Melbourne Law School - Research Publications

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Now showing 1 - 10 of 13
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    Government control of royal assent in Victoria
    WAUGH, JOHN ( 2006)
    The giving of royal assent to proposed laws was the centre of a controversy in Victoria in 2005. These events directed fresh attention to the power of the Queen's representative, the Governor, and of the Victorian Government, over Bills that have passed both Houses of Parliament but not yet become law. This article comments on the legal basis of royal assent and the question of whether the government can advise the Governor to withhold assent to a Bill that has passed both Houses.
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    Blocking supply in Victoria
    WAUGH, JOHN ( 2002)
    In Australian parliaments, the power to block supply (where it survives) is the ultimate weapon of an upper house majority that wants to force the Government to call an election. Its effect is to cut off the Government authority to continue the part of its spending that Parliament must authorise afresh each year. This article comments on the distinctive law and history concerning supply deadlocks in Victoria, where the upper house has blocked supply more often than in any other Australian parliament.
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    Had we but worlds enough, and time, this absolute, philosopher
    CLEMENS, JUSTIN ( 2006)
    In Logiques des mondes, Alain Badiou has produced a sequel to his magnum opus Being and Event. Whereas Being and Event primarily restricted itself to the relationship between ontology and the event, mathematics and poetry, the new book seriously extends and revises certain of its predecessor’s propositions in order to construct a logic of different ‘worlds’. This article outlines some of the major doctrines, arguments, and motivations for the new work, as well as several points of possible difficulty.
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    The heirs of Howe and Hummel
    Park, M. M. (Victorian Bar, 2004)
    Those believing the practice of law to be a gentleman’s profession should be prepared to be disabused of that misapprehension.
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    OHMS: some reflections on the business of our courts
    Park, M. M. (The Victorian Bar, 2006)
    The author expresses regret at the importation of business management principles into the provision of a service to the public.
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    Effects of tort law reform on medical liability
    SKENE, LOANE ; LUNTZ, HAROLD (Thomson, 2005)
    In the period 2001-2004, legislation has been passed in all Australian jurisdictions to effect “tort law reform”. This article outlines some of these changes, focusing particularly on the amendments to the Wrongs Act 1958 (Vic), though it also draws attention to corresponding changes in other jurisdictions. The new legislation creates new immunities from liability; limits recovery for psychiatric injury; reintroduces in modified form the Bolam test of professional negligence; replaces the “not far-fetched or fanciful” test of foreseeability with one requiring that the risk be “not insignificant”; extends the scope of the traditional defence of voluntary assumption of risk; and provides caps, thresholds and a higher discount rate in relation to damages. The impact that these changes may have on the liability of health professionals is considered.
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    The practice and 'pathologies' of photocopying
    WILKEN, ROWAN (School of Culture and Communication, The University of Melbourne, 2007-04)
    Outside of contemporary art practice, the act of photocopying is by-and-large not given much consideration by general users and is only granted limited treatment within discussions of electronic media. This paper seeks to redress this, by speculating on the practice of photocopying and some of the less remarked on behaviours and ‘drives’ which motivate and structure this practice. It begins by sketching briefly the development of commercial photocopying technologies and some of their artistic uses. Then, drawing on various written accounts and observational research in a large public research library, it explores a number of ‘pathologies’ or curiosities of behaviour and motivation ­which attend and characterise the act of photocopying. The paper concludes by suggesting that gaining insight into these patterns and processes can contribute to a richer understanding of the practice of everyday photocopying, as well as human-machine interaction more generally.
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    Arguments against people "owning" their own bodies, body parts and tissue
    SKENE, LOANE ( 2002)
    There are a number of reasons why people should not, as a general principle, be recognised as having proprietary rights in their own body, body parts and tissue. This paper commences with some of the arguments against recognising such rights then examines in more detail the arguments that have been put forward in favour of recognising them. In relation to the latter, counter-arguments are put to each argument. The author argues that the counter-arguments outweigh the arguments. This leads to her conclusion that the law should not recognise proprietary rights in bodies, body parts or tissue in favour of the people from whom they came, though proprietary rights may arise in favour of a third person, by principles that suggested in the paper.
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    Legal issues related to the ownership of and access to bodily material
    SKENE, LOANE ( 2002-01)
    Who owns your body and parts removed from it? Can you legally sell your bodily material - or information derived from it? Can you legally prevent other people gaining access to your excised bodily material, including your blood relatives who may need your tissue or genetic information for their own genetic tests? What legal remedies are there if people take or use your bodily material without your consent? And why are the answers to these questions vitally important for scientists?
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    Informed consent: lessons from Australia
    SKENE, LOANE ; SMALLWOOD, RICHARD ( 2002-01)
    This paper discusses recent English and Australian law on the legal duty of doctors to inform patients about risks associated with proposed medical procedures in order to obtain the patient’s ‘informed consent’ to undertake the procedure. Australian courts since Rogers v Whitaker have rejected the ‘Bolam test’ (accepted medical practice) and have applied a more patient-centred test. Table 1 in the paper gives specific examples from recent Australian cases of medical risks that courts have ruled must be disclosed. The National Health and Medical Research Council (NHMRC) has also published General Guidelines for Medical Practitioners on Providing Information to Patients, (1993). However, an empirical study described in the paper found that many doctors appear not to understand their legal duty to inform patients: see Table 2. Not surprisingly, a significant number of doctors are still being held liable for negligent failure to inform.