Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Automated counting of the Northern Pacific Sea Star in the Derwent using shape recognition

A novel shape recognition algorithm was developed to autonomously classify the Northern Pacific Sea Star (Asterias amurenis) from benthic images that were collected by the Starbug AUV during 6km of transects in the Derwent estuary. Despite the effects of scattering, attenuation, soft focus and motion blur within the underwater images, an optimal joint classification rate of 77.5% and misclassification rate of 13.5% was achieved. The performance of algorithm was largely attributed to its ability to recognise locally deformed sea star shapes that were created during the segmentation of the distorted images.

Job satisfaction of preventive medicine workers in northern Vietnam : a multi-method approach

In the health care industry, Job Satisfaction (JS) is linked with work performance, psychological well-being and employee turnover. Although research into JS among health professionals has a long history worldwide, there has been very little analysis in Vietnam. No study has addressed JS of preventive medicine workers in Vietnam, and there is no reliable and valid instrument in Vietnamese language and context for evaluation of JS in this group. This project was conducted to fill these gaps. The findings contribute evidence regarding factors that influence JS in this sector of the health industry that should be applied to personnel management policies and practices in Vietnam.

Investigating the link between carbon dioxide emissions and transport-related social exclusion in rural Northern Ireland

Carbon dioxide (CO2) is considered the most harmful of the greenhouse gases. Despite policy efforts, transport is the only sector experiencing an increase in the level of CO2 emissions and thereby possesses a major threat to sustainable development. In contrast, a reduced level of mobility has been associated with an increasing risk of being socially excluded. However, despite being the two key elements in transport policy, little effort has so far been made to investigate the links between CO2 emissions and social exclusion. This research contributes to this gap by analysing data from 157 weekly activity-travel diaries collected in rural Northern Ireland. CO2 emission levels were calculated using average speed models for different modes of transport. Regression analyses were then conducted to identify the socio-spatial patterns associated with these CO2 emissions, mode choice behaviour, and patterns of participation in activities. This research found that despite emitting a higher level of carbon dioxide, groups in rural areas possess the risk of being socially excluded due to their higher levels of mobility.

The small business CGT concessions: Evidence from the perspective of the tax practitioner

On 21 September 1999 Division 152 was inserted into the Income Tax Assessment Act (1997) (ITAA 1997). Division 152 contains the small business CGT concessions, which enables eligible small business taxpayers to reduce the amount of tax payable on capital gains arising from certain CGT events that occur after 11:45 am on 21 September 1999. One of the principal objectives of the legislation is to provide a concessionary regime for small business owners who do not have the same ability to access the concessionary superannuation regime generally available to employees. When announcing the introduction of the concessions the then Federal Treasurer, Mr Peter Costello, specifically stated that the objective of Division 152 was to provide ‘small business people with access to funds for retirement or expansion’. The purpose of this article is to: one, assess the extent to which small business taxpayers understand the CGT small business concessions, particularly when considering the sale of their business; two, determine which of the four small business CGT concessions are most commonly adopted and/or recommended by tax practitioners to clients; and three, to determine whether the superannuation changes in relation to the capping of the concessional superannuation thresholds have had an impact on the use of the small business retirement concession.

If you're going to be a leader, at least act like it! Prejudice towards women who are tentative in leader roles

Role congruity theory predicts prejudice towards women who meet the agentic requirements of the leader role. In line with recent findings indicating greater acceptance of agentic behaviour from women, we find evidence for a more subtle form of prejudice towards women who fail to display agency in leader roles. Using a classic methodology, the agency of male and female leaders was manipulated using assertive or tentative speech, presented through written (Study 1, N = 167) or verbal (Study 2, N = 66) communications. Consistent with predictions, assertive women were as likeable and influential as assertive men, while being tentative in leadership reduced the likeability and influence of women, but not of men. Although approval of agentic behaviour from women in leadership reflects progress, evidence that women are quickly singled out for disapproval if they fail to show agency is important for understanding how they continue to be at a distinct disadvantage to men in leader roles.

Deterrence of drug driving: The impact of the ACT drug driving legislation and detection techniques

The study sought to explore the initial impact of the ACT's implementation of roadside oral fluid drug screening program. The results suggest that a number of individuals reported intentions to drug drive in the future. The classical deterrence theory variables of certainty of apprehension, severity and swiftness of sanctions were not predictive of intentions to drug drive in the future. In contrast, having avoided apprehension and having known of others that have avoided apprehension were predictive of intentions to drug drive in the future. Increasing perceptions of the certainty of apprehension, increased testing frequency, and increased awareness of the oral fluid drug screening program could potentially lead to reductions of drug driving and result in safer road environment for all ACT community members.

Petrology and textural classification of the Jericho kimberlite, northern Slave Province, Nunavut, Canada

The paper presents data on petrology, bulk rock and mineral compositions, and textural classification of the Middle Jurassic Jericho kimberlite (Slave craton, Canada). The kimberlite was emplaced as three steep-sided pipes in granite that was overlain by limestones and minor soft sediments. The pipes are infilled with hypabyssal and pyroclastic kimberlites and connected to a satellite pipe by a dyke. The Jericho kimberlite is classified as a Group Ia, lacking groundmass tetraferriphlogopite and containing monticellite pseudomorphs. The kimberlite formed, during several consecutive emplacement events of compositionally different batches of kimberlite magma. Core-logging and thin-section observations identified at least two phases of hypabyssal kimberlites and three phases of pyroclastic kimberlites. Hypabyssal kimberlites intruded as a main dyke (HK1) and as late small-volume aphanitic and vesicular dykes. Massive pyroclastic kimberlite (MPK1) predominantly filled the northern and southern lobes of the pipe and formed from magma different from the HK1 magma. The MPK1 magma crystallized Ti-, Fe-, and Cr-rich phlogopite without rims of barian phlogopite, and clinopyroxene and spinel without atoll structures. MPK1 textures, superficially reminiscent of tuffisitic kimberlite, are caused by pervasive contamination by granite xenoliths. The next explosive events filled the central lobe with two varieties of pyroclastic kimberlite: (1) massive and (2) weakly bedded, normally graded pyroclastic kimberlite. The geology of the Jericho pipe differs from the geology of South African or the Prairie kimberlites, but may resemble Lac de Gras pipes, in which deeper erosion removed upper fades of resedimented kimberlites.

Difficulties in distinguishing coherent from fragmental kimberlite: A case study of the Muskox pipe (Northern Slave Province, Nunavut, Canada)

Kimberlite drill core from the Muskox pipe (Northern Slave Province, Nunavut, Canada) highlights the difficulties in distinguishing coherent from fragmental kimberlite and assessing the volcanological implications of the apparent gradational contact between the two facies. Using field log data, petrography, and several methods to quantify crystal and xenolith sizes and abundances, the pipe is divided into two main facies, dark-coloured massive kimberlite (DMK) and light-coloured fragmental kimberlite (LFK). DMK is massive and homogeneous, containing country-rock lithic clasts (~ 10%) and olivine macrocrysts (~ 15%) set in a dark, typically well crystallised, interstitial medium containing abundant microphenocrysts of olivine (~ 15%), opaques and locally monticellite, all of which are enclosed by mostly serpentine. In general, LFK is also massive and structureless, containing ~ 20% country-rock lithic clasts and ~ 12% olivine macrocrysts. These framework components are supported in a matrix of serpentinized olivine microphenocrysts (10%), microlites of clinopyroxene, and phlogopite, all of which are enclosed by serpentine. The contact between DMK and LFK facies is rarely sharp, and more commonly is gradational (from 5 cm to ~ 10 m). The contact divides the pipe roughly in half and is sub-vertical with an irregular shape, locally placing DMK facies both above and below the fragmental rocks. Most features of DMK are consistent with a fragmental origin, particularly the crystal- and xenolith-rich nature (~ 55-65%), but there are some similarities with rocks described as coherent kimberlite in the literature. We discuss possible origins of gradational contacts and consider the significance for understanding the origin of the DMK facies, with an emphasis on the complications of alteration overprinting of primary textures.

Australians may get their own stop online piracy act #SOPA: Christmas time for copyright owners

Christmas has come early for copyright owners in Australia. The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch's News Corp and News Limited--as well as copyright industries--have been clamoring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There have been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect, recognizing that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favored by Turnbull. In his new book, Information Doesn't Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don't make money: Complaining about piracy. Calling your customers thieves. Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests.

Prevalence of alcohol-impaired driving and riding in northern Ghana

Objective The objective of this study was to determine the roadside prevalence of alcohol-impaired driving among drivers and riders in northern Ghana. The study also verifies motorists’ perception on their own alcohol use and knowledge of legal Blood Alcohol Concentration (BAC) limit of Ghana. Method With the assistance of police, the systematic random sampling was used to collect data at roadblocks using a cross-sectional study design. Breathalyzers were used to screen whether motorists had detectable alcohol in their breath and a follow-up breath tests conducted to measure the actual breath alcohol levels among positive participants. Results In all, 9.7% of the 789 participants had detectable alcohol among whom 6% exceeded the legal (BAC) limit of 0.08%. The prevalence of alcohol-impaired driving/riding was highest among cyclists (10% of all cyclists breath tested) followed by truck drivers 9% and motorcyclists (7% of all motorcyclists breath tested). The occurrence of a positive BAC among cyclists was about 8 times higher, (OR=7.73; p<0.001) and 2 times higher, among motorcyclists (OR=2.30; p=0.039) compared with private car drivers. The likelihood for detecting a positive BAC among male motorists/riders was higher than females (OR=1.67; p=0.354). The odds for detecting a positive BAC among weekend motorists/riders was significantly higher than weekdays (OR=2.62; p=0.001). Conclusion Alcohol-impaired driving/riding in Ghana is high by international standards. In order to attenuate the harmful effects of alcohol misuse such as alcohol-impaired driving/riding, there is the need to educate road users about how much alcohol they can consume and stay below the legal limit. The police should also initiate random breath testing to instil the deterrence of detection, certainty of apprehension and punishment, and severity and celerity of punishment among drink-driving motorists and riders.

Submission on the Hawke Interim Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

There are currently no regulatory mechanisms, laws or policies that specifically provide rights to Indigenous peoples over their Indigenous knowledge and intellectual property. We strongly recommend that the commonwealth take the lead to ensure that national sui generis laws are developed (perhaps to operate initially in areas of Cth jurisdiction, such as IPAs and national parks). The development of such laws should be in tandem with practical guidelines to assist their implementation. A comprehensive, nationally consistent scheme for access to genetic resources, which offers meaningful protection of traditional knowledge and substantive benefit-sharing with Indigenous communities, has to be developed. There are already a range of reports/resources that urge these same reforms and that we direct the Enquiry to again; these include the Voumard Report (2000) – especially Fourmile’s Appendix 10 – “Indigenous Interests”, and Terri Jankes “Our Culture, Our Future (1998).

The Jean Chretien Pledge to Africa act: Patent law and humanitarian aid

This article evaluates the implementation of the WTO General Council Decision in 2003, which resolved that developed nations could export patented pharmaceutical drugs to member states in order to address public health issues - such as HIV/AIDS, tuberculosis, malaria and other epidemics. The Jean Chretien Pledge to Africa Act 2004 (Canada) provides authorisation for the export of pharmaceutical drugs from Canada to developing countries to address public health epidemics. The European Union has issued draft regulations governing the export of pharmaceutical drugs. A number of European countries - including Norway, the Netherlands, France, and Switzerland - are seeking to pass domestic legislation to give force to the WTO General Council Decision. Australia has shown little initiative in seeking to implement such international agreements dealing with access to essential medicines. It is argued that Australia should implement humanitarian legislation to embody the WTO General Council Decision, emulating models in Canada, Norway, and the European Union. Ideally, there should be no right of first refusal; the list of pharmaceutical drugs should be open-ended; and the eligible importing countries should not be limited to members of the WTO.