Suchergebnisse

Collection institutions (Libraries, Archives, Galleries, and Museums) are responsible for storing and preserving large amounts of digital data, which can range from historical/public figure records, to state or country- wide events. The ingest process often requires sifting through large amounts of data which may not always be sorted or categorized from the source/donor. It is possible to discover information that was not intended to be disclosed should the donor not be privy to the existence of said material. This issue is typically handled by communicating with the donor, however, if they have no relation to what has been uncovered in the data, further steps may need to be taken. If the data belong to or are about someone living, that person may need to be contacted, depending on the nature of the data discovered. If the person of interest is no longer living, legally there would no issue disclosing all information uncovered, how- ever, implications for living relatives must be considered should the disclosed information be potentially revealing or harmful to them. This can include hereditary health issues, political or religious views, and other sensitive in- formation. There are significantly more variables to con- sider, such as public interest and defamation which can heavily impact the decision process following the discovery of sensitive data, all whilst guided, but not necessarily enforced by law. This remains somewhat of a gray area as the entities handling such data are often exempt from these laws and principles, making these decisions ethically and morally based more so than legally. In this article, the Australian laws and policies that surround privacy issues, defamation, and data relating to Aboriginal and Torres Strait Islander people and culture are explored. The aim is to raise awareness on potential issues that may arise in collection institutions as well as potential threats already sitting in storage and the laws and policies that may serve as guidelines to help overcome/mitigate such ...

This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is only unreasonable if the circumstances are so plain and obvious that no prudent person will rely on the advice. In contrast, recent Australian cases, particularly ASIC v Healey, ASIC v MacDonald and ASIC v Fortescue, restrict the circumstances in which directors can rely on professional advisers, even in specialist matters. This paper argues that the difference in approach between the two jurisdictions can be explained on two grounds. First, the Australian cases can be distinguished from the English cases because the former are special situations dealing with matters involving non-delegable duties of care imposed by legislation. Second, the potential outcomes of the breach of the duty of care differ in England and Australia, and this difference has a much deeper, substantive influence on the content of the standard of care. Contrary to academic suggestion, it is suggested that the Australian developments may not always be appropriate in determining the scope of the defence of reliance on professional advice in England.

Developments in Australian law over the last 40 years have allowed transgender persons a greater level of autonomy when it comes to establishing their legal gender. The shift in some jurisdictions from employing a strict biologically-based test for determining gender identity to adopting a multifactorial approach based on a broad range of relevant factors has enabled a greater number of individuals to gain legal recognition of their preferred gender. This article traces the development of a gender identification test at common law. It explores Australian federal and state legislative schemes and draws attention to the inconsistencies between jurisdictions. It also highlights the impact that these statutory variations may have upon transgender individuals. Parts I, II and III discuss the current approach to regulating gender identity at common law and via legislation. Part IV discusses the impact of these laws on transgender people and highlights the need for all Australian jurisdictions to adopt a uniform approach to gender identification.

This paper articulates the human rights violation of the minority group of Aborigines Community in Australia. Australia has ratified the International Committee for Elimination of Racial Discrimination (ICERD), and the International Covenant on Civil and Political Rights (ICCPR), and other human rights doctrines that protect the rights of Aborigines and Torres Strait Islanders; however the Government of Australia from its inception have done little to ensure that those political protections are effective in ensuring the genuine protection of the rights of indigenous peoples. Most frequently cited is the failure of international laws to ensure the land and self-determination rights of these peoples. However, domestic law could undoubtedly ensure that these rights are in place, if the desire to do so is present within the Australian government.

The Australian corporate insolvency and personal bankruptcy regimes are separate. In recent ears, it has been suggested the two procedures should be merged. Those favouring merger believe it would increase efficiencies, reduce existing overlap and lessen costs. The benefits of a single insolvency regulator are noted as one particular benefit of merged insolvency legislation. Such arguments in support of merger underestimate the difficulties associated with unification given the tradition of separate insolvency laws within Australia and the terms of the Constitution. Significant costs would be associated with merging insolvency and bankruptcy legislation and the reduction of two governmental insolvency regulators to one. The Commonwealth may be unable o enact merged insolvency legislation that included all existing insolvency provisions given limitations within the Constitution. These limitations do not appear to have been addressed by those arguing in favour of merged insolvency procedures. The corporate insolvency and personal bankruptcy procedures have similar objectives and procedures. Both provide for the appointment of an independent entity to ascertain the debtor's abilities, realise their assets and distribute the proceeds among creditors. Further, both allow a debtor to appoint an independent entity to administer their estate while they have an opportunity o develop a plan for repayment of their creditors. Due to the differing characteristics of a corporation and natural person, distinctions must necessarily exist between corporate insolvency and personal bankruptcy. For example, bankruptcy law provides for the administration of a deceased bankrupt's estate and allows the debtor to retain certain assets during their bankruptcy such as tools of trade. However, there are also other differences between the two regimes unrelated to the distinct characteristics of a corporation and natural person. A bankrupt's property vests in the trustee administering their estate whereas a liquidator only assumes control of an solvent corporation's property. While certain differences between insolvency and bankruptcy would need to remain in merged insolvency legislation, there is no reason why such divisions would prevent unification. Rather, such differences are another source of the difficulty associated with merging the two regimes. In the United States and Canada, "true" merged insolvency legislation that applies to both corporations and natural persons has existed for a number of years. Indeed, the United States enacted merged insolvency legislation in the late 1860s. Britain's earliest laws with respect to corporations separated the treatment of insolvent corporations from the treatment of bankrupt debtors. However, in the late 1970s, the British government established a Committee to investigate the possibility of merging the two regimes. In 1982 this Committee delivered a report commending that Britain's corporate insolvency and personal bankruptcy regimes be merged. he legislation intended to implement these recommendations was enacted in 1986 but did not adopt the merger proposal. Rather the British corporate insolvency and personal bankruptcy provisions remain within separate pans of the Insolvency Act 1986) (UK), although included in the ne enactment. Finally, there are jurisdictions that currently have separated insolvency procedures ut have expressed support for the concept of a merged regime. These include the Law Commissions of New Zealand and South Africa, although the South African Law Commission SALC) ultimately decided not to draft merged insolvency legislation. The primary argument put forward by those in support of merger is that it would reduce costs and increase efficiencies. Supporters of merger are critical of the overlap between corporate solvency and personal bankruptcy.They note inefficiencies and increased costs arising from the read of bankruptcy and insolvency regulatory and policy functions among four administrative bodies. Some advocates of merger believe the existing division of corporate insolvency and personal bankruptcy increases division between the two procedures. This is in conflict with the stated wish of government and the courts for more uniformity between corporate insolvency and personal bankruptcy. While acknowledging the process of merger would involve time and expense, advocates of merger are confident its benefits would exceed the initial set-up costs. Opponents of merger and those uncertain about the concept are not so confident its benefits would outweigh the implementation costs. These individuals feel the process of drafting merged insolvency legislation that applies to both corporations and natural persons would involve significant time and expense. Contrary to arguments in support of merger, some of its opponents do not accept practitioners would quickly understand new legislative provisions. Further, many feel the process of merging insolvency regulators would take considerable time. Arguments opposing a merger suggest the removal of current insolvency provisions from the Corporations Act 2001 (Cth) would only create more complexity and difficulty. Many definitions used in insolvency laws are specific to the Corporations Act and there would need to be some form of cross-referencing for them to apply. Insolvency practitioners cannot -wind up a company by reference to insolvency laws alone.Rather they may be forced to refer to laws on director's duties and taxation matters to ensure they provide the greatest potential recovery for creditors of the particular company being wound up. If insolvency provisions are located in a new insolvency enactment, there will be inconvenience to practitioners forced to rely on two pieces of legislation where previously they relied on one enactment. Finally, the scope of Commonwealth legislative powers with respect to bankruptcy and insolvency may not allow the Commonwealth to enact legislation including all existing aspects of corporate insolvency. Those supporting the concept of merger appear to assume the Commonwealth has comprehensive power to re-enact all insolvency provisions within merged legislation pursuant to s 51(xvii) of the Constitution. Section 51(xvii) grants the Commonwealth power to enact laws with respect to bankruptcy and insolvency. While the term insolvency is thought to permit laws with respect to the administration of insolvent corporations. Section 51 (xvii) grants existing insolvency provisions may apply to solvent corporations.For example, shareholders may resolve that a solvent corporation be wound up pursuant to s 491 of the Corporations Act. Considerable uncertainty exists as to whether such aspects of the current insolvency procedure would be authorised by s 51(xvii) of the Constitution or any other constitutional head of Commonwealth legislative power. Further complications may arise in relation to criminal provisions of the insolvency procedure if the Federal Court is granted exclusive jurisdiction of merged insolvency legislation. A suggestion has been made that the Federal Court should be given exclusive jurisdiction over merged insolvency legislation, given its exclusive jurisdiction of bankruptcy matters. Yet, the Federal Court has jurisdiction over just a few summary criminal offences as State Supreme Courts traditionally hold jurisdiction over criminal matters. Although it is possible for the Commonwealth to confer criminal jurisdiction on the Federal Court with State consent, such a conferral would be against tradition. The apparent solution would be for such criminal aspects to be excluded from merged insolvency legislation, although this would mean the exclusion of some significant criminal penalties including sanctions for insolvent trading. Again, this issue provides a further example of the complications surrounding the enactment of merged insolvency legislation that do not appear to have been fully taken into account by advocates of merger.

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and 'husband and wife', the wider term 're-partnering' is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v 1 Ingrilli, the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the 'standard' adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent.

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and 'husband and wife', the wider term 're-partnering' is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v Ingrilli,1 the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the 'standard' adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent.

This thesis examines the law and practice concerning two key policies directed at asylum seekers who arrive or attempt to arrive in Australia by boat; immigration detention and offshore processing. It is comprised of four parts. Part 1 provides an overview of the thesis, consolidating the published material with reference to political theory. A summary of the chapters is provided in Part II. Part III considers the contribution maoe by my work to the literature on asylum seeker policy in Australia. The main body of the thesis is contained in Part IV, which is comprised of 11 papers published between 2004 and 2013. ·

Proportionality has been used as an analytical method in the constitutional jurisprudence of courts around the world, including in Australia. The method has not, however, been free from controversy. Since its first introduction into Australian constitutional law, there have been debates regarding the appropriateness of proportionality testing in this context.To date, these debates have been lacking in one important respect: they have not been sufficiently grounded in theory. In times when the global literature on the subject was relatively nascent and applications in comparative constitutional contexts sparse, the under-theorisation of Australian proportionality was understandable. This is no longer the case. The burgeoning international literature and jurisprudence in this field has in recent years generated a rich body of judicial and academic thought from which to elicit a properly theorised consideration of proportionality. Drawing on these resources, this thesis proposes a theoretical framework for proportionality. It uses this framework to explore a key question in the Australian context: when is proportionality an appropriate analytical tool in constitutional jurisprudence? In examining this question, the thesis considers the primary concerns regarding the appropriateness of proportionality in Australian constitutional law and how these might be addressed. It also makes principled suggestions for the development of Australian doctrine.

Rhetoric on the topic of Australian citizenship has widely emphasised its significance, particularly as a source of important rights and corresponding obligations. Despite this, as many commentators have noted, the constitutional limits of Parliament's power over citizenship remain unsettled, and the rights and obligations that legally distinguish citizens from non-citizens are not easy to identify. This thesis is motivated by a desire to determine the extent to which claims about the significance of Australian citizenship are reflected in its reality, as a legal concept.There are three dimensions in which the legal concept of Australian citizenship is shaped: constitutional law, statute law and the common law. The thesis conducts a doctrinal study driven by two questions: First, what are the parameters of citizenship, and what rights and obligations are generated for citizens, within each of the three dimensions identified? Secondly, to what extent do the three dimensions intersect in a manner that helps to inform the legal meaning of Australian citizenship?The study finds that, within each individual dimension, silences and ambiguities limit the potential for a cohesive notion of citizenship that gives rise to clear rights and obligations to emerge. However, it demonstrates that, by paying close attention to the intersections between the three dimensions, it is possible to arrive at a conceptualisation of Australian legal citizenship that is more cohesive than the law within any individual domain would suggest. The thesis illustrates one way in which the intersections between the different citizenship dimensions might be coherently resolved. This is by no means the only interpretation available, nor does it provide an answer to every question that has plagued citizenship law in Australia. However, it serves as an indication of the potential for a clearer notion of Australian legal citizenship than that which exists at present to be developed through focus on the connections between existing conceptualisations of citizenship.Note: There have been a number of very recent changes and proposals for change in the area of citizenship law, both in Australia and in foreign countries. I have endeavoured to incorporate these developments into this thesis, as far as possible. The state of the law reflected in the thesis is, to the best of my knowledge, correct as at March 10 2015.

In the Common Law system judges have the power to create subsidiary laws: they make rules in strict sense. This Kind of power responds to a special way in which the Common Law develops and adapts itself to achieve the best rules for a given society. Understanding how the Australian law system works, as an example of a common law structure, and how judges interact with the parliament in the creation of the best rules of law -which makes the process coherent- is paramount for other legal systems that have a mixture of legal institutions from both civil and common law systems, as Colombia. Colombia has an unclear mixture of law systems, which generates an uncertainty of the application of the law producing both by judges and parliament, and serious structural law problems; so, understanding the basis of the common law system it is important to clarify the limits in the competence of each authority and the interaction between the law made by the Parliament and the one that the judges produce. ; In the Common Law system judges have the power to create subsidiary laws: they make rules in strict sense. This Kind of power responds to a special way in which the Common Law develops and adapts itself to achieve the best rules for a given society. Understanding how the Australian law system works, as an example of a common law structure, and how judges interact with the parliament in the creation of the best rules of law -which makes the process coherent- is paramount for other legal systems that have a mixture of legal institutions from both civil and common law systems, as Colombia. Colombia has an unclear mixture of law systems, which generates an uncertainty of the application of the law producing both by judges and parliament, and serious structural law problems; so, understanding the basis of the common law system it is important to clarify the limits in the competence of each authority and the interaction between the law made by the Parliament and the one that the judges produce.

Australian Pharmacy Law & Practice addresses the current issues surrounding pharmacy law and regulation in Australia. As the Federal Government moves to implement a national registration and accreditation scheme for pharmacists, the pharmacy workforce is set to become more mobile as a result. There has been no greater time than now for practising pharmacists and students to understand the implications of current legislation and legal provisions underpinning their area of practice. This text provides a comprehensive analysis and discussion of the legislation and practice standards which are relevant to the practice of pharmacy. As well as covering specific pieces of legislation relating to the regulation of pharmacy practice and drug control, Australian Pharmacy Law & Practice includes important sections on legal concepts and the Australian constitution; the evolution of pharmacy practice and ethics; privacy legislation; occupational health and safety; and professional conduct including matters regarding investigation, discipline, and legal proceedings. Australian Pharmacy Law & Practice is the first text of its kind to address pharmacy practice in all its facets in the unique context of the Australian legal framework. It will be a valuable resource to students and overseas trained pharmacists seeking registration in Australia, as well as to qualified practitioners who seek to better understand the laws and standards that govern the profession. * Unique to the Australian marketplace – presently there is no publication dealing specifically with pharmacy law and ethics in this country * Each chapter includes – learning objectives, review questions and activities, and further readings * The inclusion of quotation from case law – provides an opportunity for readers to learn from history

This thesis considers the management and performance of Australian superannuation funds in the period since the introduction of compulsory superannuation contributions in 1991, and the institutional history of the decisions that led to the current position. It highlights principal-agent failures in the Australian superannuation system (contributing to rent extraction via excessive fees and charges) and asymmetric information (which has permitted conflicts of interest to be exploited and also facilitated rent extraction). Design of the system has led to the majority of members to be in defined contribution schemes, rather than defined benefit, which has transferred the risk of underperformance from fund sponsors to (less well informed) members.The thesis also explains how current structure and organisation of the industry resulted from the decision to introduce compulsory superannuation contributions (thus creating huge funds to be managed), acceptance by unions, trustees and government that the private sector should manage the majority of these funds, and extensive outsourcing and delegation of responsibility and authority. The resulting complexity, and in particular the multi-layered nature of the industry, has led to a degree of separation between the ultimate beneficiaries of superannuation funds and those who make decisions on their behalf.The costs and performance of the system are analysed using cost, performance and financial data at the fund level published by APRA, and an international database of US, Canadian and European funds. Simulation modelling suggests that fund assets might now be several hundred billion dollars greater if they had been invested passively in a single fund. International comparison shows higher costs and lower efficiency than oveseas funds, highlights the superior performance of passive management, and demonstrates the superior performance of passively managed funds.Suggestions for reform include enabling proper competitive pressures to emerge, full disclosure of all investment management costs and conflicts of interest, creation of a single regulatory agency with a clear remit to improve the efficiency of the industry and a primary duty to promote competition, stronger use of trust law to enforce the fiduciary duties of trustees, and creation of a publicly administered agency which offered a centrally-administered, passively managed, alternative fund.

The ANU College of Law, Migration Law Program is pleased to introduce a text in administrative decision-making in Australian migration law. Over the past eight years we have assembled a team of some of Australia's most highly qualified migration agents and migration law specialists to deliver the Graduate Certificate in Australian Migration Law & Practice, and the Master of Laws in Migration Law. Alan Freckelton has worked with the Migration Law Program since 2008. Through personal recollections and a comprehensive analysis of administrative decision-making, he brings his professional expertise and experience in this complex field of law to the fore. The examination of High Court decisions, parliamentary speeches and public opinion bring a contentious area of law and policy to life, enabling the reader to consider the impact that legislation and decision-making has upon the individual and society as a whole.

Following the terrorist attacks of September 11, 2001, the Australian government embarked on an anti-terror legislative agenda that prioritised the prevention of terrorism. Many of Australia's preventive anti-terror laws were justified as exceptional and isolated measures to meet the exceptional threat posed by transnational terrorism. This thesis is motivated by a desire to better understand prevention in anti- terror law and, in particular, how preventive anti-terror laws should be understood and situated within the Australian legal system.The driving questions of this thesis are: is the preventive state concept a useful way to read developments in Australian law following September 11? Is prevention in Australian anti-terror law exceptional when compared to prevention in other areas of Australian law? This thesis answers these research questions in a narrow way. It begins by critically examining the preventive state concept, identifying its promise and limitations as a way to read prevention in contemporary lawmaking. The thesis then undertakes three case studies of preventive measures in Australian law: federal anti-terror control orders, post-sentence restraints on high risk offenders in NSW and involuntary detention of persons with mental illness in NSW.The purpose of the case studies is to test whether control orders are novel when compared to other preventive measures. This is achieved by comparing where each legislative regime falls on a spectrum of anticipatory action in domestic law. The case studies also inform understandings of the preventive state concept by addressing its promise and limitations as a framework to read developments in Australian law.This thesis concludes that the preventive state concept provides a useful way to read and conceptualise developments in Australian law since September 11. It identifies a number of continuities between the preventive measures studied, arguing that control orders are best understood as part of a pattern of preventive governance rather than as exceptional and isolated measures. However, this thesis also finds that control orders are exceptional in their reach when compared to the other measures studied, typifying pre-emption rather than prevention. These findings have broader implications for understandings of preventive anti-terror laws and the future directions of preventive scholarship in Australia.