Take me to your employer: the organisational reach of occupational health and safety regulation

[Conclusion] We have explored two dimensions of the Australian OHS statutes which enable statutory OHS duties to reach more than one employer or self-employed person within a corporate group or network. First, most of the OHS statutes contain provisions extending the reach of employer’s duty beyond the employer’s employees. One legislative technique is to deem contractors and their employees to be employees of the principal contractor. Another imposes duties on employers and self-employed persons to persons who are not employees, so that employers and self-employed persons can be responsible for the OHS of firms, and those they engage, lower in the contractual chain. These duties are non-delegable, meaning that the principal contractor cannot seek to delegate OHS duties to firms lower in the contractual chain. Second, new Victorian ‘shadow officer’ provisions can be applied to remove difficulties and doubt as to the liability of partners in a partnership, officers of unincorporated associations, joint venturers, and holding and subsidiary companies within corporate groups. While the provisions can be argued simply to confirm that a partner who fails to take reasonable care in relation to OHS will be guilty of an offence, we demonstrate that there are very real benefits to having ‘shadow officer’ provisions which remove uncertainties about the liability of unincorporated associations, joint ventures and corporate groups. Perhaps most significantly, the Victorian corporate officer provisions have the potential to extend liability to individuals and other entities within organisational structures, where those individuals and entities make or participate in making decisions that affect the whole or a substantial part of the organisation’s business, and are responsible for an OHS offence having been committed, due to their failure to take reasonable care. We suggest that similar provisions should be included in all OHS statutes, to overcome at least some of the barriers limiting group responsibility for OHS statutory duties.

Disability Standards For Education 2005 (Cth): sword or shield for Australian students with disability?

This article explains the scope and effect of the Disability Standards for Education 2005 (Cth) (the ‘Standards’) and considers whether they operate as a legislative sword or shield in respect of the battle to protect the education rights of people with disabilities in Australia. Evidence suggests that the Standards would be a more effective weapon if there were greater understanding of how they oblige education providers to make reasonable adjustments to their policies and practices to support access for and participation by students with disabilities.

Children and consent to medical treatment

This chapter provides a comprehensive and up-to-date treatment of legislative provisions and common law principles regarding children and the law of consent to medical treatment. When can children provide their own consent? Can parents consent on behalf of their children, and if so, under what circumstances and why? Is court authority ever required, and if so, when, and why? What new contexts are providing fresh challenges to legal principles, parents, medical practitioners, and most importantly, children?

The ACNC's new governance rules

Australian charities have a new regulator in the form of the Australian Charities and Not-for-profits Commission (ACNC) which began operations in December 2012; and new governance rules which applied from 1 July 2013. While there is some uncertainty over the ACNC's future, the new legislative framework currently applies to approximately 58,000 charities which seek federal tax concessions and other benefits, and includes governance standards that apply across charitable organisational forms (company, trust and association) with some exceptions. The governance standards are a minimum benchmark that many charities will already meet, if they are companies or incorporated associations.

Modelling the intention to adopt cloud computing services : a transaction cost theory perspective

This paper uses transaction cost theory to study cloud computing adoption. A model is developed and tested with data from an Australian survey. According to the results, perceived vendor opportunism and perceived legislative uncertainty around cloud computing were significantly associated with perceived cloud computing security risk. There was also a significant negative relationship between perceived cloud computing security risk and the intention to adopt cloud services. This study also reports on adoption rates of cloud computing in terms of applications, as well as the types of services used.

Understanding the new context of the male sex work industry

The article reviews past and recent research on male sex work to offer a context to understand violence in the industry. It provides a critical review of research to show, first, the assumptions made about male sex workers and violence and, second, how such discourses have shaped thinking on the topic. The article presents a case study and original findings from two studies conducted by the authors in Australia and Argentina on violence in the male sex industry. Finally, the article reviews examples of legislative reforms to show how the sex industry is being regulated.

A sunburnt country – storms, surges and sea levels : of insurance and flooding rains

Increasing population pressures and life-style choices are resulting in more people living in areas that are at risk of inundation from rising sea levels and flooding. However, following natural disaster events, such as the 2011 Queensland floods, many Australians discovered they were uninsured. Either their insurance policies did not cover flood; or multiple (and confusing) water-related definitions led them to believe they had cover when they did not. Several theories are analysed to try to explain what is a world-wide underinsurance problem but these do not provide an answer to the problem. This research focuses on uncovering the reasons consumers fail to adequately insure for flood and other water-related events. Recent Australian legislative attempts to overcome insureds’ confusion of water related definitions are examined for this purpose. The authors conclude that Australian and other) legislators should set a maximum premium for a minimum amount of flood and sea related cover; and restrict the building and style of homes in flood prone areas.

The anatomy of the bill tip of kiwi and associated somatosensory regions of the brain : comparisons with shorebirds

Three families of probe-foraging birds, Scolopacidae (sandpipers and snipes), Apterygidae (kiwi), and Threskiornithidae (ibises, including spoonbills) have independently evolved long, narrow bills containing clusters of vibration-sensitive mechanoreceptors (Herbst corpuscles) within pits in the bill-tip. These ‘bill-tip organs’ allow birds to detect buried or submerged prey via substrate-borne vibrations and/or interstitial pressure gradients. Shorebirds, kiwi and ibises are only distantly related, with the phylogenetic divide between kiwi and the other two taxa being particularly deep. We compared the bill-tip structure and associated somatosensory regions in the brains of kiwi and shorebirds to understand the degree of convergence of these systems between the two taxa. For comparison, we also included data from other taxa including waterfowl (Anatidae) and parrots (Psittaculidae and Cacatuidae), non-apterygid ratites, and other probe-foraging and non probe-foraging birds including non-scolopacid shorebirds (Charadriidae, Haematopodidae, Recurvirostridae and Sternidae). We show that the bill-tip organ structure was broadly similar between the Apterygidae and Scolopacidae, however some inter-specific variation was found in the number, shape and orientation of sensory pits between the two groups. Kiwi, scolopacid shorebirds, waterfowl and parrots all shared hypertrophy or near-hypertrophy of the principal sensory trigeminal nucleus. Hypertrophy of the nucleus basorostralis, however, occurred only in waterfowl, kiwi, three of the scolopacid species examined and a species of oystercatcher (Charadriiformes: Haematopodidae). Hypertrophy of the principal sensory trigeminal nucleus in kiwi, Scolopacidae, and other tactile specialists appears to have co-evolved alongside bill-tip specializations, whereas hypertrophy of nucleus basorostralis may be influenced to a greater extent by other sensory inputs. We suggest that similarities between kiwi and scolopacid bill-tip organs and associated somatosensory brain regions are likely a result of similar ecological selective pressures, with inter-specific variations reflecting finer-scale niche differentiation.

Estimating the burden of disease attributable to smoking in South Africa in 2000

Objectives To quantify the burden of disease attributable to smoking in South Africa for 2000. Design The absolute difference between observed lung cancer death rate and the level in non-smokers, adjusted for occupational and indoor exposure to lung carcinogens, was used to estimate the proportion of lung cancer deaths attributable to smoking and the smoking impact ratio (SIR). The SIR was substituted for smoking prevalence in the attributable fraction formula for chronic obstructive pulmonary disease (COPD) and cancers to allow for the long lag between exposure and outcome. Assuming a shorter lag between exposure and disease, the current prevalence of smoking was used to estimate the population-attributable fractions (PAF) for the other outcomes. Relative risks (RR) from the American Cancer Society cancer prevention study (CPS-II) were used to calculate PAF. Setting South Africa. Outcome measures Deaths and disability-adjusted life years (DALYs) due to lung and other cancers, COPD, cardiovascular conditions, respiratory tuberculosis, and other respiratory and medical conditions. Results Smoking caused between 41 632 and 46 656 deaths in South Africa, accounting for 8.0 - 9.0% of deaths and 3.7 - 4.3% of DALYs in 2000. Smoking ranked third (after unsafe sex/sexually transmitted disease and high blood pressure) in terms of mortality among 17 risk factors evaluated. Three times as many males as females died from smoking. Lung cancer had the largest attributable fraction due to smoking. However, cardiovascular diseases accounted for the largest proportion of deaths attributed to smoking. Conclusion Cigarette smoking accounts for a large burden of preventable disease in South Africa. While the government has taken bold legislative action to discourage tobacco use since 1994, it still remains a major public health priority.

Voluntary palliated starvation : A lawful and ethical way to die?

Increasingly, individuals want control over their own destiny. This includes the way in which they die and the timing of their death. The desire for self-determination at the end of life is one of the drivers for the ever-increasing number of jurisdictions overseas that are legalising voluntary euthanasia and/or assisted suicide, and for the continuous attempts to reform state and territory law in Australia. Despite public support for law reform in this field, legislative change in Australia is unlikely in the near future given the current political landscape. We argue that there may be another solution which provides competent adults with control over their death and to have any pain and symptoms managed by doctors, but which is currently lawful and consistent with prevailing ethical principles. ‘Voluntary palliated starvation’ refers to the process which occurs when a competent individual chooses to stop eating and drinking, and receives palliative care to address pain, suffering and symptoms that may be experienced by the individual as he or she approaches death. In this article, we argue that, at least in some circumstances, such a death would be lawful for the individual and doctors involved, and consistent with principles of medical ethics.

Literacy and numeracy project: Final report 2009

Literacy and numeracy are critical for young people during and after their schooling. The subjects and courses that students undertake during their school years incorporate a range of academic literacy and numeracy practices which students must be able manage if they are to be successful. Pathways beyond schooling also require specific, and changing, understandings of, and proficiencies with, literacy and numeracy as new communication technologies increasingly impact on further study, work, and everyday life. Teaching and learning numeracy is a new emphasis in the SACE and as yet we have little understanding about the ways in which secondary schools handle this area. Students in Years 10 and 11 are at a crucial point in their educational and life pathways as they begin to refine their future aspirations. For those who have difficulty with academic literacies and numeracies – and often a long history of such problems – this period can be fraught unless teachers are able to provide specific support when it is needed, or students are able to access it from care-givers or community members. The School to Work Literacy and Numeracy Project involved teachers from nine schools across the three sectors and university researchers working together to design curriculum interventions for students with a history of low measurable achievement in literacy and/or numeracy. The project started from the premise that working with ‘rich tasks’, an approach to learning and assessment developed in the Productive Pedagogies work undertaken in Queensland (Hayes et al., 2006), would improve students’ motivation, engagement and learning and that this work could best be done by teachers working in school-based, cross-curriculum teams with a school leadership team member and a university researcher as mentor. A key idea in designing rich tasks is that students will have opportunities to demonstrate their learning in assessments which are aligned with the learning expectations (for example a film festival to publicly launch student-produced films, advertising to sell student-made cubby-houses, a household budget based on students’ likely incomes in future work). In other words the assessments should be designed to allow for authentic communication and displays of what the students have learned through serious engagement with the curriculum. The project was conducted from Term 1-4 2009, with follow-up checks with some project teachers in the early weeks of 2010.

Making the fun stop : youth justice reform in Queensland

In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.

After-acquired income and contributions by Australian bankrupts: can pay, should pay, making them pay!

This article explores the issue of income of bankrupts from the historical, theoretical and legislative viewpoints. After setting out the foundation for our present law, the article reviews the current statistics on the use of the existing legislative income contribution regime and analyses the jurisprudence which has made the notion of after-acquired income - and the ability of bankrupts to invest it - opaque. The article then canvasses the ‘can pay, should pay’ notion of income contributions by bankrupts together with the current debate on ‘making them pay’.

Issues to consider when developing mandatory reporting legislation and policy to improve discovery of child abuse

In the United Kingdom, recent investigations into child sexual abuse occurring within schools, the Catholic Church and the British Broadcasting Corporation, have intensified debate on ways to improve the discovery of child sexual abuse, and child maltreatment generally. One approach adopted in other jurisdictions to better identify cases of severe child maltreatment is the introduction of some form of legislative mandatory reporting to require designated persons to report known and suspected cases. The debate in England has raised the prospect of whether adopting a strategy of some kind of mandatory reporting law is advisable. The purpose of this article is to add to this debate by identifying fundamental principles, issues and complexities underpinning policy and even legislative developments in the interests of children and society. The article will first highlight the data on the hidden nature of child maltreatment and the background to the debate. Secondly, it will identify some significant gaps in knowledge that need to be filled. Thirdly, the article will summarise the barriers to reporting abuse and neglect. Fourthly, we will identify a range of options for, and clarify the dilemmas in developing, legislative mandatory reporting, addressing two key issues: who should be mandated to report, and what types of child maltreatment should they be required to report? Finally, we draw attention to some inherently different goals and competing interests, both between and within the various institutions involved in the safeguarding of children and the criminal prosecution of some offenders. Based on this analysis we offer some concluding observations that we hope contribute to informed and careful debate about mandatory reporting.

The Australian Nonprofit Sector Legal Almanac 2014

The ACPNS nonprofit sector legal almanac provides summaries of legal cases involving nonprofit organisations, or of relevance to the work of nonprofits, particularly from Australia, but also New Zealand, the United Kingdom, Canada and the United States. It also summarises legislative changes that relate to nonprofit organisations in all Australian jurisdictions, and includes short articles on relevant topics: mergers of not for profit organisations; public ancillary funds; charitable housing; and dispute resolution.