Welcome back 2009

Wednesday, February 18. 2009

Welcome back for 2009!

For those of you returning to La Trobe Law, we hope you had a refreshing and relaxing break and are ready for another year. Those of you joining La Trobe Law welcome to the La Trobe Law Forum, where we hope you can spend some of your (hopefully little) idle time this year.

As always, we welcome contributions in the form of comments on any of the pieces that appear on the Forum. Make sure you have a look at some of the pieces from last year - many of the topics discussed are of ongoing relevance, so continued feedback is always welcome.

Those of you who would like to contribute a stand alone piece, email Keith Kendall at k.kendall@latrobe.edu.au.

Looking forward to a fantastic 2009.

Welcome back 2009

Wednesday, February 18. 2009

Welcome back for 2009!

For those of you returning to La Trobe Law, we hope you had a refreshing and relaxing break and are ready for another year. Those of you joining La Trobe Law welcome to the La Trobe Law Forum, where we hope you can spend some of your (hopefully little) idle time this year.

As always, we welcome contributions in the form of comments on any of the pieces that appear on the Forum. Make sure you have a look at some of the pieces from last year - many of the topics discussed are of ongoing relevance, so continued feedback is always welcome.

Those of you who would like to contribute a stand alone piece, email Keith Kendall at k.kendall@latrobe.edu.au.

Looking forward to a fantastic 2009.

Terrorism: Denying responsibility on the basis of statelessness

Tuesday, December 16. 2008

The recent terrorist attack in Mumbai, India saw many innocent people killed and accusing fingers pointed at Pakistan on the basis that the only terrorist apprehended had a link with Pakistan. US intelligence also claims that former Pakistani military officers trained the terrorists involved. The Pakistani Prime Minister appeared on Larry King Live denying the allegations and claiming that the perpetrators of the terrorist act were stateless actors. By making this claim, the Pakistani Prime Minister avoids taking any responsibility in regard to the attack, either in the form of Pakistan being found to have breached its international obligations, or having to pay compensation to the victims and families of victims of the attack, and being viewed once again by the international community as a terrorist State, a reputation which Pakistan is vehemently fighting against by courting the United States. The denial is a familiar response, as States generally deny any association with terrorists, even when such association is obvious. It also places the burden on the international community to bring the perpetrators to justice.


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We need a 21st century framework for regulating assisted reproduction in Victoria

Tuesday, December 2. 2008

Since Victoria passed the first Australian statute regulating assisted reproductive technologies (ART) in 1984 the law in this state has been regarded as more prescriptive than in other jurisdictions. The current statute excludes many women from parenthood and breaches federal discrimination law. Recently, the Brumby Government introduced the Assisted Reproductive Treatment Bill 2008 into the Parliament to provide a new regulatory framework controlling the ART services. This initiative is well overdue as the law is inflexible and lags behind the fast moving developments in reproductive technology. Furthermore, the failure of the Victorian law to address the needs and challenges of a pluralistic society has led to a growth in reproductive tourism and those who don't qualify for treatment can evade the law by travelling interstate or overseas. Reproductive tourism maximises reproductive choice but only for those who can afford to travel to more liberal jurisdictions.

The Bill expands reproductive choice by dismantling discriminatory eligibility rules and introducing new altruistic surrogacy laws. However, in order to protect the interests of children born through ART, the Bill also limits reproductive choice with the introduction of a 'presumption against treatment' condition. These changes are likely to provoke vigorous public debate.


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Don’t be too quick to over-regulate

Tuesday, November 25. 2008

The present global financial situation has seen a plethora of calls for greater government involvement in the functioning of economies and, more specifically, being used as evidence that markets just plain don’t work. An example of such thinking appeared in La Trobe Opinions last month (see Christopher Scanlon, “The Market Delusion”, 13 October 2008). Apparently the events of the last two months have destroyed the “delusions” that markets are simple affairs, markets are natural and function best without government interference and that markets are free of ideology.

As one of the apparently delusional free-marketeers, I’m not entirely sure anyone has actually argued that markets are simple matters. What is more to the point is that markets facilitate an intricate system of exchanges utilising a relatively simple mechanism. This is not to say that the mechanism itself is simple, though. Anyone who doubts that ought to go the nearest university library and look at any book on price theory. It is interesting to note that no suggestions are forthcoming as to what ought to replace markets to determine the allocation of goods and services (including financial services).


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Excessive executive salaries

Sunday, November 23. 2008

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.


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Redressing the accountability deficit in an era of offshore borders

Thursday, November 13. 2008
As is well known, on 30 September 2008 the first unauthorized boat arrivals of the Rudd Government era were intercepted by the Australian Navy off the coast of Western Australia and taken to Christmas Island. The boat, which had departed from Indonesia, carried 12 passengers included nine Afghans. A week later a second boat came from Indonesia carrying 14 Afghan passengers. It too was intercepted off the Western Australian coast and its passengers taken to Christmas Island. It appears that all of the individuals have made protection claims which are being considered pursuant to the non-statutory process which applies in excised offshore places. Not so well known is the fact that many more individuals attempting to make their way to Australia in an irregular fashion are being intercepted in Indonesia through the joint efforts of the Indonesian and Australian governments. Since about 2000, Australia, Indonesia and the International Organisation for Migration (IOM) have had in place the Regional Cooperation Model (RCM). Pursuant to this arrangement, intercepted individuals are supposed to be turned over into the care of the IOM. If any of them indicate that they are asylum seekers, they are supposed to be referred by IOM to the Office of the United Nations High Commissioner for Refugees (UNHCR) for determination of their protection claims.

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Regulating privacy in the new genomic era

Friday, October 31. 2008
The mapping of the ‘standard’ human genome has created a vast multitude of new scientific possibilities. Genome research is potentially a very powerful tool for addressing any medical issue. It has the ability to influence our basic understandings of human life and complex disease. The results of Genome Research offer great promise for unraveling the causes behind various human diseases and providing fundamental improvements in the prevention and treatment of diseases. The transfer of findings from Genome Research into clinical applications which generate novel insights and new methods for therapy are likely to have an enormous impact on human welfare. Yet, despite the potential benefits of Genome Research and the hopes that this strand of research inspires in ill patients, there are many risks associated with Genome Research. Genome Research presents an array of ethical and legal challenges. One of the key challenges facing modern regulators is how to properly deal with the impact of genetic research and novel innovative genetic technologies on the safety and privacy of our personal information.

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In defence of compulsory superannuation

Sunday, October 26. 2008

The current fluctuations in the sharemarket might lead some to suggest that compulsory superannuation is an unfair imposition on Australian workers (e.g. Bagaric, When forced super gets cruel, Herald-Sun 2 October 2008). The basic point of this argument is that the public does not benefit from this forced saving scheme, since the sharemarket is inherently volatile and there are other more worthwhile investments (such as paying down the home mortgage). Forced saving represents an assault on the intelligence of Australians and is an impingement on personal freedom (encompassing personal responsibility for retirement savings).

While I would normally be the last person to advocate government interference in the operation of free markets (especially where this would indeed run counter to notions of personal responsibility), compulsory superannuation is not one such area. In a perfect world, all individuals would have both the time and the inclination to understand the financial implications of their decisions, would recognise that small amounts put away early on (whether in the sharemarket, on the mortgage, or some other investment) result in large payoffs later on and would be in a position to take charge of their own financial affairs.


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New Wave of Company Law Reform in the South Pacific

Friday, October 24. 2008
A new, second generation wave of company law reform is rolling through South Pacific nations. In the early 21st century, Niue and Samoa passed new company law legislation. At present, Vanuatu, Tonga and the Solomon Islands are preparing new company law statutes. All of the draft legislation draws on the New Zealand Companies Act 1993 but has been adapted for local circumstances.

Where did South Pacific Company Law come from?

With a few exceptions, most South Pacific nations followed the law of the United Kingdom. To be sure, the United Kingdom was a great exporter of law. So, for example, British law was first received in Virginia in 1607. Then, for approximately four centuries, British law spread to countries under British rule and came to regulate the lives of about one third of the people on earth.

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Time to call an end to the University spin wars?

Thursday, October 16. 2008
The University of Melbourne's obscene publicity spend bore fruit again this week, with a multi-page, colour insert in 'Education Age' (13 October 2008) spruiking its wares. This followed Monash University's high profile 'Passport' advertising campaign last week, and our own University's more modest re-badging with the slogan 'Infinite Possibilities'. Isn't it time for the higher education 'spin wars' to stop?

For one thing, whose money is being thrown away in these window-dressing exercises? Australian Universities are not private institutions, and the bulk of their funding over the years has come from the government, which in turn got the money from tax payers and fee-paying students. While all Universities are trying to boost their alumni donations in an effort to emulate the bank balances of the Ivy League American schools, there is no doubt that at least some of the money we see encouraging us to 'Dream Large' is, well, ours.

At a time when Universities are reducing staff, and crumbling infrastructure and over-crowded classrooms make delivering quality outcomes difficult, why are we wasting public funds in this way? What value is really being added to higher education by these profligate campaigns?

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Is Australia Responsible for Protecting the Human Rights of Asylum Seekers in Papua New Guinea?

Wednesday, October 1. 2008
In the second of the presentations in La Trobe Law's Colloquium Series, Dr Savitri Taylor looks at the question of whether Australia is responsible for human rights violations committed against asylum seekers in Papua New Guinea. Current Australian policy is to enforce borders strictly with respect to asylum seekers and Australia has entered into arrangements with its neighbours, most notably Indonesia and Papua New Guinea, to restrict asylum seekers from third countries from entering Australia. While these asylum seekers are detained in Australia's neighbours' jurisdictions, the question arises whether Australia is responsible for any human rights violations committed against these refugees during this period? Dr Taylor looks at the various institutional arrangements that impact upon these local arrangements, particularly those from the United Nations. Initial conclusions (this paper is part of a broader ongoing project) are that it is very difficult to hold any specific party accountable for abuses of the socio-economic rights of these individuals under current arrangements. Dr Taylor's paper and PowerPoint presentation may be accessed at the followng links: Paper and Presentation

The Republican debate back on the agenda?

Friday, September 19. 2008

The election of Malcolm Turnbull this week to the leadership of the Federal Coalition represents a potentially significant milestone in the development of the republican movement in Australia. This comes about since both parliamentary leaders, Mr Rudd (as Prime minister) and Mr Turnbull (as Leader of the Opposition) are on the record as supporting Australia becoming a republic. More on that in a moment.

This turn of events is particularly significant with respect to the Coalition, since the former leader (ignoring Brendan Nelson’s brief stint as Coalition Leader) John Howard was an avowed monarchist. This is compared with Mr Turnbull’s position as de facto leader of the republican movement during the 1999 referendum campaign on this issue. Consequently, this week’s events represent a significant watershed in the direction of Coalition leadership on the republic issue.


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Fairer trade and the human right to development

Wednesday, September 17. 2008
In the first of the presentations of the School of Law Colloquium Series for 2008, Professor Jianfu Chen considers the twin goals of fair trade and the right to development (as a human right). In doing so, Professor Chen looks at the historical origins of the relevant treaties and considers the progress that has been made towards these two goals. Professor Chen's materials may be accessed at the following links: Fairer Trade Paper and Fairer Trade Presentation

The Umpire Strikes Back – Australian Industrial Relations Commission back in charge of industrial relations?

Wednesday, September 10. 2008
Australia’s unique system of labour regulation gave rise to an extraordinary institution, the Australian Industrial Relations Commission. This body has been at the centre of the maelstrom of controversy over what kind of industrial relations system Australia should have. Under the former Coalition Government’s Work Choices reforms, the AIRC was largely eviscerated. Its century-old powers to prevent and settle industrial disputes by conciliation and arbitration were largely gutted. The AIRC’s awards could be avoided (and the protections and entitlements therein lost to employees) by the simple expedient of making a new agreement under the Act. This included the controversial individual statutory agreements known as AWAs. The Commission’s capacity to devise national employment conditions to deal with changing economic and social needs was abolished.

What would be lost under Work Choices was the multi-faceted ability of the Commission to deal with matters quickly, cheaply and with creative attention to many different voices. The AIRC had been required to act having regard to the public interest, another important facet of its role lost in the new institutional arrangements under Work Choices.

The Rudd Government was swept to power with a mandate (as the Prime Minister says) to ‘tear up’ Work Choices. But what does this mean for the venerable AIRC?

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