Drafts by Dilan Thampapillai
The response measures to the COVID-19 pandemic have created significant economic shocks to the Au... more The response measures to the COVID-19 pandemic have created significant economic shocks to the Australian economy. This policy discussion paper examines the current NTEU Jobs Protection Framework Proposal (the NTEU Framework Proposal) with regard to contractual fairness. I suggest here that the impact of the NTEU Proposal would be disproportionately harsh on casual academics. Likewise, there are significant and complex legal issues that arise from the NTEU Proposal which in turn make it unlikely that parties to an amended enterprise agreement could proceed with certainty. KEY POINTS • The NTEU Framework Proposal assumes that the impact of COVID-19 is temporary. However, in all likelihood the impact of COVID-19 on key aspects of university life such as international students, international travel and the delivery of campus services will extend or linger into the medium term. It follows that the reductions in pay and conditions might well get extended beyond the 12-18-month time period contemplated in the NTEU Framework Proposal. The entrenchment of these measures would dramatically reconfigure university life. • The NTEU Framework Proposal would tacitly deliver a subsidy from those employees within the university sector whose roles remain viable and value-creating to those whose positions are not viable in the short to medium term. In turn, this has a disproportionate effect on casual academic staff because maintaining full-time non-academic roles that could be rationalised in a restructure shuts the former out for the duration of the Framework Proposal. In effect, it gives rise to a zero-sum game between two sets of employees. This is neither recognised nor contemplated in the Framework Proposal. • The operation of key clauses of the Framework Proposal could have the practical effect of redesigning the workloads of existing academic staff and effectively denying or reducing employment opportunities for casual academic staff. This is further exacerbated by the freeze on employment set out in the Framework Proposal. • The Framework Proposal inadvertently tests the boundaries of the authority conferred upon some university councils under there establishing legislation.
Papers by Dilan Thampapillai
Alternative Law Journal, 2021
This article analyses how current Freedom of Information (FOI) laws apply to automated decision-m... more This article analyses how current Freedom of Information (FOI) laws apply to automated decision-making systems. The authors argue that while current law may extend to automated systems, its application is unclear, both to practitioners and government. Instead, amendments to the FOI Act 1982 (Cth) could clarify how the law operates with respect to automated systems and better balance the underpinning objectives of the Act.
The Australian Year Book of International Law Online, 2021
There is undoubtedly a consensus within the international community that ‘vaccine nationalism’ is... more There is undoubtedly a consensus within the international community that ‘vaccine nationalism’ is an undesirable state of affairs. However, states are self-interested actors and in the absence of constraints imposed by international economic law this pursuit of rational self-interest is likely to result in an outcome that is unjust on a global scale. The recent proposal by India and South Africa to suspend TRIPS obligations for the duration of the COVID-19 pandemic has been rejected within the WTO. This proposal constitutes a recognition of the inadequacies surrounding the TRIPS compulsory licensing scheme. Yet, the immersion of intellectual property law within international investment law together with the proliferation of free trade agreements containing TRIPS-plus obligations would likely have made such a proposal unworkable. We argue that the fundamental problem is that the TRIPS Agreement lacks a defined concept of conscience that governs both its operation and interpretation. ...
Australian Commercial Law
Australian Commercial Law
University of Queensland Law Journal, 2015
Since the decision of the UK Court of Appeal in Williams v Roffey there has been a great deal of ... more Since the decision of the UK Court of Appeal in Williams v Roffey there has been a great deal of academic debate about contract modifications and the validity of viewing a 'practical benefit' as sufficient consideration for a fresh promise. At the heart of these objections lies the notion that the promisor gets no more than that which he or she was originally promised. Similarly, the promisee stands to receive more in exchange for doing nothing more than that which he originally agreed to perform. The modification is clearly one-sided. Yet, it has been widely accepted by the courts as a valid exception to the existing duty rule within the doctrine of consideration. The widespread acceptance of the rule in 'Williams' sidesteps a crucial question, one posed by Phang JA in 'Gay Choon Ing v Loh Sze Ti'; if a promise to pay more can be binding, then why should a promise to accept less not be binding? This article explores the question of whether the rule in Foakes...
This Report analyses the copyright law framework needed to ensure open access to outputs of the A... more This Report analyses the copyright law framework needed to ensure open access to outputs of the Australian academic and research sector such as datasets, articles and theses. It is written in the context of an increasing recognition, in Australia and internationally, that access to knowledge is a key driver of social, cultural and economic development and that publicly funded research should be openly accessible. With the objective of enabling access to knowledge, this Report proposes the development of clear protocols for copyright management (designed as practical and effective tools) for implementation in the Australian academic and research sector The Report explains that with the rise of networked digital technologies our knowledge landscape and innovation system is more and more reliant on best practice copyright management strategies. Furthermore in the 21st century these strategies need to accommodate both the demands for open sharing of knowledge and traditional commerciali...
© 2019 Dilan Jesuthason ThampapillaiThis thesis concerns itself with the ownership of copyright b... more © 2019 Dilan Jesuthason ThampapillaiThis thesis concerns itself with the ownership of copyright by the executive government of Australia. There are two sources of copyright ownership under the Copyright Act 1968 (Cth). These are s 8A of the Act, which preserves the copyright prerogative, and Part VII of the Act, which houses a series of ownership and usage rights in favour of the Crown. This thesis argues that the reform process around government copyright in Australia is incomplete and can only be adequately completed by following a series of steps. Namely; (i) determining that the Crown under Part VII of the Copyright Act refers only to the employees, agents and entities of the executive government and amending the Act so that the Crown has no recourse to Part VII where it acts in trade or commerce; (ii) addressing the interpretive issues around ss 176-179 of the Act and contemplating minor amendments therein; (iii) adding a good faith requirement to s 176-178 so as to safeguard the best interests of those who deal with the Crown; (iv) clarifying the exact nature of the copyright prerogative that is preserved under s 8A of the Act; (v) assessing whether the use of Creative Commons licences is sound practice in light of their suggested contractual nature; (vi) determining whether there is in fact a valid theory under which Creative Commons licence that are offered online could form the basis of a contract; (vii) creating a modest ownership scheme in favour of the Crown with regard to works of artificial intelligence. The adoption of these measure would result in a state of Crown copyright in Australia that is fair, robust, and useful and strategic
University of Queensland Law Journal, 2018
The High Court's decision in 'Thorne' v 'Kennedy' represents a significant de... more The High Court's decision in 'Thorne' v 'Kennedy' represents a significant departure from recent Australian jurisprudence on unconscionable conduct. 'Thorne' is a difficult case, notably for the fact that it involved a dispute between a woman from a poor third world background and a multi-millionaire from the first world. Within the doctrine of unconscionable conduct, 'Thorne' is the first Australian case at a senior appellate level to feature a conflict between a member of the global poor and a member of the global elite. This is a particularly significant development for a doctrine that was developed to preserve the interests of the wealthy. 'Thorne' also represents the first decision of the High Court on prenuptial agreements under the 'Family Law Act 1975' (Cth), but it has ramifications that extend far beyond marriage.
Australian Commercial Law
Australian Commercial Law
Australian Commercial Law
Law in Context. A Socio-legal Journal, 2018
The High Court’s decision in Louth v Diprose that emotional dependence significantly contributed ... more The High Court’s decision in Louth v Diprose that emotional dependence significantly contributed to special disadvantage was a significant development within the doctrine of unconscionable conduct. The decision in Louth established a template of sorts that found useful application in the later cases of Williams v Maalouf, Xu v Lin and Mackintosh v Johnson. Though they are few, these cases form definable subset within the broader doctrine of unconscionable conduct that might broadly be termed ‘clouded judgment’ cases. These cases quite arguably blur the lines between the doctrines of unconscionable conduct and undue influence. There is a discernible pattern to these matters. In these cases, the donor has formed an attachment to the object of his or her affection. To put matters gently, the affection is misplaced. Nonetheless, the donor makes a gift to the object of his or her affection. Subsequent developments lead the donor to realise that the gift was both improvident and bestowed ...
Media and Arts Law …, 2008
In Australia, blind people are able to access texts in braille and books on tape, but the demand ... more In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more ...
Bond Law Review, 2021
The Australian Government has overwhelmingly adopted the use of Creative Commons licences to faci... more The Australian Government has overwhelmingly adopted the use of Creative Commons licences to facilitate the dissemination of public sector information. However, very little is understood about the consequences in law and policy of using CC licences online on a mass scale. This article considers whether the Australian Government's use of CC licences goes beyond a mere permission to use and tends towards contract. The Government might intend that the CC licences be no more than a conditional promise, but the obsequious nature of contract law makes it quite possible that a browsewrap agreement exists in this context. Further, this article considers how the Australian Government is actually using CC licences and questions whether the endeavour is ultimately worthwhile.
Uploads
Drafts by Dilan Thampapillai
Papers by Dilan Thampapillai