The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

Safety management in repair, maintenance, minor alteration, and addition works : knowledge management perspective

Safety of repair, maintenance, alteration, and addition (RMAA) works have long been neglected because RMAAworks are often minute and only last for a short period of time. With rising importance of the RMAA sector in many developed societies, safety of RMAA works has begun to draw attention. Many RMAA contracting companies are small- and medium-sized enterprises (SMEs) that do not have comprehensive safety management systems. Existing safety legislation and regulations for new construction sites are not fully applicable to RMAAworks. Instead of relying on explicit and well-established safety systems, tacit safety knowledge plays an extremely important role in RMAA projects. To improve safety of RMAAworks, safety knowledge should be better managed. However, safety knowledge is difficult to capture in RMAA works. This study aims to examine safety management practices of RMAA contracting companies to see how safety knowledge of RMAA projects is managed. Findings show that RMAA contracting companies undertaking large-scale RMAA projects have more initiatives of safety management. Safety management of small-scale RMAA works relies heavily on the motivation of site supervisors and self-regulation of workers. Better tacit knowledge management improves safety performance. To enhance safety capability of RMAA contracting companies, a knowledge sharing culture should be cultivated. The government should provide assistance to SMEs to implement proper safety management practices in small-sized projects. Potentials of applying computer software technology in RMAA projects to capture, store, and retrieve safety information should be explored. Employees should be motivated to share safety knowledge by giving proper recognition to those who are willing to share.

Time for a national approach to donor conception in Australia

There is a growing recognition of the interests and rights of individuals conceived using donated gametes in assisted reproductive technology to information about their biological parentage. In Australia these rights vary between jurisdictions according to differing statutory provisions. In February 2011 the Senate's Legal and Constitutional Affairs References Committee published its report on Donor Conception Practices in Australia. The report recommended the development of a nationally consistent approach to donor conception and recommended the enactment of legislation in those Australian jurisdictions without legislation regulating donor conception. This editorial reviews the Senate Committee report and its recommendations and supports calls for a nationally harmonised approach to donor conception in Australia.

Professional Responsibility and Legal Ethics in Queensland [2nd Ed.]

Professional Responsibility and Legal Ethics in Queensland offers a proven, practical approach to identifying and resolving ethical issues that may arise in daily legal practice in Queensland. It is an excellent resource for practitioners and students alike who need to navigate relevant legislation and understand legal ethics through accessible, problem-based scenarios. The introduction of the Australian Solicitors Conduct Rules and Barristers’ Rule 2011, and changes to enforcement mechanisms where breaches have occurred, make the Second Edition essential reading for solicitors, barristers and law students in Queensland. Diverse practice structures, the enactment of the new rules, and other legislative developments will affect lawyers’ work and the way they must interact with their clients, with each other and with the court. Providing detailed explanation and analysis of these changes, the authors explain the ethical and regulatory environment for Queensland lawyers as the national legal services market continues to evolve.

Designing intelligent litigation support tools : The IKBALS perspective

In the legal domain, it is rare to find solutions to problems by simply applying algorithms or invoking deductive rules in some knowledge‐based program. Instead, expert practitioners often supplement domain‐specific knowledge with field experience. This type of expertise is often applied in the form of an analogy. This research proposes to combine both reasoning with precedents and reasoning with statutes and regulations in a way that will enhance the statutory interpretation task. This is being attempted through the integration of database and expert system technologies. Case‐based reasoning is being used to model legal precedents while rule‐based reasoning modules are being used to model the legislation and other types of causal knowledge. It is hoped to generalise these findings and to develop a formal methodology for integrating case‐based databases with rule‐based expert systems in the legal domain.

Freedom to choose? Embryo selection, reproductive decision-making and the role of the state

Involving the biopsy of an eight-cell embryo, PGD has been hailed as a means of making reproductive decisions without having to face the heart-wrenching decision to abort an affected foetus. However, controversy around the kinds of traits for which testing can be done, and who has access to the technology, has led to questions about the way in which the technology is developing. Women who are allowed to access in vitro fertilisation (IVF) services can currently also access PGD in limited circumstances.

Reproductive technology, public policy and single motherhood

In mid 2000, the Australian community engaged in a national debate over access to infertility treatment services. The debate was sparked by a Federal Court decision in late July. That decision, by Justice Sundberg in the case of McBain v State of Victoria 1 held that the provisions of the Infertility Treatment Act 1995 (Vic) which limited eligibility for infertility treatment to women who were married or in heterosexual de facto relationships, were inconsistent with section 22 of the Commonwealth Sex Discrimination Act 1984 (Cth) which prohibits discrimination on the basis of marital status. Justice Sundberg held that, by virtue of section 109 of the Constitution, 2 the provisions of the Victorian Act were inoperative to the extent of the inconsistency between the State and Commonwealth legislation.

The rurality of sex : community resistance and objection to prostitution in rural and regional areas throughout Queensland

Queensland legislation currently defines two legally recognised forms of prostitution: sex work conducted in a licensed brothel; or, sex work conducted privately by a sole operator.Despite prostitution’s legality in these contexts, it continues to be heavily controlled and restricted by authorities, while also being rejected by surrounding communities. Such resistance towards prostitution is demonstrated in Queensland where over 200 towns with populations of less than 25,000 have been successful in applying for exemption from the development of licensed brothels in those jurisdictions (Prostitution Licensing Authority 2012). Queensland’s legislative acknowledgement of prostitution as a legal act, while simultaneously allowing small communities to reject such activity, seems somewhat contradictory. This paper will provide a theoretical examination of common community objections to prostitution in modern society, determining whether such attitudes are applicable to communities in rural and regional Queensland towns. Additionally, this paper will incorporate an analysis of rural and urban areas via the ‘gemeinschaft‐gesellschaft’ dichotomy to understand the potential justification for opposing areas being subject to differential treatment under the law.

Hunting and gathering : new imperatives in mapping and collecting student learning data to assure quality outcomes

Assurance of learning (AOL) is a quality enhancement and quality assurance process used in higher education. It involves a process of determining programme learning outcomes and standards, and systematically gathering evidence to measure students' performance on these. The systematic assessment of whole-of-programme outcomes provides a basis for curriculum development and management, continuous improvement, and accreditation. To better understand how AOL processes operate, a national study of university practices across one discipline area, business and management, was undertaken. To solicit data on AOL practice, interviews were undertaken with a sample of business school representatives (n = 25). Two key processes emerged: (1) mapping of graduate attributes and (2) collection of assurance data. External drivers such as professional accreditation and government legislation were the primary reasons for undertaking AOL outcomes but intrinsic motivators in relation to continuous improvement were also evident. The facilitation of academic commitment was achieved through an embedded approach to AOL by the majority of universities in the study. A sustainable and inclusive process of AOL was seen to support wider stakeholder engagement in the development of higher education learning outcomes.

A design approach to the study of people's experiences with technologies in the context of public transport

Relevant to the study of people’s attitudes towards public transport use is the consideration to the role of technology as part of the travel experience. Technologies aim to enhance daily tasks but tend to change the way people interact with products and can be perceived as difficult to use. This is critical in the context of “public use” where products and services are to be used by the population at large: adults, children, elderly, people with disabilities, and tourists. From different perspectives, the topic of users and the use of technologies have been studied in the social sciences and human computer interaction fields; however, earlier approaches fail to address the ways in which experiential knowledge informs people’s interactions with products and technologies, and how such information could guide the design of future technologies. This paper describes a pilot study, part of a larger ongoing exploratory research that investigates people’s experiences with infrastructure, systems, and technologies in the context of public transport. The methodological approach included focus groups, field observations, and retrospective verbal reports. At this stage, the study found that four context led factors were the primary source of reference informing participants’ actions and interactions; they are: (i) context >> experience, (ii) context >> interface, (iii) context >> knowledge, (iv) context >> emotion.

LexisNexis Questions and Answers : Medical Law

LexisNexis Questions and Answers: Medical Law is designed to facilitate both continuous review and preparation for assignments and examinations. This book provides a clear and concise revision guide for each of the major topics covered in the typical health law course. It provides an understanding of medical law in each Australian jurisdiction and gives a clear and systematic approach to analysing and answering problem and essay questions. Each chapter commences with an identification of the key issues, including a summary of the relevant cases and legislation. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

Incorporated associations

Non-profit community groups such as sporting clubs, charities, interest groups and community associations can be formally incorporated and recognised by the law. More than 21,000 associations are already incorporated in Queensland. The governing legislation is the Associations Incorporate Act 1981 (Qld) (the Act) and the Associations Incorporate regulation 1999 (Qld) (The Regulation). The Queensland Department of Justice and Attorney General is responsible for administering this Act and incorporating associations and does so through the Office of Fair Trading. This chapter covers some of the basic concepts and procedures for incorporating an association under the Act. The Act and the Regulation are usually amended at least once a year, and current materials are available on the Queensland Government legislation website.

Decoupling 2 : technologies, opportunities and policy options

This report was produced by the Decoupling Working Group of the International Resource Panel. It explores technological possibilities and opportunities for both developing and developed countries to accelerate decoupling and reap the environmental and economic benefits of increased resource productivity. It also examines several policy options that have proved to be successful in helping different countries to improve resource productivity in various sectors of their economy, avoiding negative impacts on the environment. It does not seem possible for a global economy based on the current unsustainable patterns of resource use to continue into the future. The economic consequences of these patterns are already apparent in three areas: increases in resource prices, increased price volatility and disruption of environmental systems. The environment impacts of resource use are also leading to potentially irreversible changes to the world’s ecosystems, often with direct effects on people and the economy – for example through damage to health, water shortages, loss of fish stocks or increased storm damage. But there are alternatives to these scary patterns. Many decoupling technologies and techniques that deliver resource productivity increases as high as 5 to 10-fold are already available, allowing countries to pursue their development strategies while significantly reducing their resource footprint and negative impacts on the environment. This report shows that much of the policy design “know-how” needed to achieve decoupling is present in terms of legislation, incentive systems, and institutional reform. Many countries have tried these out with tangible results, encouraging others to study and where appropriate replicate and scale up such practices and successes.