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- Publication20 Year Snap-Shot of the Developments in the Regulation of Small CorporationsThis paper explored the history of the regulation of corporate bodies through State and Commonwealth systems beginning in 1989 that resulted in the development of the legislation impacting on small proprietary company for over 20 years. The introduction of the Corporate Governance Principles for listed companies by the Australian Securities Exchange added another layer of regulation intended to promote transparency and accountability. Research into corporate governance in small companies showed that, in contrast to opinions about the US Legislation, very few Australian companies expressed negative views about corporate governance regulation. The most recent addition to corporate governance regulation has been the expectation that companies have a responsibility for corporate social responsibility. This was illustrated by the James Hardy Industries case.
- Publication2019-2020 年中澳农产品贸易: 现状与未来2020 年, 澳对华农产品出口进入前所未有的瓶颈期。一方 面, 持续干旱、毁灭性山火及新冠肺炎疫情暴发制约了澳 农业生产发展; 另一方面, 中澳外交关系的恶化导致两国 贸易摩擦升级, 极大地限制了澳对华农产品的出口。针对 上述问题, 本文提出了一系列对策建议。其中, 在出口方 面, 最重要的突破点在于改善两国外交关系。政治意识形 态上的差异引发的经济冲突违背两国根本利益。本文建议 澳在对华政策上朝积极方向调整, 农产品贸易恢复往日的 繁荣指日可待。
- Publication50,000,000 Australians? Is sustainability possible?Some things are impossible, because of immutable laws of nature and the limits of science. It is reasonable to believe that only in the pages of science fiction or the darkness of the movie theatre is it possible to change the speed of light, create a gravity ray, or de-materialise matter to be re-formed in another place. For many, the ideal of sustainability fits alongside these impossibilities, as a dream of the impractical theoretician which can never be realised.The sustainability sceptics are partly right. If we continue to do things the way we do now, then sustainability is impossible. But we also know that given an enormous focus of intellect and endeavour, we often do achieve the impossible.Light can be slowed or sped up, matter transfer can be made to happen, and a gravity ray can be created. These are all discoveries of physics in the last couple of years. In the lifetime of our children the practical effects of these and other "impossible" discoveries will be felt. An enormous application of funds and intellectual endeavour has made the impossible, possible. This isthe basis for hope that we can also achieve sustainability, provided that the best of our intellect and our energies are focused in this direction. Our aim with this study is to look at how that focus can be achieved, to trigger the radical innovation that is needed to ensure our and our children's ability to enjoy the fruits of this magnificent country.
- Publication60 Years German Basic Law: The German Constitution and its Court - Landmark Decisions of the Federal Constitutional Court of Germany in the Area of Fundamental RightsThe core principle of the German Basic Law - the Constitution of the Federal Republic of Germany since 1949 - is the Rule of Law or the broader concept of the 'Rechtsstaat'. The protection of fundamental rights is one important cornerstone of this principle. As the guardian of the Constitution, the Federal Constitutional Court has shaped these rights through interpretation by a large body of case law. Taking note of the growing interest among scholars not only in continental Europe but more so in the Common Law world, an extensive English translation of that jurisprudence is very timely.
- PublicationA.C.L.U. v. Reno: An Endorsement of Internet Self-Regulation?In the landmark decision of 'A.C.L.U. v. Reno' (1997) 138 L. Ed. 2d 874, the United States Supreme Court held unconstitutional key provisions of the Communications Decency Act, which attempted to protect minors from potentially harmful and indecent materials on the Internet. The ruling marks the court's first decision (and is the first judgment of a supreme court worldwide) on the Internet and is a serious setback to American legislators in their attempts to thwart the dissemination of offensive and indecent material via the Internet.
- PublicationAn Aboriginal Adult Literacy Campaign Pilot Study in Australia using 'Yes I Can'(University of Technology Sydney, 2013)
; ;Ah Chee, Donna; ;Durnan, DeborahLeBlanch, Jose ChalaIn 2012, the remote Aboriginal community of Wilcannia in western NSW hosted the first Australian pilot of a Cuban mass adult literacy campaign model known as 'Yes I Can'. The aim was to investigate the appropriateness of this model in Aboriginal Australia. Building on an intensive community development process of 'socialisation and mobilisation', sixteen community members with very low literacy graduated from the basic literacy course, with the majority continuing on into post-literacy activities, further training and/or employment. The pilot was initiated by the National Aboriginal Adult Literacy Campaign Steering Committee (NAALCSC) consisting of Aboriginal leaders from the education and health sectors, and managed by the University of New England (UNE), working in partnership with the Wilcannia Local Aboriginal Land Council as the local lead agency. The pilot was supported by a Cuban academic who came to Australia for this purpose, and included a Participatory Action Research (PAR) evaluation led by the UNE Project Manager. In this paper, members of the project team and the NAALCSC describe the pilot and reflect on its outcomes. - PublicationAboriginal Rights and Constitutional Conflict: The Marshall Court, State and Federal Sovereignty, and Native American Rights Under the 1789 ConstitutionAmerican courts have been significantly involved in determining the content and scope of Indian rights and the relationship these legal claims have with federal and state authority. This jurisprudence exhibits the theoretical and practical complexity of allocating rights and authority among overlapping national, state, and tribal sovereignties. Moreover, unlike other common law settler states, American Indian law is premised on the notion of an efficacious tribal sovereignty. This sovereignty pre-exists the American state but is subsumed within the American federation. Yet at the same time the law also exhibits a clear federal dominance; the national government has both the right and the power to override state and tribal authority and sovereignty in its exercise of its constitutional authority over Indians. This paper argues that the federal-state conflict that arose prior to the American Civil War has profoundly influenced much of the protective aspects of Native American jurisprudence, as found in the seminal Marshall Court opinions. As this law developed in light of state-federal conflict, the underlying policy and legal doctrines, while beneficial to Native American interests, ultimately had little to do with Indian self-determination or protective legal rules. This Antebellum Civil War period was characterized by intense philosophical and legal arguments concerning the nature of the American federation. The Marshall Court in particular became an important, if not primary, proponent of a national view of sovereignty, which it grounded in the international sovereignty of the national government and the 1789 constitutional text. Early American Indian jurisprudence, which was built upon principles of international law, pre-existing British imperial policy, and the various policies (peaceful, aggressive, assimilative) that the nascent United States used in dealing with the tribes, was an area in which this debate developed. The nationalist-minded Marshall Court essentially formulated an Indian Law which, emphasized federal authority and left little room for the states to exercise jurisdiction over the tribes. At the same time, the Marshall Court used the international aspect of Indian law to depreciate the conception of state sovereignty advocated by the proponents of state rights. The concomitant federal dominance of the pre-confederation international tribes was a further justification for a national conception of sovereignty and federal authority.
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- PublicationAbsence of laws regarding sperm and oocyte donation in Japan and the impacts on donors, parents, and the people born as a result
An absence of any statutory law in Japan regarding donor conception creates uncertainty about the status of donors in relation to the child(ren) born as a result. Laws that provide for certainty regarding the status of the donor are called for, as are laws that address donor anonymity. It would be pragmatic to introduce a prospective system that requires open donation, allowing information to be recorded and released to donor-conceived people upon request. For past donations, a voluntary register should be established, which would allow those people who are seeking information to register this.
- PublicationAbsolute prohibition?: Torture between international and domestic law(2017)
;Almokhalafi, Theyab RabahTorture can be defined as the infliction of physical or mental pain for interrogative or punitive purposes. Historically, it has been practised in various forms, but a tendency emerges towards abolition, notably in light of the progressive establishment of human rights and the invalidity of information collected by means of torture for evidential purposes. Currently, the prohibition of torture is universally acknowledged as an international non-derogable rule and the Convention against Torture strictly harmonises domestic law in order to implement this duty. However, despite such a thorough and compulsory regulatory system, the definition of torture remains ambiguous, particularly with respect to ill-treatment, and thus discloses room for discretionary implementation. Notably, ill-treatment is not subject to the same procedural requirements as torture. Within this context, both Western and Islamic States have developed a tendency to practice and legalise torture, specifically in the wake of 9/11 and the recent global escalation of terrorist attacks. In particular, Saudi Arabia and Iran prohibit torture as an investigative method, but legalise and implement it as a form of punishments prescribed in Sharia law. The United States and Israel generally prohibit torture as a form of punishment or investigation, but practice interrogative torture and try to legalise it in countering global terrorism. These practices are underpinned by the assumption that investigative techniques provoking physical or mental pain can be justified in situations of emergency, when they are necessary to save lives. A clash therefore arises between international and domestic law: is the domestic tendency to practice and legalise torture consistent with the absolute international prohibition or are new general principles of law emerging in the matter? Along the lines of cultural relativism, a systemic analysis of interactive regulatory layers, including international, Islamic, regional and domestic law, leads to the conclusion that the domestic tendency to practise and legalise torture is inconsistent with international law: no new legal principles are emerging. Under both particular and general international law, torture should thus be clearly defined and distinguished from ill-treatment, by absorbing the latter into the former, so as to exclude any margin of discretion with respect to the domestic practice of cruel and inhuman treatment. - PublicationAccelerating the evolution of environmental law through continuous learning from applied experienceObjective understanding of whether a legal instrument is effective involves consideration of the purposes of the instrument and its realworld effects. This is at least partly an empirical enquiry, similar to policy evaluation. It requires factual evidence of outcomes and data to underpin hypotheses about the causes of outcomes. These empirical enquiries must go beyond instrument design and the actions of legal agencies. Practical outcomes will often reflect context issues like social and cultural receptivity to legal arrangements, politics, economic capacity and impacts, and the dynamics of socio-ecological systems. As well, the resources invested to support a legal instrument, and the implementation strategy, are often determinants of success. The question that this raises is whether our legal scholarship is suited to addressing implementation questions beyond doctrinal, procedural and philosophic/jurisprudential concerns. If legal scholarship is indeed concerned with improving the effectiveness of the environmental law system, this suggests the need for methodologies and knowledge that can illuminate the empirical questions: what works, when, and why?
- PublicationAccess to Assisted Reproductive Technologies in Australia: Time for Legislative Change in Queensland and the Northern Territory to Remove the Ability to Discriminate Based on Relationship Status or Sexuality
This article examines legislative provisions in Queensland and the Northern Territory, which allow for assisted reproductive technology (ART) service providers to discriminate against people based on their relationship status and/or sexuality. We provide several arguments that add weight to the recent proposal of the Queensland Human Rights Commission that the relevant section of the Anti-Discrimination Act 1991 (Qld) be repealed, and extend our arguments to the Northern Territory. The provisions in both jurisdictions are out of sync with key legal developments in the rest of Australia, do not accord with societal views, and are potentially invalid due to federal law. Further, the Queensland provision is potentially incompatible with the Human Rights Act 2019 (Qld). Although currently ART service providers do not appear to discriminate based on relationship status or sexuality, the current legislative framework leaves open the potential to do so, without an avenue for those impacted to challenge it in law. We conclude such provisions should be repealed.
- PublicationAccessing Accessions: Biobanks and Benefit-SharingThe ability to access the materials and data in bio banks is vital to many areas of research. This paper reports a survey of a sample of biobanks worldwide to see the types of information that is provided by their sites as to their mode of operation, in terms of intellectual property policies, cost, material transfer agreements and so forth. The types of material held in a sample of bio banks in different jurisdictions is discussed, along with proposals for further research in the area. Following an introduction to some of the issues facing bio banks and their relationship to accessing various materials, an example of the additional work done by one recently visited bio bank site is described. The focus of this research has been on bio banks that have non-human biological resources rather than purely human biobanks.
- PublicationAccountable Lawmaking: Delegated Legislation & Parliamentary Oversight during the Pandemic
In responding to the COVID-19 pandemic, democratic states around the world have massively expanded executive powers. Much of this transfer of power has occurred by the delegation of legislative power from parliament to the executive. As will be explained, delegated legislation is a process of executive law-making whereby government ministers, departments, agencies or other officers are empowered to make regulations with the force of law. Although these powers can arguably be justified in some circumstances because of the need for swift and decisive action, there is room for reaonable debate about the scope, duration and conditions of such executive powers. Concerningly, scholars have demonstrated that the checks and balances that ordinarily constrain constitutional governance have come, during the pandemic, to tolerate many unbounded executive powers.
While some democracies have struggled to provide even a modicum of parliamentary oversight of executive actions during the pandemic, other countries have managed to provide space for the examination of executive decision-making. This policy brief analyses trends in the working and monitoring of delegated legislation in Australia, New Zealand, and the United Kingdom during the pandemic. It focuses on how the pandemic has affected parliamentary oversight of executive actions and assesses how institutional responses have conformed to democratic standards. The identification of points of difference within similar contexts appears most likely to reveal novel but transposable inter-jurisdictional learning. - PublicationAccuracy or confidence? Analyzing the impact of online misinformation on Filipino youth voting likelihood(Taylor & Francis Asia Pacific (Singapore), 2024)
;Mendoza, Gabrielle Ann S ;Ballar, Kier Jesse ;Yap, Jurel KHow does online misinformation affect citizen’s likelihood to vote? The risk of fake news on social media does not only lie in the false narratives spread by manipulated content but also in the misplaced confidence cultivated by the way fake news is consumed. Both should be considered when evaluating the impact of fake news on political behavior. We examine a non-probability sample comprising 23,996 college students across the Philippines a year before the 2022 national elections to see the individual effects of misinformation susceptibility and confidence on voting. Contrary to previous empirical work, ordered logistic regression analyses reveal that both confidence and information accuracy are crucial predictors in voting likelihood. We also find empirical evidence for dissatisfaction with the President and the third person effect being significant factors in one’s choice to vote.
- PublicationAchieving Biodiversity Protection in Megadiverse Countries: A Comparative Assessment of Australia and Brazil(Routledge, 2020)
; ;Dieguez Leuzinger, Marcia ;Teles da Silva, SolangeLeuzinger Coutinho, GabrielThis volume systematically analyses why legal doctrines for the protection of biodiversity are not sufficiently effective. It examples implementation in Australia and Brazil, two megadiverse countries with very differing legal and cultural traditions and natural environments. Substantial effort goes into the development and interpretation of legal doctrines for the protection of biodiversity in national and international law. Despite this, biodiversity continues in steep decline. Nowhere is this more evident than in megadiverse countries, such as Australia and Brazil, which possess the greatest number and diversity of animals and plants on Earth. The book covers a wide range of topics, including farming, mining, marine environments, indigenous interests and governance. Achieving Biodiversity Protection in Megadiverse Countries highlights specific causes of underperformance in protecting diverse terrestrial and marine environments. It provides proposals for more effective implementation in these two jurisdictions, relevant to other megadiverse territories, and for biodiversity protection generally. Each chapter was written by teams of Australian and Brazilian authors, so that similar issues are considered across both jurisdictions, to provide both country-specific and generalisable insights. Achieving Biodiversity Protection in Megadiverse Countries will be of great interest to students and scholars of environmental law and governance and biodiversity conservation, as well as policymakers, practitioners and NGOs working in these fields. - PublicationAchieving Network Neutrality: Maintaining Competition Between Content and Application ProvidersOn 1 August 2008, the United States Federal Communications Commission (FCC) adopted a controversial order against Comcast, a cable network operator and content distributor and the second largest provider of broadband internet access in the United States, finding it had violated the FCCs policy of "network neutralit" by deliberately interfering with the ability of its customers to use BitTorrent and other peer-to-peer applications which permit the sharing of video and other large data files. Network neutrality is a concept with many variations, but which has generally come to mean that broadband access providers must ensure that their subscribers are free, of their own choosing, to access internet content and services, run related applications and connect devices to the internet. Regardless of the merits of the FCC's network neutrality policy, which are themselves debatable, the basis of the 3:2 decision of the FCC commissioners rests on untested and questionable legal ground. The order also has a number of evidentiary weaknesses and raises broader policy issues concerning internet regulation, the latter of which are of interest to Australian policymakers as the government considers the appropriate regulatory framework for the national broadband network.
- PublicationACMA Varies Compliance and Monitoring Arrangements for the Telecommunications Consumer Protections CodeIn March 2016, the Australian Communications and Media Authority (ACMA) approved amendments proposed by the Communications Alliance, the Australian telecommunications sector's self-regulatory body, to the compliance and monitoring arrangements for the Telecommunications Consumer Protections Code (TCP Code). The compliance and monitoring arrangements set out the steps that suppliers of telecommunications services to residential and small business customers (suppliers) must take in order to comply with the substantive obligations of the TCP Code - the provisions dealing with consumer sales, service and contracts; billing; credit and debt management; change of suppliers; and complaint handling. The Australian Communications Consumer Action Network (ACCAN) has broadly welcomed the amendments. However, it has expressed disappointment that there remains no obligation requiring Communications Compliance (CommsCom), the industry body responsible for monitoring TCP Code compliance by suppliers, to disclose information about the customer service performance of each supplier to the public.
- PublicationActs of Parliament: Privatisation, Promulgation and Crown Copyright - is there a Need for a Royal Royalty?The road of privatisation of government assets is littered with the debris of mishaps and oversights. One clear illustration is the history and effect of the sale of the Government Printing Office (GPO) in 1990. Within the sale process there was a failure to ensure adequate consideration of the policy implications from an important perspective, namely the effect of privatising the means of promulgation of the normative materials of the state. Furthermore, there was no inquiry into the dubious assumptions made as to Crown Copyright in legislation.