The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Monitoring and benchmarking government policies and actions to improve the healthiness of food environments : a proposed Government Healthy Food Environment Policy Index

Government action is essential to increase the healthiness of food environments and reduce obesity, diet-related non-communicable diseases (NCDs), and their related inequalities. This paper proposes a monitoring framework to assess government policies and actions for creating healthy food environments. Recommendations from relevant authoritative organizations and expert advisory groups for reducing obesity and NCDs were examined, and pertinent components were incorporated into a comprehensive framework for monitoring government policies and actions. A Government Healthy Food Environment Policy Index (Food-EPI) was developed, which comprises a ‘policy’ component with seven domains on specific aspects of food environments, and an ‘infrastructure support’ component with seven domains to strengthen systems to prevent obesity and NCDs. These were revised through a week-long consultation process with international experts. Examples of good practice statements are proposed within each domain, and these will evolve into benchmarks established by governments at the forefront of creating and implementing food policies for good health. A rating process is proposed to assess a government's level of policy implementation towards good practice. The Food-EPI will be pre-tested and piloted in countries of varying size and income levels. The benchmarking of government policy implementation has the potential to catalyse greater action to reduce obesity and NCDs.

Implementing open licensing in government open data initiatives : a review of Australian government practice

As support grows for greater access to information and data held by governments, so does awareness of the need for appropriate policy, technical and legal frameworks to achieve the desired economic and societal outcomes. Since the late 2000s numerous international organizations, inter-governmental bodies and governments have issued open government data policies, which set out key principles underpinning access to, and the release and reuse of data. These policies reiterate the value of government data and establish the default position that it should be openly accessible to the public under transparent and non-discriminatory conditions, which are conducive to innovative reuse of the data. A key principle stated in open government data policies is that legal rights in government information must be exercised in a manner that is consistent with and supports the open accessibility and reusability of the data. In particular, where government information and data is protected by copyright, access should be provided under licensing terms which clearly permit its reuse and dissemination. This principle has been further developed in the policies issued by Australian Governments into a specific requirement that Government agencies are to apply the Creative Commons Attribution licence (CC BY) as the default licensing position when releasing government information and data. A wide-ranging survey of the practices of Australian Government agencies in managing their information and data, commissioned by the Office of the Australian Information Commissioner in 2012, provides valuable insights into progress towards the achievement of open government policy objectives and the adoption of open licensing practices. The survey results indicate that Australian Government agencies are embracing open access and a proactive disclosure culture and that open licensing under Creative Commons licences is increasingly prevalent. However, the finding that ‘[t]he default position of open access licensing is not clearly or robustly stated, nor properly reflected in the practice of Government agencies’ points to the need to further develop the policy framework and the principles governing information access and reuse, and to provide practical guidance tools on open licensing if the broadest range of government information and data is to be made available for innovative reuse.

Can water security be achieved in the urban environment through the implementation of the Neo Institutional theory government regulation and legislation?

The research seeks to address the current global water crisis and the built environments effect on the increasing demand for sustainability and water security. The fundamental question in determining the correct approach for water security in the built environment is whether government regulation and legislation could provide the framework for sustainable development and the conscious shift providing that change is the only perceivable option, there is no alternative. This article will attempt to analyse the value of the neo institutional theory as a method for directing individuals and companies to conform to water saving techniques. As is highlighted throughout the article, it will be investigated whether an incentive verse punishment approach to government legislations and regulations would provide the framework required to ensure water security within the built environment. Individuals and companies make certain choices or perform certain actions not because they fear punishment or attempt to conform; neither do they do so because an action is appropriate or feels some sort of social obligation. Instead, the cognitive element of neo institutionalism suggests that individuals make certain choices because they can conceive no alternative. The research seeks to identify whether sustainability and water security can become integrated into all aspects of design and architecture through the perception that 'there is no alternative.' This report seeks to address the omission of water security in the built environment by reporting on a series of investigations, interviews, literature reviews, exemplars and statistics relating to the built environment and the potential for increased water security. The results and analysis support the conclusions that through the support of government and local council, sustainability in the built environment could be achieved and become common practice for developments. Highlighted is the approach required for water management systems integration into the built environment and how these can be developed and maintained effectively between cities, states, countries and cultures.

Performance government : activating and regulating the self-governing capacities of teachers and school leaders

This article analyses ‘performance government’ as an emergent form of rule in advanced liberal democracies. It discloses how teachers and school leaders in Australia are being governed by the practices of performance government which centre on the recently established Australian Institute for Teaching and School Leadership (AITSL) and are given direction by two major strategies implicit within the exercise of this form of power: activation and regulation. Through an ‘analytics of government’ of these practices, the article unravels the new configurations of corporatized expert and academic knowledge—and their attendant methods of application—by which the self-governing capacities of teachers and school leaders are being activated and regulated in ways that seek to optimize the performance of these professionals. The article concludes by outlining some of the dangers of performance government for the professional freedom of educators and school leaders.

In search of the missing link in CSR : an analysis of the government influence

Research on corporate social responsibility (CSR) has not differentiated the varying degree of government influence in its multiple roles on different types of CSR. However, different il1fluences resulting from the different roles he govemment plays in the CSR arena an shape different CSR behavior. This paper examines the efficacy of the govemment influence on four types of corporate social responsibilities: legal, economic, philanthropic and ethical. We argue that the govemment influence on firms' CSR disposition varies in intensizv and salience depending on the level of interdependency between the government and the firm and the deployable strategies available to the govemment. We have identified the strongest link between the government as mandator and legal CSR and weakest link between the govemment as endorser and ethical CSR. We provide implications for government policy makers and future studies in this area.

E-government policies for broadband adoption : the case of the UK Government

Broadband technology has been introduced to the business community and the public as a fast and easy way of exploiting the Internet. The benefits of its use (fast reliable connections, always on) have been widely realised and broadband diffusion is one of the items at the top of the agenda for technology related polices of governments worldwide. Broadband diffusion and capacity development are central to debates in many countries concerning the role of the government in developing efficient broadband policies particularly in terms of the usage of public money. In this paper we examine the impact of government polices to broadband adoption in the case of the UK government, a country that is striving to have the most extensive and competitive broadband market in the G7 by 2005. We analyse specific institutional actions related to IT diffusion as pursued by the government with the view to identify best practices in government intervention. We believe that are our analysis is useful for broadband strategies in particular and technology in general when applied elsewhere.

Submission to KPMG review of the Federal Government Initiative to “analyse dementia program and services funded by the Department of Social Services"

The comments I make are based on my nearly twenty years involvement in the dementia cause at both a national and international level. In preparation, I read two papers namely the Ministerial Dementia Forum – Option Paper produced by KPMG Management Consultants (2014) and Analysis of Dementia Programmes and Services Funded by the Department of Social Services: Conversation Starter prepared by KPMG as a preparation document for those attending a workshop in Brisbane on April 22nd 2015. Dementia is a complex “syndrome” and as is often said, “when you meet one person with dementia, you have met one” meaning that no two persons with dementia are the same. Even in dementia care, Australia is a “lucky country” and there is much to be said for the quality and diversity of dementia care available for people living with dementia. Despite this, I agree with the many views expressed in the material I read that there is scope for improvement, especially in the way that services are coordinated. In saying that, I do not purport to have all the solutions nor claim to have the knowledge required to comment on all the programs covered by this review. If I appear to be a “biased” advocate for Alzheimer’s Australia across the States and Territories, it is because I have seen constant evidence of ordinary people doing extraordinary things with inadequate resources. Dementia care is not cheap and if those funding dementia services are primarily only interested in economic outcomes and benefits, the real purpose of this consultation will be defeated. In addition, nowhere in the material I have read is there any recognition that in many instances program funding is a complex mix of government (at all levels) and private funding. This makes reviewing those programs more complex and less able to be coordinated at a Departmental level. It goes without saying therefore that the Federal Government is not” the only player in this game”. Of all those participating in this review, Alzheimer’s Australia is best placed to comment on programs as it is more connected to people living with dementia and has probably the best record of consulting with them. It would appear however that their role has been reduced to that of a “bit player”. Without wanting to be critical, the Forum Report which deals with the comments made at a gathering of 70 individuals and organisations, only three (3) or 4.28% were actual carers of people living with dementia. Even if it is argued that a number of organisations present represented consumers, the percentage goes up only marginally to 8.57% which is hardly an endorsement of the forum being “consumer driven”. The predominance of those present were service providers, each with their own agenda and each seeking advantage for their “business”. The final point I want to make before commenting on more specific, program related issues, is that many programs being reviewed have a much longer history than is reflected in the material I have read. Their growth and development was pioneered by Alzheimer’s Australia organisations across the country often with no government funding. Attempts to bring about better coordination of programs were often at the behest of Alzheimer’s Australia but in the main were ignored. The opportunity to now put this right is long overdue.

Creating change in government to address the social determinants of health: How can efforts be improved?

Background The evidence base for the impact of social determinants of health has been strengthened considerably in the last decade. Increasingly, the public health field is using this as a foundation for arguments and actions to change government policies. The Health in All Policies (HiAP) approach, alongside recommendations from the 2010 Marmot Review into health inequalities in the UK (which we refer to as the ‘Fairness Agenda’), go beyond advocating for the redesign of individual policies, to shaping the government structures and processes that facilitate the implementation of these policies. In doing so, public health is drawing on recent trends in public policy towards ‘joined up government’, where greater integration is sought between government departments, agencies and actors outside of government. Methods In this paper we provide a meta-synthesis of the empirical public policy research into joined up government, drawing out characteristics associated with successful joined up initiatives. We use this thematic synthesis as a basis for comparing and contrasting emerging public health interventions concerned with joined-up action across government. Results We find that HiAP and the Fairness Agenda exhibit some of the characteristics associated with successful joined up initiatives, however they also utilise ‘change instruments’ that have been found to be ineffective. Moreover, we find that – like many joined up initiatives – there is room for improvement in the alignment between the goals of the interventions and their design. Conclusion Drawing on public policy studies, we recommend a number of strategies to increase the efficacy of current interventions. More broadly, we argue that up-stream interventions need to be ‘fit-for-purpose’, and cannot be easily replicated from one context to the next.

Government entity contribution to an effective partnership privatisation

The partnership form of privatisation is increasingly being used, in particular to carry out complex and evolving bundles of services. These have not previously been privatised because of incomplete contracts and contract management difficulties. Improved performance of the government entity as contract administrator and member of the partnership is crucial to modern service delivery expectations yet the privatisation literature has focused on other aspects of partnerships leaving the understanding of factors impacting the effectiveness of the government entity underdeveloped. This paper proposes the development of knowledge as to the range of factors which impact the effectiveness of the government entity. There is limited data available as to the operation of trust in the partnership relationship, and as to the capability of a range of privatisation forms to achieve stewardship of infrastructure. This research will utilise the findings from that research to build a tentative framework which will be utilised in staged research interrogating first the privatization literature and then the literature of other disciplines and sectors. The combined data will be analysed to provide government and practitioners such as government entity CEO’s with a complete listing of the operation of the factors which impact the effectiveness of the government entity in contributing to improved service delivery.

Making usability affordable in the design of e-government services: User-centred design for public sector websites

E-government provides a platform for governments to implement web-enabled services that facilitate communication between citizens and the government. However, technology-driven design approach and limited understanding of citizens' requirements have led to a number of critical usability problems on the government websites. Hitherto, there has been no systematic attempt to analyse the way in which theory of User-Centred Design (UCD) can contribute to address the usability issues of government websites. This research seeks to fill this gap by synthesising perspectives drawn from the study of UCD and examining them based on the empirical data derived from case study of the Scottish Executive (SE) website. The research employs a qualitative approach in the collection and analysis of data. The triangulated analysis of the findings reveals that e-government web designers take commercial development approach and focus only on technical implementations, which lead to websites that do not meet citizens' expectations. The research identifies that e-government practitioners can overcome web usability issues by transferring the theory of UCD to practice. © Copyright 2010 Inderscience Enterprises Ltd.

Competing in the new economy through large scale collaborative ventures (LSCV): a strategic marketing approach based on a study of the multifunction polis.

This paper draws on a study of government initiat ives aimed at facilitating economic development, specifically the Multifunction Polis Feasibility Study involving the governments and business enterprises of Australia and Japan (1987-1991). Large scale projects that involve collaboration between gove rnment and business (termed: large scale collaborative venture LSCV)are identified as one aspect of competing in the new economy . The study pursued the research propos ition that a LSCV can be effectively facilitated by following a theory based process similar to those in corporate practice. An approach to managing such ventures is outlined, based on strategic marketing theory that may enhance their success and thereby help countries part icipate more successfully in global competition through such ventures.

Sustainability and the building code of Australia

This report is the culmination of a two-stage research project to inform the Australian property and construction industry generally, in addition to providing the Australian Building Codes Board (ABCB) with information to allow it to determine whether or not sustainability requirements are necessary in the Future Building Code of Australia (BCA21). The Australian Building Codes Board is a joint initiative of all levels of government in Australia. The Board’s mission is to provide for efficiency and cost effectiveness in meeting community expectations for health, safety and amenity in the design, construction and use of buildings through the creation of nationally consistent building codes, standards, regulatory requirements and regulatory systems. The Stage 1 (literature review) and Stage 2 (workshops) reports are intended to be read in conjunction with one another. These reports and the Database are provided as appendices. The Conclusions of this, the final report, are the result of the overall program of work.

Evaluation of separation management algorithms in Class G airspace

Use of Unmanned Aerial Vehicles (UAVs) in support of government applications has already seen significant growth and the potential for use of UAVs in commercial applications is expected to rapidly expand in the near future. However, the issue remains on how such automated or operator-controlled aircraft can be safely integrated into current airspace. If the goal of integration is to be realized, issues regarding safe separation in densely populated airspace must be investigated. This paper investigates automated separation management concepts in uncontrolled airspace that may help prepare for an expected growth of UAVs in Class G airspace. Not only are such investigations helpful for the UAV integration issue, the automated separation management concepts investigated by the authors can also be useful for the development of new or improved Air Traffic Control services in remote regions without any existing infrastructure. The paper will also provide an overview of the Smart Skies program and discuss the corresponding Smart Skies research and development effort to evaluate aircraft separation management algorithms using simulations involving realworld data communication channels, and verified against actual flight trials. This paper presents results from a unique flight test concept that uses real-time flight test data from Australia over existing commercial communication channels to a control center in Seattle for real-time separation management of actual and simulated aircraft. The paper also assesses the performance of an automated aircraft separation manager.

The comprehensive Australian Study of entrepreneurial emergence (CAUSEE) high potential nascent entrepreneurs : some preliminary findings

Principal Topic The Comprehensive Australian Study of Entrepreneurial Emergence (CAUSEE) represents the first Australian study to employ and extend the longitudinal and large scale systematic research developed for the Panel Study of Entrepreneurial Dynamics (PSED) in the US (Gartner, Shaver, Carter and Reynolds, 2004; Reynolds, 2007). This research approach addresses several shortcomings of other data sets including under coverage; selection bias; memory decay and hindsight bias, and lack of time separation between the assessment of causes and their assumed effects (Johnson et al 2006; Davidsson 2006). However, a remaining problem is that any a random sample of start-ups will be dominated by low potential, imitative ventures. In recognition of this issue CAUSEE supplemented PSED-type random samples with theoretically representative samples of the 'high potential' emerging ventures employing a unique methodology using novel multiple screening criteria. We define new ''high-potential'' ventures as new entrepreneurial innovative ventures with high aspirations and potential for growth. This distinguishes them from those ''lifestyle'' imitative businesses that start small and remain intentionally small (Timmons, 1986). CAUSEE is providing the opportunity to explore, for the first time, if process and outcomes of high potentials differ from those of traditional lifestyle firms. This will allows us to compare process and outcome attributes of the random sample with the high potential over sample of new firms and young firms. The attributes in which we will examine potential differences will include source of funding, and internationalisation. This is interesting both in terms of helping to explain why different outcomes occur but also in terms of assistance to future policymaking, given that high growth potential firms are increasingly becoming the focus of government intervention in economic development policies around the world. The first wave of data of a four year longitudinal study has been collected using these samples, allowing us to also provide some initial analysis on which to continue further research. The aim of this paper therefore is to present some selected preliminary results from the first wave of the data collection, with comparisons of high potential with lifestyle firms. We expect to see owing to greater resource requirements and higher risk profiles, more use of venture capital and angel investment, and more internationalisation activity to assist in recouping investment and to overcome Australia's smaller economic markets Methodology/Key Propositions In order to develop the samples of 'high potential' in the NF and YF categories a set of qualification criteria were developed. Specifically, to qualify, firms as nascent or young high potentials, we used multiple, partly compensating screening criteria related to the human capital and aspirations of the founders as well as the novelty of the venture idea, and venture high technology. A variety of techniques were also employed to develop a multi level dataset of sources to develop leads and firm details. A dataset was generated from a variety of websites including major stakeholders including the Federal and State Governments, Australian Chamber of Commerce, University Commercialisation Offices, Patent and Trademark Attorneys, Government Awards and Industry Awards in Entrepreneurship and Innovation, Industry lead associations, Venture Capital Association, Innovation directories including Australian Technology Showcase, Business and Entrepreneurs Magazines including BRW and Anthill. In total, over 480 industry, association, government and award sources were generated in this process. Of these, 74 discrete sources generated high potentials that fufilled the criteria. 1116 firms were contacted as high potential cases. 331 cases agreed to participate in the screener, with 279 firms (134 nascents, and 140 young firms) successfully passing the high potential criteria. 222 Firms (108 Nascents and 113 Young firms) completed the full interview. For the general sample CAUSEE conducts screening phone interviews with a very large number of adult members of households randomly selected through random digit dialing using screening questions which determine whether respondents qualify as 'nascent entrepreneurs'. CAUSEE additionally targets 'young firms' those that commenced trading from 2004 or later. This process yielded 977 Nascent Firms (3.4%) and 1,011 Young Firms (3.6%). These were directed to the full length interview (40-60 minutes) either directly following the screener or later by appointment. The full length interviews were completed by 594 NF and 514 YF cases. These are the cases we will use in the comparative analysis in this report. Results and Implications The results for this paper are based on Wave one of the survey which has been completed and the data obtained. It is expected that the findings will assist in beginning to develop an understanding of high potential nascent and young firms in Australia, how they differ from the larger lifestyle entrepreneur group that makes up the vast majority of the new firms created each year, and the elements that may contribute to turning high potential growth status into high growth realities. The results have implications for Government in the design of better conditions for the creation of new business, firms who assist high potentials in developing better advice programs in line with a better understanding of their needs and requirements, individuals who may be considering becoming entrepreneurs in high potential arenas and existing entrepreneurs make better decisions.