Insights into special costs orders : WA court examines compliance and retrospectivity

In Walter v Buckeridge [No.5] [2012] WASC 495 Le Miere J considered an application by the defendants for special costs orders under the applicable legislation in Western Australia. Aspects of the decision may be of persuasive value in dealing with similar issues under Queensland legislation.

Enduring powers of attorney : promoting attorneys' accountability as substitute decision makers

Aim The misuse and abuse of Enduring Powers of Attorney (EPAs) by attorneys, particularly in relation to financial decision-making, is a growing concern. This paper explores the opportunities to enhance accountability of attorneys at the time of the execution of the document in Queensland. Method A four stage multi-method design comprised a critical reference group; semi-structured interviews with 32 principals or potential principals, attorneys and witnesses; two focus groups with service providers and a state wide survey of 76 principals, attorneys and witnesses. Results Across all methods and user groups, understanding the role and obligations of the attorney in an EPA was consistently identified as problematic. Conclusions Promoting accountability and understanding can be addressed by greater attention to the role of the attorney in the forms/ guidelines and in the structure and witnessing of the forms, increased direction about record keeping and access to appropriate advice and support.

Motor Accident Insurance Act 1994 - request for information

In Angus v Conelius [2007] QCA 190 the Queensland Court of Appeal concluded that the obligations under the Motor Accident Insurance Act 1994 (Qld), and in particular s 45 of the Act (duty of claimant to cooperate with insurer), continue beyond the commencement of court proceedings

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.

Moving beyond traditional clinics : creating a new legal clinics through community partnerships

To overcome the challenge of finding placements for large student numbers, QUT has partnered with community organisations to enable students to work on community-based projects addressing a community need. Students work in interdisciplinary teams with the community organisation to resolve issues and identify solutions to suit the organisation and client base. This paper will describe the community engaged learning pedagogy that is employed in the subject and will consider the benefits and challenges to law students of working collaboratively and developing community relationships. Critical appraisal of the legal system and the role of lawyers and analysis of the professional and ethical responsibilities legal practitioners is a focus of the subject. Explicit emphasis is placed on developing a sense of social responsibility and inculcating a pro bono ethos. Students attend workshops on topics such as reflective practice, cultural competencies, client solutions, collaborative practice and ethical obligations. This paper will discuss the challenges in creating the new legal clinic subject, benefits to students and community partners, and the results of initial student evaluation of the subject.

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.

Constructions of children's needs in informal kinship care in rural China

Kinship care is the oldest form of alternative child care in the world. Recent years have witnessed a significant increase in the number of children being placed in kinship care across Western countries. However, in contrast to rapid knowledge advances about formal kinship care, far less is known about the needs of children in informal kinship care, especially in Asian contexts. This thesis and the study upon which it is formed sought to redress this knowledge gap. Qualitative approach was adopted to explore social constructions of children in informal kinship care in rural China. Parents in China seeking work in cities have left behind around 58 million rural children, mostly with relatives and without the involvement of the state. The present study examined caregivers’ and school personnel’s understandings of these school-age children’s needs through semi-structured interviews with 23 kin caregivers and five school personnel in Shijiapu Town, Jilin Province, China. The central question that guided the whole study is: What are the needs of children in informal kinship care in rural Jilin Province, China? Interpretative Phenomenological Analysis was used to categorise and interpret the qualitative data. Based on participants’ constructions, this study developed a need model with eight themes. They are: (1) emotional needs and mental health, (2) relationships, (3) empowerment and agency, (4) safety, (5) education, (6) basic care, (7) physical health, and (8) personal development. These needs are grounded in the Chinese context, and therefore a good understanding of Chinese culture is essential to address them. The first four needs particularly capture children’s separations from their parents, and the rest are more general, and can be applied to most Chinese children. To meet the most important need for children left behind, namely education, these caregivers determined that others needs sometimes have to be compromised. Children left behind are a vulnerable group in contemporary rural China, and their diverse needs are attended to by several groups. This study found that as children’s closest kin while their parents are away, caregivers play a vital role in salving the children’s emotional loss. Caregivers’ love and familial obligations strongly motivate them to care for these children, and sensitivity to social stigma makes them strive to show their love and care to compensate for perceived differences between these children and their peers. Caregivers’ efforts to make children happy, however, were sometimes criticised by some school personnel, who see this as spoiling. The conflicting viewpoint between caregivers and school personnel indicate their different roles and perceptions in children’s lives, and the latter influence these children in a more authoritative way. Informal kinship care has several advantages of addressing children’s needs, especially their needs for emotional bonds with family. Community-based kin networks provide children with both emotional and material support. However, these advantages sometimes are restricted by caregivers’ child rearing capacity. Having developed a model of the needs of children left behind in China, this study suggests that caregivers, school personnel and government social services work in harmony to be child-centred and meet these children’s diverse needs. The unmet needs of children left behind mainly result from unbalanced development between urban and rural China, therefore, it is imperative to enhance state policies and programs that improve wellbeing for this growing part of China’s people.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

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.

Why do Indigenous Australians drink and drive? A qualitative exploration of self-reported influences on drink driving behaviours of Indigenous peoples from remote communities

Drink driving contributes towards high injury rates for Indigenous populations in Canada and Australia, particularly in more isolated regions. At present there is limited research on the cultural and psychosocial factors that underpin Indigenous peoples’ drink driving. This study is part of a broader project aiming to inform a culturally sensitive program. Qualitative interviews with 29 convicted Indigenous drink drivers (aged 20-51 years) from a remote region of Queensland, Australia were used to explore their cognitions about, and underlying motivation for, drink driving as well as the factors that might facilitate or impede it. Although a number of themes were identified, this paper will focus on the first theme, respondents’ self-perceived rationale for their behaviour. Two subthemes were identified: ‘being the hero’ referred to situations where respondents were motivated by a bravado mentality to drive after drinking despite having, on some occasions, the opportunity to avoid this (e.g. another person offering to drive); and ‘family obligations’ which referred to situations where respondents described pressure from members of their extended families to drive after drinking. The underlying responsibility for transporting family members appeared to be difficult to avoid and related to cultural values. Findings indicate the social and individual characteristics for younger drink drivers are similar to mainstream populations. However, the reinforcers for Indigenous drink drivers may be different for this population, consistent with findings on other Indigenous populations outside Australia. Specific programs should contain a family-centred approach and explore the kinship value system to build strategies around these strong relationships.

Importance of sustainability-related cost components in highway infrastructure : perspective of stakeholders in Australia

Highway infrastructure development typically requires major capital input. Unless planned properly, such requirements can cause serious financial constraints for investors. The push for sustainability adds a new dimension to the complexity of evaluating highway projects. Finding environmentally and socially responsible solutions for highway construction will improve its potential for acceptance by the society and in many instances the infrastructure's life span. Even so, the prediction and determination of a project's long-term financial viability can be a precarious exercise. Existing studies in this area have not indicated details of how to identify and deal with costs incurred in pursuing sustainability measures in highway infrastructure. This paper provides insights into the major challenges of implementing sustainability in highway project development in terms of financial concerns and obligations. It discusses the results from recent research through a literature study and a questionnaire survey of key industry stakeholders involved in highway infrastructure development. The research identified critical cost components relating to sustainability measures based on perspectives of industry stakeholders. All stakeholders believe sustainability related costs are an integral part of the decision making. However, the importance rating of these costs is relative to each stakeholder's core business objectives. This will influence the way these cost components are dealt with during the evaluation of highway investment alternatives and financial implications. This research encourages positive thinking among the highway infrastructure practitioners about sustainability. It calls for the construction industry to maximise sustainability deliverables while ensuring financial viability over the life cycle of highway infrastructure projects.

Constructions of asylum seekers and refugees in Australian political discourse

Immigration to Australia has long been the focus of negative political interest. In recent times, the proposal of exclusionary policies such as the Malaysia Deal in 2011 has fuelled further debate. In these debates, Federal politicians often describe asylum seekers and refugees as ‘illegal’, ‘queue jumpers’, and ‘boat people’. This paper investigates how the political discourse constructs asylum seekers and refugees during debates surrounding the Malaysia Deal in the Federal Parliament of Australia in 2011. Hansard Parliamentary debates were analysed to identify the underlying themes and constructions that permeate political discourse about asylum seekers and refugees. This paper argues that a dichotomous characterisation of legitimacy pervades their construction with this group constructed either as legitimate humanitarian refugees or as illegitimate ‘boat arrivals’. These constructions result in the misrepresentation of asylum seekers as illegitimate, undermining their right to protection under Australia’s laws and international obligations. This construction also represents a shift in federal political discourse from constructing asylum seekers as a border or security threat, towards an increasing preoccupation with this categorisation of people as legitimate, or illegitimate.

The Politics of Sex Trafficking : a Moral Geography

This book offers a unique insight into the moral politics behind the making of human trafficking policy in Australia and the United States of America. As governments around the world rush to meet their international obligations to combat human trafficking, a heated debate has emerged over the rights, wrongs, and harms of prostitution, and its relationship to sex trafficking. The Politics of Sex Trafficking identifies and challenges intrinsic notions of moral harm that have pervaded trafficking discourse and resulted in a distinctly anti-prostitution agenda in trafficking policy in recent decades. Including rare interviews with key political actors, this book charts the competing perspectives of feminist, faith-based, and sex-worker activists, and their efforts to influence policy-makers. This critical account of the creation of anti-trafficking policy challenges the sex trafficking narrative dominant in US Congressional and Australian Parliamentary hearings, and demonstrates the power of a moral politics in shaping policy. This book will appeal to academics across the fields of criminology, criminal justice, law, human rights and gender studies, as well as policy-makers.

Survey and Mapping Infrastructure Regulation 2004- Comments Relating to a 10-Year Review

Democratic governments raise taxes and charges and spend revenue on delivering peace, order and good government. The delivery process begins with a legislature as that can provide a framework of legally enforceable rules enacted according to the government’s constitution. These rules confer rights and obligations that allow particular people to carry on particular functions at particular places and times. Metadata standards as applied to public records contain information about the functioning of government as distinct from the non-government sector of society. Metadata standards apply to database construction. Data entry, storage, maintenance, interrogation and retrieval depend on a controlled vocabulary needed to enable accurate retrieval of suitably catalogued records in a global information environment. Queensland’s socioeconomic progress now depends in part on technical efficiency in database construction to address queries about who does what, where and when; under what legally enforceable authority; and how the evidence of those facts is recorded. The Survey and Mapping Infrastructure Act 2003 (Qld) addresses technical aspects of where questions – typically the officially recognised name of a place and a description of its boundaries. The current 10-year review of the Survey and Mapping Regulation 2004 provides a valuable opportunity to consider whether the Regulation makes sense in the context of a number of later laws concerned with management of Public Sector Information (PSI) as well as policies for ICT hardware and software procurement. Removing ambiguities about how official place names are to be regarded on a whole-of-government basis can achieve some short term goals. Longer-term goals depend on a more holistic approach to information management – and current aspirations for more open government and community engagement are unlikely to occur without such a longer-term vision.

Women from refugee backgrounds and their experiences of attending a specialist antenatal clinic : narratives from an Australian setting

Problem: In response to an identified need, a specialist antenatal clinic for women from refugee backgrounds was introduced in 2008, with an evaluation planned and completed in 2010. Question: Can maternity care experiences for women from refugee backgrounds, attending a specialist antenatal clinic in a tertiary Australian public hospital, be improved? Methods: The evaluation employed mixed methods, generating qualitative and quantitative data from two hospital databases, a chart audit, surveys and interviews with service users, providers and stakeholders. Contributions were received from 202 participants. Findings: The clinic was highly regarded by all participants. Continuity of care throughout the antenatal period was particularly valued by newly arrived women as it afforded them security and support to negotiate an unfamiliar Western maternity system. Positive experiences decreased however; as women transitioned from the clinic to labour and postnatal wards where they reported that their traditional birthing and recuperative practices were often interrupted by the imposition of Western biomedical notions of appropriate care. The centrally located clinic was problematic, frequently requiring complex travel arrangements. Appointment schedules often impacted negatively on traditional spousal and family obligations. Conclusions: Providing comprehensive and culturally responsive maternity care for women from refugee backgrounds is achievable, however it is also resource intensive. The production of translated information which is high quality in terms of production and content, whilst also taking account of languages which are only rarely encountered, is problematic. Cultural competency programmes for staff, ideally online, require regular updating in light of new knowledge and changing political sensitivities.