Australian torts laws

"Provides a comprehensive overview of the law of torts for law students. The legislative reform brought about by the IPP Committee recommendations are included and commented upon." -- Libraries Australia

Narratives of mitigation : sentencing Indigenous criminal defendants in South Australia’s Higher Courts

In their statistical analyses of higher court sentencing in South Australia, Jeffries and Bond (2009) found evidence that Indigenous offenders were treated more leniently than non-Indigenous offenders, when they appeared before the court under similar numerical circumstances. Using a sample of narratives for criminal defendants convicted in South Australia’s higher courts, the current article extends Jeffries and Bond’s (2009) prior statistical work by drawing on the ‘focal concerns’ approach to establish whether, and in what ways, Indigeneity comes to exert a mitigating influence over sentencing. Results show that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that may have reduced assessments of blameworthiness and risk for Indigenous defendants. In addition, judges highlighted a number of Indigenous-specific constraints that potentially could result in imprisonment being construed as an overly harsh and costly sentence for Indigenous offenders.

Advance Directives and the Promotion of Autonomy: a Comparative Australian Statutory Analysis

Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.

The appropriateness of default investment options in defined contribution plans : Australian evidence

For participants in defined contribution (DC) plans who refrain from exercising investment choice, plan contributions are invested following the default investment option of their respective plans. Since default investment options of different plans vary widely in terms of their benchmark asset allocation, the most important determinant of investment performance, participants enrolled in these options face significantly different wealth outcomes at retirement. This paper simulates the terminal wealth outcomes under different static asset allocation strategies to evaluate their relative appeal as default investment choice in DC plans. We find that strategies with low or moderate allocation to stocks are consistently outperformed in terms of upside potential of exceeding the participant’s wealth accumulation target at retirement as well as downside risk of falling below that target outcome by aggressive strategies whose allocation to stocks approach 100%. The risk of extremely adverse wealth outcomes for plan participants also does not appear to be very sensitive to asset allocation. Our evidence suggests the appropriateness of strategies heavily tilted towards stocks to be nominated as default investment options in DC plans unless plan providers emphasize predictability of wealth outcomes over adequacy of retirement wealth.

Steering towards pinnacle of success : the NEC tenets in Australian construction contracting

Contractual relationships have become increasingly strained in recent years in the construction industry result in the use of the judicial system for the settlement of contractual disagreements. Why is this so? Evidence from anecdotes suggest that the lack of capacity amongst owners and contractors to carry out a contract using a good practice approach during the construction of a project contribute to the occurrence of conflicts, losses, deficient contractual relationships and poor performance of the construction work. Recognizing that current forms of contract in use today perpetuate a legacy of construction problems, we are conducting explanatory research to examine whether the widely publicized benefits of New Engineering Contract (NEC) could be realized in the Australian construction industry. This paper outlines a research agenda that will help shed light on how contract forms are able to be used as a mechanism to ensure construction projects are delivered successfully whilst also meeting the goals of multiple stakeholders. Understanding the Critical Success Factors (CSFs), commonly used construction contracts and the NEC system can help us address some of these issues. However, there are gaps in the validation of the benefits of NEC and its link with project success. We identify some of these gaps and propose a methodology by which to gain insights into this phenomenon. Keywords: Project Success, Construction Contracting, New Engineering Contract (NEC)

A national evaluation of the Australian Occupational Therapy Competency Standards (1994): a multistakeholder perspective

This paper summarises results from an evaluation of the adequacy and utility of the Australian Competency Standards for Entry-Level Occupational Therapists © (OT AUSTRALIA, 1994a). It comprised a two-part study, incorporating an online survey of key national stakeholders (n = 26), and 13 focus groups (n = 152) conducted throughout Australia with occupational therapy clinicians, academics, OT AUSTRALIA association and Occupational Therapy Registration Board representatives, as well as university program accreditors. The key recommendations were that: (i) urgent revision to reflect contemporary practice, paradigms, approaches and frameworks is required; (ii) the standards should exemplify basic competence at graduation (not within two years following); (iii) a revision cycle of five years is required; (iv) the Australian Qualifications Framework should be retained, preceded by an introduction describing the scope and nature of occupational therapy practice in the national context; (v) access to the standards should be free and unrestricted to occupational therapists, students and the public via the OT AUSTRALIA (national) website; (vi) the standards should incorporate a succinct executive summary and additional tools or templates formatted to enable occupational therapists to develop professional portfolios and create working documents specific to their workplace; and (vii) language must accommodate contextual variation while striking an appropriate balance between providing instruction and encouraging innovation in practice.

Protecting the protectors : legal liabilities from the use of Web 2.0 for Australian disaster response

The traditional model for information dissemination in disaster response is unidirectional from official channels to the public. However recent crises in the US, such as Hurricane Katrina and the Californian Bushfires show that civilians are now turning to Web 2.0 technologies as a means of sharing disaster related information. These technologies present enormous potential benefits to disaster response authorities that cannot be overlooked. In Australia, the Victorian Bushfires Royal Commission has recently recommended that Australian disaster response authorities utilize information technologies to improve the dissemination of disaster related, bushfire information. However, whilst the use of these technologies has many positive attributes, potential legal liabilities for disaster response authorities arise. This paper identifies some potential legal liabilities arising from the use of Web 2.0 technologies in disaster response situations thereby enhancing crisis related information sharing by highlighting legal concerns that need to be addressed.

A cross cultural examination of consumer behaviour and GM food products : results from Australian and South Korean female consumers

The call for the cross cultural examination and validation of commonly accepted relationships within consumer behaviour is strengthening. Consequently, this paper seeks to address this call by examining consumer risk perceptions, reliance on country of origin information and willingness to buy Genetically Modified (GM) food products on Australian and South Korean consumers. Findings indicate a number of cross cultural similarities and differences that have both theoretical and practical implications.

Studying the effect of market orientation and organisational culture on a brand’s performance

It is now well accepted that effective implementation of market orientation leads to superior performance. This paper theorises that market orientation and an innovative culture enable organisations to achieve higher brand performance. To test this proposition data were gathered from a sample of firms across a range of industries. The results support the premise that market orientation and innovative cultures improve brand performance and that innovative culture influences market orientation. The results also indicate that innovative culture is the stronger driver of brand performance over market orientation.

The meaning of cancer for Australian Aboriginal women : changing the focus of cancer nursing

Aim: The purpose of the study was to explore why Aboriginal women participate in cancer screening programs but appear reluctant to following-up results, or accept medical advice about treatment. Methods: Interpretive ethnography, a qualitative methodology, was used to explore Aboriginal women’s perception of cancer, and the cultural context in which meaning was constructed and influenced treatment decision. Data collection, which occurred over two years, involved fieldwork, participant-observation, face-to-face interviews and focus groups, in two rural Aboriginal communities. Forty eight interviews were recorded from a cross section of the communities, including cancer survivors and patients, family members, health care providers and other women from the community. Results: Key findings were that Aboriginal women’s had a fearful and fatalistic attitude toward cancer, doubted the efficacy of treatment and carried an enduring ambivalence toward the authority of whiteman’s medicine. The women faced a dilemma of wanting access to cancer treatment options but feared entering hospital or clinics not attuned to their cultural needs. Conclusion: The findings highlight the need for a culture-centred approach that decentres the authority of conventional services and instead gives prominence to Aboriginal cultural values as a focal point in cancer control. It should be the responsibility of cancer nurses and others to engage with their local Aboriginal communities to build relationships that foster an exchange of learning about cultural differences that make a difference to how cancer control is practiced.

Australian pelvic floor questionnaire : a validated interviewer-administered pelvic floor questionnaire for routine clinic and research

The aim of this study was to design and validate an interviewer-administered pelvic floor questionnaire that integrates bladder, bowel and sexual function, pelvic organ prolapse, severity, bothersomeness and condition-specific quality of life. Validation testing of the questionnaire was performed using data from 106 urogynaecological patients and a separately sampled community cohort of 49 women. Missing data did not exceed 2% for any question. It distinguished community and urogynaecological populations regarding pelvic floor dysfunction. The bladder domain correlated with the short version of the Urogenital Distress Inventory, bowel function with an established bowel questionnaire and prolapse symptoms with the International Continence Society prolapse quantification. Sexual function assessment reflected scores on the McCoy Female Sexuality Questionnaire. Cronbach’s α coefficients were acceptable in all domains. Kappa coefficients of agreement for the test–retest analyses varied from 0.5 to 1.0. The interviewer-administered pelvic floor questionnaire assessed pelvic floor function in a reproducible and valid fashion in a typical urogynaecological clinic.

Human papillomavirus DNA detected in peripheral blood samples from healthy Australian male blood donors

Recent studies have shown that human papillomavirus (HPV) DNA can be found in circulating blood, including peripheral blood mononuclear cells (PBMCs), sera, plasma, and arterial cord blood. In light of these findings, DNA extracted from PBMCs from healthy blood donors were examined in order to determine how common HPV DNA is in blood of healthy individuals. Blood samples were collected from 180 healthy male blood donors (18-76 years old) through the Australian Red Cross Blood Services. Genomic DNA was extracted and specimens were tested for HPV DNA by PCR using a broad range primer pair. Positive samples were HPV-type determined by cloning and sequencing. HPV DNA was found in 8.3% (15/180) of the blood donors. A wide variety of different HPV types were isolated from the PBMCs; belonging to the cutaneous beta and gamma papillomavirus genera and mucosal alpha papillomaviruses. High-risk HPV types that are linked to cancer development were detected in 1.7% (3/180) of the PBMCs. Blood was also collected from a healthy HPV-positive 44-year-old male on four different occasions in order to determine which blood cell fractions harbor HPV. PBMCs treated with trypsin were negative for HPV, while non-trypsinized PBMCs were HPV-positive. This suggests that the HPV in blood is attached to the outside of blood cells via a protein-containing moiety. HPV was also isolated in the B cells, dendritic cells, NK cells, and neutrophils. To conclude, HPV present in PBMCs could represent a reservoir of virus and a potential new route of transmission.

An examination of the sentencing remarks of Indigenous and non-Indigenous criminal defendants in South Australia’s Higher Courts

Recent Australian research on Indigenous sentencing primarily explores whether disparities in sentencing outcomes exist. Little is known about how judges perceive or refer to Indigenous defendants and their histories, and how they interpret the circumstances of Indigenous defendants in justifying their sentencing decisions. Drawing on the ‘focal concerns’ approach, this study presents a narrative analysis of a sample of judges’ sentencing remarks for Indigenous and non-Indigenous criminal defendants convicted in South Australia’s Higher Courts. The analysis found that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that possibly reduced assessments of blameworthiness and risk for Indigenous defendants.

Towards an understanding of Australian genre cinema and entertainment : beyond the limitations of ‘Ozploitation’ discourse

While Australian cinema has produced popular movie genres since the 1970s, including action/adventure, road movies, crime, and horror movies, genre cinema has occupied a precarious position within a subsidised national cinema and has been largely written out of film history. In recent years the documentary Not Quite Hollywood (2008) has brought Australia’s genre movie heritage from the 1970s and 1980s back to the attention of cinephiles, critics and cult audiences worldwide. Since its release, the term ‘Ozploitation’ has become synonymous with Australian genre movies. In the absence of discussion about genre cinema within film studies, Ozploitation (and ‘paracinema’ as a theoretical lens) has emerged as a critical framework to fill this void as a de facto approach to genre and a conceptual framework for understanding Australian genres movies. However, although the Ozploitation brand has been extremely successful in raising the awareness of local genre flicks, Ozploitation discourse poses problems for film studies, and its utility is limited for the study of Australian genre movies. This paper argues that Ozploitation limits analysis of genre movies to the narrow confines of exploitation or trash cinema and obscures more important discussion of how Australian cinema engages with popular movies genres, the idea of Australian filmmaking as entertainment, and the dynamics of commercial filmmaking practises more generally.