Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

The role of property law in environmental management

Market-based environmental regulation is becoming increasingly common within international and national frameworks. In order for market-based regimes to attract sufficient levels of stakeholder engagement, participants within such schemes require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is associated with property-based interests. This article explores the property-related issues connected with the operation of environmental markets. Relevant property-related considerations include examining the significant role that market-based regulation is playing in connection with the environment; examining the links between property rights and markets; exploring the legal definition of property; analysing the rights and powers associated with environmental interests in land; advancing theory on the need for landholder responsibilities in relation to land and examining the legal mechanisms used to recognise environmental property rights, including the registration thereof.

Enduring documents : improving the forms, improving the outcomes

Most Australian states have introduced legislation to provide for enduring documents for financial, personal and health care decision making in the event of incapacity. Since the introduction of Enduring Powers of Attorney (EPAs) and Advance Health Directives (AHDs) in Queensland in 1998, concerns have continued to be raised by service providers, professionals and individuals about the uptake, understanding and appropriate use of these documents. In response to these concerns, the Department of Justice and Attorney-General (DJAG) convened a Practical Guardianship Initiatives Working Party. This group identified the limited evidence base available to address these concerns. In 2009, a multidisciplinary research team from the University of Queensland and the Queensland University of Technology was awarded $90,000 from the Legal Practitioners Interest on Trust Account Fund to undertake a review of the current EPA and AHD forms. The goal of the research was to gather data on the content and useability of the forms from the perspectives of a range of stakeholders, particularly those completing the EPA and AHD, witnesses of these documents, attorneys appointed under an EPA, and health professionals involved in the completion of an AHD or dealing with it in a clinical context. The researchers also sought to gather information from the perspective of Aboriginal and Torres Strait Islander (ATSI) individuals as well people from culturally and linguistically diverse (CALD) groups. Although the focus of the research was on the forms and the extent to which the current design, content and format represents a barrier to uptake, in the course of the research, some broader issues were identified which have an impact on the effectiveness of the EPA and AHD in achieving the goals of planning for financial and personal and health care in advance of losing capacity. The data gathered enabled the researchers to achieve the primary goal of the research: to make recommendations to improve the content and useability of the forms which hopefully will lead to an increased uptake and appropriate use of the forms. However, the researchers thought it was important not to ignore broader policy issues that were identified in the course of the research. These broader issues have been highlighted in this Report, and the researchers have responded to them in a variety of ways. For some issues, the researchers have suggested alterations that could be made to the forms to address the particular concerns. For other issues, the researchers have suggested that Government may need to take specific action such as educating the broader community with some attention to strategies that engage particular groups within communities. Other concerns raised can only be dealt with by legislative reform and, in some of these cases, the researchers have identified issues that Government may wish to consider further. We do note, however, that it is beyond the scope of this Report to recommend changes to the law. This three stage mixed methods project aimed to provide systematic evidence from a broad range of stakeholders in regard to: (i) which groups use and do not use these documents and why, (ii) the contribution of the length/complexity/format/language of the forms as barriers to their completion and/or effective use, and (iii) the issues raised by the current documents for witnesses and attorneys. Understanding and use of EPAs and AHDs were generally explored in separate but parallel processes. A purposive sampling strategy included users of the documents as principals and attorneys, and professionals, witnesses and service providers who assist others to execute or use the forms. The first component of this study built on existing knowledge using a Critical Reference Group and material provided by the DJAG Practical Guardianship Initiatives Working Party. This assisted in the development of the data collection tools for subsequent stages. The second component comprised semi-structured interviews and focus groups with a targeted sample of current users of the forms, potential users, witnesses and other professionals to provide in-depth information on critical issues. Outreach to Aboriginal and Torres Strait Islander Elders and individuals and workers with CALD groups ensured a broad sample of potential users of the two documents. Fifty individual interviews and three focus groups were completed. Most interviews and focus groups focused on perceptions of, and experiences with, either the EPA or the AHD form. In the interviews with Indigenous people and the CALD focus groups, however, respondents provided their perceptions and experiences of both documents. In general, these respondents had not used the forms and were responding to the documents made available in the interview or focus group. In total, seventy-seven individuals were involved in interviews or focus groups. The final component comprised on-line surveys for EPA principals, EPA attorneys, AHD principals, witnesses of EPAs and AHDs and medical practitioners with experience of AHDs as nominated and/or treating doctors. The surveys were developed from the initial component and the qualitative analysis of the interview and focus group data. A total of 116 surveys were returned from major cities and regional Queensland. The survey data was analysed descriptively for patterns and trends. It is important to note that the aim of the survey was to gain insight into issues and concerns relating to the documents and not to make generalisations to the broader population.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.

Effects of disclosure of sexual identity at work for gay, lesbian, bisexual, transgender and intersex (GLBTI) employees in Queensland

All Australian businesses are governed by legislation aiming to prevent workplace discrimination based on sexual orientation and sexual identity and serious penalties apply to companies found contravening legislation. While other Australian studies have examined these issues, Queensland has either not been included or relevant data is not easily identified. This paper presents the results of an exploratory study using a quantitative survey to determine the consequences of disclosure of a person’s sexual orientation or gender identity to colleagues in workplaces in Queensland. Results suggest GLBTI workers are disclosing their sexuality more and are experiencing more discrimination in the workplace, despite anti-discrimination policies. This suggests the need to further investigate companies’ compliance with workplace legislation.

Knowledge management in law enforcement : knowledge views for patrolling police officers

This paper describes and classifies different types of knowledge that are a part of police patrol officer's practice. Even though an investigation usually forces a police officer to apply several different knowledge types, this paper discusses different forms of professional knowledge separately to enable categorisation.

Data modelling in the beginning school years

This paper argues for a renewed focus on statistical reasoning in the beginning school years, with opportunities for children to engage in data modelling. Some of the core components of data modelling are addressed. A selection of results from the first data modelling activity implemented during the second year (2010; second grade) of a current longitudinal study are reported. Data modelling involves investigations of meaningful phenomena, deciding what is worthy of attention (identifying complex attributes), and then progressing to organising, structuring, visualising, and representing data. Reported here are children's abilities to identify diverse and complex attributes, sort and classify data in different ways, and create and interpret models to represent their data.

Social influences on Chinese drivers : cultural context and traffic law enforcement

Reducing road crashes and associated trauma is a critical focus as the Decade of Action for Road Safety commences. China is one of many rapidly-motorizing nations to experience recent increases in private-vehicle ownership and an associated escalation in novice drivers. Unfortunately, however, China also experiences a high rate of death and injury from road crashes. Several key pieces of legislation have been introduced in recent decades in China to deal with these changes. While managing the legal aspects of road use is important, social influences on driver behaviour may offer additional avenues for promoting safe driving, particularly in a culture where such factors carry high importance. To date, there is limited research on the role of social influence factors on driver behaviour in China, yet we know that Chinese society is strongly based on social rules, customs, and relationships. There is reason to assume therefore, that road use and driving-related issues may also be strongly influenced by social relationships. One previous study that has investigated such issues highlighted the need to consider culturally-specific issues such as interpersonal networks and social hierarchy when examining driver behaviour in China (Xie & Parker, 2002). Those authors suggested that there are some concepts relating to Chinese driving culture that may not necessarily have been identified from research conducted in western contexts and that research conducted in China must be considered in light of such concepts. The current paper reports qualitative research conducted with Beijing drivers to investigate such social influence factors. Findings indicated that family members, friends, and driving instructors appear influential on driver behaviour and that some novice drivers seek additional assistance after obtaining their licence. The finding relating to the influence of driving instructors was not surprising, given the substantial number of new drivers in China. In Beijing, driving instruction is conducted off-road in purpose-specific driving facilities rather than on the road network. Once licensed, it is common for new drivers to have little or no experience driving in complex traffic situations. This learning situation is unlikely to provide all the skills necessary to successfully negotiate crowded city streets and assess the related risk associated with such driving. Therefore, it was not surprising to find that one reported strategy to assist new drivers was to employ the services of an ‘accompanying driver’ to provide ongoing driving instruction once licensed. In more highly motorised countries supervised practice is part of a graduated licensing system where it is compulsory for new drivers to be supervised by a more experienced driver for a requisite period of time before progressing to solo driving. However, as this system is not in place in China, it appears that some drivers seek out and pay for additional support once they commence on-road driving. Additionally, strategies to avoid detection and penalties for inappropriate road use were discussed, many of which involve the use of a third person. These findings indicate potential barriers to implementing effective traffic enforcement and highlight the importance of understanding culturally-specific social factors relating to driver behaviour.

Data flow analysis of embedded program expressions

Data flow analysis techniques can be used to help assess threats to data confidentiality and integrity in security critical program code. However, a fundamental weakness of static analysis techniques is that they overestimate the ways in which data may propagate at run time. Discounting large numbers of these false-positive data flow paths wastes an information security evaluator's time and effort. Here we show how to automatically eliminate some false-positive data flow paths by precisely modelling how classified data is blocked by certain expressions in embedded C code. We present a library of detailed data flow models of individual expression elements and an algorithm for introducing these components into conventional data flow graphs. The resulting models can be used to accurately trace byte-level or even bit-level data flow through expressions that are normally treated as atomic. This allows us to identify expressions that safely downgrade their classified inputs and thereby eliminate false-positive data flow paths from the security evaluation process. To validate the approach we have implemented and tested it in an existing data flow analysis toolkit.

Using cooperative vehicle systems to collect near collision incidents events : a simulation study

On the road, near collision events (also close calls or near-miss incidents) largely outnumber actual crashes, yet most of them can never be recorded by current traffic data collection technologies or crashes analysis tools. The analysis of near collisions data is an important step in the process of reducing the crash rate. There have been several studies that have investigated near collisions; to our knowledge, this is the first study that uses the functionalities provided by cooperative vehicles to collect near misses information. We use the VISSIM traffic simulator and a custom C++ engine to simulate cooperative vehicles and their ability to detect near collision events. Our results showed that, within a simple simulated environment, adequate information on near collision events can be collected using the functionalities of cooperative perception systems. The relationship between the ratio of detected events and the ratio of equipped vehicle was shown to closely follow a squared law, and the largest source of nondetection was packet loss instead of packet delays and GPS imprecision.

Identifying differences in safe roads and crash prone roads using clustering data mining

Road asset managers are overwhelmed with a high volume of raw data which they need to process and utilise in supporting their decision making. This paper presents a method that processes road-crash data of a whole road network and exposes hidden value inherent in the data by deploying the clustering data mining method. The goal of the method is to partition the road network into a set of groups (classes) based on common data and characterise the class crash types to produce a crash profiles for each cluster. By comparing similar road classes with differing crash types and rates, insight can be gained into these differences that are caused by the particular characteristics of their roads. These differences can be used as evidence in knowledge development and decision support.

Data modeling in elementary and middle school classes : a shared experience

This paper argues for a renewed focus on statistical reasoning in the elementary school years, with opportunities for children to engage in data modeling. Data modeling involves investigations of meaningful phenomena, deciding what is worthy of attention, and then progressing to organizing, structuring, visualizing, and representing data. Reported here are some findings from a two-part activity (Baxter Brown’s Picnic and Planning a Picnic) implemented at the end of the second year of a current three-year longitudinal study (grade levels 1-3). Planning a Picnic was also implemented in a grade 7 class to provide an opportunity for the different age groups to share their products. Addressed here are the grade 2 children’s predictions for missing data in Baxter Brown’s Picnic, the questions posed and representations created by both grade levels in Planning a Picnic, and the metarepresentational competence displayed in the grade levels’ sharing of their products for Planning a Picnic.

The motivation and structure of corrupt police networks : theorising the dark side of the ‘thin blue line’

In recent times considerable research attention has been directed to understanding dark networks, especially criminal and terrorist networks. Dark networks are those in which member motivations are self rather than public interested, achievements come at the cost of other individuals, groups or societies and, in addition, their activities are both ‘covert and illegal’ (Raab & Milward, 2003: 415). This ‘darkness’ has implications for the way in which these networks are structured, the strategies adopted and their recruitment methods. Such entities exhibit distinctive operating characteristics including most notably the tension between creating an efficient network structure while retaining the ability to hide from public view while avoiding catastrophic collapse should one member cooperate with authorities (Bouchard 2007). While theoretical emphasis has been on criminal and terrorist networks, recent work has demonstrated that corrupt police networks exhibit some distinctive characteristics. In particular, these entities operate within the shadows of a host organisation - the Police Force and distort the functioning of the ‘Thin Blue Line’ as the interface between the law abiding citizenry and the criminal society. Drawing on data derived from the Queensland Fitzgerald Commission of Enquiry into Police Misconduct and related documents, this paper examines the motivations, structural properties and operational practices of corrupt police networks and compares and contrasts these with other dark networks with ‘bright’ public service networks. The paper confirms the structural differences between dark corrupt police networks and bright networks and suggests. However, structural embeddedness alone is found to be an insufficient theoretical explanation for member involvement in networks and that a set of elements combine to impact decision-making. Although offering important insights into network participation, the paper’s findings are especially pertinent in identifying additional points of intervention for police corruption networks.