La Trobe Law Forum

In an episode of SBS’s Insight, screened in March 2008, an Aboriginal woman stated that: “We should be thanking [former Indigenous Affairs Minister] Mal Brough.” This sentiment was echoed during the broadcast by one of the audience members, the current Opposition Leader Tony Abbott, who vigorously agreed. For that woman, gratitude towards Brough and the Intervention is for seeing her town free of alcohol and pornography, welfare payments quarantined and children made to attend school. These were all much-needed measures that have assisted thousands of Northern Territorians. But Mr. Brough would be hard-pressed to find gratitude in the hearts of others who view the Intervention as a lost opportunity and/or a distinct failure.

In 2004, the French President Jacque Chirac signed into law a ban on “symbols which show religious affiliation in public primary and secondary schools.” This included openly wearing crucifixes and the Muslim headscarf. The debate was heated, marked by protests and riots as the French Government defended its position to uphold the principle of laicité—the separation of Church and State. The current President of France has extended this line of thinking to the burqa, or full-face veil, as worn by certain Muslim women around the world. To many the burqa seems to be a physical memory of the extremist tyranny of the Taliban, where it was mandatory. A covering seems to threateningly hint at radicalisation and difference—it did take the world more than sixty years, after all, to peer behind the Iron Curtain.

Will this law be upholding certain inalienable parts of the French Constitution at the expense of others? Put simply, is the burqa ban (a movement which is rapidly gathering steam, even among Muslim communities), unconstitutional? The official motto of France is, in translation, ‘Liberty, Equality, Fraternity,’ but isn’t legislation outlawing a certain mode of dress a definite restriction of the avowed Liberty, at least?

The following post is by student contributor, Leigh Howard.

The statutory business judgment rule was implanted into the Corporations Act in 1999 by the instigation of the ‘CLERP’ reform, and has been the subject of both controversy and accolade ever since.  It’s present-day form derives from the United States, where it was developed as a common law doctrine and had considerable influence, particularly in the State of Delaware (for a history of the rule, see Redmond, “Safe Harbours or Sleepy Hollows: Does Australia Need a Statutory Business Judgment Rule?” in Ramsay (ed.) Corporate Governance and the Duties of Company Directors, 1997 p. 185). The Australian manifestation sits alongside the duty to discharge powers with the care and diligence of a reasonable person under s 180. It operates as a defence to any business judgment that that is made in good faith and for a proper purpose, so long as the director has no material personal interest and a belief the judgement is in the best interests of the corporation (see s 180(2) of the Act). Adversaries to the rule fear that the rule could operate as a safe harbour for negligent directors otherwise deserving of scrutiny under the duty of care and diligence. However, law makers on both sides of the Parliament believe that the rule in its present form does not go far enough.

Co-authored with Anthony O'Donnell

Academics in the labour law field are bracing themselves for the flood of words, opinions, decisions and policies which will flow from the passing into law of Labor’s new workplace law, the Fair Work Act. The Fair Work Act replaced Work Choices, the controversial and politically disastrous legislation of the former Coalition government.

The Act creates a multi-tiered regulatory system. The contract of employment is the first level of regulation. What’s more, only workers who are parties to such a contract are covered by the Act. All employees have the benefit of the second level, a national set of minimum standards included in the legislation. On the third level, modern awards will cover just about all eligible employees except those earning more than $100,000 a year. The awards elaborate on and supplement the legislated standards. Finally, the system of enterprise bargaining adds a fourth tier. This has been revamped (with a duty to bargain in good faith and a right of union recognition where a majority of workers wants it) but otherwise continues in much the same form as before.

PEOPLE SMUGGLING is a matter of considerable political concern to Western governments, and has received much international attention in recent years. This is evidenced by the fact that 119 states, including Australia, have become parties to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.

Article 3(a) of the Smuggling Protocol defines “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”. The Protocol refers to a profit motive again in article 6, which requires state parties to criminalise smuggling and related activities where committed by an organised criminal group and transnational in nature. The reference to a profit motive was included in order to ensure that those assisting migrants or asylum seekers on humanitarian grounds or on the basis of close family ties would not be caught by the Protocol’s provisions.

A few months ago in Melbourne, a father threw his baby daughter off the Westgate Bridge into the water and the terrible incident was witnessed by her siblings. The story sent shivers up my spine and thousand others who heard what happened to the child. The story made front-page news in the print and other media for a day or two and was soon lost in the din of other happenings.

Did it go off our radar because there were other important things in our lives to worry about or did it fade away from our memory because we thought we were lucky to have our happy and loving family?

Last Tuesday ACTU President Sharan Burrow used the council's congress to declare that transforming social protection and social insurance is now 'at the top of the union agenda'.

Many will see this as a fresh departure for the trade union movement. Unions have been traditionally concerned with fair wages and conditions for those in work, rather than alleviating the hardship of those who find themselves without work.

That isn't the whole story, of course. The 'accord' that the ACTU brokered with the federal Labor government in the 1980s saw wages growth traded off for significant social policy advances: the introduction of Medicare, a revamped family allowance system (the context for Hawke's infamous 'No child will live in poverty' pledge) and the bedding down of compulsory superannuation.

Nevertheless, Australia differs from many European countries where trade unions, along with employers, play a substantial role in the governance and administration of social insurance schemes and employment services.

ON 30 SEPTEMBER last year the Australian Navy intercepted a boat off the coast of Western Australia and took the twelve Middle-Eastern asylum seekers on board to Christmas Island. These individuals, who had made their way from Indonesia, were the first unauthorised boat arrivals of the Rudd era. Since then several more boats carrying mostly Middle-Eastern asylum seekers have made the same trip. I use the term “asylum seeker” advisedly because all the arrivals to date appear to have made protection claims. What is more, all the protection claim decisions of which I am aware have been positive. In other words, the claimants have been recognised as refugees and granted permanent protection visas.

The federal opposition is arguing that the abolition of temporary protection visas and the softening of immigration detention policy have encouraged a renewal of people smuggling, which means that the government is to blame for the spate of unauthorised boat arrivals. There may be a small element of truth in this, but I tend to agree with the government’s assessment that the recent upsurge in irregular asylum seeker movement is part of a worldwide phenomenon largely caused by events in source countries such as Afghanistan, Iraq and Sri Lanka. Unfortunately, the one point on which government and the opposition are in rhetorical agreement is that Australia needs to keep intensifying its efforts to strengthen border control and disrupt people smuggling until the boats stop coming.

A Christian school in Melbourne’s west recently refused to offer a training placement to a Muslim student teacher (The Age 25/3/09). The refusal was clearly based on the religious difference between the student teacher and the school. The Principal was quoted as saying that accepting the student teacher “would have been confusing for the kids. It’s not that we have anything against her or her beliefs; we just felt it was an inappropriate placement.”

The school was most likely within its legal rights in excluding a student teacher who does not share its faith. The Victorian Equal Opportunity Act 1995 gives religious schools plenty of leeway in excluding people who are not of the same religious belief.

However, this legal exemption for religious schools raises fundamental issues about how to achieve the right balance between religious freedom and responsible educational practices.

Regular readers of the Forum may have noted I have contributed a number of pieces dealing with the legal aspects of a carbon tax and emissions trading schemes (ETS). One aspect that I have written on has been the legality (under the World Trade Organisation) of a border tax adjustment (BTA) under a carbon tax.

This is one means of dealing with the loss of international competitiveness when a country decides to unilaterally impose a price for carbon emissions. Other alternatives include issuing free permits to especially affected entities under an ETS (as is proposed under Australia's mooted ETS - the Carbon Pollution Reduction Scheme. See http://www.climatechange.gov.au/emissionstrading/index.html).

A topical question is whether such measures are protectionist in nature (which would violate the WTO) and/or are efforts by the relevant country to impose its environmental policies on its trading partners. Such comments have been made to me privately in respect of a carbon tax BTA as a reason why such measures are unlikely to happen (but for political rather than legal reasons).

An interesting article appeared in the Wall Street Journal this week on this matter. President Obama's Energy Secretary, Steven Chu, reportedly commented during a House hearing that if countries like China and India do not impose a carbon charge on its own products after the US goes down this path (as is on President Obama's agenda), then the US could impose a carbon tariff on imports from these countries.

While such a measure would almost certainly violate the WTO, leading to all manner of legal and political consequences, it does demonstrate that these matters are front and centre in the ongoing move towards charging for carbon emissions.

Read the full article at:

http://online.wsj.com/article/SB123837276242467853.html#mod=djemEditorialPage

The Personal Genome Project recently launched by Harvard Medical School allows individuals to obtain information contained in their DNA. This information is usually unknown to an individual and can be of value in discovering dispositions for developing certain diseases in advance. The information contained in the genetic code reveals hereditary information such as race, physical traits and behavioural pre-dispositions.

The pure relevance of genetic information in predicting the future health status of an individual is questionable though. Most disorders are believed to have both a genetic and environmental component. At best, genetic information may be thought of as a coded probabilistic future diary.

The Personal Genome Project has given rise to concerns within and outside of the scientific community. One key concern is that the Personal Genome Project could result in a significant loss of individuals’ privacy rights. The genetic data of the participants in the Personal Genome Project is made publicly available. In addition, participants in the Project are asked to disclose their phenotype. The objective is to obtain rich holistic genetic and trait data.

The brave new world of genetic screening to identify any genetic predisposition to particular diseases has opened a Pandora’s box in the realms of equality, human rights and social justice to name a few. Geller et al have defined genetic discrimination as the differential treatment of individuals or their relatives on the grounds of actual or presumed hereditary differences.  

It must be conceded that the advantage of genetic screening at birth or an early age, enables carefully planned medical management aimed to postpone the onset, effectively treat, and possibly cure genetically based conditions.  The other side of the coin is not as encouraging, such genetic information may be used by organisations such as life insurance companies to restrict or deny insurance on the grounds of family history of disease or the results of genetic screening, which is argued to amount to genetic discrimination.

Minister for Climate Change, Penny Wong, recently accused the Opposition and its supporters of diversionary tactics in raising the option of a carbon tax as Australia’s means of addressing carbon emissions (The Australian, 23 February 2009). The Minister’s dismissive approach is premised on the assertion that this debate has come and gone and that “It is time now to stop talking and start doing.”

With all due respect, this debate certainly has not been held properly, at least in the public domain. It is not hard to see the political reasons behind avoiding the awkward questions posed by a superior alternative to the one that suits the present political agenda, but these issues can be dealt with another time. Suffice to say that most of Minister Wong’s assertions regarding the benefits of an ETS and the disadvantages of a carbon tax are either misleading or just plain wrong.

The one aspect that I will deal with here is that around the treatment of trade-exposed industries. The Minister claims that “the hard policy questions regarding the treatment of emissions intensive trade exposed industries … remain” under a carbon tax. This is incorrect.

Admin's note: With the current attention that executive salaries are receiving, not least in the wake of the large layoffs last week at Pacific Brands, we are re-running a post from last November by David Wishart, dealing with this issue.

The best frauds are those that are legal.  You cannot get caught for them.

By ‘fraud’ I mean here illegitimate gain or reward, preferably huge.  ‘Illegitimate’ means without moral justification.  By now you will know what I am talking about.  That says a lot in itself.  But just to be absolutely clear, this essay is about excessive rewards for corporate officials.

What is said to justify rewards worth millions of dollars?  Four justifications are commonly deployed.  These are: the reward is deserved, that shareholders have consented to it, it is compensation for risk-taking, and that the market sets the price.  Looking at each in turn, as I do below, none is persuasive.  Hence I would argue that high rewards for corporate officials are illegitimate and a fraud on society.

In December 2005 the Supreme Court of Victoria Court of appeal decided McLean Pty Ltd v Meech, concerning the liability of the defendant company for damage caused by a tenant’s horse which was resident on the company’s premises ([2005] VSCA 305). The company was occupier of St.Annes’s Winery abutting the Western Highway in Victoria , and a horse, known as Bob, belonging to a third party, was agisted in paddocks there. When Bob somehow escaped on to the highway he was involved in a collision with two vehicles, one driven by the plaintiff, who as a result sustained significant injuries. Finding the defendants liable in tort for failing adequately to confine Bob, the court considered, inter alia, the common law rules on cattle-trespass, the venerable rule in Rylands v Fletcher and the modern interpretation of responsibility in the decision of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd. This piece offers a concise survey of tortious liability for damage inflicted by the conduct of animals a little more generally.