Latest updates

Aborigines and Torres Strait Islanders 1.2 Aboriginal Customary Law

Updated by Lucy Hartland, Legal Editor, The Laws of Australia

This Subtitle discusses the limited recognition in the Australian legal system of Aboriginal customary law. It explores the relationship between the two in relation to areas including traditional marriage, the distribution of property and the issue of child custody, fostering and adoption. Any operation of Aboriginal customary law may conflict with the general criminal justice system and this issue is also discussed.

Criminal Offences 10.7 Revenue and Currency Offences

Updated by Jeremy Kam, Team Leader, The Laws of Australia, with additional material by Professor Mirko Bagaric, School of Law, Deakin University

This Subtitle focuses on revenue offences and penalty procedures as they apply under the Taxation Administration Act 1953 (Cth), the Criminal Code (Cth) and the Crimes (Taxation Offences) Act 1980 (Cth). This update includes new commentary by Professor Mirko Bagaric on the decisions in R v Ruha; Ex parte Director of Public Prosecutions (Cth) (2010) 198 A Crim R 430; [2010] QCA 10; Wong v The Queen (2001) 207 CLR 584; 76 ALJR 79; 185 ALR 233; [2001] HCA 64 and related case law; as well as discussion of the concept of general deterrence as a sentencing consideration in the prosecution of tax offences, with reference to Ryan v The Queen (2001) 206 CLR 267; 75 ALJR 815; 118 A Crim R 538; 179 ALR 193; [2001] HCA 21, Hay v The Queen [2009] NSWCCA 228, Thorn v The Queen (2009) 198 A Crim R 135; [2009] NSWCCA 294 and Robertson v The Queen (2007) 177 A Crim R 121; [2007] NSWCCA 270.

Criminal Sentencing 12.5 Non-custodial Sentences

Updated by Danielle Andrewartha, Solicitor, PhD Candidate and Research Associate, Monash University

This Subtitle details the range of non-custodial sentencing options available to sentencing courts in Australian jurisdictions. The sentencing options considered by the author are: the discretion to record or not to record a conviction; unconditional release; unsupervised conditional release; non-association and place restriction orders; supervised probation; community service orders; community-based orders; intensive correction orders; rehabilitation orders; and suspended sentences. Case law impacting on non-custodial sentencing options is discussed, including R v Nguyen (2009) 103 SASR 370; [2009] SASC 63; R v Stanbouli (2003) 57 NSWLR 444; 139 A Crim R 30; [2003] NSWCCA 191; R v Tognini (2000) 22 WAR 291; 109 A Crim R 411; [2000] WASCA 31; and R v Yousef (2005) 155 A Crim R 134; [2005] SASC 203. Specific legislation in the States and Territories that deals with non-custodial sentencing is also closely analysed.

Finance, Banking and Securities 18.7 Derivatives

Updated by Adjunct Professor Tom Valentine, Macquarie Graduate School of Management, Macquarie University, with additional content by Gregory Keith Burton SC

The first part of this Subtitle, by Professor Tom Valentine, explores the various forms of derivative instruments and their regulation – forwards, interest rate swaps, options and credit derivatives etc. The Global Financial Crisis (GFC) had a major influence on the derivatives market, and the effects of the GFC on trade in OTC derivatives and credit default swaps have been factored into this update.

The second half of this Subtitle, by Gregory Burton SC, deals with the regulation of derivatives under the financial services regime introduced in 2002 via the Financial Services Reform Act 2001 (Cth). Preceding this discussion is an examination of the applicable case law on forward exchange, currency hedge and futures contracts, as well as further consideration of swaps and related instruments, as well as the regulation of netting. The Subtitle concludes with a historical overview of derivatives regulation as it applied before the 2002 financial services reforms.

Intellectual Property 23.1 Copyright: Protection of Performers

Updated by Peter Knight, Partner, Banki Haddock Fiora

This update considers the unique category of protections afforded to performers under the Copyright Act 1968 (Cth), including economic rights (ie copyright in sound recordings made of live performances) introduced under the US Free Trade Agreement Implementation Act 2004 (Cth), pursuant to the WIPO Performances and Phonograms Treaty (WPPT) (1996) 36 ILM 76; [2007] ATS 27; rights to prevent unauthorised dealings in respect of performances (and sound recordings thereof); protection periods concerning the copyright term; and exempt recordings and permitted uses. The Subtitle also discusses moral rights under Pt IX of the Copyright Act 1968, and the protection extended to foreign performances.

This is the latest instalment in a series of comprehensive updates of this Subtitle.

Torts 33.5 Breach of Statutory Duty

Updated by Andrew Felkel, Barrister, Supreme Court of Victoria

Breach of a statutory duty may sometimes give rise to a private right of action enforceable by an individual. The availability of such a remedy depends on the language, scope and purpose of the protections given by the particular statute. This Subtitle examines the principles applied by courts in determining if a right of action exists; the elements to establish an action; and the defences available. The interaction with common law principles of negligence is discussed, as well as instances where liability at common law has been excluded or modified by legislation (eg workers’ compensation and personal injury schemes). The Subtitle references recent cases and legislative amendments illustrative of developments in this area, such as British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572; Parry v Woolworths Ltd [2010] 1 Qd R 1; [2009] QCA 26; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 83 ALJR 623; 254 ALR 432; [2009] Aust Torts Reports 82-006; [2009] HCA 15; the Competition and Consumer Act 2010 (Cth); and the Workplace Health and Safety Act 2007 (NT).

Forthcoming updates

The following subtitles are scheduled for updating in the next month:

• Aborigines and Torres Strait Islanders 1.7 International Law
• Criminal Procedure 11.1 Criminal Investigation
• Criminal Sentencing 12.2 Relevant Factors
• Interpretation 25.3 International Law
• Health and Guardianship 20.12 Medical Technology, Ch 4
• Labour Law 26.1 Individual Employment

For a complete list of forthcoming updates, visit The Laws of Australia homepage