Regulating against corporate phoenix activity

This paper considers the adequacy and efficiency of existing legal and regulatory frameworks to deal with corporate phoenix activity. Phoenix activity, which is often triggered by a solvency crisis, is estimated to cost the Australian economy up to $3 billion each year. Despite the raft of piecemeal Australian legislation directed at this activity, phoenix activity does not appear to be abating. This paper considers regulatory approaches to detection and enforcement of the underlying law. This study reveals and explores a perception that the law is deficient, and the tension that exists between the adequacy of the law and the regulatory approach.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

Implementation mechanism: Protection against harassment of women at workplace

Pakistan is widely known and appreciated in the world for its history, Islamic culture and norms. Since the creation of Pakistan, it inherited poverty in its roots. There are many reasons for poverty but one lies on the shoulder of women who are 50% of the total population of Pakistan. On the apex of it, women do not take part in the development of Pakistan because when they step out of their homes, they suffer a lot of problems. These problems are a hurdle in their active participation in development .Government has tried to create an environment for those women, who suffer different problems. Harassment of women at work place is one of those problems which discourage women in taking active part in economic and social development of society. Women Activists, from the last decade, were working for the protection of woman’s right at workplace and they succeeded in formulation of Harassment Act 2010. Since law is ineffective without its proper mechanism of implementation, steps should be taken for its proper implementation mechanism. This article aims to provide information about the provisions of law, related to the harassment of women at workplace with an attempt to explore the effectiveness of its implementation. The study was conducted in twin cities of Pakistan, Islamabad and Rawalpindi. Interviews were conducted with the employees and employers of organizations, educational institutions, women activists, NGOs workers, lawyers, judges and some law enforcement officers. Group discussions were also held with teachers, students of Human rights and religious personalities. This report focuses on the implementation mechanism of new legislation in Pakistan. It also highlights some important facts related to its enforcement.

Expulsion of Afghan refugees from Pakistan: A violation of principle of non-refoulement

This article addresses the need of an implementation mechanism for the protection of refugees’ rights. However, it is contended that the principle forms part of Customary International Law, under which it is binding on all states irrespective of whether or not they are parties to the Convention Relating to the Status of Refugees 1951 or its Protocol 1967. Since last decade, U.S and its allies have been fighting to curve terrorism which has raised many issues such as human rights violation, deportation, expulsion, extradition, rendition and many more. Pakistan has played a very critical role in War against Terrorism, particularly in reference of war in Afghanistan. Particular concern of this article is the violation of refugees’ rights in Pakistan in 2008 and 2010. This article would highlight the legislation regarding non-expulsion of Afghan refugees from Pakistan to a territory where they have well founded fear of persecution. Article is divided into three parts, the first one deals with “Principle of Non-Refoulement”, the second one deals with “exceptions to the principle” whereas the last one discusses the violation of the very principle in Pakistan with reference to Afghan refugees.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Spontaneous and episodic volunteers: The legislative, insurance and risk management framework

Baby Boomers are a generation of life long association joiners, but following generations prefer spontaneous and episodic volunteering. This trend is apparent not only during natural disasters, but in most other spheres of volunteering. Legal liability for such volunteers is a growing concern, which unresolved, may dampen civic participation. We critically examine the current treatment of these liabilities through legislation, insurance and risk management.

An evaluation of the indicators of threat to auditor independence in an Islamic legal system: The case of Iran

This study aimed to assist in developing a more effective framework for regulating auditor independence practice in Iran, a non-IFRS country with an Islamic legal system. It investigated the following general research question: In order to increase auditor independence in a non-IFRS country with an Islamic legal system, what are the potential indicators of threats to auditor independence, and how should a regulator prioritise addressing these threats?

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.

Indigenous legal education at UNSW: A work in progress

Since the 1970s Australian law schools have provided alternative entry routes and, since the 1980s, pre-law programs and bridging programs. On-going support, once Indigenous students reach university law schools, has been an issue that has not been formally or appropriately addressed in most university law schools. In this way Indigenous students’ chances of entry are disguised as chances of success. Thus once Indigenous students start their law school studies, they are often expected to perform on a level playing field – their success or failure then depends on ‘gifts, merits or skills’ which are culturally appropriate for law school. This attitude fails to recognise the privilege which allows the development of such gifts, merits or skills...

Social audit failure: Legal liability of external auditors

In this chapter, we look at the step beyond reporting, to the external audit or assurance function. The role of any audit engagement is to provide a professional opinion on a set of financial or non-financial assertions reported by an organization's management, based on an agreed evaluative framework. Any such opinion is not a guarantee that the underlying report is free from fraud or misstatement. Where an audit opinion on financial statements is incorrect, this is referred to as an audit failure. Specifically, the textbook definition of audit failure has two components: that the financial statements contain a serious error and that the auditor has failed to detect the error due to the auditor's failure during the audit process.

"Re-thinking" the influence of regulatory capture in the development of government regulation

On 30 March 2015 the Australian Federal Government launched its "Re-Think" initiative with the objective of achieving a better tax system which delivers taxes that are lower, simpler and fairer. The discussion paper released as part of the "Re:think" initiative is designed to start a national conversation on tax reform. However, inquiries into Australia's future tax system, subsequent reforms and the introduction of new taxes are nothing new. Unfortunately, recent history also demonstrates that reform initiatives arising from reviews of the Australian tax system are often deemed a failure. The most prominent of these failures in recent times is the Minerals Resource Rent Tax (MRRT), which lasted a mere 16 months before its announced repeal. Using the established theoretic framework of regulatory capture to interpret publically observable data, the purpose of this article is to explain the failure of this arguably sound tax. It concludes that the MRRT legislation itself, through the capture by the mining companies, provided internal subsidization in the form of reduced tax and minimal or no rents. In doing so, it offers an opportunity to understand and learn from past experiences to ensure that recommendations coming out of the Re:think initiative do not suffer the same fate.

Abstract concepts made real: A pilot study examining pedagogical approaches in thermodynamics tutorials

BACKGROUND OR CONTEXT Thermodynamics is a core concept for mechanical engineers yet notoriously difficult. Evidence suggests students struggle to understand and apply the core fundamental concepts of thermodynamics with analysis indicating a problem with student learning/engagement. A contributing factor is that thermodynamics is a ‘science involving concepts based on experiments’ (Mayhew 1990) with subject matter that cannot be completely defined a priori. To succeed, students must engage in a deep-holistic approach while taking ownership of their learning. The difficulty in achieving this often manifests itself in students ‘not getting’ the principles and declaring thermodynamics ‘hard’. PURPOSE OR GOAL Traditionally, students practice and “learn” the application of thermodynamics in their tutorials, however these do not consider prior conceptions (Holman & Pilling 2004). As ‘hands on’ learning is the desired outcome of tutorials it is pertinent to study methods of improving their efficacy. Within the Australian context, the format of thermodynamics tutorials has remained relatively unchanged over the decades, relying anecdotally on a primarily didactic pedagogical approach. Such approaches are not conducive to deep learning (Ramsden 2003) with students often disengaged from the learning process. Evidence suggests (Haglund & Jeppsson 2012), however, that a deeper level and ownership of learning can be achieved using a more constructivist approach for example through self generated analogies. This pilot study aimed to collect data to support the hypothesis that the ‘difficulty’ of thermodynamics is associated with the pedagogical approach of tutorials rather than actual difficulty in subject content or deficiency in students. APPROACH Successful application of thermodynamic principles requires solid knowledge of the core concepts. Typically, tutorial sessions guide students in this application. However, a lack of deep and comprehensive understanding can lead to student confusion in the applications resulting in the learning of the ‘process’ of application without understanding ‘why’. The aim of this study was to gain empirical data on student learning of both concepts and application, within thermodynamic tutorials. The approach taken for data collection and analysis was: - 1 Four concurrent tutorial streams were timetabled to examine student engagement/learning in traditional ‘didactic’ (3 weeks) and non-traditional (3 weeks). In each week, two of the selected four sessions were traditional and two non-traditional. This provided a control group for each week. - 2 The non-traditional tutorials involved activities designed to promote student-centered deep learning. Specific pedagogies employed were: self-generated analogies, constructivist, peer-to-peer learning, inquiry based learning, ownership of learning and active learning. - 3 After a three-week period, teaching styles of the selected groups was switched, to allow each group to experience both approaches with the same tutor. This also acted to mimimise any influence of tutor personality / style on the data. - 4 At the conclusion of the trial participants completed a ‘5 minute essay’ on how they liked the sessions, a small questionnaire, modelled on the modified (Christo & Hoang, 2013)SPQ designed by Biggs (1987) and a small formative quiz to gauge the level of learning achieved. DISCUSSION Preliminary results indicate that overall students respond positively to in class demonstrations (inquiry based learning), and active learning activities. Within the active learning exercises, the current data suggests students preferred individual rather than group or peer-to-peer activities. Preliminary results from the open-ended questions such as “What did you like most/least about this tutorial” and “do you have other comments on how this tutorial could better facilitate your learning”, however, indicated polarising views on the nontraditional tutorial. Some student’s responded that they really like the format and emphasis on understanding the concepts, while others were very vocal that that ‘hated’ the style and just wanted the solutions to be presented by the tutor. RECOMMENDATIONS/IMPLICATIONS/CONCLUSION Preliminary results indicated a mixed, but overall positive response by students with more collaborative tutorials employing tasks promoting inquiry based, peer-to-peer, active, and ownership of learning activities. Preliminary results from student feedback supports evidence that students learn differently, and running tutorials focusing on only one pedagogical approached (typically didactic) may not be beneficial to all students. Further, preliminary data suggests that the learning / teaching style of both students and tutor are important to promoting deep learning in students. Data collection is still ongoing and scheduled for completion at the end of First Semester (Australian academic calendar). The final paper will examine in more detail the results and analysis of this project.

Evaluation of the Red Light Camera Program and the Owner Onus Legislation

Red light cameras were introduced in Victoria in August 1983, with the intention of reducing the number of accidents that result from motorists disobeying red traffic signals at signalised intersections. Accident data from 46 treated and 46 control sites from 1981 to 1986 were analysed. The analysis indicated that red light camera use resulted in a reduction in the incidence of right angle accidents, and in the number of accident casualties. Legislation was introduced in March 1986 to place the onus for red light camera offences onto the vehicle owner. This legislation was intended to improve Police efficiency and therefore increase the number of red light cameras in operation. Data supplied by the Police indicated that these aims have beneficial road safety effects.

Legislation Concerning Reporting of Child Sexual Abuse and Child Trafficking in India: A Closer Look

The increasing rate of child sexual abuse and child trafficking has become a serious concern for national and international policy makers. Because these acts are criminal, result in serious harms to the child, and occur in closed scenarios where the situation is concealed, it is very important for people who become aware of the acts to report the incidents to the appropriate authority. Reporting of incidents could help provide justice to the victim and penalize the perpetrators. In addition, it would help us to understand the nature and magnitude of the problem. The objective of this chapter is first to review the Indian legislation concerning mandatory reporting of child abuse and neglect, and second to consider the potential for mandatory reporting of two categories of child maltreatment in particular in the Indian context: sexual abuse and child trafficking.