JSI write up from Kirsty McPhee

In addition to Belinda’s excellent post, I would like to add the details of 3 more papers that may be of interest to the members. I spoke of these papers at the JSI Reporting Back Easter Breakfast in March, but this should provide a more comprehensive write up as well as links to other resources and information that may be of use or interest.

The JSI was a fantastic event - the papers, the events and the attention to detail – as noted by Belinda. As with any event however, the most rewarding and enjoyable aspect was the people. Whilst it is unlikely another JSI will be held in Australia, at least in the foreseeable future, I would strongly encourage as many of you as possible to look at attending conferences – especially with an international focus.

Organisations such as the International Association of Law Librarians put on a fantastic conference each year – this year in Barcelona - and offer wonderful opportunities to meet with colleagues from all over the world (IALL website - http://iall.org/). The differences but also the similarities are always staggering when networking with international law librarians and information professionals, and in addition to comparative workplaces the connections come in very handy in a research environment that is increasingly global. Both ALLA(WA) and ALLA offer great bursary opportunities and I would encourage all members to consider applying for these.

All at Sea? Australia’s Refugee Law and Policy in a Global Context
Associate Professor Michelle Foster

This paper was presented by Melbourne Law School Associate Professor Michelle Foster and looked at the current and future laws in Australia in a local and global context. It is important to note the difference between refugees and immigrants, as the two are often confused. Refugees and asylum seekers are defined by the United National Convention relation to the Status of Refugees (1967 Protocol) as a person who is outside their own country and is unwilling or unable to return due to a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or their political opinion. (Convention and Protocol Relating to the Status of Refugees - http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf)

Michelle began with a look at Australia itself. I was surprised to learn that Australia is made up of 4892 islands. The only way to reach Australian soil is by resettlement scheme or visa but Australian law does not currently offer a visa type for refugees or asylum seekers to apply for before their arrival. This status can only be applied for once they are on Australian soil – which makes it pretty much impossible for anyone seeking refugee status to arrive legally and by aeroplane. As arriving by foot, as is frequently the case in other countries, is not an option for those seeking refuge in Australia arrival by boat without prior consent or arrangement is the only option available.

When an asylum seeker lands on Australian soil, they can apply for protection and a visa provided they land on non-excised land. Excised land is not part of Australia for the purposes of asylum seekers and our laws enable us to send these asylum seekers to another country for processing. Currently there is legislation under consideration that would make the Australian mainland excised land – most of the islands that compromise Australia are already classed as excised lands. Points to note include the Christmas Island processes look much like the current on-shore processing procedures, but they have in fact removed the option of judicial review. Sending asylum seekers to Malaysia is also concerning, as Malaysian law does not recognise refugees – upon arrival to Malaysia the refugees loose all the rights conferred on them by the United Nations treaty that Australia has signed and agreed to.

My conversations with delegates from overseas around the “boat-people” media coverage were also quite eye-opening. For the last decade, we have not gone a week without media coverage and government comment on the topic of boat people. The community holds strong opinions about the topic and it is an on-going highly contentious political debate, and yet none of my colleagues from the other jurisdictions could recall ever hearing about it in their main stream media. Australia only takes 2% of the world’s refugees currently, and our decision makers have found a loop hole to include those targeted and chosen for resettlement to Australia as part of this figure.

Whilst the JSI covered a number of legal topics that were sensitive or controversial, this paper was the only time that many of the Australians in the room felt uncomfortable right through to ashamed. Whilst this is not a forum for points of view either way on asylum seekers rights, I would encourage everyone to look beyond the coverage of this topic in mainstream media and the statements made by our politicians. Australia voluntarily signed and agreed to a number of legal obligations in regards to refugees that we are not meeting or seeking loopholes to avoid. Michelle Foster has a written a wealth of fantastic material on the topic and I would suggest this is a great place to start further reading: http://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Michelle%20Foster/Pub/1

Fixing Financial Services: Observations on Law, Regulation and Reform
Associate Professor Pamela Hanrahan

Many of us were not overly excited about this paper before the session, fearing the topic of financial services would be dry and make the pre-lunch paper drag as we looked forward to lunch at Middle Fish. However, the presentation by Melbourne Law Schools’ Associate Professor Pamela Hanrahan proved to be an emotionally charged account of two of the most devastating financial collapses in recent Australian history, followed by an evocative and thought provoking look at current legislative change and the role of the Government in regulation and control of financial services, particularly in regards to unsophisticated investors.

The paper began with a look into the Wingecarribee Shire. In the late 1990’s the State Government of NSW made it possible for local government authorities to invest more broadly. Financial Service Providers came after councils with a vengeance, using overly complicated agreements, running to hundreds of thousands of pages in some circumstances, to gain access to the vast sums of money held by the local government authorities. The Wingecarribee Council lost millions of dollars and the debacle was an embarrassment of private law involving contractual obligations, duty of care, fiduciary obligations and misleading or deceptive conduct. In September 2012, the Council won a landmark Federal Court class action against Lehman Brothers for poor financial advice. (Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) [2012] FCA 1028 - http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2012/1028.html?stem=0&synonyms=0&query=title(%222012%20fca%201028%22))

The second set of events explored were those surrounding the collapse of Storm Financial. Storm Financial were an investment company trading in Townsville, Queensland from 2004. The company offered financial independence at retirement, by mortgaging the investors house and using the money as a 10% deposit on a margin fund. The investment was solid, friends and family bought each other in to the deal. However, in 2009 when the Commonwealth Bank forced Storm Financial into administration, 3000 Queenslanders were suddenly told to start making mortgage repayments on loans of around $1.8m each. Many of these investors were retirees or families on limited funds. Many lost their homes, devastating enough but on top of this the knowledge that many had brought their friends and family into the investment caused shame, depression and suicide. Pamela was involved with the inquiry, and the emotion and grief she witnessed had clearly had an effect on her personally. A copy of the report can found online: Parliamentary Joint Committee on Corporations and Financial Services: Inquiry into financial products and services in Australia (http://www.aph.gov.au/binaries/senate/committee/corporations_ctte/fps/report/report.pdf)

Whilst both cases represent very different circumstances they both highlight the fact that under Australian law financial service providers have no obligations to take the best inetersts of their client into consideration. Possibly the only industry without such an obligation, it was a shocking piece of information for most of us in the audience. The result of the inquiry were reforms that significantly reworded the Act – 14 words were proposed to rectify this issue but in the end 2736 words were inserted that essentially still left financial service providers without obligation to their clients. It provided a negligence test, but not a best interest obligation Maximising their own profits, as the Lehman Brothers Group set out to do, is allowed to be the driving force for financial providers.

Pamela made it clear that more reform is required, but this poses a difficult question for which she had no answers – how much control and regulation - especially for unsophisticated investors. Should Mum & Dad investors like those in Storm Financial be unable legally to get involved in investments with risks, clauses and investments that are too complex for them to fully grasp? Is it fair for the Government to expose them to such risks by not regulating against it. But would such regulation restrict the rights of the investors to use their money as they see fit, and possibly deny them the opportunity of an excellent investment opportunity as not all ventures are scams and not all are poorly managed or doomed to failure. Even once the level of regulation is determined, how do you regulate such a market is an even more challenging question. Until reform is achieved, the advice when it comes to financial services - caveat emptor.

For a full list of Associate Professor Pamela Hanrahan’s publication - which includes a number of book titles we will all be very familiar with – please check out: http://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Pamela%20Hanrahan/Pub/1

Big Tobacco’s Legal Challenges to Plain Packaging in Australia
Professor Andrew Mitchell

Regardless of your views on smoking, this paper presented by Melbourne Law Schools Professor Andrew Mitchell provided a fascinating look at the legal issues surrounding the plain packaging debate. The plain packaging laws were introduced into Australia on 1st December 2011 – we were the first country in the world to introduce full-plain packaging requirements. The laws also called for the graphic image on the box to be increased from 30% to 75% of the packet, and the brand of the cigarette or cigar to be removed from the identification band on the cigarettes themselves. Full compliance with these laws was required by 1 December 2012.

16% of Australians are smokers. The impetus behind these laws was the need to improve public health and to implement certain obligations Australia had agreed to as a signature to the World Health Organisation (WGO) Framework Convention on Tobacco Control (FCTC). Studies proved colours and clever graphic design had been successfully used by cigarette companies for years to make their products more appealing and that once a cigarette was de-branded the smoker would feel that it tasted different and would no longer wish to smoke.

The challenges to the Plain Packaging law reforms came from three main areas:

Australian Constitutional Law: On December 1st 2011, British American Tobacco issued a Writ of Summons against the Commonwealth of Australia challenging the Constitutional legitimacy of the plain packaging laws. British American Tobacco claimed that they held Trade Marks and copyright that they were being denied the use of. This was a landmark case for the High Court. The High Court concluded that the rights attached to intellectual property and trademarks were a negative right of use – that is – the right protects the holder from another party using the protected property, it does not confer on the owner the right to use the property themselves. The litigation history and judgement can be found here: http://www.hcourt.gov.au/cases/case-s389/2011

International Investment Law – In April 2010 the Australian Government announced its decision to implement plain packaging laws. In February 2011 Philip Morris Asia Ltd purchased Philip Morris (Australia) Ltd and then in June 2011 Philip Morris Asia issued a Notice of Claim under the Hong Kong – Australia Bilateral Investment Treaty. In November 2011 the Tobacco Plain Packaging Bill 2011 is passed and Philip Morris Asia issued a Notice of Arbitration. The basis of the claim was expropriation: the investors claim cannot be taken without compensation, and fair and equitable treatment: investors must be dealt with in a manner that is fair and equitable. The Australian Government claims that Philip Morris Asia acted in bad faith and the purchase of the Australian company 10 months after the legislation was announced was an abuse of process. This arbitration is likely to take a few years to resolve, during which other countries will wait to introduce the plain packages laws. This wait is preferred by the tobacco companies as they believe the introduction of plain packaging in any jurisdiction will negatively impact on company profits.

WTO Law – Australia is a signatory to the World Trade Organizations Agreement on Trade-Related Intellectual Property Rights – also known as the TRIPS Agreement. Article 16.1 states that trademark owners have “the exclusive right to prevent all third parties not having the owner’s consent from using … identical or similar signs”. As previously discussed, it has been found that the right to trade mark and intellectual property is the negative right not to have it used by someone else, not the right of the holder to use it. However, Article 20 of the TRIPS Agreement states that the use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings. Further complicated by Article 8 of the TRIPS Agreement that allows members to formulate or amend laws to protect public health and nutrition, amongst other things.


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