DO YOU HAVE ANY QUESTIONS?

The interview ends with the dreaded question; "do you have any questions?" It's in that moment that your mind goes blank, you forget everything you wanted to ask and you sit there like a stunned mullet thinking do I ask a stupid question or is it better to say no? And then after the interview you spend the next few hours stressing over the decision you made.

Sound familiar? We've all been there and we all struggle with how best to answer the question. I recently stumbled across this article and thought I'd share it with you. It contains five questions that you can ask a prospective employer that are sure to impress.

You’re hired! Five questions to ask at an interview and make it happen

So, you’ve applied for your dream job, and scored an interview. The interview’s been really positive, and you’ve got a good feeling now it’s wrapping up. Then the interviewer asks, “Do you have any questions for me?” If your answer is no, you may have just wasted a golden opportunity. If you really want to impress your potential employer, here are five questions to ask in your next interview:

What do you expect me to accomplish in the first two to three months? 

For most roles, new employees aren’t expected to be incredibly productive for the first three months, as this is their training and probationary period. By asking this question in the interview, you are demonstrating your eagerness to hit the ground running and be productive as soon as possible.

What does a top performer look like in your team? 

This is a great question. It shows you are thinking about being in this team long-term, and how you might be able to work towards becoming a top performer. It also allows you to determine whether you would be a good fit – if top performers are those that stay until 10pm each night and that’s not something that appeals to you, perhaps this isn’t the role for you after all.

What really drives results for this organisation? 

Your potential boss will be impressed with this little gem. It conveys that you are thinking about the company as a whole, and how you can contribute to its success – if your employer is successful, so are you in the long run.

What is the culture like in your team? 

This question shows you want to make sure you have a reasonable chance of fitting in with the other team members, which is important for everyone. You’ll be spending a lot of time with these people if you are appointed to the role, so it’s best to find out now if that time will be torturous or joyful.

How does the company deal with...? 

Every business faces challenges: technological changes, competitors entering the market, shifting economic trends. This is an opportunity to show you’ve done your research and highlight one area that stood out. By asking your interviewer how the business deals with these sorts of challenges, you will learn more about the stability of the company, and the way they conduct themselves in the marketplace. You want to ensure you share similar values with your employer – if you don’t agree with their aggressive approach to competitors, you won’t stay long in the role. Better to find out now than later.

You may not get time to ask all of these questions in your interview, but that’s ok – by asking any of them, you are demonstrating your thoughtfulness and maturity as a candidate, which can only improve your chances of success.

For more information about Teddington Legal Gold Coast visit our website.

THE IMPORTANCE OF A GOOD INTERVIEWING TECHNIQUE:

The objective of a first interview with a client is to get as much information from them in order to ascertain what their legal problem is, whether they have a case and how you can use your legal skills to solve their problem.

Having an interview with a lawyer can be extremely uncomfortable for a person, especially if they have not had any previous dealings with one. The client may be reluctant to reveal everything to the lawyer, so it is their job to make the client feel at ease and be willing to tell their story.

Structure of Questions:

In order to accomplish the objective of getting the right information out of the client without making them feel uncomfortable it is important to structure questions correctly and to use different types of questions at the correct time in the interview.

During the first half of an interview open-ended questions are most useful as the objective is to have the client tell their story in their own words. A lawyer should not be putting words into a client’s mouth, or attempting to direct them in a certain direction at this point. Get their story first, before changing the questioning technique to more closed questions during the second half, as it then becomes important to clarify the exact legal issue and the information needed to solve this problem.

Structure of Interview:

It is important to have the structure of the interview in place before meeting with the client. Having a pre-determined structure aids in getting the client to give the practitioner the information required to successfully progress the matter, aids in sticking to the time allotted to the interview and will also help to put the client at ease.

The first step is to have an introduction to the interview, meaning greeting the client and easing them into what may very well be their first interaction with a lawyer. It is important to set the scene about what will occur in the interview and also to give the client an idea of how long it will last. It is also important to ensure the client understands the principle of client privilege and state to them how everything they say will remain confidential. A first interview is not all about providing legal advice, but more about reassuring the client that their problem can be solved by showing your professional conduct skills. Taking notes is crucial, as this is what will be relied upon following the interview and they will also form part of the client file. Make the client aware that while you are taking notes you are still listening intently and explain why the notes are necessary. Ensure the client is given the opportunity to ask any questions at this point, before jumping into the next part of the interview.

The second part of the interview is to ascertain what it is exactly that has brought the client in today. They obviously have a reason for wanting to see a lawyer and it is the role of the interviewer to get this out of the client. This is the information gathering stage of the interview. The use of an open ended question here can be a good tool, such as “what brought you to see a lawyer today?” As well as getting an initial understanding of what the client’s problem is, it is also a good idea to get an understanding of what they would like done, especially in civil matters where the client is looking for a solution to their problem.

The third part of an interview is to establish a timeline of the issue in question. This part of the interview is where the lawyer must dive deeper into the client’s issue and get an understanding of the surrounding circumstances. It is important to ask lots of open ended questions as part of this process, as the aim is to get the client to tell their story. The process is similar to an examination in chief during litigation, in that you want the client to in their own words provide as much detail as possible about the issue. Questions such as, “what happened next?” or “what happened after that?” are useful.

After ascertaining a chronological overview of the issue and the circumstances leading up to it, the lawyer must now begin to develop and theory and probe the client about specific details about which more information is required. It is during this part of the interview that a lawyer must use their legal knowledge to begin putting the pieces of the puzzle together, so to speak, meaning identifying what legal issue it is that the client has and what further information is needed to support this claim. The use of more direct or closed questioning can be helpful during this part, as the lawyer should direct the client to disclose more details about a certain part of their story.

The final part of an interview is the conclusion. During this part the lawyer if they have the knowledge can give an overview of the legal issue the client faces and what the process is, as well as possible remedies, or if the lawyer does not have the legal knowledge at this point to summarise what the client has said and show and understanding and assure the client that research into their problem will now be undertaken and information provided to them in the next few days. It is important to give the client a ‘next step’, telling them what you will do next and when they can expect a response, as well as asking them to do something, if required, such as providing a document that may be required.

The structure outlined above is the technique I would use in conducting a first interview with a client. By following this basic structure I believe I would be able to communicate effectively with a client and get the required information from them.

For more information about Teddington Legal Gold Coast visit our website.

RECOGNITION OF FOREIGN DIVORCE DECREES: A CASE STUDY OF ARTHUR AND GUINEVERE:

Arthur has reached a position with his life where he wishes to put the past behind him and move forward with his new partner Percival, however he was previously married to Guinevere and their divorce may not be recognized in Australia. This could grind to a halt Arthur’s plan to enter into a ‘significant relationship’ with his new partner. The law in Australia does accommodate the recognition of foreign decrees, but there are conditions that need to be met.

Outline:

The following report will analyse Arthur’s current position by investigating the circumstances leading up to his marriage to Guinevere and their subsequent divorce. It will also analyse the recognition of their marriage and divorce from a common law and statutory position to arrive at a conclusion regarding whether their Mexican divorce will be recognized in Australia.

1. The Divorce of Arthur and Guinevere:

Arthur is seeking guidance on whether a Mexican divorce between himself and his partner Guinevere would be recognized in Australia. Arthur is an Australian citizen who met Guinevere, a Canadian citizen, in Canada in 1996 and the pair married that year whilst holidaying in Acapulco, Mexico.

In 1997 the couple returned to Australia and Guinevere became domiciled, taking Australian citizenship in 2000. She maintained her Canadian citizenship.

In 2008 Guinevere left Arthur after confessing to having an affair. She returned to Canada with her new partner Lancelot. In June 2009 she obtained a divorce from Arthur in a Mexican court.

Arthur is now seeking advice on whether this divorce would be recognized in Australia, as he too has met someone; Percival, and wishes to enter into a ‘significant relationship’ with him under the Relationships Act (Tas) 2003, however cannot do this if he is still married.

2. Recognition of Foreign Marriages:

The marriage between Arthur and Guinevere took place in Acapulco, Mexico late in 1996. With the marriage solemnized outside Australia its validity must be analsyed under the Marriage Act 1961 (Cth). Under section 88C a valid marriage is one where; “under the local law, the marriage was, at the time when it was solemnized, recognized as valid.” The court applies the choice of law principle of lex fori, meaning the law of the forum, which in this case is Mexico.

When dealing specifically with the issue of a foreign marriage the court will apply the principle of lex loci clebrationis, which means the “law of the place where a marriage ceremony is held.” Therefore as long as the marriage was valid under Mexican law, then it will be held as valid in Australia. As a valid marriage did in fact exist under the Marriage Act then if Arthur is to enter into a ‘significant relationship’ it will depend on the validity of the Mexican divorce.

3. Relationships Act 2003 (Tas):

Arthur wishes to have his relationship with Percival recognized as a ‘significant relationship’ under the Relationships Act 2003 (Tas). Significant relationships are covered by section 4 of the act and defined as: “a relationship between two adult persons [who] a) have a relationship as a couple and b) are not married to one another or related by family.”

In order to enter into a ‘significant relationship’ the parties must, under section 11, make an application to register a deed of relationship. This is where the problem arises for Arthur, as under this section a party cannot be married or in another relationship. Therefore if Arthur’s Mexican divorce is not recognized in Australia then he would in fact still be legally married to Guinevere and unable to enter into a ‘significant relationship’ with Percival.

4. Recognition of Foreign Divorce Decrees:

Guinevere headed to Mexico with Lancelot, seeking a divorce from Arthur. Within three months she was granted a divorce by a Mexican court, on the grounds of the age difference that existed between her and Arthur. The Mexican court assumed jurisdiction in the case due to the fact that it was a Mexican marriage they were dissolving. The divorce was granted in June 2009.

Overseas dissolution decrees are covered by section 104 of the Family Law Act 1975 (Cth).

4.1 A Personal Connection:

Under s 104 the recognition of a foreign decree under the common law, or on statutory grounds, requires the existence of a personal connection with the foreign place where the decree was made. Both statutory grounds and the common law require the connection to exist at the time in which the proceedings were commenced. The difference between these two approaches comes into play with the extent of the connection required, with the common law allowing for a more remote connection to the foreign place.

On statutory grounds it is not sufficient for a decree to be recognized where only the mere presence of a party in the foreign place existed, however the common law rule of reciprocity developed in Travers v Holley provides greater leeway under the common law.

4.2 The Principle of Reciprocity:

The primary case to consider when analyzing recognition of foreign decrees is that of Travers v Holley [1953] P 246, as it established the common law principle of reciprocity. In this case the husband deserted his wife, returning to England and leaving her in New South Wales. He became domiciled in England and due to the principle of domicile of dependence she acquired his domicile of England. The Supreme Court of New South Wales granted a divorce in this case due to the existence of a statutory rule giving it jurisdiction to make such a decree where an applicant wife had been deserted “but had lived in New South Wales for three years before the application was made.” This decision was then recognized in England despite neither partying having Australian domicile due to the fact that English courts were also able to assume jurisdiction based on the same facts as New South Wales. Hodson LJ stated in the case that the court could recognize the foreign decree due to the presence of substance reciprocity, stating to refuse to recognize a foreign jurisdiction would be “contrary to principle and inconsistent with comity.” This is a rule that is confined to actions involving matrimony.

Australian courts have jurisdiction under s 39(4) of the Family Law Act to hear divorce proceedings when either party to the marriage is an Australian citizen at the time the application is filed. Under the rule established by Travers v Holley the position under the common law a foreign decree could be recognized in Australia where the applicant to the proceedings was a citizen of the foreign place, or even simply present in the foreign place at the time the application was filed.

The personal connection must be more established to apply on statutory grounds however, with the elements of domicile and nationality being relevant.

4.3 Recognition of a Connected Place:

A key extension of the principle from Travers v Holley is the recognition of foreign decrees from a connected place. For a decree to be recognized in Australia on statutory grounds, a personal connection must exist between a party to the decree and the foreign forum. The extension comes into play where the decree need only have been “effected in accordance” with the law of the foreign forum, not physically made in the foreign forum. Therefore a decree will be recognized in Australia, provided it is recognized in the foreign forum.

Section 104(8) of the Family Law Act states a foreign decree can be recognized where it “has been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which… it would have been recognized as valid by the law of the first-mentioned jurisdiction.” The court stated in Igra v Igra [1951] P. 404 that it is desirable for the court to validate divorces decreed by a competent foreign court in the interests of “comity.”

Applying this principle to the case at hand would entail the divorce being recognized in Australia, if it were recognized in Canada. This is due to the fact that Guinevere was not domiciled, or a citizen of Mexico, where the divorce was granted, however she did retain her Canadian citizenship. However Mexican divorces are not recognized in Ontario and Guinevere under s 104(3) of the Family Law Act would need to have been an ordinary resident of Canada for “not less than 1 year immediately before the relevant date.” Guinevere had being domiciled in Tasmania with Arthur and only spent three months in Canada after leaving him.

Therefore the Mexican divorce between Arthur and Guinevere will not be recognized on Statutory grounds in Australia under s 104(3), so if it is to be recognized this validity must be established under s 104(5) with the common law principles applying.

5. Recognition under the Common Law:

Private international law is important for the fact that it recognizes that there are disputes that can be legally governed by a foreign court. Under the common law when dealing with the dissolution of marriage the choice of law rules that are to apply are the laws of the forum. Section 104(5) of the Family Law Act states; “any divorce… of a marriage… that would be recognized as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognized as valid in Australia.” This section allows for a foreign decree to be recognized, even where it would fail under the statutory requirements.

To establish this recognition the existence of a personal connection between the applicant and the foreign place must be established. The common law test is the existence of a “real and substantial connection” to the foreign place. In this case the personal connection that must be established is between Guinevere and Mexico.

Arthur and Guinevere married in Acapulco, Mexico in 1996 whilst on holiday there. Following this they moved to Tasmania and Guinevere became domiciled there, taking Australian citizenship. She lived in Australia until 2008 when she confessed her affair to Arthur and fled back to her hometown of Logres Canada. Neither party visited Mexico again until Guinevere travelled there in order to obtain a divorce so she could marry her new partner Lancelot.

For a personal connection to exist under the common law it is required to exist at the time the proceedings were commenced in the foreign place. Guinevere was present in Mexico to begin the divorce proceedings and while this mere presence is not satisfactory on statutory grounds the precedent laid out in Travers v Holley provides more flexibility. Under this common law principle of reciprocity the courts can recognize a foreign decree where a party was merely present in the foreign place when proceedings were commenced. The principle was approved in Australia in Barriga v Barriga (No 2) (1981) FLC 91-987.

While this is an extremely loose personal connection to the foreign place, it is one in which the courts are willing to accept in certain circumstances.

When analyzing the divorce under the common law, the rule in Armitage v Attorney-General [1906] P. 135 should also be considered, whereby a foreign divorce granted where no domicile exists that is recognized by the law of the parties domicile will be held to be recognized in Australia.

In this case the Mexican divorce was held valid in Halifax, Nova Scotia, and Guinevere having Canadian citizenship can be said to hold domicile in Canada. In Taffa v Taffa [2009] FamCA 85 the respondent was held to be a national of Lebanon even though he had taken up Australian citizenship over a decade earlier. With the divorce held valid here applying, this rule would mean that the divorce could be recognized in Australia.

6. An Offence to Public Policy:

Under the common law Australian courts do have the right to refuse to recognize the decree of a foreign court on the grounds that its recognition would offend public policy, or leave a want of natural justice This principle is also present in the Family Law Act at section 104(5). In Marriage of El Oueik (1977) 29 FLR 171 the court denied the recognition of a foreign decree due to the fact that the applicant went to the foreign place in question solely to obtain a divorce.

The public policy principle provides the court with two main actions, to allow or reject a decree, where it would be “manifestly contrary to public policy. The court may choose to recognize a foreign decree because it’s denial would create a “limping marriage” where there is little substance left in it due to the fact that it has ended in the foreign place. A limping marriage is the result of a conflict of laws and is best described as an imperfection of the legal system. It should be avoided if possible. Alternatively the court may choose to deny the recognition of the decree due to the fact that its recognition would be based on extremely loose links with the foreign place, such as described in El Oueik.

In light of this principle there is cause for concern for the recognition of the divorce currently being analysed as Guinevere travelled to Mexico for the sole purpose of obtaining a divorce from Arthur. The court is likely to look upon this as an offence to public policy due to the fact that the links between Guinevere and Mexico were extremely loose.

In Arthur’s favour however is the fact that Guinevere has now married Lancelot, with whom she was having an affair. They married in Halifax, Nova Scotia, as this is the only province in Canada that recognizes Mexican divorces. Due to the fact that both parties have now moved on with significant others, and Guinevere has remarried, the court would likely view this as a “limping marriage,” and seek to avoid such an imposition. It would appear that there is little to no substance left in the marriage, with the applicant already remarried and the respondent seeking to enter into a ‘significant relationship.’ Under these circumstances the court is unlikely to refuse to recognize the Mexican decree.

Conclusion:

For Arthur to enter into a ‘significant relationship’ with Percival, then under s 4 of the Relationships Act 2003 (Tas) he cannot be married. His divorce from Guinevere would be recognized in Australia under s 104, with an application of common law principles. While there are grounds for the court to oppose the recognition it is unlikely to due to the fact that all parties involved have moved on with their lives to such an extent that no marriage as it is commonly thought of remains.

For more information about Teddington Legal Gold Coast visit our website.

FUNDING FOR LEGAL AID:

We thought we’d take this opportunity to highlight a body that is in desperate need of funding, but which fails to grab the spotlight of the media and the attention of the public. That body is Legal Aid Victoria, which is in the midst of a funding crisis.

Faced with a predicted loss of over $3 million this year Legal Aid has had to cut services, leaving thousand of people out in the cold as they are no longer eligible for free legal representation. The decision to reduce services was made in early January and affects those in the early stages of family, criminal and civil law matters. People in these circumstances are some of the most in need of free legal representation.

An increase in funding by the federal government is needed as its share of funding has dropped dramatically, falling from about half to less than a third of the State’s contribution since 1997. This fall has affected not only Victoria, but all States and Territories.

Budget papers from the Victorian State Government show that Legal Aid is set to provide 4141 fewer grants of legal assistance and 1170 fewer duty lawyer services this year, when compared to 2011-2012 as a direct result of the funding deficit that currently exists.

The State government provided an additional $3.4 million in funding in last week’s state budget, however Bevan Warner, the managing director of Legal Aid stated that this would allow for the body to continue delivering the reduced services, but would not be enough to restore services.

While any increase in funding by the commonwealth could only be spent on federal law matters, it would go a long way in restoring services in family law matters.

Liana Buchanan who is the executive director of the Federation of Community Legal Centres believes that the federal government should provide an additional $48 million in funding to the centres in order to maintain the services currently offered to families.

The Law Institute of Victoria has said that if no increase in funding is made available Legal Aid stands to lose closer to $10 million next financial year.

For more information about Teddington Legal Gold Coast visit our website.

3D PRINTED GUNS RAISE QUESTIONS ON THE REGULATION OF THE INTERNET:

Here's a good example of technology moving faster than the law can keep pace with. Recently the internet has been a flurry ith news that the world's first 3D printed gun had been constructed and successfully fired a round of ammunition. The gun was developed by Defense Distributed, a small US company run by 25 year old Cody Wilson, a law student at the University of Texas.

Cody made waves by soon after making the plans for the gun available for free online, where anyone with access to a 3D printer could produce the weapon. A few years ago 3D printing was out of reach of individuals, requiring expensive equipment and advanced knowledge of CAD, however as with all technology it has progressed to a level where a printer is affordable to a large number of people and many 3D models can downloaded and easily printed.

This meant that printing your own gun became a very easy proposition. Within days the US State Department acted, requiring the plans to be removed from the internet, citing a breach of international arms control laws. However removing something from the internet is next to impossible once it has been uploaded and the plans for the gun have been downloaded over 100,000 times in the days since the State Department's ruling, with the plans still freely available on many torrent websites.

The issue that arises from this problem is a lot greater than simply plans for a single gun being made available, as Defense Distributed founder Cody Wilson pointed out, "this is a much bigger deal than guns. It has implications for the freedom of the web."

Regulating computers and the internet has always been incredibly difficult and more impossible to enforce, just look at the rampant flouting of copyright laws that occurs. Once a technology matures to a point where the common person can perform a task with their own computer regulating a task becomes difficult and this example of a homemade gun is just an example of a wider issue.

How do we regulate technologies when they can be produced with general purpose computers and networks – in the wrong way?

For more information about Teddington Legal Gold Coast visit our website.

THE PIRACY DEBATE - GAME OF THRONES:

The pirating of TV shows and movies is running rampant at the moment and the show garnering the most attention is the hugely popular Game of Thrones.

It was the most pirated show of 2012 and its season 3 premiere this year broke the all time record with over a million copies downloaded within 24 hours of it airing on TV.

The piracy of the show has drawn so much attention that even the US Ambassador to Australia Jeffrey Belich, who admits to being a fan of the show, has called for a stop to it.

“Unfortunately, nearly as epic and devious as the drama, is its unprecedented theft by online viewers around the world,” he said.

Australians are known to be substantial pirates of TV shows as we are often left to wait months after an episode has screened in the US for it to be seen on a commercial network here. The wait is often too much too long, which has led to many networks ‘fastracking’ shows, airing them within 24 hours of their US release. Foxtel is currently doing this for Game of Thrones, which has been extremely successful, resulting in the show being the most watched drama for the service.

As well as this episodes are then made available for purchase on iTunes and Netflix, with the show dominating the iTunes charts.

It has been shown through various studies that if movies and music are easily accessible then people are prepared to pay for them rather than pirate them.

However it appears that Foxtel has used its muscle to put a stop to this by sinking HBO’s deal with other providers to make the show available, meaning that from next year many shows, including Game of Thrones, will only be available on Foxtel.

Journalist John Birmingham summed up Foxtel’s position as follows.

“You figured that by removing a timely and legitimate method for viewers to watch the show within a couple of hours of its US release, you would force a handful of extra punters to take out one of your lousy subscriptions?

Well here’s a slow, sad little golf clap for you, Foxtel.

What you’re actually doing by trying to shore up your monopoly is guaranteeing that a whole heap of viewers who ponied up good, honest money to watch that series by a method other than membership of your exclusive club are now more likely to sign up to channel Bit Torrent.”

I’m inclined to agree with his position, happily handing over 99cents an episode to legitimately purchase it. On the other hand I’m much less likely to hand over $100 a month to Foxtel for a subscription when I only want to watch a few programs.

By removing a legitimate way to purchase the show are Foxtel encouraging people to pirate it instead?

For more information about Teddington Legal Gold Coast visit our website.

REDUCING AUSTRALIA’S GREENHOUSE GAS EMISSIONS: AN ANALYSIS OF LEGISLATIVE AND NON-LEGISLATIVE MECHANISMS (PART 3):

4. Renewable Energy:

The second major pillar of the Government's 'Clean Energy Future' plan is the use of renewable energy. The Government plans to invest over $13 billion in clean energy projects and has created two new government bodies to oversee this investment.

First there is the Clean Energy Finance Corporation, which will invest with private sector companies developing and deploying renewable and clean energy projects. The second body is the Australian Renewable Energy Agency, which is responsible for improving the competitiveness of renewable energy and related technologies, and aims to achieve this by investing in and supporting renewable energy technology development.

Currently in operation is the Renewable Energy (Electricity) Amendment Act 2010 (Cth), which requires electricity providers to generate an increasing amount of electricity from renewable sources. The Act commenced in 2010 and by 2020 this figure of renewable energy must be 45,850 GW hours. Where providers fall short of these targets a charge of $65 per megawatt (MW) hour is applied.

5. Land Use:

Another major part of achieving a clean energy future is improving land use policies and practice. The Carbon Farming Initiative is a major feature of this.

5.1 Carbon Farming Initiative:

The Carbon Farming Initiative is designed to support Australia’s agricultural sector. The carbon price does not apply to this sector so farmers and landowners do not face a carbon liability, however the Carbon Farming Initiative means that they can financially benefit from its operation. Established under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), the initiative allows landowners to earn carbon credits through positive activities on their land and then sell these credits.

The initiative provides the opportunity for a new revenue stream for farmers and landowners, while also delivering positive environmental outcomes through the reduction of carbon emissions, as well as positive biodiversity management.

Eligible projects under the scheme include the planting of a forest to act as a carbon sink, or reducing emissions through the capture and destruction of "methane emissions from landfill or livestock manure", and the restoration of wetlands. The carbon credits generated can then be sold to other businesses that are burdened by the carbon price and want to reduce their emissions.

The ability to export these credits to other markets also exists. From July 1, 2015 to June 30, 2017 they can only be exported as part of a bilateral link to another ETS in order to maintain a stability of the mechanism in its early years. From July 1, 2017 the export of carbon credits will be unrestricted, opening up an entire new revenue stream for landowners.

As well as the financial benefit to farmers and landowners through the sale of carbon credits, and the reduction in carbon entering the atmosphere, there are also ancillary environmental benefits, including the creation of shelter for livestock, the alleviation of dry land salinity, as well as biodiversity enhancement.

The downside to the initiative though is that the land being used as a carbon sink could be much more financially viable being sold on the timber market, which is where the Biodiversity Fund comes into play. The fund, managed under the Climate Change Authority Act 2011 (Cth), has been allocated $946 million to distribute in funding to landowners for the restoration and management of carbon stores. The establishment of plantations is an expensive process both in time and money and the Biodiversity Fund is designed to provide compensation to landowners.

6. The National Carbon Offset Standard:

Another mechanism is the 'National Carbon Offset Standard.' It is similar in its operation to the carbon pricing mechanism, however it is a voluntary scheme that runs in addition to the regulatory scheme. The standard’s goal is, “to ensure that consumers have confidence in the voluntary carbon offset market and the integrity of the carbon offset and carbon neutral products they purchase.”

The carbon offset standard is aimed at businesses and individuals not liable under the carbon tax who wish to voluntarily reduce their emissions, or businesses who are liable but wish to reduce their emissions even further, often with aim of using the notion of being environmentally friendly as part of their marketing strategy. Marketing products as ‘green’ is a tool often used to entice customers in a world where global warming receives a lot of publicity. The scheme is designed to reduce Australia's emissions below that national targets laid out.

This voluntary market has two participants, those being businesses that invest in offset projects to generate carbon credits for sale (providers), and businesses that purchase these credits as part of their offset strategy (purchasers).

The standard outlines the requirements for the voluntary carbon offset market, outlining specific criteria.

A carbon offset is defined as a; “reduction in greenhouse gases, or enhancement of greenhouse gas removal from the atmosphere by sinks, relative to a business as usual baseline.” Organisations set a base year by which the reduction in their emissions is measured with both direct and indirect emissions being measured, with the calculation standards being outlined in section 4.3 of the standard. They can also offset certain products or services by measuring the emissions footprint of the subject and purchasing the appropriate quantity of carbon credits. For all offsets it is the responsibility of the business to ensure that the claimed emissions are ‘retired’ permanently. Retirement of a credit occurs once it is sold, as the same offset cannot be sold again, so units are not reused, creating certainty that the offset is benefiting the environment.

The standard also outlines the criteria for becoming carbon neutral, which involves the completion of an emissions management plan as described in section 5.1. If completed an organisation can then market itself as 'carbon neutral' meaning 100% of their emissions are offset.

The difficulty with the standard comes into play when business use it in this way, as a marketing tool. There are stringent requirements contained within, and a business is at risk of breaching section 52 of the Trade Practices Act 1974 (Cth), which states; “a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” The ACCC recommends that the more susceptible consumers be considered when marketing any type of carbon offset.

With the carbon tax now in play if a business represents the fact that is has taken additional action to offset its carbon emissions, when the case is that is has only met its obligations under the regulatory framework then this would entail a breach of s 52 of the Trade Practices Act, as compulsory liability cannot be marketed as an offset.

In ACCC v GM Holden Ltd [2008] FCA 1428 the company claimed a certain car was carbon neutral, but was found to has misled buyers due to the fact that its marketing implied the car’s emissions had been offset for life, however the company had only offset the car’s first year of emissions.

The standard was released prior to the introduction of a the tax on carbon, and now faces an uncertain future as any offsets made under the scheme must be in addition to those a business is liable for under the carbon tax, and only time will tell if businesses who were previously making voluntary offsets will offset more than they are legally required to.

7. The Role of the Courts:

As the third branch of government; the legislative branch, the role of the courts is to give effect to the laws passed by parliament; enforcing public policy. This means an important aspect of any mechanism designed to reduce emissions, is the role the courts will play in its enforcement.

The court has two roles to play in environmental law, first the basic act of enforcing the laws passed by parliament, and second adjudicating disputes that arise in relation to these laws. The role of the courts is so important as they are tasked with “interpreting, applying and enforcing the law” based on the facts presented and due to the separation of powers no branch of government has any control over another branch, meaning that parliament cannot interfere with the court’s decisions, even if these decisions contradict their desired environmental policy. This can lead to conflict between the executive and judicial branches of government. It does not matter what the position of the government, the judges or the community is; the courts can only interpret the law based on the facts. This does in effect limit the extent the courts can protect the environment.

No common law principles exist which “specifically relate to the protection of the environment” meaning that legislation has been implemented to fill this gap; like the above mentioned carbon pricing scheme. The role of the courts is not to make a judgment on the value of the law and competing interests, or allocate priority to “competing aspects of public policy,” so even if a decision will have a negative impact on the environment the court must allow it. The executive branch of government can, if it wishes, impose limits on environmental decision-making, by enacting environmental legislation that places such limits; narrowing the scope the courts have to interpret.

In Environmental Protection Authority; Ex Parte Chapple (1995) LGERA 310 the court was tasked with resolving a conflict that involved competing environmental and economic interests, and due to the legislation had to side with the economic interests, even though clear environmental damage would occur.

In enforcing legislation dealing with reducing emissions the court is limited to two powers; those being the power to punish those who breach the law, and the power to issue injunctions to restrain activity. A limit the courts face though is that they have no power to “act on [their] own motion” and must rely upon a party to commence proceedings before it can take any action against an offending party. The court can take a proactive role though by “fostering and enunciating community values in the area of environmental protection” and also by imposing a severe level of punishment upon any guilty party. With breaches of environmental law normally motivated by economic gain, the court must impose a penalty that is more severe than the intended gain, to act as a deterrent against future pre-meditated breaches.

8. Key Findings:

There is no magic pill, or single mechanism that can singlehandedly reduce Australia’s emissions to a large enough extent, but a combination of several of the above mechanisms are most likely to help the process.

There is however a standout piece of legislation that acts as the cornerstone of all of the other mechanisms I have detailed above; it acts as the glue that binds them together and is key to the success or failure of the various other mechanisms. This legislation is the Clean Energy Act 2011 (Cth) and the carbon pricing mechanism it establishes. Putting a price on carbon is a major step forward and once the mechanism moves to a cap and trade system in 2015 real results will be measurable as a cap is placed on total emissions, which is reduced over time.

The other mechanisms such as the Carbon Farming Initiative and the National Carbon Offset Standard are key pieces of the puzzle, but are redundant if no price on carbon exists.

The role of the courts is not to be underestimated either, as they are responsible for enforcing the legislation, and in order for its full effectiveness to be felt they must be prepared to impose severe penalties and work to foster values of environmental protection.

Conclusion:

Reducing greenhouse gas emissions is a challenge, a challenge that only in very recent years has the government attempted to rise to. The various mechanisms outlined above are all pieces of the puzzle to combat climate change, but it seems the common glue that holds them all together is the Climate Change Act 2011, and the pricing of carbon it legislates. This mechanism stands the greatest chance at reducing emissions, and in a way that is the most cost effective. It is however a major shift in policy that is only now taking its first baby steps.

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REDUCING AUSTRALIA’S GREENHOUSE GAS EMISSIONS: AN ANALYSIS OF LEGISLATIVE AND NON-LEGISLATIVE MECHANISMS (PART 2):

2. The Garnaut Climate Change Review:

The Garnaut Climate Change Review was commissioned in April 2007 by the then Opposition Leader Kevin Rudd. The aim of the review was to analyse how global warming would affect Australia’s economy and recommend policies to “improve the prospects of sustainable prosperity.”

Key points from the review pointed to the need for Australia to encourage action on climate change within the international community. The Copenhagen and Cancun agreements push for limiting any temperature increase to below 2 degrees Celsius above pre-industrial levels. Currently there is no agreement for trading emissions entitlements on an international level, and the report states that Australia should work to secure such opportunities through "bilateral, regional and multilateral forums.

The report also backs a pricing of carbon as the centre piece to any environmental policies aimed at reducing emissions, and states that the pricing of carbon is the most cost effective way of achieving these reductions. It states that; "the effect of a carbon price on the economy remains modest, and the impact on most industries small compared to other cost rises and fluctuations.” Other programs to reduce emissions have a much larger difference between their cost and their environmental effectiveness, and a market-based system is better than regulatory interventions.

The report recommended pricing carbon, beginning as a fixed price, before moving to a floating price. Beginning with a fixed price is designed to provide stability during the introduction of the carbon price, allowing affected industries to build "confidence and capability" in the system, also providing a more steady revenue stream for the government to put into compensation programs.

3. Clean Energy Future:

The Government is touting its 'Clean Energy Future' package as the Australian Governments plan to tackle climate change. The legislative package was passed in November 2011, and is underpinned by four separate areas of focus; those being the carbon price, renewable energy, energy efficiency, and land use. This legislative package consists of 19 Acts.

Each of these areas of focus will now be examined in more detail.

3.1 Carbon Price:

The Clean Energy Act 2011 establishes the carbon pricing mechanism and acts as the central piece of legislation in the Governments’ package. An environmental tax is best described as; "tax... imposed on an environmentally damaging activity, thereby raising the cost of that activity to reflect the cost to society of lost environmental benefits."

The taxing of carbon is a big change as up until this point emitting carbon has been free. The basic idea of putting a price on carbon emissions is to pressure businesses into 'cleaning up their act' and reducing their emissions. Having to pay for emissions is a burden businesses will want to avoid so in theory they will find ways to reduce their emissions, thus saving money, while having a positive effect on the environment. The pricing of carbon came into affect on July 1, 2012, and has been implemented in a two-stage approach. Initially there will be a fixed price period in place where carbon is priced at $23 a tonne to begin with. This fixed price period will apply for the first three years, before converting to a full emissions trading scheme on July 1, 2015, where the price per tonne will be determined by the market.

The imposition of this policy is backed up by the Australian Constitution using the taxation power "for the common welfare", which is the principle used for the taxation of tobacco, and applies because environmental sustainability is for the benefit or 'common welfare' of society.

An estimate contained in the Clean Energy Legislative Package claims that by 2020 Australia, under the scheme, will cut at least 159 million tonnes from its emissions, which equates to taking 45 million cars off the road.

The price on carbon will not apply to all industries to begin with, only applying to around 500 businesses in the following sectors; stationary energy, transport (certain areas only), industrial processes, non-legacy waste, and fugitive emissions. While domestic aviation, domestic shipping, rail transport, and non-transport use of fuel, sectors can opt-in to the scheme.

A price ceiling will be put in place once trading begins that is $20 above the expected international price. There was expected to be a floor price of $15, however the Government has since announced it will be eliminating this as part of changes to the system.

3.2 Updates to the Carbon Trading Policy:

On August 28, 2012 the Federal government announced a major change it intended to make to the carbon pricing mechanism. The current legislation imposes a $15 floor price on carbon permits, however the government now plans to scrap this. Climate Change Minister Greg Combet announced that instead of putting a floor price in place a limit will instead be placed on the amount United Nations backed permits Australian companies can buy. The purpose of this limit is to prop up permit prices in Australia to maximise the effectiveness of pricing carbon. Companies will be able to purchase up to 12.5% of their carbon liability in United Nations backed permits.

Further to this there are also plans to link Australia's scheme to the carbon-trading scheme that is already operating in Europe. European permits are currently trading at $9.80, far cheaper than the $15 floor price that was originally proposed for Australia.

Currently in Australia carbon is taxed at a fixed price of $23 a tonne, until July 1, 2015 when the mechanism moves to a floating-price emissions scheme. The trading scheme in Europe is the largest in the world. It is proposed that from 2018 Australian companies will be able to buy and sell permits in Europe and vice versa. By allowing this interconnection between the two systems it is hoped that the free market economy will find the cheapest way to reduce carbon levels.

Dissolving the floor price is dangerous though because if the price falls too low then industries may simply absorb the cost, not seeing it as enough of a deterrent to curb their emissions, thus leading to a failure in the whole aim of the pricing mechanism.

3.3 A Shift In Policy:

Up until now the policy in Australia has been to implement positive environmental policies, that reward actions taken that have a positive environmental outcome, mainly through tax allowances. For example under section 40-755 of the Income Tax Assessment Act 1997 (Cth) a taxpayer can claim a deduction for expenditure where it's dominant purpose is environmental protection activities.

The pricing of carbon represents a shift in policy whereby rather than providing a reward for positive environmental behaviour, a consequence is placed on failure to change current behaviour. This model is more in line with that proposed by AC Pigou, which was the "full internalisation of external environmental costs," to maximise welfare. The current legislation follows this policy in the way it taxes those businesses causing a negative environmental impact and distributes the profits of this as welfare. This threat of penalty is a big shift in Australia's environmental policy, however it also provides for a greater certainty in results.

3.4 Benefits of Pricing Carbon:

Reports by the OECD point to there being advantages present in moving from a set price on carbon to a market based mechanism. A key benefit of Australia's carbon policy once moved to a cap and trade mechanism is that a firm emissions reduction trajectory is set, whereby a limit is placed in the total number of carbon credits available and this number is slowly reduced to curb the total tonnage being released into the atmosphere. The placement of a strict cap means that the total reduction in emissions is certain, whereby where a business misses its target, or allocation of credits, then it must purchase them from another business who has surplus credits available due to their emission reduction measures.

A cap on emissions will come into play from 2015 as the emissions trading scheme begins, with the default cap in the 2015-2016 financial year being 38,000,000 credits.

Australia's reduction targets under the 2010 international Cancun Agreements vary depending on international action. If no international agreement is reached the Government has only pledged a reduction of 5% of 2000 levels by 2020, however if a global deal as set out in the Cancun Agreements is reached whereby emissions are stabilised at 450ppm of carbon dioxide equivalent or lower, then the government has pledged to reduce emissions by 25% of 2000 levels by 2020.

Emissions trading as a market-based system is the most cost effective mitigation option, as it is the cheapest policy to implement, provides flexibility, and also “upholds the polluter pays” principle of environmental law. The emission of carbon becomes an expense for a business and with the market deciding the price then to avoid the extra cost a business has an incentive to reduce its emissions, where before there was no incentive.

The key to a healthy carbon market is a scarcity of available carbon credits, as this will ensure a higher price, which will in turn act as compelling reason for businesses to reduce their emissions.

3.5 Effect on Australia's Economy:

There is of course a downside to the imposition of a price on carbon and that comes by the way of affected businesses passing on the cost of the tax to the consumer, resulting in higher prices for many goods.

Figures from Treasury point to an increase to consumer prices of 0.7% over 2012-2013 as the carbon price comes into effect. The government attempts to justify this by claiming there was a 2.5% increase from the introduction of the GST, and inflation figures of 2.9% in 2001-2002 and 2009-2010.

Estimates indicate an increase to the average electricity bill of $3.30 a week, with an overall increase of $9.90 to the average weekly household spending. The Government claims that the average household will actually be better off, as this increase is offset by government assistance of $10.10 a week on average. This is because the government has implemented the tax in a way that will deliver it a double dividend, in that as well as curbing emissions and the environmental benefits that will accompany this; the revenue from the tax is being used for other social purposes, such as compensation. This compensation is being provided in the form of incomes tax cuts, as well as increases to government allowances and payments.

The Government has also allocated around 40% of the revenue that will be gathered from the carbon price to supporting industries affected. The aim being to provide assistance to affected businesses to support jobs, while also creating incentives for them to invest in clean energy.

Placing a price on carbon while imposing a burden on businesses also has the possibility to have a positive effect on Australia's economy.

One area where this will be felt is in the energy sector. Government estimates point to an investment of around $100 billion in renewable energy generation over the next 40 years, as the industry seeks to minimise its carbon liability. This investment will be fostered by industry assistance packages such as the Clean Energy Finance Corporation, which will deliver $10 billion in investment to the commercialisation and deployment of clean energy technologies.

An example of business investing to benefit in a low emissions economy is recycling company VISY, which is currently investing around $500 million building clean energy plants in Australia, as it seeks to become a leader in electricity generation from waste.

3.6 European Union Emissions Trading System (EU ETS):

To properly analyse the impact and success of a carbon-trading scheme, it should be analysed against the European Union Emissions Trading Scheme, which is the “backbone” of the global carbon market; trading 80% of the world’s carbon permits.

Europe’s emission trading system was launched in 2005 and currently operates in 30 countries. The trading system operates on a “cap and trade” principle, whereby the total amount of allowances is capped and if a business goes over its quota then it must buy extra allowances from another business as required.

The steady decline of available allowances will mean that by 2020 total carbon emissions will be 21% lower than they were in 2005. The system currently covers carbon emissions from the largest polluters, including power stations, oil refineries and steel works, which together account for nearly half of the European Union’s carbon emissions.

There is stringent monitoring and reporting requirements under the system, with all reports by a business to be independently verified and also made public. If a report is found to be unsatisfactory then the business is barred from selling its surplus allowances.

Australia’s planned linking with the EU ETS will not be as simple as it is for European Union nations, as international law enforcement does not carry with it the binding force of national law enforcement. EU Member States are bound by EU Directives, meaning the system can be easily enforced within the member zone.

Currently the EU ETS operates in phases of 5 years, which has led to uncertainty in the market, with a many industry groups pushing for a 15 to 20 year period. This combined with an excess in allowances has led to a collapse in the carbon price in recent years, with prices down 11% this year, and 75% since July 2008. Part of the blame for this can be put on the contraction of Europe’s economy though, as big emitters have been operating at scaled back rates, reducing demand for allowances. A lesson to be learned for the structuring of Australia’s carbon trading mechanism is that there must be “strict, clear and long-term” emission reduction policies in place, in order to provide predictability for growth, and also to act as an incentive for the development of clean energy technologies.

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REDUCING AUSTRALIA’S GREENHOUSE GAS EMISSIONS: AN ANALYSIS OF LEGISLATIVE AND NON-LEGISLATIVE MECHANISMS (PART 1):

The sheer volume of overwhelming evidence pointing to its existence has catapulted global warming and the associated climate change to a position as the defining political challenge of the 21st century. Its cause stems from the rapid pace of development that has followed the industrial revolution, as our machines and our factories pump ton upon ton of carbon into the atmosphere, heating the world at an ever-increasing pace. We stand at the tipping point now as countries race to implement mechanisms that will curb this behaviour and reduce greenhouse gas emissions to sustainable levels.

Outline:

This report will analyse the various legislative and non-legislative mechanisms; such as the National Carbon Offset Standard and the placing of a price on carbon, that have been put in place in Australia to curb greenhouse gas emissions. The merits of these mechanisms will be evaluated in an effort to decipher their effectiveness in combating climate change.

1. Global warming - Linked to Emissions:

Research by the Berkeley Earth Surface Temperature project found that over the past 250 years the Earth's temperature has risen by about 1.5 degrees Celsius, including a rise of 1 degree in the last 50 years. This rise can be attributed to humans as the results taken from land temperature stations correlate extremely closely to rising levels of carbon dioxide in the atmosphere, carbon dioxide that has been emitted through development. The team of scientists on the project analysed measurements from 14.4 million measurements from 44,455 sites across the world, with results dating back to 1753.

The report went on to state that without large scale action the Earth's temperature is expected to continue to rise, with a rise of a further 1 degree in the next 50 years expected, however alarmingly if China continues to develop at its current pace, and continue with its vast use of coal, this rise could occur in the next 20 years. Each decade in Australia since 1940 has been hotter than the preceding, with 2001 to 2010 the hottest on record.

Long term modelling indicates Australia will see a significant temperature increase by the end of this century. The average temperature for Southeast Australia in the period 1961-1990 was 16.68 degrees Celsius, but the modelling indicates that this will increase to 20.27 between 2070-2099. Looking just at the agricultural sector, this temperature rise will lead to a dramatic decrease in crop yields and a scarcity of water supplies.

1.2. Background:

The rapid pace of development that continues to accelerate has led to environmental externalities being overlooked in the decision making process. Externalities are best described as the unrecognised costs of a transaction. No price has been attached to them, which has led to a "divergence between private and social costs.” Arthur Cecil Pigou, a leading English economist of the 20th century stated that, "where such divergences arise, the State, if it chooses should remove the divergences through bounties and taxes. He proposed that these taxes be used not to raise revenue, but rather to price externalities and change behaviour. His theory was picked up in the Henry Review, which raised the idea of implementing such taxes as a way of shaping environmental behaviour, in particular by pricing emissions.

The pricing of carbon seeks to remedy the environmental externality that is the emission of greenhouse gases. In Matthews v Chicory Marketing Board(Vic) (1938) 60 CLR 263 taxation was defined by Latham CJ as, "compulsory exactions of money by a government for public purposes." The pricing of carbon therefore falls under the definition of a tax, as it is a "compulsory extraction of money" by the government, with the proceeds being used to compensate individuals and businesses that will be negatively impacted by the change in policy.

A recent report by the United Nations estimated that negative environmental externalities cost $2.2 trillion in 2008.

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THE STATUS OF INTERNATIONAL LAW FROM A POSITIVIST POINT OF VIEW:

Legal positivism is considered as one of the most influential theoretical approaches to analyzing international law.

In analyzing whether public international law can be considered ‘law’ Hans Kelsen argued it from the perspective of attaining international peace.

He described the international community as one that is decentralized and that in order for peace to be achieved it is a natural process that individual states should unite as a world-state, concentrating their means of power and placing them at the exclusive disposal of a central government body. However for this to occur it must be done so within the frame of international law.

In comparison a state is best described as a centralized community, with a central government. Individual States have in most cases achieved peace within their borders, save for those still facing a revolution or a civil war, but in the states that have achieved peace the use of force between citizens has mostly being eliminated, and is instead reserved for a central organ, authorized to use such force only as a way of stopping illegal acts.

Kelsen goes on to expand this theory to the wider sphere of international law, stating that international law can be consider as ‘law’ if certain elements as described above are present. For Kelsen it can be considered as law if a state is engaging in a coercive act; that act being the “forcible interference of a state in the interests of another,” only due to the action being a reaction against a “delict,” and using force to achieve any other goal is forbidden. The act being taken by the State must also be able to be interpreted as the international legal communities reaction to the “delict”.

In terms of international law the “delict” is the conduct of a State, which is considered illegal by other States. Kelson describes international law as a regarded system of norms, which govern the conduct of States. Therefore if a State invades the territory of another State, or breaches a treaty that is in place, without a specific reason recognized by international law, then its conduct is considered contrary to the order, in the same way in which the illegal actions of an individual are, meaning that the same principles can apply at an international level as they do at a national level. He refers to a reprisal as a “sanction of international law.”

International law stems from international morality, as it is morality, which determines the direction of international law development. Meaning that if something is considered morally ‘just’ in an international sense, then it has a high tendency of becoming international ‘law.’

H.L.A. Hart takes a different tact to that of Kelsen, viewing international law as ‘law’ but not as a ‘legal system.’

For Hart international law consists of rules, which do not constitute a legal system, bur rather a set of rules that are to be considered law. He describes these rules as primary rules, which require states to behave in a certain way, by either engaging or abstaining in certain conduct. These rules impose duties upon states.

Hart finds that centralized sanctions do not exist at an international level, even those imposed by the United Nations Security Council under Chapter VII of the UNI Charter, as the Council can easily be paralysed by the veto. However he does not believe that the absence of sanctions leads to an absence of obligations at an international level. The existence of the primary rules is sufficient, with the use of force as an example prohibited by a rule, while also being permitted to be used as a sanction, acts as a sufficient deterrence for states to engage in violence.

Hart argues that international law is to be considered as more than international morality, as it has the extra characteristic of being subject to deliberate change. States may follow international law under a moral obligation, however there is no compelling reason why this has to be so.

In summing up Hart’s position on international law he believes for it to be regarded as law, or binding, legal rules, then the rules of international law need only be accepted as “standards of conduct and supported with appropriate forms of social pressure.”

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THE VIEWS OF ROBERT NOZICK FROM THE PAGES OF ‘ANARCHY, STATE, AND UTOPIA’:

Anarchy, State, and Utopia was published in 1974 by Robert Nozick and within its pages Nozick outlines his view on how a state should operate, arguing in favour of a minimal state, limited in its operation to the function of protection, namely protecting its citizens from unlawful force, fraud and theft.

Nozick was a proponent of the theory of libertarianism, arguing that the role of the state should be limited to a very core set of areas, essentially to police protection, national defense and administrating the courts of law. All other areas of a state's responsibilities, such as education and welfare, should instead be managed by private institutions operating in a free market economy. This principle falls under Nozick’s ‘theory of justice in distribution,’ which promotes a reliance on private charity, rather than state interference. While other proponents of libertarianism argue for it in the grounds of market competition and the inherent inefficiencies of government, Nozick, while acknowledging these factors, was more concerned with the moral implications. For him the greatest benefit of such an environment is that it respects an individual's rights.

Nozick titles such a state as a minimal state, arguing that a state can only be morally justified if it operates in this way, protecting individuals through the use of the police, the courts and the military only, with “any state more extensive [violating] people’s rights.” His minimal state cannot regulate the behavior of its citizens when it comes to what they eat, drink, etc., as this interferes with their right to self-ownership. The state also has no right to anything its citizen's have acquired through their own labour, or impose any form of social insurance to pay for schemes such as public education.

Nozick describes individuals as 'self-owners,' meaning that an individual owns themselves, as in their body, mind, abilities, and their labour, which flows on to include the fruits of their labour and the exercise of their abilities. For Nozick as each individual is in full ownership of their person, the principle of slavery, whose relevance will be described below, is illegitimate.

From these principles Nozick goes on to draw the conclusion that taxation of a redistributive nature is morally illegitimate. He argues that the way in which states currently tax; by taxing individuals to fund the various programs of a "bureaucratic welfare state," is morally wrong and amounts to an equivalent of forced labour. This occurs as a certain amount of an individual's earnings, or 'labour time' is forcibly removed from their possession under the guise of taxation, meaning a portion of the time worked by a person is in effect involuntary work for the state. Principles of taxation for him offended the very value of liberty. He infers this to equate to every citizen of the state owning a part of every other individual, thus partial slavery, and in direct opposition to his principle of self-ownership.

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THE VALIDITY OF SOFTWARE PATENTS:

A decision that recently caught my attention was that of CLS Bank International v Alice Corporation, U.S. Court of Appeals for the Federal Circuit, No. 2011-1301.

The case involved the validity of patents in the software industry and the repercussions from this case could be far reaching, both in the United States and worldwide. The case centred around the validity of software patents held by Alice Corporation.

The court upheld a decision by the Washington D.C district court that patents related to a computerized trading platform were invalid as they were based on abstract ideas rather than any particular engineering concept.

Many big players in the software industry had been playing close attention to the case for a clue as to what software is patentable, as much of the industry’s profit is generated by its intellectual property.

Alice Corporation argued that its patents were valid as even though they related to an abstract idea the idea was “patentable if the computer plays a significant role in the invention.” The court disagreed though stating that the ideas were too ‘abstract’ and broad enough not to be patentable.

The court however failed to determine a standard for what is an ‘abstract idea’ is, leaving a lot of uncertainty when it comes to the validity of software patents.

A good example of an abstract concept under patent law is that the idea of a self-driving car may not be patented, but the engineering that creates a self-driving car may be patented.

Google and Dell both had filed friend-of-the-court briefs stating that "bare-bones" patents like those owned by Alice court do not innovate enough to deserve patent protection.

The court was divided on the matter and could not define a test for what an abstract idea was, meaning that future cases will be determined on a case by case basis until further clarification on the issue is handed down.

In his judgment Judge Alan Lourie sugguested that judges ask whether there are “genuine human contributions” to an invention when determining whether is should receive patent protection. Following the ruling IBM made a statement that it believes most software inventions do qualify for patent protection, but it appears this is still a bit of a grey area as far as the law is concerned.

Alice Corporation has an Australian link with the company being part owned by the National Australia Bank Ltd.

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