This article revisits s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In particular, the article examines the potential ability of the courts to deploy s 32(1) to reach ‘strained’ constructions and ‘depart’ from legislative intention. This article disputes the following three propositions from the post-Momcilovic v The Queen jurisprudence in the Victorian Court of Appeal. Firstly, s 32(1) does not allow for a departure from the ‘ordinary meaning’ of a statutory provision (an ordinary meaning usually denotes a literal and grammatical, ie not strained, meaning). Secondly, s 32(1) does not allow for a departure from, or overriding of, legislative intention upon enactment. Thirdly, the qualifications placed on s 32(1) are such that it will not usually permit the ‘reading in’ or ‘reading down’ of words as techniques used to reach strained constructions. The article also argues that issues as to s 32(1)’s strength and methodology appear to have been conflated in the recent jurisprudence. It concludes that as the jurisprudence currently stands, s 32(1)’s ability to reach strained constructions is weaker than the principle of legality. This is inconsistent with s 32(1) being at least equal to the principle of legality.
{"title":"Revisiting Section 32(1) of the Victorian Charter: strained constructions and legislative intention","authors":"Bruce Chen","doi":"10.26180/13726255.V2","DOIUrl":"https://doi.org/10.26180/13726255.V2","url":null,"abstract":"This article revisits s 32(1) of the Charter of Human Rights and\u0000Responsibilities Act 2006 (Vic). In particular, the article examines\u0000the potential ability of the courts to deploy s 32(1) to reach ‘strained’\u0000constructions and ‘depart’ from legislative intention. This article\u0000disputes the following three propositions from the post-Momcilovic\u0000v The Queen jurisprudence in the Victorian Court of Appeal. Firstly,\u0000s 32(1) does not allow for a departure from the ‘ordinary meaning’\u0000of a statutory provision (an ordinary meaning usually denotes a\u0000literal and grammatical, ie not strained, meaning). Secondly, s 32(1)\u0000does not allow for a departure from, or overriding of, legislative\u0000intention upon enactment. Thirdly, the qualifications placed on\u0000s 32(1) are such that it will not usually permit the ‘reading in’ or\u0000‘reading down’ of words as techniques used to reach strained\u0000constructions. The article also argues that issues as to s 32(1)’s\u0000strength and methodology appear to have been conflated in the\u0000recent jurisprudence. It concludes that as the jurisprudence\u0000currently stands, s 32(1)’s ability to reach strained constructions is\u0000weaker than the principle of legality. This is inconsistent with s 32(1)\u0000being at least equal to the principle of legality.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"49 1","pages":"174-227"},"PeriodicalIF":0.0,"publicationDate":"2021-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81160351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In international law the right of every people to self-determination is well established. Yet in terms of substance and process this right incident to ‘peoplehood’, on its face the paradigmatically collectively held right, is inadequately articulated. This paper interrogates the normative status of self-determination in the context of colonial domination, after the Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (‘Chagos Advisory Opinion’) issued by the International Court of Justice (‘ICJ’) in 2019. Self-determination is investigated both as a putative norm of customary international law (‘CIL’) and a putative norm jus cogens. The CIL status of self-determination in the post-colonial setting is well established by the ICJ and a higher, peremptory status is strongly implied. In either case territorial integrity is of the essence of the rights conveyed by the norm. Here it is argued that while the formal status of a norm of self-determination is thus to some extent clarified by the Chagos Advisory Opinion, the substance of such a norm remains insufficiently articulated. If anything, the emphasis on territorial integrity compromises the status of peoplehood and conveys that the incidents of statehood take precedence over the collective rights of distinct populations.
{"title":"Peoplehood Obscured? The Normative Status of Self-Determination after the Chagos Advisory Opinion (Advance)","authors":"E. Forbes, J. Morss","doi":"10.26180/16726978.V1","DOIUrl":"https://doi.org/10.26180/16726978.V1","url":null,"abstract":"In international law the right of every people to self-determination is well established. Yet in terms of substance and process this right incident to ‘peoplehood’, on its face the paradigmatically collectively held right, is inadequately articulated. This paper interrogates the normative status of self-determination in the context of colonial domination, after the Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (‘Chagos Advisory Opinion’) issued by the International Court of Justice (‘ICJ’) in 2019. Self-determination is investigated both as a putative norm of customary international law (‘CIL’) and a putative norm jus cogens. The CIL status of self-determination in the post-colonial setting is well established by the ICJ and a higher, peremptory status is strongly implied. In either case territorial integrity is of the essence of the rights conveyed by the norm. Here it is argued that while the formal status of a norm of self-determination is thus to some extent clarified by the Chagos Advisory Opinion, the substance of such a norm remains insufficiently articulated. If anything, the emphasis on territorial integrity compromises the status of peoplehood and conveys that the incidents of statehood take precedence over the collective rights of distinct populations.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"81 7","pages":"1-37"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72452356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Significant uncertainty exists around the current test of capacity. It is agreed that the law is primarily directed at ‘ function’; that is, an assessment of a person’s decision-making ability. However, there is conflicting authority over whether there is an ongoing role for ‘outcome’, that is, consideration of the perceived wisdom of the decision made by the person whose capacity is assessed. Recent cases in Australia and England and Wales have indicated that ‘outcomes’ are irrelevant to capacity, meaning any decision in which the perceived wisdom of a decision was weighed in the determination of capacity would be incorrectly decided. However, this article argues that these recent statements are incorrect interpretations of the applicable law in those jurisdictions. Moreover, it is argued that assessing capacity, even under a functional test, is an inherently normative procedure, from which consideration of the outcome of the decision cannot be fully extricated. Therefore, the challenge is not to prohibit consideration of outcomes in capacity assessment, but rather to manage their consideration, to ensure that they do not overwhelm functional capacity assessment. Suggestions for how this difficult balance can be performed are made.
{"title":"Is the Wisdom of a Person's Decision Relevant to Their Capacity to Make That Decision?","authors":"Sam Boyle","doi":"10.26180/13100531.V3","DOIUrl":"https://doi.org/10.26180/13100531.V3","url":null,"abstract":"Significant uncertainty exists around the current test of capacity. It is agreed that the law is primarily directed at ‘ function’; that is, an assessment of a person’s decision-making ability. However, there is conflicting authority over whether there is an ongoing role for ‘outcome’, that is, consideration of the perceived wisdom of the decision made by the person whose capacity is assessed. Recent cases in Australia and England and Wales have indicated that ‘outcomes’ are irrelevant to capacity, meaning any decision in which the perceived wisdom of a decision was weighed in the determination of capacity would be incorrectly decided. However, this article argues that these recent statements are incorrect interpretations of the applicable law in those jurisdictions. Moreover, it is argued that assessing capacity, even under a functional test, is an inherently normative procedure, from which consideration of the outcome of the decision cannot be fully extricated. Therefore, the challenge is not to prohibit consideration of outcomes in capacity assessment, but rather to manage their consideration, to ensure that they do not overwhelm functional capacity assessment. Suggestions for how this difficult balance can be performed are made.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"101 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73346015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Between 2006–19, eight doctors who were registered to practise medicine in Australia were convicted of child pornography offences. Despite finding that those medical practitioners' conduct was extremely serious, disciplinary decision-makers permitted seven of them to continue or, after a period of suspension of their registration, return to practising medicine, albeit subject to conditions. The decision-makers whose reasons for decision are published indicated that they strove to achieve the appropriate objective of protecting the public, but they reached their determinations to some extent in different ways from one another and, in some instances, on the basis of matters that were unhelpful in identifying which determinations would best safeguard the community. Further, they did not all provide thorough, cogent reasons for their decisions. This article analyses the matters to which these decision-makers had regard. It then recommends that Australian legislatures and regulators of the medical profession provide guidance regarding decision-making in disciplinary proceedings where doctors have committed child pornography offences. These proposals seek to ensure that disciplinary decision-makers safeguard the community in a consistent manner, and assure the public and the medical profession that they have done so.
{"title":"Not Black and White?: Disciplinary Regulation of Doctors Convicted of Child Pornography Offences in Australia","authors":"Gabrielle C. Wolf","doi":"10.26180/5EDE2D554BA83","DOIUrl":"https://doi.org/10.26180/5EDE2D554BA83","url":null,"abstract":"Between 2006–19, eight doctors who were registered to practise medicine in Australia were convicted of child pornography offences. Despite finding that those medical practitioners' conduct was extremely serious, disciplinary decision-makers permitted seven of them to continue or, after a period of suspension of their registration, return to practising medicine, albeit subject to conditions. The decision-makers whose reasons for decision are published indicated that they strove to achieve the appropriate objective of protecting the public, but they reached their determinations to some extent in different ways from one another and, in some instances, on the basis of matters that were unhelpful in identifying which determinations would best safeguard the community. Further, they did not all provide thorough, cogent reasons for their decisions. This article analyses the matters to which these decision-makers had regard. It then recommends that Australian legislatures and regulators of the medical profession provide guidance regarding decision-making in disciplinary proceedings where doctors have committed child pornography offences. These proposals seek to ensure that disciplinary decision-makers safeguard the community in a consistent manner, and assure the public and the medical profession that they have done so.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"55 1","pages":"487-529"},"PeriodicalIF":0.0,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81487026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite its name, the Australian law of the dead — a term used here to refer to the common law governing the treatment and disposal of the body of a deceased person — has extraordinarily little to do with the recently deceased. Instead, it is traditionally (and narrowly) conceptualised from the perspective of the still-living, with post-death disputes — such as those relating to posthumous interferences with the corpse — being decided by reference to the person who holds the right to possession of the body of the deceased. In contrast, whilst her physical shell continues to play a role at law, from the moment of death onwards the deceased as a person is denied legal existence in the form of rights, interests, or duties. This paper challenges this traditional formulation of the law of the dead by bringing the interests of the deceased to the forefront. It does this by arguing that the law of the dead should be reconceptualised so that the holder of the right to possession of the body of a particular deceased person is considered to experience an expansion of their own personal set of interests; this expansion being equivalent to those interests held by the deceased in relation to her body during her life and continuing into a 'posthumous space' after her death.
{"title":"Reconceptualising the Law of the Dead by Expanding the Interests of the Living","authors":"K. Falconer","doi":"10.26180/5E6037B2D7B28","DOIUrl":"https://doi.org/10.26180/5E6037B2D7B28","url":null,"abstract":"Despite its name, the Australian law of the dead — a term used here to refer to the common law governing the treatment and disposal of the body of a deceased person — has extraordinarily little to do with the recently deceased. Instead, it is traditionally (and narrowly) conceptualised from the perspective of the still-living, with post-death disputes — such as those relating to posthumous interferences with the corpse — being decided by reference to the person who holds the right to possession of the body of the deceased. In contrast, whilst her physical shell continues to play a role at law, from the moment of death onwards the deceased as a person is denied legal existence in the form of rights, interests, or duties. This paper challenges this traditional formulation of the law of the dead by bringing the interests of the deceased to the forefront. It does this by arguing that the law of the dead should be reconceptualised so that the holder of the right to possession of the body of a particular deceased person is considered to experience an expansion of their own personal set of interests; this expansion being equivalent to those interests held by the deceased in relation to her body during her life and continuing into a 'posthumous space' after her death.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"63 1","pages":"757-784"},"PeriodicalIF":0.0,"publicationDate":"2020-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87139490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
F. McGaughey, Natalie Skead, L. Elphick, Murray Wesson, K. Offer
Two significant areas of contemporary legal education research are student wellbeing and student attendance. It is well established that, when compared with the general population, university students, including those studying law, are at greater risk of experiencing psychological distress and, when they do, it is likely to be at higher levels. Student attendance at face-to-face classes is also gaining traction as a research area, but there is a dearth of robust empirical data in this area. Moreover, the relationship between attendance and wellbeing is underexplored. This article seeks to address this gap in the literature.We recently undertook a large empirical, mixed method study at our university, involving a survey of law students, a manual count of student attendance, and student focus groups. While the primary purpose of the study was to better understand motivations for student attendance or non-attendance, using a constructivist methodology, we extracted a wealth of qualitative data that gave additional insights into both student wellbeing and the attendance–wellbeing nexus. In this article, we present these findings through the lens of Self-Determination Theory and its principles of relatedness, autonomy and competence and in particular explore the tension between autonomy and relatedness when students do not attend lectures.
{"title":"What Have We Here? The Relationship between Law Student Attendance and Wellbeing","authors":"F. McGaughey, Natalie Skead, L. Elphick, Murray Wesson, K. Offer","doi":"10.26180/5E3E8010A60E0","DOIUrl":"https://doi.org/10.26180/5E3E8010A60E0","url":null,"abstract":"Two significant areas of contemporary legal education research are student wellbeing and student attendance. It is well established that, when compared with the general population, university students, including those studying law, are at greater risk of experiencing psychological distress and, when they do, it is likely to be at higher levels. Student attendance at face-to-face classes is also gaining traction as a research area, but there is a dearth of robust empirical data in this area. Moreover, the relationship between attendance and wellbeing is underexplored. This article seeks to address this gap in the literature.We recently undertook a large empirical, mixed method study at our university, involving a survey of law students, a manual count of student attendance, and student focus groups. While the primary purpose of the study was to better understand motivations for student attendance or non-attendance, using a constructivist methodology, we extracted a wealth of qualitative data that gave additional insights into both student wellbeing and the attendance–wellbeing nexus. In this article, we present these findings through the lens of Self-Determination Theory and its principles of relatedness, autonomy and competence and in particular explore the tension between autonomy and relatedness when students do not attend lectures.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"8 1","pages":"165-185"},"PeriodicalIF":0.0,"publicationDate":"2020-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86204640","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Blockchain is a technologically enabled expression of the panopticon metaphor — however, duplicated as both a carrot and a stick. This paper demonstrates how the metaphor can be used to deepen an existing understanding of law and governance through the technology and social tool of blockchain. This enhances our understanding of blockchain and shows a new way of considering its value as a technology. This is presented in three stages. The first stage explores the role of the panopticon as initially conceptualised by Bentham, and subsequently developed by Foucault. The second stage of this paper turns to the social and community borne effects of blockchain and the benefits of the technology as a social tool. It is argued that blockchain technology can augment juridic and governance power through the formation of blockchain-enabled communities. These communities will have the means to self-regulate their actions because of the technology in a manner that replicates the qualities of the panopticon. The third stage considers this technology through a legal lens and provides a practical example using observations from the BeefLedger project. This explores the potential value of blockchain to the Australian beef supply chain and importance to food fraud, food safety, and animal welfare.
{"title":"Panoptic Blockchain Ecosystems: An Exploratory Case Study of the Beef Supply Chain (Advance)","authors":"Lachlan Robb, Felicity Deane, Warwick Powell","doi":"10.26180/14269091.V1","DOIUrl":"https://doi.org/10.26180/14269091.V1","url":null,"abstract":"Blockchain is a technologically enabled expression of the panopticon metaphor — however, duplicated as both a carrot and a stick. This paper demonstrates how the metaphor can be used to deepen an existing understanding of law and governance through the technology and social tool of blockchain. This enhances our understanding of blockchain and shows a new way of considering its value as a technology. This is presented in three stages. The first stage explores the role of the panopticon as initially conceptualised by Bentham, and subsequently developed by Foucault. The second stage of this paper turns to the social and community borne effects of blockchain and the benefits of the technology as a social tool. It is argued that blockchain technology can augment juridic and governance power through the formation of blockchain-enabled communities. These communities will have the means to self-regulate their actions because of the technology in a manner that replicates the qualities of the panopticon. The third stage considers this technology through a legal lens and provides a practical example using observations from the BeefLedger project. This explores the potential value of blockchain to the Australian beef supply chain and importance to food fraud, food safety, and animal welfare.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"33 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81038437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Patterns of illicit sexual misconduct by celebrities and institutional carers have been the subject of constant publicity in recent times. These episodes have often led to calls for reform of the law relating to the admission of prior conduct and convictions as evidence of criminal offences. The case of the Hey Dad..! star, Robert Hughes, triggered a High Court appeal on the subject aimed at resolving legal controversies in this area, but the High Court’s decision was regarded as insufficient by the recently completed Royal Commission Into Institutional Responses to Child Sexual Abuse, which recommended its own reform. This article argues that the problems lie in factual reasoning rather than legal rule-making. It explores the factual reasoning underlying decisions of admissibility of tendency evidence to try to shed light on issues of probative value not only under the Uniform Evidence Acts but under any legislative or common law regime.
{"title":"Reasoning about Tendency: What Does Hughes v The Queen Really Tell Us?","authors":"P. M. Robinson","doi":"10.26180/5DCA7853341AE","DOIUrl":"https://doi.org/10.26180/5DCA7853341AE","url":null,"abstract":"Patterns of illicit sexual misconduct by celebrities and institutional carers have been the subject of constant publicity in recent times. These episodes have often led to calls for reform of the law relating to the admission of prior conduct and convictions as evidence of criminal offences. The case of the Hey Dad..! star, Robert Hughes, triggered a High Court appeal on the subject aimed at resolving legal controversies in this area, but the High Court’s decision was regarded as insufficient by the recently completed Royal Commission Into Institutional Responses to Child Sexual Abuse, which recommended its own reform. This article argues that the problems lie in factual reasoning rather than legal rule-making. It explores the factual reasoning underlying decisions of admissibility of tendency evidence to try to shed light on issues of probative value not only under the Uniform Evidence Acts but under any legislative or common law regime.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"39 1","pages":"98-140"},"PeriodicalIF":0.0,"publicationDate":"2019-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79660174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The strategic expansion of work integrated learning (‘WIL’) programs by Australian universities is not without legal risk. The primary sources of that legal risk are the participation of third party entities that host students in the workplace and the placement of students in a workplace environment that they may be unfamiliar with. Managing the legal risks associated with WIL is not only a commercial imperative, but is mandatory under higher education law. University lawyers, a relatively unknown category of in-house counsel, have a central role in risk management. A case study involving 13 Australian university lawyers represents the first known systematic study of risk management in WIL from the perspective of university lawyers. The insights and recommendations provided by university lawyers can educate stakeholders about risk management and the role of university lawyers, and can be used as a basis for evaluating and improving risk management in WIL programs.
{"title":"Risk management by university lawyers in work integrated learning programs","authors":"C. Cameron","doi":"10.26180/5DCA76AF8830C","DOIUrl":"https://doi.org/10.26180/5DCA76AF8830C","url":null,"abstract":"The strategic expansion of work integrated learning (‘WIL’) programs by Australian universities is not without legal risk. The primary sources of that legal risk are the participation of third party entities that host students in the workplace and the placement of students in a workplace environment that they may be unfamiliar with. Managing the legal risks associated with WIL is not only a commercial imperative, but is mandatory under higher education law. University lawyers, a relatively unknown category of in-house counsel, have a central role in risk management. A case study involving 13 Australian university lawyers represents the first known systematic study of risk management in WIL from the perspective of university lawyers. The insights and recommendations provided by university lawyers can educate stakeholders about risk management and the role of university lawyers, and can be used as a basis for evaluating and improving risk management in WIL programs.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"46 4 1","pages":"29-69"},"PeriodicalIF":0.0,"publicationDate":"2019-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90560629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The right to published editions was introduced in the Copyright Act 1968 (Cth) in order to prevent the unfair copying of typographical layouts of published editions of books in the public domain. The initial rationale, its actual effectiveness, and its relevance today has attracted very little attention among commentators. Historical analysis shows that the right was introduced into Australian copyright law without much discussion or engagement. Even today it is difficult to find evidence that there was ever an actual need for a right of this nature in Australia, or that it has had any positive effects on the local publishing industry since. This article demonstrates that despite its original intention, some industries today have moved to exploit the right by reinterpreting it to protect their own financial interests. This article concludes with some lessons that could be learned from the history of published edition copyright in the context of current copyright policy discussions — particularly in relation to the newly proposed rights for news publishers.
{"title":"Copyright in published editions: a history of a declining right","authors":"Rita Matulionyte","doi":"10.26180/5DCA778CF3163","DOIUrl":"https://doi.org/10.26180/5DCA778CF3163","url":null,"abstract":"The right to published editions was introduced in the Copyright Act 1968 (Cth) in order to prevent the unfair copying of typographical layouts of published editions of books in the public domain. The initial rationale, its actual effectiveness, and its relevance today has attracted very little attention among commentators. Historical analysis shows that the right was introduced into Australian copyright law without much discussion or engagement. Even today it is difficult to find evidence that there was ever an actual need for a right of this nature in Australia, or that it has had any positive effects on the local publishing industry since. This article demonstrates that despite its original intention, some industries today have moved to exploit the right by reinterpreting it to protect their own financial interests. This article concludes with some lessons that could be learned from the history of published edition copyright in the context of current copyright policy discussions — particularly in relation to the newly proposed rights for news publishers.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"72 6 1","pages":"70-97"},"PeriodicalIF":0.0,"publicationDate":"2019-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77483596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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