Civil Procedure — Commentary and Materials, 6th Edition

This book provides a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Each chapter features in-depth questions and notes together with lists of further reading to aid understanding of the issue. It also examines and discusses each substantive and procedural step in the trial process. Topics include jurisdiction of a court to consider a matter, alternative dispute resolution, limitations of actions, commencing proceedings, group proceedings, pleading, summary disposition, gathering evidence, affidavits, interlocutory procedures, settlement, trial and appeal, costs Each of the state, territory and federal procedures is covered.

Do stakeholders or social obligations drive corporate social and environmental responsibility reporting? Managerial views from a developing country

Purpose – The purpose of this study is to explore senior managers’ perception and motivations of corporate social and environmental responsibility (CSER) reporting in the context of a developing country, Bangladesh. Design/methodology/approach – In-depth semi-structured interviews were conducted with 25 senior managers of companies listed on the Dhaka Stock Exchange. Publicly available annual reports of these companies were also analysed. Findings – The results indicate that senior managers perceive CSER reporting as a social obligation. The study finds that the managers focus mostly on child labour, human resources/rights, responsible products/services, health education, sports and community engagement activities as part of the social obligations. Interviewees identify a lack of a regulatory framework along with socio-cultural and religious factors as contributing to the low level of disclosures. These findings suggest that CSER reporting is not merely stakeholder-driven, but rather country-specific social and environmental issues play an important role in relation to CSER reporting practices. Research limitations/implications – This paper contributes to engagement-based studies by focussing on CSER reporting practices in developing countries and are useful for academics, practitioners and policymakers in understanding the reasons behind CSER reporting in developing countries. Originality/value – This paper addresses a literature “gap” in the empirical study of CSER reporting in a developing country, such as Bangladesh. This study fills a gap in the existing literature to understand managers’ motivations for CSER reporting in a developing country context. Managerial perceptions on CSER issues are largely unexplored in developing countries.

Overcoming the challenges of building heritage projects: Improvements to time, scope and cost performance

This research was undertaken to encompass and identify challenges and impact factors that affect the successful outcomes of heritage building projects, especially those related to finding major causes of delays and cost overruns across projects in all Australian states. This project determined and analysed the causes of such delays and programme issues emanating from the planning and execution phases, whilst also analysing the requirements for management of multiple stakeholder relationships and the influence of unforeseen technical factors. The research proposes "call for action" guidance and was validated by experienced experts in heritage building projects in Australia. The proposed guidance is designed to ensure that realistic cost targets and delivery timeframes are set in future heritage projects, and necessary interventions made at appropriate project stages to ensure decisions are made that will help to prevent overtime and cost overuns.

Greenwashing the Trans-Pacific Partnership: Fossil fuels, the environment, and climate change

There has been much controversy over the Trans-Pacific Partnership (TPP) – a plurilateral trade agreement involving a dozen nations from throughout the Pacific Rim – and its impact upon the environment, biodiversity, and climate change. The secretive treaty negotiations involve Australia and New Zealand; countries from South East Asia such as Brunei Darussalam, Malaysia, Singapore, Vietnam, and Japan; the South American nations of Peru and Chile; and the members of the 1994 North American Free Trade Agreement (NAFTA), Canada, Mexico and the United States. There was an agreement reached between the parties in October 2015. The participants asserted: ‘We expect this historic agreement to promote economic growth, support higher-paying jobs; enhance innovation, productivity and competitiveness; raise living standards; reduce poverty in our countries; and to promote transparency, good governance, and strong labor and environmental protections.’ The final texts of the agreement were published in November 2015. There has been discussion as to whether other countries – such as Indonesia, the Philippines, and South Korea – will join the deal. There has been much debate about the impact of this proposed treaty upon intellectual property, the environment, biodiversity and climate change. There have been similar concerns about the Trans-Atlantic Trade and Investment Partnership (TTIP) – a proposed trade agreement between the United States and the European Union. In 2011, the United States Trade Representative developed a Green Paper on trade, conservation, and the environment in the context of the TPP. In its rhetoric, the United States Trade Representative has maintained that it has been pushing for strong, enforceable environmental standards in the TPP. In a key statement in 2014, the United States Trade Representative Mike Froman insisted: ‘The United States’ position on the environment in the Trans-Pacific Partnership negotiations is this: environmental stewardship is a core American value, and we will insist on a robust, fully enforceable environment chapter in the TPP or we will not come to agreement.’ The United States Trade Representative maintained: ‘Our proposals in the TPP are centered around the enforcement of environmental laws, including those implementing multilateral environmental agreements (MEAs) in TPP partner countries, and also around trailblazing, first-ever conservation proposals that will raise standards across the region’. Moreover, the United States Trade Representative asserted: ‘Furthermore, our proposals would enhance international cooperation and create new opportunities for public participation in environmental governance and enforcement.’ The United States Trade Representative has provided this public outline of the Environment Chapter of the TPP: A meaningful outcome on environment will ensure that the agreement appropriately addresses important trade and environment challenges and enhances the mutual supportiveness of trade and environment. The Trans-Pacific Partnership countries share the view that the environment text should include effective provisions on trade-related issues that would help to reinforce environmental protection and are discussing an effective institutional arrangement to oversee implementation and a specific cooperation framework for addressing capacity building needs. They also are discussing proposals on new issues, such as marine fisheries and other conservation issues, biodiversity, invasive alien species, climate change, and environmental goods and services. Mark Linscott, an assistant Trade Representative testified: ‘An environment chapter in the TPP should strengthen country commitments to enforce their environmental laws and regulations, including in areas related to ocean and fisheries governance, through the effective enforcement obligation subject to dispute settlement.’ Inside US Trade has commented: ‘While not initially expected to be among the most difficult areas, the environment chapter has emerged as a formidable challenge, partly due to disagreement over the United States proposal to make environmental obligations binding under the TPP dispute settlement mechanism’. Joshua Meltzer from the Brookings Institute contended that the trade agreement could be a boon for the protection of the environment in the Pacific Rim: Whether it is depleting fisheries, declining biodiversity or reduced space in the atmosphere for Greenhouse Gas emissions, the underlying issue is resource scarcity. And in a world where an additional 3 billion people are expected to enter the middle class over the next 15 years, countries need to find new and creative ways to cooperate in order to satisfy the legitimate needs of their population for growth and opportunity while using resources in a manner that is sustainable for current and future generations. The TPP parties already represent a diverse range of developed and developing countries. Should the TPP become a free trade agreement of the Asia-Pacific region, it will include the main developed and developing countries and will be a strong basis for building a global consensus on these trade and environmental issues. The TPP has been promoted by its proponents as a boon to the environment. The United States Trade Representative has maintained that the TPP will protect the environment: ‘The United States’ position on the environment in the TPP negotiations is this: environmental stewardship is a core American value, and we will insist on a robust, fully enforceable environment chapter in the TPP or we will not come to agreement.’ The United States Trade Representative discussed ‘Trade for a Greener World’ on World Environment Day. Andrew Robb, at the time the Australian Trade and Investment Minister, vowed that the TPP will contain safeguards for the protection of the environment. In November 2015, after the release of the TPP text, Rohan Patel, the Special Assistant to the President and Deputy Director of Intergovernmental Affairs, sought to defend the environmental credentials of the TPP. He contended that the deal had been supported by the Nature Conservancy, the International Fund for Animal Welfare, the Joint Ocean Commission Initiative, the World Wildlife Fund, and World Animal Protection. The United States Congress, though, has been conflicted by the United States Trade Representative’s arguments about the TPP and the environment. In 2012, members of the United States Congress - including Senator Ron Wyden (D-OR), Olympia Snowe (R-ME), and John Kerry (D-MA) – wrote a letter, arguing that the trade agreement needs to provide strong protection for the environment: ‘We believe that a '21st century agreement' must have an environment chapter that guarantees ongoing sustainable trade and creates jobs, and this is what American businesses and consumers want and expect also.’ The group stressed that ‘A binding and enforceable TPP environment chapter that stands up for American interests is critical to our support of the TPP’. The Congressional leaders maintained: ‘We believe the 2007 bipartisan congressional consensus on environmental provisions included in recent trade agreements should serve as the framework for the environment chapter of the TPP.’ In 2013, senior members of the Democratic leadership expressed their opposition to granting President Barack Obama a fast-track authority in respect of the TPP House of Representatives Minority Leader Nancy Pelosi said: ‘No on fast-track – Camp-Baucus – out of the question.’ Senator Majority leader Harry Reid commented: ‘I’m against Fast-Track: Everyone would be well-advised to push this right now.’ Senator Elizabeth Warren has been particularly critical of the process and the substance of the negotiations in the TPP: From what I hear, Wall Street, pharmaceuticals, telecom, big polluters and outsourcers are all salivating at the chance to rig the deal in the upcoming trade talks. So the question is, Why are the trade talks secret? You’ll love this answer. Boy, the things you learn on Capitol Hill. I actually have had supporters of the deal say to me ‘They have to be secret, because if the American people knew what was actually in them, they would be opposed. Think about that. Real people, people whose jobs are at stake, small-business owners who don’t want to compete with overseas companies that dump their waste in rivers and hire workers for a dollar a day—those people, people without an army of lobbyists—they would be opposed. I believe if people across this country would be opposed to a particular trade agreement, then maybe that trade agreement should not happen. The Finance Committee in the United States Congress deliberated over the Trans-Pacific Partnership negotiations in 2014. The new chair Ron Wyden has argued that there needs to be greater transparency in trade. Nonetheless, he has mooted the possibility of a ‘smart-track’ to reconcile the competing demands of the Obama Administration, and United States Congress. Wyden insisted: ‘The new breed of trade challenges spawned over the last generation must be addressed in imaginative new policies and locked into enforceable, ambitious, job-generating trade agreements.’ He emphasized that such agreements ‘must reflect the need for a free and open Internet, strong labor rights and environmental protections.’ Elder Democrat Sander Levin warned that the TPP failed to provide proper protection for the environment: The TPP parties are considering a different structure to protect the environment than the one adopted in the May 10 Agreement, which directly incorporated seven multilateral environmental agreements into the text of past trade agreements. While the form is less important than the substance, the TPP must provide an overall level of environmental protection that upholds and builds upon the May 10 standard, including fully enforceable obligations. But many of our trading partners are actively seeking to weaken the text to the point of falling short of that standard, including on key issues like conservation. Nonetheless, 2015, President Barack Obama was able to secure the overall support of the United States Congress for his ‘fast-track’ authority. This was made possible by the Republicans and dissident Democrats. Notably, Oregon Senator Ron Wyden switched sides, and was transformed from a critic of the TPP to an apologist for the TPP. For their part, green political parties and civil society organisations have been concerned about the secretive nature of the negotiations; and the substantive implications of the treaty for the environment. Environmental groups and climate advocates have been sceptical of the environmental claims made by the White House for the TPP. The Green Party of Aotearoa New Zealand, the Australian Greens and the Green Party of Canada have released a joint declaration on the TPP observing: ‘More than just another trade agreement, the TPP provisions could hinder access to safe, affordable medicines, weaken local content rules for media, stifle high-tech innovation, and even restrict the ability of future governments to legislate for the good of public health and the environment’. In the United States, civil society groups such as the Sierra Club, Public Citizen, WWF, the Friends of the Earth, the Rainforest Action Network and 350.org have raised concerns about the TPP and the environment. Allison Chin, President of the Sierra Club, complained about the lack of transparency, due process, and public participation in the TPP talks: ‘This is a stealth affront to the principles of our democracy.’ Maude Barlow’s The Council of Canadians has also been concerned about the TPP and environmental justice. New Zealand Sustainability Council executive director Simon Terry said the agreement showed ‘minimal real gains for nature’. A number of organisations have joined a grand coalition of civil society organisations, which are opposed to the grant of a fast-track. On the 15th January 2013, WikiLeaks released the draft Environment Chapter of the TPP - along with a report by the Chairs of the Environmental Working Group. Julian Assange, WikiLeaks' publisher, stated: ‘Today's WikiLeaks release shows that the public sweetener in the TPP is just media sugar water.’ He observed: ‘The fabled TPP environmental chapter turns out to be a toothless public relations exercise with no enforcement mechanism.’ This article provides a critical examination of the draft Environment Chapter of the TPP. The overall argument of the article is that the Environment Chapter of the TPP is an exercise in greenwashing – it is a public relations exercise by the United States Trade Representative, rather than a substantive regime for the protection of the environment in the Pacific Rim. Greenwashing has long been a problem in commerce, in which companies making misleading and deceptive claims about the environment. In his 2012 book, Greenwash: Big Brands and Carbon Scams, Guy Pearse considers the rise of green marketing and greenwashing. Government greenwashing is also a significant issue. In his book Storms of My Grandchildren, the climate scientist James Hansen raises his concerns about government greenwashing. Such a problem is apparent with the TPP – in which there was a gap between the assertions of the United States Government, and the reality of the agreement. This article contends that the TPP fails to meet the expectations created by President Barack Obama, the White House, and the United States Trade Representative about the environmental value of the agreement. First, this piece considers the relationship of the TPP to multilateral environmental treaties. Second, it explores whether the provisions in respect of the environment are enforceable. Third, this article examines the treatment of trade and biodiversity in the TPP. Fourth, this study considers the question of marine capture fisheries. Fifth, there is an evaluation of the cursory text in the TPP on conservation. Sixth, the article considers trade in environmental services under the TPP. Seventh, this article highlights the tensions between the TPP and substantive international climate action. It is submitted that the TPP undermines effective and meaningful government action and regulation in respect of climate change. The conclusion also highlights that a number of other chapters of the TPP will impact upon the protection of the environment – including the Investment Chapter, the Intellectual Property Chapter, the Technical Barriers to Trade Chapter, and the text on public procurement.

Valence and spatial explanations for voting in the 2013 Australian election

This paper examines the 2013 Australian federal election to test two competing models of vote choice: spatial politics and valence issues. Using data from the 2013 Australian Election Study, the analysis finds that spatial politics (measured by party identification and self-placement on the left-right spectrum) and valence issues both have significant effects on vote choice. However, spatial measures are more important than valence issues in explaining vote choice, in contrast with recent studies from Britain, Canada and the United States. Explanations for these differences are speculative, but may relate to Australia’s stable party and electoral system, including compulsory voting and the frequency of elections. The consequently high information burden faced by Australian voters may lead to a greater reliance on spatial heuristics than is found elsewhere.

Social and environmental reporting practices of organisations operating in, or sourcing products from, a developing country : evidence from Bangladesh

This research consists of a broad study in three parts of the social and environmental reporting practices of organisations operating in or sourcing products from a developing country, in this case Bangladesh. The first part of this study explores the social and environmental disclosure practices of the Bangladesh Garment Manufacturers and Exporters Association (BGMEA), the body responsible for organising the activities of 4,200 entities involved in the export of garments from Bangladesh. By way of interview, this part documents the opinions of numerous senior executives from the BGMEA with regard to any changes in the degree of social and environmental pressures since 1985. Utilising a complementary theoretical perspective that includes legitimacy theory, stakeholder theory and institutional theory this part then performs an analysis of the BGMEA's annual reports (1987-2005), t o explore the link between the perceived pressures and changes entailed therein and the social and environmental disclosure practices of the BGMEA across the period of analysis. The results show that the disclosure practices of BGMEA appear to be directly driven by the changing expectations of multinational buying companies- the group deemed to be the most powerful stakeholder group. This section is the first known study to interview managers from a large organisation in a developing country about shifting stakeholder expectations and then to link these changing expectations to annual report disclosures across an extended period of analysis. The findings then directly lead to the second major part of this thesis which investigates the social and environmental disclosure practices of two major multinational buying companies: Nike and H&M. Adopting a joint consideration of legitimacy theory and media agenda setting theory, this second part investigates the linkage between negative media attention and positive corporate social and environmental disclosures over a 19 year period. The results support the view that for those industry-related social and environmental issues that attract the greatest amount of negative media attention, these companies react by providing positive social and environmental disclosures. The results were particularly significant in relation to labour practices in developing countries-the issue that attracts the greatest amount of negative media attention for the companies in question. While the second part demonstrates that the media influences particular disclosure practices, the third part of the thesis shows what drives the media. Based on the speculation provided in the second part, the third part tests the proposition that the media is an important ally of NGOs in their quest to influence change in corporate accountabilities. Through the use of interviews, the results of this part of the study provide evidence to support previously untested perspectives about NGOs' utilisation of the m edia. The results reveal that NGOs use the media because the media is responsible for creating real changes in the operations and disclosure policies of organisations sourcing products from Bangladesh. The various pressures impacting the activities of organisations operating in or sourcing products from developing countries constitutes a fascinating area of investigation, and it is hoped that this study will motivate further research in this area.

‘Enough is enough’: Songs and messages about alcohol in remote Central Australia

This article examines some of the ways in which Australia’s First Peoples have responded to serious community health concerns about alcohol through the medium of popular music. The writing, performing and recording of popular songs about alcohol provide an important example of community-led responses to health issues, and the effectiveness of music in communicating stories and messages about alcohol has been recognised through various government-funded recording projects. This article describes some of these issues in remote Australian Aboriginal communities, exploring a number of complexities that arise through arts-based ‘instrumentalist’ approaches to social and health issues. It draws on the author’s own experience and collaborative work with Aboriginal musicians in Tennant Creek, a remote town in Australia’s Northern Territory.

Women’s Wellness after Cancer Program Study (WWACP)– A multi centre randomised controlled trial examining the benefits and cost effectiveness of an Evidenced Based, e-health intervention

Background Advances in cancer diagnosis and treatment have significantly improved survival rates, through their subsequent health needs are often not adequately addressed by current health services. National Health and Medical Research Council (NHMRC) Partnerships Project awarded a national collaborative project to develop, trial and evaluate clinical benefits and cost effectiveness of an e-health enabled structured health promotion intervention - The Women’s Wellness after Cancer Program (WWACP). The aim of this e-health enabled multimodal intervention is to improve health related quality of life in women previously treated for target cancers. Aim The WWACP is a 12-week web based, interactive, holistic program. Primary outcomes for this project are to promote a positive change in health-related quality of life (HRQoL) and reduction in Body Mass Index (BMI) in the women undertaking WWACP compared to women who receive usual care. Secondary outcomes include managing other side effects of cancer treatment through evidence-based nutrition and exercise practices, dealing with stress, sleep, menopause and sexuality issues. Methods The single-blinded multi-center randomized controlled trial recruited a toatl of 330 women within 24 months of completion of chemotherapy and /or radiotherapy. Women were randomly assigned to either a usual care or intervention group. Women provided with the intervention were provided with an interactive iBook and journal, web interface, and three virtual consultations by experienced cancer nurses. A variety of methods were utilized, to enable positive self- efficacy and lifestyle changes. These include online coaching with a registered nurse trained in the intervention, plus written educational and health promotional information. The program has been delivered through the e-health enabled interfaces, which enables virtual delivery via desktop and mobile computing devices. Importantly this enables accessibility for rural and regional women in Australia who are frequently geographically disadvantaged in terms of health care provision. Results Research focusing on alternative methods of delivering post treatment / or survivorship care in cancer utilizing web based interfaces is limited, but emerging evidence suggests that Internet interventions can increase psychological and physical wellbeing in cancer patients. The WWACP trial aims to establish the effectiveness of delivery of the program in terms of positive patient outcomes and cost effective, flexibility. The trial will be completed in September and results will be presented at the conference. Conclusions Women after acute hematological, breast and gynecological cancer treatments demonstrate good cancer survival rates and face residual health problems which are amenable to behavioral interventions. The conclusion of active treatment is a key 'teachable moment' in which sustainable positive lifestyle change can be achieved if patients receive education and psychological support which targets key treatment related health problems and known chronic disease risk factors.

Internet privatization, WikiLeaks, and free expression

In late 2010, the online nonprofit media organization WikiLeaks published classified documents detailing correspondence between the U.S. State Department and its diplomatic missions around the world, numbering around 250,000 cables. These diplomatic cables contained classified information with comments on world leaders, foreign states, and various international and domestic issues. Negative reactions to the publication of these cables came from both the U.S. political class (which was generally condemnatory of WikiLeaks, invoking national security concerns and the jeopardizing of U.S. interests abroad) and the corporate world, with various companies ceasing to continue to provide services to WikiLeaks despite no legal measure (e.g., a court injunction) forcing them to do so. This article focuses on the legal remedies available to WikiLeaks against this corporate suppression of its speech in the U.S. and Europe since these are the two principle arenas in which the actors concerned are operating. The transatlantic legal protection of free expression will be considered, yet, as will be explained in greater detail, the legal conception of this constitutional and fundamental right comes from a time when the state posed the greater threat to freedom. As a result, it is not generally enforceable against private, non-state entities interfering with speech and expression which is the case here. Other areas of law, namely antitrust/competition, contract and tort will then be examined to determine whether WikiLeaks and its partners can attempt to enforce their right indirectly through these other means. Finally, there will be some concluding thoughts about the implications of the corporate response to the WikiLeaks embassy cables leak for freedom of expression online.

Bayesian estimation of small effects in exercise and sports science

The aim of this paper is to provide a Bayesian formulation of the so-called magnitude-based inference approach to quantifying and interpreting effects, and in a case study example provide accurate probabilistic statements that correspond to the intended magnitude-based inferences. The model is described in the context of a published small-scale athlete study which employed a magnitude-based inference approach to compare the effect of two altitude training regimens (live high-train low (LHTL), and intermittent hypoxic exposure (IHE)) on running performance and blood measurements of elite triathletes. The posterior distributions, and corresponding point and interval estimates, for the parameters and associated effects and comparisons of interest, were estimated using Markov chain Monte Carlo simulations. The Bayesian analysis was shown to provide more direct probabilistic comparisons of treatments and able to identify small effects of interest. The approach avoided asymptotic assumptions and overcame issues such as multiple testing. Bayesian analysis of unscaled effects showed a probability of 0.96 that LHTL yields a substantially greater increase in hemoglobin mass than IHE, a 0.93 probability of a substantially greater improvement in running economy and a greater than 0.96 probability that both IHE and LHTL yield a substantially greater improvement in maximum blood lactate concentration compared to a Placebo. The conclusions are consistent with those obtained using a ‘magnitude-based inference’ approach that has been promoted in the field. The paper demonstrates that a fully Bayesian analysis is a simple and effective way of analysing small effects, providing a rich set of results that are straightforward to interpret in terms of probabilistic statements.

Boosting morale and improving performance in the nursing setting

AIM AND BACKGROUND: While the importance of morale is well researched in the nursing literature, strategies and interventions are not so prolific. The complexities of interpersonal relationships within the clinical domain, and the critical issues faced by nurses on a daily basis, indicate that morale, job satisfaction and motivation are essential components in improving workplace efficiency, output and communication amongst staff. Drawing on educational, organizational and psychological literature, this paper argues that the ability to inspire morale in staff is a fundamental indicator of sound leadership and managerial characteristics. EVALUATION AND KEY ISSUES: Four practical concepts that could be implemented in the clinical setting are proposed. These include: role preparation for managers, understanding internal and external motivation, fostering internal motivation in nursing staff, and the importance of attitude when investing in relationships.

Strategies for improving safety and health of ethnic minority construction workers

The construction industries of developed countries are faced with an aging workforce and a shortage of recruits. It is common for migrant workers/ethnic minorities (EMs) who are already part of the society to join the construction industry. With increasing involvement of EMs in the construction industry, effective strategies for improving their safety and health are urgently needed. The existing body of knowledge is mainly derived from research conducted in English-speaking countries with Western cultures. Research on safety of migrant/EM construction workers in multidialect Asian countries with Eastern cultures has been lacking. This study aimed to identify various strategies for improving the safety and health of EM construction workers from the Asian perspective. Twenty-two face-to-face semistructured interviews were performed with safety professionals in Hong Kong followed by two rounds of Delphi survey with 18 safety experts to verify the interview findings and rank the relative importance of the strategies. The study unveiled 14 strategies for improving the safety performance of EM workers. The three most important ones identified were: (1) to provide safety training in EM native languages; (2) that government and industry associations should play an active role in promoting health and safety awareness of EM workers, and; (3) to encourage EM workers to learn the local language. This study contributes to filling the research gap by evaluating the strategies for improving safety of migrant/EM construction workers in Asian countries with Eastern cultures in which English is not the first language. Research findings would assist occupational health and safety experts and relevant stakeholders in designing strategies for improving the safety and health of EM workers, which will ultimately improve overall safety performance of the construction industry.