Australian Law Research Articles

The Definition of Member / Shareholder in the South African Companies Act: A Brief Comparison with Australian Legislation

AbstractThis article discusses relevant Australian case law with reference to the oppressive remedy in company law. In South Africa, only shareholders who are entered in the shareholders’ register can make use of the remedy, contrary to the Australian application. The Australian case law explains thelocus standiof shareholders who are not entered in the register. Reference is also made to South Africa's previous Companies Act 1973 due to theSmyth v Investecappeal court case, where the court applied the principles, relevant to an oppressive remedy under the 1973 act. In this regard, the appeal court's reasoning is compared to that of the Australian court; possible new perspectives relevant to South Africa's new Companies Act 2008 are also discussed. The Australian perspective is included to facilitate investigation of a South African court's approach to oppressive conduct concerning the narrow interpretation of “shareholder”. It is concluded that “shareholder” should also be interpreted to include a beneficial shareholder.

Conservation agreements and environmental governance: The role of nongovernmental actors

AbstractThis article explores how conservation agreements can be used to examine the trend towards environmental governance by multiple players, where nongovernmental bodies play a part in environmental regulation. The laws authorizing the creation of a conservation agreement in three jurisdictions, namely New South Wales (Australia), Scotland (United Kingdom) and Maine (United States), move away from regulation by government, where governmental bodies play the pivotal role in environmental governance, towards governance by multiple players. This article illustrates how the different legal features regarding who can create, oversee and enforce a conservation agreement reflect different styles and levels of engagement in environmental regulation. The Australian law represents a model of nature conservation heavily relying on governmental regulation. This is different from the United States model, where nongovernmental bodies play a significant role in the burgeoning use of conservation agreements. The Scottish model is placed somewhere between those in that while it confers the primary role on specified governmental bodies, some nongovernmental conservation bodies can in some circumstances be designated to fulfil the same function. The different levels of participation by governmental and nongovernmental bodies discussed in this article reveal strengths and weaknesses in involving different ranges of actors in environmental governance and point to lessons as other jurisdictions consider embracing conservation agreements to support their conservation policy.

Remedying Misaligned Norms in International and Constitutional Law: Investment Treaties, Property Rights and Proportionality

The enlargement of the scope of international law has led to more frequent overlaps in the substantive rules of domestic and international law. One such overlap is in the rules on expropriation, or the protection of property rights. This article argues that Australian constitutional law and international law are misaligned on the question of expropriation, with international law generally imposing a higher standard of protection compared to the Australian Constitution. The article contends that this misalignment matters, because it is irrational and discriminatory, and because it hinders Australia’s compliance with international law by increasing the complexity of official decision-making. The article then considers whether and how the misalignment can be remedied. Although a deliberate re-alignment faces difficulties, the article concludes that a form of alignment may organically emerge for other reasons, as both international tribunals and the Australian High Court take tentative steps towards the use of proportionality to resolve property rights claims.

Misuse of Market Power: Improving the Australian SLC Model

Misuse of market power in Australian competition law was reformed in 2017 by adopting a substantial lessening of competition model (SLC Model). The revised law is not based on a cogent underlying theory of exclusionary conduct. This has led to overreach, underreach and uncertainty. This commentary recommends that the law be improved by straight-forward legislative amendments based on the comparative analysis of exclusionary conduct laws in K Kemp’s work, Misuse of Market Power (2018).

Legal Aspects of Human Genome Patenting: The Case of Legislative and Judicial Regulation in Australia

The paper considers the Australian experience of human genome patenting legal regulation, and studies the Australian court practice on this issue. The aim of the study is to examine the approaches of the Australian law enforcement agencies to one of the most important aspects of the genome research legal regulation, i.e. human genome patenting, and to compare them (to conduct a comparative analysis) with the approaches of the judicial authorities of other states (USA). The authors note that, based on the Australian court practice, patenting of human DNA is possible, which makes the development of research in the human genome quite attractive for commercial companies, since it protects the possibility of such companies to obtain economic benefits from the use of scientific developments. The authors point out that the issue of patenting of an isolated genetic sequence has been the subject of litigation in other jurisdictions (in particular, the United States) involving the same defendant (Myriad Genetics). It is emphasized that, despite the similarity of legal systems, the identity of the subject of claims, the judicial authorities of the United States and Australia have formulated different approaches to determining the possibility of patenting human DNA.

Legal Coherence and Judicial Activism in Australia

The principle of legal coherence and the role of judicial activism are active but controversial topics in in Australian common law. Usually, the application of the principle of legal coherence lead to a different award compared to judicial activism. Both of them have contradiction and restrict mutually, which have their own implications but safeguard the judicial system to develop cautiously. So I would like to discuss the benefits and limitations of application of legal coherence and judicial activism by examples of HCA cases.

Point and Shoot: Originality, Authorship, and the Identification of the Copyright Work in Modern Photography

This article explores how profound technological developments in photography have problematised concepts of the photograph, authorship, and originality in Australian copyright law. Radical technological change has resulted in highly automated and ubiquitous photographs, inviting questions about what constitutes a ‘photograph’ as defined in the Australian Copyright Act, when a photograph is sufficiently original, and how the definition of an ‘author’ of a photograph as the person who ‘took’ it should be interpreted. The paper is the first to analyse these issues, ameliorating the relative dearth of serious scholarly investigation of the contemporary photograph under Australian copyright law and a paucity of judicial attention. The article considers the meaning of ‘photograph’ and ‘photography’ under the Australian Copyright Act and how software and explains how new practices in a ‘post-photography’ world challenge those concepts. It then explores photographic originality and investigates how increasingly automated modes of photography diminish if not eviscerate originality in contemporary photography. The article then focuses on photographic authorship, interrogating the statutory definition of the author of a photograph as ‘the person who took it’. The article proposes a number of copyright law reform suggestions to better align copyright law with contemporary photographic technological developments and artistic practice.

How #MeToo may ignite reform in Australian sexual assault laws: A legal critique

How #MeToo may ignite reform in Australian sexual assault laws: A legal critique

A 'Damaging Loophole' 'Long Overdue' for Closing: Extending Consumer Protections Against Unfair Contract Terms to insurance

As part of the Australian Consumer Law reforms of 2010, unfair contract terms protections were implemented nationwide across most sectors that use standard form contracts in their dealings with consumers, including financial services. However, until recently, these protections did not apply to general insurance contracts covered by the Insurance Contracts Act 1984 (Cth). Consumer groups, as well as a series of government and independent inquiries and reviews, have long called for reforms to bring insurance within the ambit of the unfair contract terms protections contained in the Australian Securities and Investments Commission Act 2001 (Cth). In February 2020, legislation was passed to remedy the situation. In this article, we examine the history that paved the way to these reforms, and evaluate their impacts for consumers and insurers. We argue that this legislation indicates a move away from the view of insurance contracts as having a ‘unique character’ that renders them ‘unsuited’ to the consumer protections that apply to other financial products and services. We suggest that the application of unfair contract terms protections to insurance contracts has potential to address consumer harm without resulting in prohibitive costs for the insurance industry.

The role of place, people and perception in law student well-being

There is a growing body of international research examining psychological distress in law students. Generally, the studies have tended to be either very narrow, focussing on a single law school, or very broad, targeting all law students regardless of their institutional affiliation. This study adds to the existing literature by examining the levels of psychological distress of law students at two quite different law schools in Australia. An online survey was used to assess self-reported emotional well-being, university appraisal, university belongingness, perceptions of competitiveness and supportiveness, perceived sources of pressure, and motivations for studying law in 225 law students. Consistent with prior research, the data reflect lower levels of well-being in law student participants compared to the general public. However, the factors that appear to affect the students' well-being differed slightly between the two participant cohorts. For the law school that caters more to mature age and online students, the students' perception of their overall law school experience, belongingness, and support are important factors. Whereas for the law school that caters more to high achieving younger students, the competitiveness and perceived lack of support within the law school environment appear to have a greater influence on the students' self-reported well-being. In addition, across both participant cohorts, self-imposed pressure was notably high. Overall, the results of the study reported in this article provide valuable insights into the external and internal factors underpinning the well-established heightened levels of psychological distress in Australian law students.

Enhancing institutional support to ensure timely PhD completions in law

Doctor of Philosophy (‘PhD’) students in Australia undertake at least three years of full-time equivalent independent research to generate innovative knowledge within their chosen discipline. Research indicates, however, that globally half of all enrolled PhD students fail to complete. For those who do complete, despite the increasing imposition of academic milestones and supervisory requirements, many require an extension or an approved period of interruption of their candidature. While attracting and retaining high-quality PhD students who complete their research project within the required timeframe is an institutional priority for all universities, the availability of programs to support the timely completion of PhD theses across Australian universities, is variable. Moreover, little is known specifically about the institutional support programs available for students undertaking a PhD in law, reasons for adopting chosen support programs, or how effective the programs that are available are in supporting students to successful and timely completions. The research study across select Australian universities reported on in this article sought to begin to close this knowledge gap. In doing so, it: 1) provides an overview and synthesis of the Australian and international literature on achieving timely PhD completions across disciplines; 2) presents the results from two surveys: a perceptions survey of students enrolled in PhD programs at Australian law schools; and a survey of the support programs offered at 16 Australian law schools; and 3) drawing on the conclusions from the literature and survey results, explores how best to support PhD students in law to successful and timely completions. Key conclusions emerged from this study relevant to both law PhD students and law schools. Overwhelmingly, the results indicate that the importance of a collegial and communicative supervisor cannot be overstated. Further, students who engage informally with other academics (such as PhD mentors) as well as their PhD peers are also more likely to complete. Overall, while acknowledging that, inevitably, personal characteristics and circumstances affect PhD success, we conclude that institutional level support may nonetheless contribute to timely completions in law.

Corporate Art Collections in Australia: The Influence of Aboriginal Art on Corporate Identity

This study is the first to investigate the use of Aboriginal art for marketing purposes. Over 2000 major enterprises in Europe and North America collect art, but in Australia relatively few do. Research has established that art collections contribute to corporate identity, but this has not been studied in Australia. Using a qualitative case study approach, this exploratory study investigates how art collections are used to support the work of three Australian banking and law firms whose collections include Aboriginal art. We asked respondents from each firm how and why they collected Aboriginal art and their perception of the role of art in symbolizing their firm’s values and culture. Aboriginal art was found to contribute to a firm’s identity and corporate social responsibility, especially when collections included the work of emerging artists and more challenging political content. It also presented a friendly face to Aboriginal clients. For firms in overseas markets, Aboriginal art served to signal a firm’s Australianness.

State Use Provisions for Patent Law, and Expropriations: Some Comparative Law Guidelines for South Africa during the Covid-19 Crisis and Beyond

This article views section 4 of the Patents Act 57 of 1978 against section 25 of the Constitution of the Republic of South Africa, 1996 and Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (hereafter TRIPS). The purpose is to find a suitable framework for the state/government use/utilisation of patented products or processes for public purposes. A comparison is done with the Crown use provisions in United Kingdom, Australian and Canadian law to find a suitable approach to questions relating to remuneration for state use, the prior negotiations requirement set by Article 31 of TRIPS, and the public purposes and exclusive patent rights that would be included under state use. The COVID-19 international pandemic has caused a state of national disaster in South Africa, which is exactly the kind of situation of extreme urgency envisioned by the exception in Article 31 of TRIPS, which permits the state use of patents without requiring prior negotiations with the patent owner. In the battle against COVID-19 and its concomitant fallout, the South African government (and authorised private parties) would be permitted to utilise patent rights without explicit authorisation from the patent owner and without prior negotiations, but subject to the payment of reasonable remuneration by the government and other terms and conditions as agreed upon or as determined by a court. This may include making (manufacturing), using, exercising, and importing patented products (for example, personal protective equipment, pharmaceuticals, ventilators and diagnostic tests) deemed necessary in the fight against COVID-19. Foreign jurisdictions considered in this article indicate that section 4 of the Patents Act 57 of 1978 may certainly benefit from an update to provide detailed guidance on the state use of patented products or processes for public purposes. In the interest of a timeous offensive against the COVID-19 virus, the patent provisions need a speedy update to allow state use compliant with TRIPS and the Constitution of the Republic of South Africa, 1996.

Informed consent, Montgomery and the duty to discuss alternative treatments in England and Australia

The UK Supreme Court in Montgomery v Lanarkshire Health Board imposes a duty on healthcare professionals in relation to information disclosure. The obligation is to take reasonable care to ensure that patients are aware, not just of material risks inherent in any recommended treatment, but of any reasonable alternative treatments. While liability for information non-provision was previously decided according to whether the profession would deem disclosure appropriate, the law now judges the sufficiency of information from a patient’s perspective. In doing so, it adopts the approach advocated for Australia in Rogers v Whitaker. However, commentators, in this journal and elsewhere, have expressed concern that the disclosure obligation is unclear. Although Montgomery defines what is ‘material’ for the purpose of identifying notifiable treatment risks, it offers less guidance as to when alternative treatments will be sufficiently ‘reasonable’ to warrant disclosure. Through an analysis of Australian and UK case law and examples, this article considers the ambit of a practitioner’s duty to discuss alternatives. It concludes that although likely subject to further litigation, the identification of reasonable treatment options requiring disclosure will be influenced by the patient’s clinical condition, their prognosis and viable options from a medical perspective, and various non-clinical matters influenced by the test of materiality.

The legitimacy of the nurse practitioner as a non-medical surgical assistant: Historical evidence from Australia

ABSTRACT Problem The Non-Medical Surgical Assistant role has been practised in Australia for over 30 years. Despite this, the role remains unregulated, and government policy does not offer a rebate for the private surgical patient when the surgical assistant is not a Medical Practitioner. Aim To investigate the legitimacy; as outlined by Donabedian; of the Nurse Practitioner performing the role of the surgical assistant in Australia. Methods Examination of peak professional bodies’ guidelines, opinions of other service providers, Australian Government policy and the Australian law. Findings While not reflected in Government policy, the Nurse Practitioner is a legitimate and lawful provider of intraoperative surgical assisting care in Australia. Discussion The Medical Benefits Schedule does not reflect contemporary, evidence-based practise or the law concerning the Nurse Practitioner undertaking the role of a surgical assistant, this causes the patient an out of pocket expense or reduced access to care. Conclusion The Australian Nurse Practitioner is a legitimate and lawful provider of these services.

Use of the Corporate Form for Public Benefit: Revitalisation of Australian Corporations Law

This article specifically addresses the theme of revitalisation of Australian law in the facilitation of purpose-based companies. It is the second of two articles on purpose-based governance in the charitable and for-profit spheres. Building on the first article, this article critically analyses relevant features of the Australian corporations law regime. It pays close attention to challenges relating to the application of directors’ duties where companies have multiple purposes and to the drafting of appropriate constitutional provisions. In so doing it draws on insights from overseas jurisdictions that have enacted legislation to enable purpose-based companies.

Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework

Australian equality law is still largely dependent on individual enforcement to achieve systemic change. The degree to which discrimination law acknowledges and accommodates intersectional discrimination is a question of growing pertinence. This article bridges theoretical scholarship on intersectionality and empirical statistical evidence of how people experience discrimination in Australia, drawing on data from the 2014 General Social Survey, to critically evaluate the extent to which Australian discrimination law is able to accommodate intersectional experiences of discrimination. We argue that there is a fundamental disconnect between the legal framework, which focuses on separate and distinct ‘grounds’ of discrimination, and how people actually experience discrimination in practice, which is multiple and overlapping. This article offers concrete suggestions for how the legal framework and data collection could be improved to better integrate intersectionality in Australian discrimination law.

Revitalising Public Law in a Technological Era: Rights, Transparency and Administrative Justice

Author Yee-Fui Ng, Maria O’Sullivan, Moira Paterson and Normann Witzleb This article examines how public law should be revitalised in light of the increasing use of technology in government decision-making. As the recent controversy concerning the implementation of an automated debt recovery system by the Department of Social Services illustrates, the automation of government decision-making engages fundamental legal principles such as transparency, procedural fairness and reviewability. The use of technology in administrative decision-making in Australia therefore raises a number of critical, and interlocking, questions: Is Australian public law fit for purpose to protect individual rights in automated governmental decision- making? If not, what reforms are necessary and how should they be instituted? This article will consider these issues in relation to three specific areas of public law: privacy law, freedom of information, and judicial review. In doing so, it sets out concrete recommendations for the revitalisation of Australian public law so that it may become more value-compliant and consistent with emerging international best practice standards.

What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah

In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, and again in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the High Court pronounced that Australian courts must follow the decisions of appellate courts across Australia unless convinced that those decisions are ‘plainly wrong’. This article seeks to track the development and application of this rule in both a historical and modern context. It first examines the state of the law prior to Marlborough and then engages in an empirical analysis of the use of the rule since Marlborough in 1993, tracking how often the rule has been used and where divergence between jurisdictions has emerged. The results confirm the existence of a judicial system with an increased focus on, and practice of, internal consistency. This replaces the 20th century paradigm in which loyalty to Britain was prioritised over intra-Australian uniformity.

Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation

There are signs that Australia is beginning a long-overdue process of incorporating Indigenous languages into its parliamentary debates and legislation. These are significant developments in Australian public law which, to date, have attracted insufficient scholarly attention. This article begins the process of teasing out the doctrinal implications of this phenomenon. The article is in four parts, the first two of which describe and normatively defend the trend towards Indigenous language lawmaking in Australia. The third part looks abroad to how other countries facilitate multilingual parliamentary debate and legislation. Finally, the article examines the interpretative questions that multilingual legislation poses for Australian courts. Potential answers to these questions are identified within existing Australian and comparative jurisprudence. However, the ultimate aim of this article is not to make prescriptions but to stimulate further discussion about multilingual legislation, which discussion ought to foreground Indigenous voices.