AWF) - increased police search powers - need for community consultation.
Anthony, T 1970, 'From Paradise to Prison: Palm Island', University of Sydney Macleay Museum Public Lecture, Macleay Museum.
Anthony, T 1970, 'Indigenous issues in the lasw curricula: moving beyond neo-colonial legal education', UTS Faculty of Law Teaching & Learning Seminar series, UTS.
Anthony, T 1970, 'Indigenous recognition in criminal sentencing and the withering of the community', Australia and New Zealand Society of Criminology, Perth.
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This paper considered the recharacterisation of Indigenous communities and the rising importance of Indigenous victims in criminal sentencing over the past decade. It focused on sentencing jurisprudence in relation to Indigenous offenders in remote communities. It argued that recognition of Indigenous communities in criminal sentencing is a malleable concept that is prone to law and order politics as well as the politics of Indigenous affairs. If Indigenous community factors are to be deemed relevant as sentencing factors they require clearer enunciation that is derived through an Indigenous community consultative and legislative process.
Anthony, T 1970, 'Sentencing Indigenous Resisters as if the Death in Custody Never Occured', Australia and New Zealand Critical Criminology Conference, Critical Criminology Conference, School of Politcial and Social Inquiry, Monash University, Monash University, pp. 6-18.
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This paper addresses the trends in sentencing by higher courts of Indigenous protesters against `white racist violence. It contrasts earlier sentencing decisions affecting resisters on the Yarrabah Reserve in 1981 and towards the 1987 death in custody of Lloyd Boney at Brewarrina (NSW), with later sentencing of protesters after Mulrunjis death in custody on Palm Island in 2004. It argues that Indigenous resisters are increasingly characterised by sentencing judges as out-of-control rather than capable of legitimate political engagement. This dovetails a denunciation of the Indigenous community in media moral panics that demands more punitive restraint.
Anthony, T 1970, 'Sentencing indigenous 'rioters' as if the death in custody never occurred', Australia & New Zealand Critical Criminology Conference 2009, Monash University, Melbourne.
Booth, T 1970, 'Sentencing and a Multitude of Victims: towards the development of a victimology for crimes involving mass victimisation', Victimology and Human Security: the 13th International Symposium on Victimology, Mito, Japan.
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This paper aims to contribute to developing victimology with regard to victim participation in the sentencing of offenders convicted of crimes involving mass victimisation. Such crimes include terrorism related offences, human trafficking and arson. Although not without controversy, victim participation in the sentencing of 'conventional' homicide offenders has become a well established feature of many national systems. Unique issues arise however in circumstances of mass victimisation and several jurisdictions have already experienced significant legal and political difficulties grappling with victim impat evidence in domestic terrorim cases (Indonesia, USA). A contemporary challenge for legislators is to formulate policy and implement an appropriate legislative framework that will maintain due process and faciltate participation by crime victims in conformity with community standards and expectations. Drawing on the exeperiences of US courts that have recently grappled with the phenomenon of victim impact evidence in domestic terrorism cases, this paper will explore particular issues including the selection of victims to be heard, the enormous volume of victim impact evidence an courtroom governance of concomitant emotions.
Boydell, S, Crofts, P, Prior, JH, Jakubowicz, AH & Searle, GH 1970, 'Sex in the city: regulations, rights and responsibilities in Sydney', State of Australian Cities (SOAC) Conference, State of Australian Cities Conference, Promaco Conventions Pty Ltd and DiskBank, Perth, Australia, pp. 1-24.
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The state regulates sex industry types in accordance with a range of complex, overlapping and often conflicting legal, policing, planning and administrative mechanisms. The sex industry in Sydney is currently regulated through all levels of Australian government. New South Wales (NSW) is seen as leading the charge within Australia for its neoliberal market model of occupational and premises regulation. Taking a transdisciplinary research design, this paper identifies positive steps towards citizenship and the sex industry in inner Sydney.
Boydell, S, Watson, N, Mangioni, V, McMillan, MD & Sankaran, S 1970, 'The Republic and its impact on property rights in Sydney', State of Australian Cities (SOAC) Conference, State of Australian Cities Conference, SOAC, Perth, Australia, pp. 1-21.
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In 1973, the Federal Commission of Inquiry into Land Tenures identified that `in our modern complex society, an individualistic approach to property rights and land ownership is incompatible with public interest, unless individual rights are restricted to the use and enjoyment of the land (Else-Mitchell et al., 1973, p.17). We offer a theoretical inquiry into the institutional arrangements to enable an innovative land restitution model for Sydney within a new Republic, by vesting the superior interest in land (and buildings thereon) in the stewardship of the customary indigenous guardians (rather than the State or Crown). The model analyses leasehold solutions and land tax implications to ensure the continued economic growth of the City of Sydney under such a restitution arrangement.
Dorsett, SG 1970, ''Defects of Religious Principle' and Unsworn Maori Testimony in the New Zealand Courts 1840-1850', 28th Annual Australian and New Zealand Law and History Conference, Victoria University of Wellington.
Dorsett, SG 1970, 'Perspectives on Sovereignty as Colonial Administration in the Early New Zealand Crown Colony Period', Transpositions of Empire, Prato, Italy.
Mowbray, AS, Chung, PT & Greenleaf, GW 1970, 'Free-access Law Enhancements for Australian Law', Proceedings of the 9th International Conference 'Law via the Internet', International Conference 'Law via the Internet', European Press Academic Publishing, Florence, Italy, pp. 285-298.
Rawling, MJ 1970, 'Will the Rudd Federal Labor Government Abolish Key Legal Protections for Certain Exploited Vulnerable Workers?', Australian Labour Law Association Fourth Biennial Conference, Rydges Hotel. Exhibition Street Melbourne.
Rawling, MJ & Johnstone, R 1970, 'Regulating Supply Chains', Paradoxes of the supply chain workers' health and safety: An international seminar on the role of the supply chain in health and safety management and performance, Cardiff University, UK.
Riley, S 1970, 'Law is Order and Good law is Good Order', Law is Order and Good law is Good Order, Governance and Environment Sustainability, IUCN, China, pp. 1-34.
Riley, S & Li, G 1970, 'Disclosure Requirements and Investor Protection: the compatibility of Commonwealth, state and territory laws in serviced strata schemes', Disclosure Requirements and Investor Protection: the compatibility of Commonwealth, state and territory laws in serviced strata schemes, Raising Confidence in the Capital Markets through Gatekeeper Accountability: Lessons from the credit crunch., Corporate Law Teachers Association, Sydney, pp. 1-19.
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Policy objectives at the Commonwealth level call for unified and uniform disclosure as part of the law applying to managed investment schemes. Serviced strata schemes are a type of managed investment scheme, and are therefore, subject to Commonwealth objectives. However, the acquisition of an interest in a serviced strata scheme also comprises the purchase of an interest in real property, which is subject to laws applying in state and territory jurisdictions. The purpose of this paper is to examine pre-contract disclosure mechanisms, applying at the state and territory level, to determine their compatibility with policy objectives advanced by the Corporations Act 2001 (Cth). The authors argue that the present regime does not promote a uniform response in accordance with Commonwealth policy. Consequently the authors advocate the adoption of Australia-wide standards in pre-contract disclosure, enabling state and territory disclosure provisions to work in synergy with Commonwealth aims and objectives.
Riley, S & Li, G 1970, 'Serviced Strata Schemes: Real Property or A Financial Product?', Serviced Strata Schemes: Real Property or A Financial Product?, Pacific Rim Real Estate Society 15th Annual Conference, Pacific Rim Real Estate Society, Sydney, pp. 1-15.
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Over the last two decades, serviced strata schemes have become a popular investment vehicle for many people aspiring to enter the real estate market. On one level, serviced strata schemes are based on ownership of strata title and are regulated according to state and territory strata title and conveyancing laws. Yet, serviced strata schemes are also a way of pooling resources and are additionally regulated as managed investment schemes under the Corporations Act 2001 (Cth). These dual layers of regulation are primarily, although not exclusively based on disclosure mechanisms. The purpose of this paper is to examine those mechanisms to determine the compatibility of state/territory laws to commonwealth objectives and also to determine the extent to which the present regime meets the needs of investors. It is concluded that lack of uniformity amongst state and territory laws is at odds with the unified approach fostered by the Corporations Act 2001 (Cth). This discrepancy potentially undermines the protection of investors. We therefore argue that the way forward should encompass Australia-wide codes applying to disclosure regimes with respect to the acquisition of an interest in strata title.
Tian, Y 1970, 'China's IP Abuse Rule: Another approach to protecting the public domain', Unlocking IP Conference: National and Global Dimensions of the Public Domain, University of New South Wales, Faculty of Law, Sydney Australia.
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This paper will focus on the recent development of the Chinese IP abuse legislation and its potential impact on IP protection and technology transfer in China. Firstly, a brief overview of the TRIPS requirement concerning IPR abuse and technology transfer, and the recent development of IP abuse laws at domestic levels, particularly in the US and the EC, will be given. The paper will then examine the recent development of the Chinese laws regarding technology transfer and IP abuse prevention, including both the recently enacted Anti-Monopoly Law 2008 (AML) and other regulations. Specifically, the ways in which IP-related provisions in the Chinese Anti-monopoly law 2008 balance the interests of different stakeholders, and facilitate technology transfer from developed nations to developing nations, will be discussed. Recent antitrust lawsuits, including the antimonopoly investigation against Microsoft in China, will also been examined. Finally, this paper will argue that rules preventing IP abuse and antitrust laws may serve as a supplement to current public rights measures (such as fair use and fair dealing doctrine and the open source movement), to enhance the public domain, consumer interests and fair competition.
Tian, Y 1970, 'Intellectual Property and Antitrust Risks of Foreign Investors in the Process of Direct Investment or Acquisition in Australia', presented to the Foreign Direct Investment Delegation from the State-owned Assets Supervision and Administration Commission (SASAC) of the State Council, P.R. China, (invited by Australian Technical Experts Network (ATEN)),, University of Sydney.
Tian, Y 1970, 'Recent Development of Chinese IP Abuse Rules & Recommendations for Foreign Technology-driven Companies', IP Academics Conference: Forty Years of Intellectual Property as an Academic Discipline â Taking Stock and Looking Forward, Melbourne Law School, Australia.
Tian, Y 1970, 'The Impacts of the Chinese Anti-Monopoly Law on IP Commercialization in China and General Strategies for Foreign Investors and Future Regulators', Intellectual Property Scholars Roundtable, Drake University Law School, Iowa USA.
Tian, Y 1970, 'Towards More Balanced IP Protection: Chinese Anit-Monopoly Law and its Impacts on Innovation Stimulation and IP Abuse Prevention in China', The 5th International Conference on Intellectual Property Protection of HIgh Technology, Tsinghua University, Beijing, China.
van Rijswijk, HM 1970, 'A Civil Ethics of Injury? Discourses of Justice in Negligence Law', Law and Society Conference of Australia and New Zealand, Griffith Law School.
van Rijswijk, HM 1970, 'A Civil Ethics of Injury?: Transgressive Moral Language in Negligence Law Reform', Law and Literature Association of Australia and Law and Society Association of Australia and New Zealand Joint Conference, Griffith Law School.
van Rijswijk, HM 1970, 'Literary and Legal Judgment in Carpentaria and Mabo', Literature and Politics Conference, University of Sydney.
van Rijswijk, HM 1970, 'The Poetics and Politics of the Past: Time and Responsibility in Tort, Trauma Theory and Literary Fiction', Law, Culture and Humanities Association Conference, Boston, USA.
van Rijswijk, HM 1970, 'Transformative Spatiality and the Adjudication of the Private/Public Divide in Literary Claims for Justice', joint Law and Literature Association of Australia (LLAA) and Law and Society Association of Australia and New Zealand Inc. (LSAANZ) Conference, Griffith Law School, Brisbane, Australia.
van Rijswijk, HM 1970, 'Transformative Spatiality and the Adjudication of the Private/Public Divide in Literary Claims for Justice', Law and Literature Association of Australia and Law and Society Association of Australia and New Zealand Joint Conference, Griffith Law School.
Vijeyarasa, R 1970, 'The Vietnamese state and family: (Re)-Stigmatising victims of trafficking', International Association for the Study of Sexuality, Culture and Society (IASSCS) Conference, Hanoi, Vietnam.