Engaging sex: Promoting the statutory interpretation experience in legal education

Given the ever increasing importance of legislation to the resolution of legal disputes, there is a concomitant need for law students to be well trained in the anatomy, identification, interpretation and application of laws made by or under parliament. This article discusses a blended learning project called Indigo’s Folly, implemented at the Queensland University of Technology Law School in 2014. Indigo’s Folly was created to increase law student competency with respect to statutory interpretation. Just as importantly, it was designed to make the teaching of statutory interpretation more interesting – to “bring the sexy” to the student statutory interpretation experience. Quantitative and qualitative empirical data will be presented as evidence to show that statutory interpretation can be taught in a way that law students find engaging.

Compensation or consideration for a statutory right of user?

Section 180 of the Property Law Act 1974 (Qld) makes provision for an applicant to seek a statutory right of user over a neighbour’s property where such right of use is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. A key issue in an application under s 180 is compensation. Unfortunately, while s 180 expressly contemplates that an order for compensation will include provision for payment of compensation to the owner of servient land there are certain issues that are less clear. One of these is the basis for determination of the amount of compensation. In this regard, s 180(4)(a) provides that, in making an order for a statutory right of user, the court: (a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just The operation of this statutory provision was considered by de Jersey CJ (as he then was) in Peulen v Agius [2015] QSC 137.

Liability and statutory defence in Queensland

Context Increasing client awareness of valuer's duty of care - Webb Resolutions Ltd v E.Surv Ltd [2012] - Provident Capital Limited v John Virtue Pty Ltd (No 2) [2012] - Including disciplinary actions: Valuers Registration Board of Qld v Conroy [2013] QCAT 688 combined with Post-GFC ‘drops’ in value!

The Statutory Defence(s) of 'peer professional opinion'

In the wake of the GFC and with ever increasing consumer-protection-related laws, clients are more aware of their rights and your obligations as a professional valuer. They also are more likely to take legal action if, as a result of their reliance on a valuation, they suffer a financial loss. In some Australian jurisdictions, in response to a claim of negligence, the professional valuer may be able to raise a professional practice defence under civil liability legislation. This article considers the nature of this statutory defence, what is required to rely upon it and in which jurisdictions it applies.

Identifying statutory encumbrances for seller disclosure

The standard land contracts in Queensland require a seller of land to disclose to a buyer not only registered encumbrances, but also statutory encumbrances affecting the land. Whether a statute creates a statutory encumbrance over the title to the property is therefore a key question for a seller when completing a contract. This article examines relevant case law and provides some guidelines for when a statute creates a statutory encumbrance that should be disclosed to a buyer as a defect in title.

Statutory licences and third party dealings: Property analysis v statutory interpretation

Statutory licensing schemes are proliferating as a means of regulating commercial activity, resource exploitation and activities harmful to the environment. Statutes often declare that entitlements are non-transferable or are transferable only with approval or subject to conditions. Some entitlements, such as resource consents issued under the Resource Management Act 1991 (NZ), are declared not to be property. Despite these statutory declarations, entitlements are often held to be transferable in equity or to be property for the purposes of resolving private disputes. Recently, in Greenshell New Zealand Ltd v Tikapa Moana Enterprises Ltd, the High Court of New Zealand indicated that a resource consent was property that could support a claim for relief against forfeiture, continuing the trend in earlier cases that appear to depart from the statute. In this article we examine the juridical treatment of entitlements in private law. We identify factors influencing the courts’ enforcement of private arrangements which may circumvent the statutory intent. Our analysis will guide legislators in the design of provisions to implement new schemes.

The implication of a term of good faith in commercial leases

Much has been written in the past decade on the subject of the implication of a term of good faith in contracts in Australia, particularly since the judgment Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. Except for an early article by Rachael Mulheron, 'Good Faith and Commercial Leases: New Opportunities for the Tenant' (1996) 4 APLJ 223, very little else has been written with respect to the possible application of the doctrine to the commercial leases.With the advent of two later New South Wales Supreme Court decisions Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and, more recently, Advance Fitness v Bondi Diggers [1999] NSWSC 264, the question of the application of the doctrine in the commercial leasing context has been examined. This article briefly considers the nature and substance of the doctrine against the background of the relationship of lessor and lessee and examines in some depth the Australian decisions on commercial leases where it has been sought, unsuccessfully, to apply the doctrine. The article concludes by suggesting that as a standard commercial lease usually covers the field of agreement between lessor and lessee and as a lessee has a high degree of statutory protection derived from equitable principles, there may be little room for the operation of the doctrine in this legal environment.

Electronic workplace surveillance and employee privacy : a comparative analysis of privacy protection in Australia and the United States

More than a century ago in their definitive work “The Right to Privacy” Samuel D. Warren and Louis D. Brandeis highlighted the challenges posed to individual privacy by advancing technology. Today’s workplace is characterised by its reliance on computer technology, particularly the use of email and the Internet to perform critical business functions. Increasingly these and other workplace activities are the focus of monitoring by employers. There is little formal regulation of electronic monitoring in Australian or United States workplaces. Without reasonable limits or controls, this has the potential to adversely affect employees’ privacy rights. Australia has a history of legislating to protect privacy rights, whereas the United States has relied on a combination of constitutional guarantees, federal and state statutes, and the common law. This thesis examines a number of existing and proposed statutory and other workplace privacy laws in Australia and the United States. The analysis demonstrates that existing measures fail to adequately regulate monitoring or provide employees with suitable remedies where unjustifiable intrusions occur. The thesis ultimately supports the view that enacting uniform legislation at the national level provides a more effective and comprehensive solution for both employers and employees. Chapter One provides a general introduction and briefly discusses issues relevant to electronic monitoring in the workplace. Chapter Two contains an overview of privacy law as it relates to electronic monitoring in Australian and United States workplaces. In Chapter Three there is an examination of the complaint process and remedies available to a hypothetical employee (Mary) who is concerned about protecting her privacy rights at work. Chapter Four provides an analysis of the major themes emerging from the research, and also discusses the draft national uniform legislation. Chapter Five details the proposed legislation in the form of the Workplace Surveillance and Monitoring Act, and Chapter Six contains the conclusion.

A comparative study – regulatory requirements on subdivisions for increasing passive cooling

This is the third in a series of reports planned for this project. The aim of this research is to conduct a comparative study of current legislation or guidelines at the federal, state and local government levels to confirm if any natural ventilation criteria are required at the subdivision development stage of planning. It also seeks to discover if there are any other incentives, statutory planning or development principles that encourage developers to orient subdivision lots to maximize natural ventilation for the dwellings. Findings from the research in this report are intended to contribute to the discussion on the development of an enhanced lot rating methodology for sustainable subdivisions as documented in other reports in this series.

Shifting the child protection juggernaut to earlier intervention

"For every complex problem there is a solution that is simple, neat and wrong (M.L. Mencken, US writer and social commentator). Nowhere is this quote more apt than when applied to finding over-simplified solutions to the complex problem of looking after the safety and well-being of vulnerable children. The easiest formula is, of course, to ‘rescue children from dysfunctional families’, a line taken recently in the monograph by the right wing think tank, Centre for Independent Studies (Sammut & O’Brien 2009). It is reasoning with fatal flaws. This commentary provides a timely reminder of the strong arguments which lie behind the national and international shift to supporting children and families through universal and specialist community-based services, rather than weighting all resources into statutory child protection interventions. A brief outline of the value of developing the resources to support children in their families, and the problems with 'rescuing' children through the child protection system are discussed.

An investigation into how work-related road safety can be enhanced

Despite the facts that vehicle incidents continue to be the most common mechanism for Australian compensated fatalities and that employers have statutory obligations to provide safe workplaces, very few organisations are proactively and comprehensively managing their work-related road risks. Unfortunately, limited guidance is provided in the existing literature to assist practitioners in managing work-related road risks. The current research addresses this gap in the literature. To explore how work-related road safety can be enhanced, three studies were conducted. Study one explored the effectiveness of a range of risk management initiatives and whether comprehensive risk management practices were associated with safety outcomes. Study two explored barriers to, and facilitators for, accepting risk management initiatives. Study three explored the influence of organisational factors on road safety outcomes to identify optimal work environments for managing road risks. To maximise the research sample and increase generalisability, the studies were designed to allow data collection to be conducted simultaneously drawing upon the same sample obtained from four Australian organisations. Data was collected via four methods. A structured document review of published articles was conducted to identify what outcomes have been observed in previously investigated work-related road safety initiatives. The documents reviewed collectively assessed the effectiveness of 19 work-related road safety initiatives. Audits of organisational practices and process operating within the four researched organisations were conducted to identify whether organisations with comprehensive work-related road risk management practices and processes have better safety outcomes than organisations with limited risk management practices and processes. Interviews were conducted with a sample of 24 participants, comprising 16 employees and eight managers. The interviews were conducted to identify what barriers and facilitators within organisations are involved in implementing work-related road safety initiatives and whether differences in fleet safety climate, stage of change and safety ownership relate to work-related road safety outcomes. Finally, questionnaires were administered to a sample of 679 participants. The questionnaires were conducted to identify which initiatives are perceived by employees to be effective in managing work-related road risks and whether differences in fleet safety climate, stage of change and safety ownership relate to work-related road safety outcomes. Seven research questions were addressed in the current research project. The key findings with respect to each of the research questions are presented below. Research question one: What outcomes have been observed in previously investigated work-related road safety initiatives? The structured document review indicated that initiatives found to be positively associated with occupational road safety both during and after the intervention period included: a pay rise; driver training; group discussions; enlisting employees as community road safety change agents; safety reminders; and group and individual rewards. Research question two: Which initiatives are perceived by employees to be effective in managing work-related road risks? Questionnaire findings revealed that employees believed occupational road risks could best be managed through making vehicle safety features standard, providing practical driver skills training and through investigating serious vehicle incidents. In comparison, employees believed initiatives including signing a promise card commitment to drive safely, advertising the organisation’s phone number on vehicles and consideration of driving competency in staff selection process would have limited effectiveness in managing occupational road safety. Research question three: Do organisations with comprehensive work-related road risk management practices and processes have better safety outcomes than organisations with limited risk management practices and processes? The audit identified a difference among the organisations in their management of work-related road risks. Comprehensive risk management practices were associated with employees engaging in overall safer driving behaviours, committing less driving errors, and experiencing less fatigue and distraction issues when driving. Given that only four organisations participated in this research, these findings should only be considered as preliminary. Further research should be conducted to explore the relationship between comprehensiveness of risk management practices and road safety outcomes with a larger sample of organisations. Research question four: What barriers and facilitators within organisations are involved in implementing work-related road safety initiatives? The interviews identified that employees perceived six organisational characteristics as potential barriers to implementing work-related road safety initiatives. These included: prioritisation of production over safety; complacency towards work-related road risks; insufficient resources; diversity; limited employee input in safety decisions; and a perception that road safety initiatives were an unnecessary burden. In comparison, employees perceived three organisational characteristics as potential facilitators to implementing work-related road safety initiatives. These included: management commitment; the presence of existing systems that could support the implementation of initiatives; and supportive relationships. Research question five: Do differences in fleet safety climate relate to work-related road safety outcomes? The interviews and questionnaires identified that organisational climates with high management commitment, support for managing work demands, appropriate safety rules and safety communication were associated with employees who engaged in safer driving behaviours. Regression analyses indicated that as participants’ perceptions of safety climate increased, the corresponding likelihood of them engaging in safer driving behaviours increased. Fleet safety climate was perceived to influence road safety outcomes through several avenues. Some of these included: the allocation of sufficient resources to manage occupational road risks; fostering a supportive environment of mutual responsibility; resolving safety issues openly and fairly; clearly communicating to employees that safety is the top priority; and developing appropriate work-related road safety policies and procedures. Research question six: Do differences in stage of change relate to work-related road safety outcomes? The interviews and questionnaires identified that participants’ perceptions of initiative effectiveness were found to vary with respect to their individual stage of readiness, with stage-matched initiatives being perceived most effective. In regards to safety outcomes, regression analyses identified that as participants’ progress through the stages of change, the corresponding likelihood of them being involved in vehicle crashes decreases. Research question seven: Do differences in safety ownership relate to work-related road safety outcomes? The interviews and questionnaires revealed that management of road risks is often given less attention than other areas of health and safety management in organisations. In regards to safety outcomes, regression analyses identified that perceived authority and perceived shared ownership both emerged as significant independent predictors of self-reported driving behaviours pertaining to fatigue and distractions. The regression models indicated that as participants’ perceptions of the authority of the person managing road risks increases, and perceptions of shared ownership of safety tasks increases, the corresponding likelihood of them engaging in driving while fatigued or multitasking while driving decreases. Based on the findings from the current research, the author makes several recommendations to assist practitioners in developing proactive and comprehensive approaches to managing occupational road risks. The author also suggests several avenues for future research in the area of work-related road safety.

Insurance : The Laws of Australia

Insurance - the laws of Australia provides insurance practitioners, insurance companies and students with a principles-based, practical guide to insurance law in Australia. It provides comprehensive coverage and analysis of common law principles relating to, and the statutory regulation of, insurance contracts and the operation of an insurance business. The common law and statutory provisions are dealt within the context of marine, life and general insurance.

Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

TAFE Governance Transitions Prophetical

Drama staff from QUT Creative Industries were commissioned by the Dept of Education, Training and the Arts (DETA) to devise a tailor made and highly targeted staff development program for TAFE Queensland Institute Directors and senior managers. The program was designed to assist these senior staff to address a range of change and governance issues in the context of TAFE Queensland’s transition to statutory authority status. In responding to this brief, the QUT team utilised an original applied performance technique known as a ‘Prophetical’ to research, devise and present an interactive case study to TAFE Institute Directors and senior managers. This particular Prophetical portrayed a senior staff team at the fictitious Massey Institute of TAFE, confronted by an escalating series of crises as they try to manage the transition to the fundamentally different business model of a statutory authority.