Board monitoring and judgement as processes of sensemaking

When organizational scandals occur, the common refrain among commentators is: 'Where was the board in all this?' 'How could the directors not have known what was going on?''Why didn't the board intervene?' The scandals demonstrate that board monitoring or oganizational performance is a matter of great importance. By monitoring, we mean the act of keeping the organization under review. In many English-speaking countries, directors have a legal duty of care, which includes duties to monitor the performance of their organizations (Hopt and von Hippel 2010). However, statutory law typically merely states the duty, while providing little guidance on how that duty can be met.

The "new advocacy" and the ermergence of lawyer representatives in ADR

This article traces the emergence of “the new advocacy” role for lawyers, that of “dispute resolution advocacy”, describing the role of legal practitioners when representing clients in negotiation, mediation and conciliation processes. The dispute resolution models they may encounter and the different types of assistance that lawyers can provide to their clients in such contexts will be discussed. Whether “dispute resolution advocacy” falls under the umbrella of “non-adversarial practice” or is a separate and distinct role will also be explored, in light of the professional obligations of lawyer representatives, particularly the duty of loyalty to their clients.

Lessons from media reporting of natural disasters : a case study of the 2011 flash floods in Toowoomba and the Lockyer Valley

Practice-led journalism research techniques were used in this study to produce a ‘first draft of history’ recording the human experience of survivors and rescuers during the January 2011 flash flood disaster in Toowoomba and the Lockyer Valley in Queensland, Australia. The study aimed to discover what can be learnt from engaging in journalistic reporting of natural disasters. This exegesis demonstrates that journalism can be both a creative practice and a research methodology. About 120 survivors, rescuers and family members of victims participated in extended interviews about what happened to them and how they survived. Their stories are the basis for two creative outputs of the study: a radio documentary and a non-fiction book, that document how and why people died, or survived, or were rescued. Listeners and readers are taken "into the flood" where they feel anxious for those in peril, relief when people are saved, and devastated when babies, children and adults are swept away to their deaths. In undertaking reporting about the human experience of the floods, several significant elements about journalistic reportage of disasters were exposed. The first related to the vital role that the online social media played during the disaster for individuals, citizen reporters, journalists and emergency services organisations. Online social media offer reporters powerful new reporting tools for both gathering and disseminating news. The second related to the performance of journalists in covering events involving traumatic experiences. Journalists are often required to cover trauma and are often amongst the first-responders to disasters. This study found that almost all of the disaster survivors who were approached were willing to talk in detail about their traumatic experiences. A finding of this project is that journalists who interview trauma survivors can develop techniques for improving their ability to interview people who have experienced traumatic events. These include being flexible with interview timing and selecting a location; empowering interviewees to understand they don’t have to answer every question they are asked; providing emotional security for interviewees; and by being committed to accuracy. Survivors may exhibit posttraumatic stress symptoms but some exhibit and report posttraumatic growth. The willingness of a high proportion of the flood survivors to participate in the flood research made it possible to document a relatively unstudied question within the literature about journalism and trauma – when and why disaster survivors will want to speak to reporters. The study sheds light on the reasons why a group of traumatised people chose to speak about their experiences. Their reasons fell into six categories: lessons need to be learned from the disaster; a desire for the public to know what had happened; a sense of duty to make sure warning systems and disaster responses to be improved in future; personal recovery; the financial disinterest of reporters in listening to survivors; and the timing of the request for an interview. Feedback to the creative-practice component of this thesis - the book and radio documentary - shows that these issues are not purely matters of ethics. By following appropriate protocols, it is possible to produce stories that engender strong audience responses such as that the program was "amazing and deeply emotional" and "community storytelling at its most important". Participants reported that the experience of the interview process was "healing" and that the creative outcome resulted in "a very precious record of an afternoon of tragedy and triumph and the bitter-sweetness of survival".

Auditor obligations in an evolving legal landscape

Purpose – The purpose of this paper is to look at auditor obligations to their clients and potentially to third parties such as investors, with a focus on the quality of financial disclosure in an evolving legal framework. Design/methodology/approach – The article outlines and compares established and emerging trends relative to information disclosure and contractual performance in parallel contexts where information asymmetry exists. In particular, this article considers the disclosure regime that has evolved in the insurance industry to address the substantial imbalance in the level of knowledge possessed by the insured in comparison to the prospective insurer. Abductive reasoning is used to identify causal constructs that explain the data pattern from which the theorised potential for judicial revision of the interpretation of “true and fair” in line with “good faith” in legal regulation is derived. Findings – The authors conclude that there is little doubt that a duty of good faith in relation to auditor-company contractual dealings and potentially a broader good faith duty to third parties such as investors in companies may be on the horizon. Originality/value – In the context of stated objectives by organisations such as the International Federation of Accountants to reconcile ethical and technical skills in the wake of the global financial crisis, there is an increased need to rebuild public and investor confidence in the underpinning integrity of financial reporting. This paper offers a perspective on one way to achieve this by recognising the similarities in the information asymmetry relationships in the insurance industry and how the notion of “good faith” in that relationship could be useful in the audit situation.

A human rights analysis of a claim for educational negligence in Australian schools

This thesis argues that an action in educational negligence should be available in Australia to provide a remedy for failure by schools and teachers to provide an adequate education as required by Australia’s human rights obligations. The thesis substantiates a duty of care to provide an adequate education under general principles of the law of negligence in appropriate cases. Although some protection exists for disabled students in Australia’s anti-discrimination and other legislation, non-disabled students are not afforded redress under existing causes of action. The educational negligence action provides a suitable remedy in an era of professional educational accountability.

Honesty about adverse event : more honoured in the breach than in the observance?

Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)

An isolated MOSFET gate driver

Traditional methods of isolated MOSFET/IGBT gate drive are presented, and their pros and cons assessed. The best options are chosen to meet our objective— a small, high speed, low cost, low power isolated gate drive module. Two small ferrite bead transformers are used for isolation, one transmits power at 2.5MHz, the other sends narrow set reset pulses. On the secondary these pulses drive a transistor totem pole to ensure high current drive, and the value is held by CMOS buffers with positive feedback. An alternative design for driving logic level devices uses only an HC buffer on the secondary. Double sided SMDconstruction (primary one side, secondary on the other) yields an upright module 40x18x5mm. Propagation delaywas 20ns, and rise/fall time 15ns with a 1nF load. The design places no limits on frequency of operation or duty cycle. Power supply requirementswere 5V@20mA for operation below 100kHz, dominated by magnetising current.

Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

Enabling open access to and re-use of publicly funded research data in Malaysian public universities : a legal and policy analysis

Numerous statements and declarations have been made over recent decades in support of open access to research data. The growing recognition of the importance of open access to research data has been accompanied by calls on public research funding agencies and universities to facilitate better access to publicly funded research data so that it can be re-used and redistributed as public goods. International and inter-governmental bodies such as the ICSU/CODATA, the OECD and the European Union are strong supporters of open access to and re-use of publicly funded research data. This thesis focuses on the research data created by university researchers in Malaysian public universities whose research activities are funded by the Federal Government of Malaysia. Malaysia, like many countries, has not yet formulated a policy on open access to and re-use of publicly funded research data. Therefore, the aim of this thesis is to develop a policy to support the objective of enabling open access to and re-use of publicly funded research data in Malaysian public universities. Policy development is very important if the objective of enabling open access to and re-use of publicly funded research data is to be successfully achieved. In developing the policy, this thesis identifies a myriad of legal impediments arising from intellectual property rights, confidentiality, privacy and national security laws, novelty requirements in patent law and lack of a legal duty to ensure data quality. Legal impediments such as these have the effect of restricting, obstructing, hindering or slowing down the objective of enabling open access to and re-use of publicly funded research data. A key focus in the formulation of the policy was the need to resolve the various legal impediments that have been identified. This thesis analyses the existing policies and guidelines of Malaysian public universities to ascertain to what extent the legal impediments have been resolved. An international perspective is adopted by making a comparative analysis of the policies of public research funding agencies and universities in the United Kingdom, the United States and Australia to understand how they have dealt with the identified legal impediments. These countries have led the way in introducing policies which support open access to and re-use of publicly funded research data. As well as proposing a policy supporting open access to and re-use of publicly funded research data in Malaysian public universities, this thesis provides procedures for the implementation of the policy and guidelines for addressing the legal impediments to open access and re-use.

Observation of ions and particles near busy roads using a Neutral Cluster and Air Ion Spectrometer (NAIS)

Motor vehicles emit large quantities of ions in the form of both charged particles and molecular cluster ions. While, the health effects of inhalation of charged particles is largely unexplored, the concentrations near busy roads and the distance to which these particles and ions are carried have important implications for the exposure of the large percentage of the population that lives close to such roadways. We measured ion concentrations using a neutral cluster and air ion spectrometer (NAIS) near seven busy roads carrying on the average approximately 7000 vehicles hr-1 including about 15% heavy duty diesel vehicles. In this study, charged particle concentrations were measured as a function of downwind distance from the road for the first time. We show that, at a moderate wind speed of 2.0 m s-1, mean charged particle concentrations at the kerb were of the order of 2x104 cm-3 and, more importantly, decreased as d 0.6 where d is the distance from the road. While cluster ions were rapidly depleted by attachment to particles and were not carried to more than about 20 m from the road, elevated concentrations of charged particle were detected up to at least 400 m from the road. Most of the charge on the downwind side was carried on the larger particles, with no excess charge on particles smaller than about 10 nm. At 30 nm, particles carried more than double the charge they would normally carry in equilibrium. There are very few measurements of ions near road traffic and this is the first study of the spatial dispersion of charged particles from a road.

Elementary teachers’ knowledge of legislative and policy duties for reporting child sexual abuse

This study examined elementary school teachers’ knowledge of their legislative and policy-based reporting duties with respect to child sexual abuse. Data were collected from 470 elementary school teachers from urban and rural government and nongovernment schools in 3 Australian states, which at the time of the study had 3 different legislative reporting duties for teachers. Teachers completed the 8-part Teacher Reporting Questionnaire (TRQ). Multinomial logistic regression analysis was used to determine factors associated with (a) teachers’ legislation knowledge and (b) teachers’ policy knowledge. Teachers with higher levels of knowledge had a combination of pre- and in-service training about child sexual abuse and more positive attitudes toward reporting, held administration positions in their school, and had reported child sexual abuse at least once during their teaching career. They were also more likely to work in the state with the strongest legislative reporting duty, which had been in place the longest.

Honesty about adverse events - more honoured in the breach than in the observance

The medical board of Australia Code of conduct reminds doctors that" "When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately." More honoured in the breach rather than the observence may or may not be correct. Faced with the English concerns and the Netherlands research, an evidence based assessment of compliance with the ethical duty to disclose adverse events is warranted.

A little learning is a dangerous thing? The ethics of teaching accidental tourists in higher education

This paper raises questions about the ethical issues that arise for academics and universities when under-graduate students enrol in classes outside of their discipline - classes that are not designed to be multi-disciplinary or introductory. We term these students ‘accidental tourists'. Differences between disciplines in terms of pedagogy, norms, language and understanding may pose challenges for accidental tourists in achieving desired learning outcomes. This paper begins a discussion about whether lecturers and universities have any ethical obligations towards supporting the learning of these students. Recognising that engaging with only one ethical theory leads to a fragmented moral vision, this paper employs a variety of ethical theories to examine any possible moral obligations that may fall upon lecturers and/or universities. In regards to lecturers, the paper critically engages with the ethical theories of utilitarianism, Kantianism and virtue ethics (Aristotle) to determine the extent of any academic duty to accidental tourists. In relation to universities, this paper employs the emerging ethical theory of organisational ethics as a lens through which to critically examine any possible obligations. Organisational ethics stems from the recognition that moral demands also exist for organisations so organisations must be reconceptualised as ethical actors and their policies and practices subject to ethical scrutiny. The analysis in this paper illustrates the challenges faced by lecturers some of whom, we theorise, may experience a form of moral distress facing a conflict between personal beliefs and organisational requirements. It also critically examines the role and responsibilities of universities towards students and towards their staff and the inherent moral tensions between a market model and demands for ‘good' learning experiences. This paper highlights the tensions for academics, between academics and universities and within university policy and indicates the need for greater reflection about this issue, especially given the many constraints facing lecturers and universities.

Wrongful birth assessment of damages : judgment pending

Wrongful birth - assessment of damages - overview of damages issues raised in current and previous litigation - breach of duty and causation - cost of raising a child - key damages assessment issues - application of civil liability legislation.