‘‘Blocks of Lading"

The bill of lading has, for centuries, been an integral component in the maritime shipping industry. However, the stagnation in the development of this legal instrument is contrasted with the exponential rate of development in other areas of commercial practice, which highlights the financial costs and delays associated with the use of bills of lading. The purpose of this paper is to present a modern alternative to the current paper-based bill of lading system that accounts for the practical and legal requirements of the incumbent instrument and also overcomes the deficiencies inherent in paper-based bills of lading. In the context of the regulatory uncertainty of bills of lading based on distributed ledger technology, this paper discusses approaches to regulating this new technology so as to achieve the same legal effects that the traditional, paper-based bill of lading provides. This paper presents two methods for regulating distributed ledger technology when applied to maritime shipping: the first is based on the principle of functional equivalence, which can be employed in domestic legislation, and the second is based on the Model Law on Electronic Transferable Records. I conclude that, while both approaches represent steps in the right direction, the latter would imbue this technology with sufficient legal certainty so as to spark a marine cargo carriage revolution and facilitate a productive disruption of the current industry practice.

2018 WA Lee Equity Lecture: Equity in an Age of Uncertainty

May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College. At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee. So to give this lecture before an audience including Tony Lee fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections. It is small consolation that, on this occasion at least, he will not be marking the paper.

Mandatory Data Breach Notification and Hacking the Smart Home: A Legal Response to Cybersecurity?

This paper will investigate whether the Australian legal and regulatory framework sufficiently addresses cybersecurity concerns particular to the smart home. Specifically, the paper will analyse the extent to which the introduction of the data breach notification scheme in Australia will apply to smart home device manufacturers regulated by the federal Privacy Act 1988 (Cth) regarding device breaches. By examining Australian Privacy Principle 11 and the introduction of mandatory data breach notification, the paper aims to determine whether the Australian privacy model of Principles-Based Regulation is capable of providing a market-based solution to cybersecurity concerns in the smart home.

2018 WA Lee Equity Lecture:

May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College. At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee. So to give this lecture before an audience including Tony Lee, fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections. It is small consolation that, on this occasion at least, he will not be marking the paper. In choosing the topic for the paper, I had in mind a paper given by the Hon Dyson Heydon, AC QC, to the first STEP Australia Conference.[2] Mr Heydon QC observed that: This paper is an edited version of a paper presented at the 2018 WA Lee Equity Lecture delivered on 21 November 2018 at the Banco Court, Supreme Court of Queensland, Brisbane. * AM RFD QC; BA (UQ), LLB (UQ), LLM (UQ). [1] Adopted by Australia and implemented in the Trusts (Hague Convention) Act 1991 (Cth). [2] JD Heydon, ‘Modern Fiduciary Liability: the Sick Man of Equity’ (2014) 20 Trusts & Trustees 1006.

Choosing Impairment: conflicting interests

The integration of reproductive genetic testing into clinical care presents both opportunities and challenges to parents in regards to shaping the lives of their future children. The relationship between parents and their future children has become more complex and new questions are being raised in relation to the extent of parental responsibility to future generations. This paper explores the ethical permissibility of using pre-implantation genetic diagnosis (PGD) to select for impairment, through the use of two case studies involving identify affecting decisions. Through analysing harm through both a personal and impersonal approach it is concluded that if a couple, or single reproducer, have a choice between an impaired and healthy embryo, and that the same number of children would result from selection, there is a moral obligation for parents to select the ones which will have an acceptable level of interest fulfilment and a normal opportunity for health.

Mandatory Data Breach Notification and Hacking the Smart Home: A Legal Response to Cybersecurity?

This paper will investigate whether the Australian legal and regulatory framework sufficiently addresses cybersecurity concerns particular to the smart home. Specifically, the paper will analyse the extent to which the introduction of the data breach notification scheme in Australia will apply to smart home device manufacturers regulated by the federal Privacy Act 1988 (Cth) regarding device breaches. By examining Australian Privacy Principle 11 and the introduction of mandatory data breach notification, the paper aims to determine whether the Australian privacy model of Principles Based Regulation is capable of providing a market-based solution to cybersecurity concerns in the smart home.

Choosing Impairment: Conflicting Interests

The integration of reproductive genetic testing into clinical care presents both opportunities and challenges for parents in regards to shaping the lives of their future children. The relationship between parents and their future children has become more complex and new questions are being raised in relation to the extent of parental responsibility to future generations. This paper explores the ethical permissibility of using pre-implantation genetic diagnosis (PGD) to select for impairment, through the use of two case studies involving identity-affecting decisions. Through analysing harm using both a personal and impersonal approach, it is concluded that if a couple, or single reproducer, have a choice between an impaired and healthy embryo, and that the same number of children would result from selection, there is a moral obligation for parents to select the ones which will have an acceptable level of interest fulfilment and a normal opportunity for health.

Technology and Regulatory Black Holes: Issues in Protecting IP Rights in Insolvency for Both Licensors and Licensees

Australia’s insolvency laws have a curious deficiency: There are virtually no provisions on the treatment of ongoing contracts. Such contracts may well represent some of the most valuable assets of a business debtor, small or large, especially in this new era of rapid technological innovation, where tangible property often pales in value to that inherent in intellectual property. Indeed, IP rights are often the nucleus around which a small business’ vitality revolves. The inability of businesses predictably to rely on, manage, and protect license contracts preserving IP rights is a problem that is sure to become more acute in the coming decades, as both the importance of IP rights and the incidence of business insolvency rise. Experience from across the Pacific portends a potential wave of coming disputes involving such rights in developed economies like Australia’s, potentially hitting small entrepreneurs hard and undermining the effectiveness of insolvency proceedings for these crucial debtors and their creditors. This article reveals a proliferation of disputes concerning IP license rights and several salient challenges confronted by both licensors and licensees, debtors and non-debtors, in domestic and cross-border insolvency proceedings in US insolvency proceedings. The common root of these challenges seems to be legislation that did not foresee the rise of IP licensing as a mainstay of modern entrepreneurship. The simple common solution, and a guide for Australian regulators, is more careful consideration of non-obvious pitfalls in laws that preserve IP license rights in insolvency cases to maximise value not only for the parties involved, but for modern societies who increasingly depend on innovation and entrepreneurship.

Book Review - Equality and Discrimination Law in Australia

Anti-discrimination laws aim to protect people from harm to which they may be subject on the basis of personal attributes such as gender, race, age or disability. With human rights principles as their source, anti-discrimination laws can be seen to have equality as their goal however contested notions of equality make it difficult to determine whether the laws are reaching this objective. Anti-discrimination law occupies a peculiar position at the nexus of public and private law; it encompasses both civil and political rights and obligations between individuals.

Regulating Restraint and Seclusion in Australian Government Schools: A Comparative Human Rights Analysis

The misuse of restraint and seclusion in Australian primary and secondary schools has received considerable exposure in recent years. Several Australian jurisdictions have recently reviewed laws and policies governing their use in schools. Yet reports about the inappropriate use of these practices remain prominent and raise concerns about whether existing regulatory frameworks do enough to protect the rights of children with disabilities in schools. This paper undertakes the first comparative analysis of existing regulatory frameworks governing the use of restraint and seclusion in Australian government schools, both primary and secondary, and considers whether existing frameworks are compliant with international human rights obligations under the Convention on the Rights of Persons with Disabilities (‘CRPD’) and the Convention on the Rights of the Child (‘CRC’). The paper reveals substantial variation in regulation between jurisdictions, and demonstrates that significant reform is necessary to bring existing regulatory frameworks into alignment with human rights norms.