Monash University Law Review最新文献

{"title":"Designs, Parody and Artistic Expression — A Comparative Perspective of Plesner v Louis Vuitton","authors":"Jani McCutcheon","doi":"10.2139/SSRN.2655393","DOIUrl":"https://doi.org/10.2139/SSRN.2655393","url":null,"abstract":"This article examines the legal issues raised in Plesner v Louis Vuitton through a comparative Australian and European lens. It uses the case as a springboard to critically examine some important differences between the way that Australian and European design law responds to creative expression, some of which impact the Advisory Council on Intellectual Property’s current review of the Designs Act 2003 (Cth). In 2008, Dutch artist Nadia Plesner, created a drawing, Simple Living, depicting a malnourished African child holding a Louis Vuitton ‘Audra’ handbag and a miniature Chihuahua. Plesner sold T-shirts depicting Simple Living to support a campaign to raise awareness of the atrocities then occurring in Darfur. Relying exclusively on its European Community registered design for the pattern of the bag shown in Simple Living, in May 2008 and again in 2010, Louis Vuitton obtained ex parte injunctions prohibiting Plesner from selling products infringing the registered design. In 2011, Plesner successfully appealed against the latest injunction on the basis that her human right to free expression was more important than Louis Vuitton’s property rights. This article poses the question: how would this case have unfolded under the very different Australian legal and human rights frameworks? As it responds to that question, the article explores the important differences between the European and Australian registered design systems, and discusses issues of broader significance than the specific facts of Plesner, and which should be considered in the current reform inquiry. Of particular interest and focus is the novel question of whether Australian design rights, which are not balanced by an express defence of fair dealing nor any concept of ‘design use’ comparable to trade mark use, might be a forceful, if unintended, inhibitor of artistic, political or parodic expression which might otherwise be immune under copyright and trade mark law. These risks need to be considered in the current reform debates.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"14 1","pages":"192-217"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87451527","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}

{"title":"Throwing babies out with the bathwater?: Adversarialism, ADR and the way forward","authors":"P. Baron, L. Corbin, J. Gutman","doi":"10.26180/5DB80456D22DB","DOIUrl":"https://doi.org/10.26180/5DB80456D22DB","url":null,"abstract":"Negative comments about the workings of the adversarial system have resonated from the judiciary, government agencies, lawyers and other stakeholders. In response to such criticisms, there has been an increasing emphasis upon non-adversarial approaches to justice and alternative dispute resolution (ADR). This is a development that should be welcomed. Proponents hold that these 'new' approaches to legal disputes will enhance justice in many areas and reduce negative factors such as the cost, time investment, delays, stress and disempowerment often experienced by those involved in the litigation process. At the same time, we take up the Hon Michael Kirby's point that for ADR to assume all the functions of the court would be to 'throw the baby out with the bathwater'; but it would also be counterproductive for ADR to too closely assume judicial procedures. We agree that the relationship between the two processes needs to be 'correct and evolving' and the success of both hinges largely on the integrity and expertise of the personnel involved and their understanding of conduct appropriate to each process. In this article, we consider the ways in which the borders between adversarial and ADR processes may blur; and the ways in which a lack of understanding of appropriate conduct by participants who are representing parties in mediation may detrimentally impact both processes.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"12 1","pages":"283"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83932619","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}

{"title":"Stress, anxiety and depression in law students: How student behaviours affect student wellbeing","authors":"Natalie Skead, S. Rogers","doi":"10.2139/SSRN.2392131","DOIUrl":"https://doi.org/10.2139/SSRN.2392131","url":null,"abstract":"There is growing national and international concern for the mental wellbeing of law students and law graduates. Some excellent work has been, and continues to be, done in several Australian law schools on how law schools and law teachers can promote mental health in their law students through curriculum design and teaching practices. The relationship between mental health in law students and student behaviours has, however, remained largely unexplored. To fill this void in the research, in 2013 the authors undertook an empirical study at the University of Western Australia involving over 500 law and psychology students. This article reports on the results of that study and identifi es the correlations between the levels of stress, anxiety and depression in law students and certain behaviours. By exploring the impact students’ own behaviours have on their wellbeing, this article provides guidance to law students and law schools on managing mental health.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"129 1","pages":"1-24"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73658965","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}

{"title":"The role of lawyers in mediation: insights from mediators at Victoria's Civil and Administrative Tribunal","authors":"K. Douglas, Becky Batagol","doi":"10.26180/5DB80528B38FA","DOIUrl":"https://doi.org/10.26180/5DB80528B38FA","url":null,"abstract":"Mediation is an increasingly important part of legal practice with the institutionalisation of alternative or appropriate dispute resolution in our legal system. Mediation has been embraced by courts and may be part of pre-action requirements in some jurisdictions. How lawyers can best contribute to mediation has been discussed in the literature and is informed by ethical requirements. This article provides insights into the role of lawyers in mediation using interviews with sixteen mediators at the Victorian Civil and Administrative Tribunal of Victoria. It explores collaborative approaches that lawyers can adopt within the spectrum of roles that lawyers may take when representing a client in mediation developed by Olivia Rundle","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"7 1","pages":"758-792"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75122444","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}

{"title":"The State of Personal Liberty in Australia after M47: A Risk Theory Analysis of Security Rights","authors":"Kellie L. Robson","doi":"10.26180/5DB802B1D8662","DOIUrl":"https://doi.org/10.26180/5DB802B1D8662","url":null,"abstract":"In Plaintiff M47/2012 v Director General of Security, the High Court of Australia unanimously applied a test of compatibility with human rights related statutory responsibilities to an impugned public interest criterion. A clear majority of the High Court appeared willing to consider whether the right to personal liberty in Australia has constitutional protections extending to refugees. This article applies Ulrich Beck’s risk theory to recent preventive, administrative detention of refugees under adverse security assessments to examine the relationship between liberty rights and the decision-makers responsible for assessing, and for managing, national security risk. Risk theory casts light on how the collective right to national security relies on respecting every individual’s right to liberty and security of person. The High Court’s formal, values-based method of statutory interpretation is endorsed as an effective accountability mechanism capable of protecting fundamental values expressive of human rights.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"2 1","pages":"506-538"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79273231","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}

{"title":"Representative Actions, Proof of Fact and Author Privacy in Copyright Law: A History and a Concern","authors":"E. Adeney","doi":"10.2139/SSRN.2856176","DOIUrl":"https://doi.org/10.2139/SSRN.2856176","url":null,"abstract":"Recent judgments in Australia have called for author identification in order that copyright subsistence may be established. There is a risk that such calls will be taken too literally, to the detriment of author privacy. This article considers the legal mechanisms by which author identity has historically been shielded from disclosure, without the operation of the copyright system being impaired. It expresses the hope that those who are responsible for developing copyright law will be mindful of the concern for author privacy which has long been part of copyright discourse.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"9 22","pages":"106-130"},"PeriodicalIF":0.0,"publicationDate":"2013-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72536114","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}

{"title":"Proportionality, Rights-Consistent Interpretation and Declarations Under the Victorian Charter of Human Rights and Responsibilities: The Momcilovic Litigation and Beyond","authors":"J. Debeljak","doi":"10.2139/SSRN.2603929","DOIUrl":"https://doi.org/10.2139/SSRN.2603929","url":null,"abstract":"The meaning, scope and interaction of the key provisions relating to the rights-compatibility of legislation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were analysed by the Victorian Court of Appeal (‘VCA’) in R v Momcilovic. On appeal, the High Court of Australia (‘HCA’) reviewed this analysis and considered the constitutionality of the key provisions in Momcilovic v R. Although overall the HCA upheld the provisions as constitutional, no majority opinion emerged on the scope and operation of the provisions in Victoria, with similar differences of opinion reflected in the Victorian superior courts. Opinions differed on: the role, if any, of limitations under s 7(2); whether s 32(1) is an ordinary rule of statutory construction or a “remedial” rule of interpretation; and the constitutionality and role of s 36(2) declarations of inconsistent interpretation. Even where a degree of agreement was apparent on one provision, the reasoning underlying the agreement differed, and/or there was no agreement on the inter-linking provisions. An overarching theme concerned the methodology by which to approach the key provisions, which again produced disagreement.This article will critically analyse the multiplicity of views in the HCA, both because of the importance of the decision and because its application in Victoria is unclear. Regarding the latter, the Victorian superior courts have considered VCA Momcilovic to not be overruled by HCA Momcilovic, and continue to rely on it in varying degrees, whilst also seeking to identify a ratio from the HCA. By way of background, the article will explore the choices facing the VCA and its decision. It will then analyse the five HCA judgments, focussing on the thematic issues of limitations, ordinary/remedial interpretation, declarations, and methodology. It concludes with a review of the Victorian superior courts’ reaction to HCA Momcilovic. Analysis will be limited to consideration of the Charter as it operates in Victoria. In addition to the specific disagreements on the key provisions, broader issues of parliamentary sovereignty, the proper role of the judiciary and democratic governance will be examined.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"14 1","pages":"340-388"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89954408","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}

{"title":"British Colonialism, Australian Nationalism and the Law: Hierarchies of Wild Animal Protection","authors":"S. White","doi":"10.26180/5DB80295D83FF","DOIUrl":"https://doi.org/10.26180/5DB80295D83FF","url":null,"abstract":"A combination of animal welfare law and nature conservation law establishes a hierarchy of protection for wild animals, with rare, threatened or endangered native animals receiving the highest levels of protection, plentiful native animals lying in the middle — sometimes wellprotected, sometimes not — and introduced wild animals at the bottom. In reading beyond the accounts of contemporary law, especially in sociology and environmental history, a plausible argument can be made for the proposition that this prevailing general schema of protection refl ects an early 20 th century assertion of a distinctive Australian identity, combined with the emergence of a conservation ethic and the decline of attempts to acclimatise British wild animals in Australia. Prior to federation the legal protection of wild animals was quite different, with native animals receiving little protection until the late 19 th century. Introduced wild animals were initially protected to allow their fl ourishing, but by the late 19 th century were increasingly being characterised as ‘pests’ and their protection wound back. This article explores how and why attitudes to native wild animals and introduced wild animals in Australia have changed over time, and how this continues to be refl ected in Australian law.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"20 1","pages":"452-472"},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74923699","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}

{"title":"Franchisor Liability for Franchisee Conduct","authors":"A. Terry, Joseph L Huan","doi":"10.26180/5DB8027A2FD65","DOIUrl":"https://doi.org/10.26180/5DB8027A2FD65","url":null,"abstract":"Franchisors and franchisees are legally and financially independent parties responsible for their own torts, contracts and other legal obligations. From the perspective of the general public however the independent contractor nature of the relationship is obscured by system standardisation and uniformity which conveys the appearance of a single entity. Although in law there is a fundamental difference between a system outlet operated by a franchisee and a system outlet operated by the franchisor through a manager, the outlets are otherwise identical and the legal subtleties are imperceptible to customers and the public generally. The legal ramifications are nevertheless significant. In general terms a franchisor is liable under the principle of vicarious liability for the torts committed by employee managers but not for the torts committed by franchisees who are independent contractors. Franchisors may also be liable under agency principles - for contracts made by those agents who have the actual or apparent authority to make contracts on behalf of the franchisor principal - which may be the case for employed outlet managers but rarely for franchisees. This article reviews the law relating to franchisor liability for franchisee conduct in Australia and concludes that legal principle and commercial practice have been largely effective in insulating franchisors from liability under vicarious liability and agency principles. Such actions are nevertheless not the exclusive sources of potential franchisor liability and franchisors and their legal advisors need to be aware of the potential consequences beyond unwelcome system publicity which might arise from franchisee conduct.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"44 1","pages":"388"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85123259","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}

{"title":"Defensive Homicide on Trial in Victoria","authors":"Kellie Toole","doi":"10.2139/SSRN.2404733","DOIUrl":"https://doi.org/10.2139/SSRN.2404733","url":null,"abstract":"Defensive homicide was introduced in Victoria in 2005. It was enacted to provide a safety net conviction for women who kill an abusive partner and cannot satisfy the test for self-defence, but who should not be considered a murderer. However, 21 of the 24 people so far convicted of defensive homicide are men, and all but one of the victims is another man. The academic attention on defensive homicide has focused on women as offenders and victims, leaving the bulk of the cases unexamined. Given that the offence is currently under review, it is important that the cases are analysed in the context of male violence. This article considers whether the cases resulting in convictions for defensive homicide are within the intended scope of the offence and are compatible with the elements of the offence.","PeriodicalId":44672,"journal":{"name":"Monash University Law Review","volume":"22 1","pages":"473"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75705164","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}