Australian Law Research Articles

Legal Force of Validity of Notarial Deed Signed with Electronic Signature (Comparative Study between Indonesian Law and Australian Law)

The rapid development of technology has led to reforms in all aspects of human life. Electronic signatures are a product of technology that can facilitate transactions for business people. Currently, Notary is a profession that plays an important role for the economic world in Indonesia, but until now there is no law that facilitates Notaries to carry out their positions to make a deed that can be signed electronically, where in Indonesia an authentic deed made by a Notary must be signed before a Notary, cannot be done electronically. This article examines the legal force and validity of a notarial deed signed with an electronic signature in accordance with Indonesian and Australian law. Keywords: electronic signature, legal force, notary deed validity DOI: 10.7176/JLPG/128-10 Publication date: January 31 st 2023

Physicians' legal duty to disclose more cost-effective treatment options: an examination of Australian civil law applied to personal importation.

ObjectiveA significant proportion of Australians defer or do not fill prescriptions they require due to cost. This article explores whether, and under what circumstances, physicians have a duty to assist these patients by disclosing how they can access more affordable medicines via personal importation.MethodsThis study involved a critical examination of Australian statutory and case law pertaining to physicians' duty to disclose material information to identify key principles applicable to the context of cost-motivated personal importation.ResultsThere are several legal principles that suggest that physicians have a duty to advise patients of options for accessing more affordable medicines, including via personal importation. These include a duty to warn of inherent and non-inherent risks, a duty to disclose treatments that offer clear advantages, and a duty to facilitate access to the means for achieving patients' health goals. However, it is unclear whether, and on what grounds, responsibility for harm arising from a patient's inability to afford prescribed medicines should be attributed to the prescribing physician. Arguments supporting attribution of such a responsibility are proposed to motivate further legal, policy and ethical debate.ConclusionsPhysicians have a duty to take reasonable steps to mitigate foreseeable harm to their patients, however the law is silent on whether this duty extends to taking steps to help patients access medicines that they can afford. This investigation provides a framework to guide the development of sound policy and law on informed financial consent and economically motivated prescribing.

Should the Christmas Island shrew (Crocidura trichura) be considered extinct?

The Christmas Island shrew (Crocidura trichura), endemic to Christmas Island in the Indian Ocean, was abundant at the time of the island’s settlement in the 1890s. However, since 1900, it has been reported only four times (twice in 1958, 1984 and 1985). It is currently considered Critically Endangered under Australian law. Using a recently developed IUCN protocol (the ‘Records and Surveys Model’), based on compilation and assessments of targeted and general sampling effort and detectability, we estimated that there is a 96.3% likelihood that the species is now extinct. However, although many general survey methods (including inspection of cat gut samples, ink cards, audio-recording, pitfall traps, spotlighting and camera traps) have been employed on Christmas Island, most recent sampling has not been targeted specifically to detect this species. Furthermore, there is considerable uncertainty about its likely detectability with different sampling techniques and hence much uncertainty about the estimate of likelihood of extinction. e-DNA sampling, use of detector dogs and refinements in audio-recording may help increase the likelihood of detection, if present. Most current conservation management actions, undertaken for other threatened species on Christmas Island, would provide benefit to the Christmas Island shrew, if it is extant.

The Evolution and Devolution of the Offer to Make Amends Regime in Australian Defamation Law

The Evolution and Devolution of the Offer to Make Amends Regime in Australian Defamation Law

Child abuse, intimate partner violence, and the Australian family law system

Child abuse, intimate partner violence, and the Australian family law system

Promoting the personal importation of therapeutic goods: recent legislative amendments to advertising regulations may impact consumer access and understanding.

Objective The personal importation scheme is a legislative mechanism that allows health consumers to import unapproved medicines under certain conditions. This article analyses the legal and policy basis for the scheme and considers how reforms to advertising laws for therapeutic goods may restrict communications about it. The article represents the first published analysis of the personal importation scheme's interaction with the communications of health professionals and buyer's clubs. It considers how these communications may be affected by legal amendments, particularly where unapproved medicines may be accessed through the scheme. Methods An examination of Australian therapeutic goods law concerning the personal importation scheme was conducted, including both the historical law and recent regulatory reforms. Illustrative tables were prepared to identify scheme-related advertising that may contravene therapeutic goods law. Risk estimates were allocated to several new legal rules to indicate whether health professionals or buyer's clubs would contravene these laws when promoting the scheme to health consumers for unapproved medicines. Results Representations made directly to the public by health practitioners or on buyer's clubs websites about accessing unapproved therapeutic goods through the personal importation scheme are likely to contravene one or more advertising laws. Conclusions The Therapeutic Goods Administration has very strong powers to initiate compliance or enforcement action for advertising breaches in Australia for many promotional practices. Arguably, in the age of the internet and in the context of emerging expensive medicines, these powers should not be used to restrict health practitioners or buyer's clubs from sharing information about the lawful personal importation scheme to health consumers in need. Nevertheless, the study finds that health practitioners who promote or refer to the availability of unapproved medicines through the personal importation scheme outside of a consultation are likely to contravene the law and may be subject to disciplinary or enforcement action.

Does a Refusal of Treatment need to be Informed? Towards a Resolution of the Current Confusion in English, Canadian and Australian Common Law

Does a Refusal of Treatment need to be Informed? Towards a Resolution of the Current Confusion in English, Canadian and Australian Common Law

Attacking the 'New Right', Australian Law Reviews and the Peer Review Process

Attacking the 'New Right', Australian Law Reviews and the Peer Review Process

Perbandingan Perlindungan Hukum Merek antara Prinsip First to File Hukum Indonesia dan Prinsip First to Use pada Hukum Australia

Intellectual Property Rights are the exclusive rights to do something on the intellectual property, which is regulated by the norms or applicable laws. This study aims to determine the difference between the first to file principle in Indonesian law and the first to use principle in Australian law and to determine the strengths and weaknesses between the two principles. Indonesia adheres to a “first to file” system, which requires a trademark to be registered to obtain legal protection. While "first to use" is a brand protection system that recognizes unregistered/unregistered marks used as trademarks. This study uses a normative juridical research method with data sources obtained from literature studies consisting of primary legal materials, secondary legal materials and tertiary legal materials derived from interviews, books, scientific journals, and legislation, then analyzed using the method descriptive analysis. The results of the study indicate that there are several differences regarding the regulation of trademarks that have not been regulated in Indonesian law but are regulated in Australian law. The principles adopted by Indonesia are easier to prove in the event of a dispute compared to the principles adopted by Australia

Sovereignty in Alexis Wright’s Carpentaria (2006)

In a 2013 interview, Alexis Wright explained the importance for Indigenous Australians of maintaining what she called a “sovereignty of the mind, even if we haven’t got sovereignty of the country or the land.” She went on to recount the story of an Indigenous leader who advised a meeting of Aboriginal people “if you think you are a sovereign people, act like it.” In her 2006 novel Carpentaria, Wright demonstrates how these two strands of Indigenous sovereignty are evident and practiced in contemporary Australia. Key Indigenous characters in the novel are revealed to both “think” sovereign and to “act like it.” Indigenous sovereignty, which has never been ceded but is still denied by Australian law, is performed on the land, in custom, in story and in song, in a multitude of ways. Wright thereby contributes to an assertion of sovereign, Indigenous epistemologies and ontologies in Australia. Significantly, cultural elders in Carpentaria are shown to take for granted their sovereign custodianship of Country regardless of who technically owns land within the colonised nation-space of the novel, thus revealing the rule of Aboriginal Law in Indigenous Australia over and against the assumed sovereign rule of the nation-state.

Uncrewed autonomous marine vessels test the limits of maritime safety frameworks

Uncrewed and autonomous marine vessels (UMVs) challenge the underlying paradigm of maritime laws and regulations. Yet UMVs are considered essential for safer, more efficient, and more effective maritime futures. There is a fundamental challenge facing industry and regulators about how to develop and support the nascent UMV industry while maintaining the safety and risk management principles and processes in legacy laws and regulations predicated on the conventional crewed vessel. This paper, drawing upon case studies of developer and operator experiences with Australia’s maritime safety framework, argues for an “intent-based”, flexible, and collaborative approach based on developers’ and operators’ experiences. The case studies show that ad hoc and bespoke regulatory pathways, utilising exemptions and discretions under Australian national laws, although problematic in terms of regulatory consistency and capacity to deal with scale, did allow for the trialling and deployment of two small UMVs. More importantly, the ad hoc approach facilitated information exchange between industry and regulators that is generating reforms and changes at the national level. Although focused on Australia, the findings are significant for maritime futures. It reveals a dialectical approach whereby maritime nations pragmatically work through the risks, standards, and processes that balance safety with facilitating local UMV industries, and in turn, this creates a body of knowledge to inform international reform processes. It also shows the importance of documenting and reflecting on the regulatory journeys of UMV pioneers as essential for safer, more efficient, and effective maritime industries that leverage the potential benefits of automation.

Addressing the Problem of Direct Cross-Examination in Australian Family Law Proceedings

Addressing the Problem of Direct Cross-Examination in Australian Family Law Proceedings

James Crawford and the Law of State Immunity

Abstract In James Crawford’s later career as a public international lawyer, he was synonymous with the great topics of inter-state relations—the creation of states, state responsibility, and so forth—and with the work of the International Court of Justice. But he retained throughout his professional life an abiding interest in foreign relations law, being that loose collection of issues that characterises the interface between public international and municipal law. Nowhere is this better reflected than in his contribution to the law of state immunity—and, in particular, his preparation as Commissioner of the ground-breaking 1984 Australian Law Reform Commission Report No 24 on Foreign State Immunity (‘ALRC 24’), which led in due course to the Foreign States Immunities Act 1985 (Cth) (‘FSIA’) being passed by the Federal Parliament almost unchanged from Commission’s suggested text. This paper aims to assess the legacy of ALRC 24 alongside other writings on state immunity that Crawford published prior to and in conjunction with the report—in particular his significant articles in the Australian Year Book of International Law, the American Journal of International Law and the British Yearbook of International Law. This corpus of materials shows Crawford in two underexplored guises—as municipal lawyer and legislative draftsman. And they also show his instincts as one of the great liberalisers of public international law, committed to ensuring that the parameters of the restrictive theory of state immunity, then novel to the common law, were accurately reflected in legislative language.

The Doctrine of Command Responsibility in Australian Military Law

The Doctrine of Command Responsibility in Australian Military Law

Growing (in)securities: the cult of ‘equity’s darling’ in Australian financial law

Growing (in)securities: the cult of ‘equity’s darling’ in Australian financial law

Remedy for Misrepresentation in Contracts: An Analysis Approach in Malaysian and Australian Law

Remedy for Misrepresentation in Contracts: An Analysis Approach in Malaysian and Australian Law

Coping with the Australian marriage law postal survey and its legacy: “I create meaning and joy and connection and community”

People who are lesbian, gay, bisexual, transgender, queer, questioning, or other diverse sexual or gender identities (LGBTQ+) experience psychological distress in the face of public votes regarding their human rights. This was the case during Australia’s 2017 vote on marriage equality. The present study retrospectively explored two key concepts: how LGBTQ + people coped with Australia’s marriage equality vote and its perceived long-term impacts. We conducted 19 semi-structured interviews with LGBTQ + Australians two-and-a-half years after the vote and analyzed transcripts using reflexive thematic analysis. Coping strategies included social withdrawal, seeking affirming spaces, turning helplessness into action, and seeking professional support. Perceived legacy included changed relationships, greater emphasis on LGBTQ + identity and community, losing faith in social and political institutions, commitment to pursuing minority group rights, and changed views on marriage.

Who is a Journalist? A Critical Analysis of Australian Statutory Definitions

This article provides the first comprehensive study of statutory definitions of ‘journalist’ and ‘journalism' in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing literature on the meaning of ‘journalist' in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide-variety of areas of law, including protections for press freedom, journalistic access to information, shield laws and whistleblower protections.

Correction: A Scientific Analysis of the Three-Step Test: Through the Lenses of International and Australian Laws

Correction: A Scientific Analysis of the Three-Step Test: Through the Lenses of International and Australian Laws

An Attempt at Codifying the Equitable Doctrine of Unconscionable Dealings

This article is written in honour and in memory of my dear colleague the late Professor Denis Ong — a talented, hard-working, and deservedly leading, authority on equity. Here, I seek to articulate a potential ‘codification’ of the equitable doctrine of unconscionable dealings. While I have been advocating a reform-oriented codification of Australia’s contract law, including the equitable doctrine of unconscionable dealings, for almost 15 years, the ambition of this article is limited to a restatement of lex lata. On my path to that goal, I start by providing a brief overview of the origins of the equitable doctrine of unconscionable dealings. I then proceed to discuss Professor Ong’s view of the equitable doctrine of unconscionable dealings before I engage with the modern key cases on the topic. Having outlined my proposed codification of the equitable doctrine of unconscionability, I then say a few words about the relationship between the equitable doctrine of unconscionability and unconscionability under the Australian Consumer Law (ACL), before concluding the article with some final observations.