November 2011 Highlights

November 2011 saw eight topics updated in The Laws of Australia.

Subtitle 1.8 Indigenous Cultural and Intellectual Property

Updated by Patricia Adjei, 2010 World Intellectual Property Organization Indigenous IP Law Fellow

This update explores the application of Intellectual Property law, including copyright, designs, patents and trademarks, to the protection of traditional cultural and intellectual property. Contractual protections, protocols, land rights and provisions of the Australian Consumer Law are also considered in relation to Indigenous cultural and intellectual property rights.  The chapter includes expanded commentary on recent legislative and policy schemes that provide for recognition of these rights, including the Resale Royalty Scheme, under the Resale Royalty Rights for Visual Artists Act 2009 (Cth), and the Indigenous Art Commercial Code of Conduct. International developments are also examined, with reference to United Nations Declaration on the Rights of Indigenous People and the current negotiations by the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources.

Subtitle 4.3 “Company Finance”

Updated by Dr Keith Fletcher, Former Reader in Law, University of Queensland

This Subtitle describes the relationships between a company and the persons who finance it. This update features commentary on s 254T of the Corporations Act 2001 (Cth), which redirected the focus of the provision to “surplus assets” and “solvency”. This should simplify this area of law by removing the need to interpret old and complex case law that was, in many cases, inconsistent with developing accounting standards. The Subtitle also refers to the recent cases of Re Choiseul Investments Ltd [2010] FCA 1189 and Re Ricegrowers Ltd [2011] FCA 408 in relation to the classification of shares.

Subtitle 12.7 Custodial Orders 

Updated by Danielle Andrewartha

This Subtitle update includes the addition of a new chapter on imprisonment in each State and Territory in Australia. The chapter deals in detail with the legislative provisions that govern imprisonment. The update also addresses legislative changes that have occurred in relation to custodial orders in Australian jurisdictions, and includes a number of recent case authorities that have been decided under current legislative provisions.

Subtitle 17.9 “Adoption of Children”

Updated by Dr David Morrison, Senior Lecturer, TC Beirne School of Law, University of Queensland (with additional content by Meng Yen Phua, Legal Editor, The Laws of Australia)

This Subtitle gives an overview of the legislative frameworks underpinning the process of adoption in each State and Territory, including assessment of a person’s eligibility to adopt, the requirements for valid consent and factors giving rise to court discretion in granting adoption orders, by reference to the paramount consideration of the adoptee’s best interests and welfare. There is comparison of the regimes regulating the flow of adoption information and access between the adoptee, birth family and adoptive parents. The incorporation of the Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) 1870 UNTS 167; 32 ILM 1139; [1998] ATS 21, and cooperative arrangements at the Commonwealth/State/Territory level with respect to intercountry adoptions in Australia is also briefly discussed. This update provides expanded commentary detailing developments in all of these areas, including changes wrought by the Adoption Act 2000 (NSW) and the Adoption Act 2009 (Qld).

Subtitle 20.12 Medical Technology [20.12.140] – [20.12.1860] 

Updated by Shih-Ning Then, Lecturer, Faculty of Law, Queensland University of Technology

The latest update to this Subtitle explores the regulation of medical research on human participants, with particular reference to the review of research proposals by human research ethics committees, values and principles of ethical conduct of research, privacy considerations and the use of clinical trials to determine the safety and efficacy of therapeutic goods. Examination is also made of the regulation and ethical considerations surrounding genetic technology and its application for medical purposes, including issues such as inherited diseases, genetic registers and screening, disclosure of genetic information and proprietary rights. Relevant legislation and case law is discussed, as well as various National Guidelines including the National Statement on Ethical Conduct in Human Research and the Guidelines for Genetic Registers and Associated Genetic Material.

23.1 “Copyright” [23.1.6460] – [23.1.7430], [23.1.7883] – [23.1.7979] 

Updated by Kate Haddock and Peter Knight, Partners, Banki Haddock Fiora

This update focuses on the statutory licence provisions of the Copyright Act 1968 (Cth), which permit the use of copyrighted material without the copyright owner’s consent subject to the payment of equitable remuneration, and other associated requirements. These statutory licences are relevant to the use of copyright material in scenarios such as public performances, broadcasts and re-broadcasts, and retransmissions. The Copyright Tribunal of Australia may be called upon to determine the amount of equitable remuneration payable in such circumstances, and its role, functions and procedures are also discussed in a separate chapter.

Chapters 1–9 of this Subtitle have also been revised to include more recent legislative developments, notably the commencement earlier in 2011 of the Competition and Consumer Act 2011 (Cth) and the Federal Court Rules 2011 (Cth).

Subtitle 31.3 Income from Property

Updated by Adam Ahmed, Solicitor and Chartered Accountant

The latest update to this Subtitle explores the taxation treatment of income from property which includes payments such as dividends, interest, rent, royalties and annuities. New commentary has been added to take into account developments in legislation such as the new rules for the taxation of financial arrangements under the Income Tax Assessment Act 1997 (Cth) Pt 3-10 Div 230 and the taxation of debt interests under Pt 6-1 Div 974 of the Act. Reference is made to important developments in case law, such as Federal Commr of Taxation v Ashwick (Qld) No.127 Pty Ltd (2011) 192 FCR 325; (2011) 277 ALR 1; [2011] FCAFC 49; Eastern Nitrogen v Federal Commr of Taxation (2001) 108 FCR 27; 46 ATR 474; 188 ALR 415; 2001 ATC 4161; [2001] FCA 366 (FC) and Federal Commr of Taxation v Metal Manufacturers (2001) 108 FCR 150; 46 ATR 497; 182 ALR 98; 2001 ATC 4152; [2001] FCA 365 (FC). Principles from recent Australian Taxation Office Rulings, Interpretative Decisions and Australian Accounting Standards are also discussed.

Subtitle 31.15 Stamp Duties

Updated by Meng Yen Phua, Legal Editor, The Laws of Australia

This Subtitle examines stamp duty law as it applies across the States and Territories. This update is based on Chs 64 and 66 of the Australian Tax Handbook 2011.

December 2011 planned updates

(Subtitles are subject to change):

• 6 Communications 6.4 “Consumer Protection Legislation and the Media”
• 7 Contract: General Principles 7.8 “Discharge”
• 10 Criminal Offences 10.2  “Assault and Related Offences”
• 35 Unfair Dealing 35.1 “Misleading or Deceptive Conduct”