The mandatory notification of data breaches : issues arising for Australian and EU legal developments

Public and private sector organisations are now able to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other jurisdictions. This article reviews US, Australian and EU legal developments regarding the mandatory notification of data breaches. The authors highlight areas of concern based on the extant US experience that require further consideration in Australia and in the EU.

A secure framework and related protocols for ubiquitous access to electronic health records using Java SIM cards

Ubiquitous access to patient medical records is an important aspect of caring for patient safety. Unavailability of sufficient medical information at the patient point-of-care could possibly lead to a fatality. In this paper we propose employing emergent technologies such as Java SIM Cards (JSC),Smart Phones (SP), Next Generation Networks (NGN), Near Field Communications (NFC), Public Key Infrastructure (PKI), and Biometric Identification to develop a secure framework and related protocols for ubiquitous access to Electronic Health Records (EHRs). A partial EHR contained within a JSC can be used at the patient point-of-care in order to help quick diagnosis of a patient’s problems. The full EHR can be accessed from an Electronic Healthcare Records Centre (EHRC).

Elements of public asset management framework for local governments in developing countries

There is a widespread recognition to the need of better manage municipal property in most cities in the world. Structural problems across regional, state, and territorial governments that have legal powers to own and maintain real property are similar, regardless of the level of development of each country. Start from a very basic level of property inventory records. The need for better manage to the local government owned property is the result of widespread decentralisation initiatives that often have devolved huge property portfolios from central to local governments almost “overnight”. At the same time municipal or regional governments were and continue to be unprepared to deal with multiple issues related to the role of property owners and managers. The lack of discussion of public asset management especially the elements that should be incorporated in the framework creates an important challenge to study the discipline of public asset management further. The aim of this paper is to study the practices of public asset management in developed countries, especially the elements of public asset management framework, and its transferability to developing countries. A case study was selected and conducted to achieve this aim. They involved interviews and a focus group. The study found that in public asset management framework, proper asset identification, public asset needs analysis, asset life cycle and performance measurements are an important element that should be incorporated in the framework. Those elements are transferable and applicable to developing countries’ local governments. Finally, findings from this study provide useful input for the local government policy makers, scholars and asset management practitioners to establish a public asset management framework toward more efficient and effective local governments in managing their assets as well as increasing public services quality.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

Quality of child abuse information in emergency department injury surveillance data : linking hospital and child welfare data

Emergency departments (EDs) are often the first point of contact with an abused child. Despite legal mandate, the reporting of definite or suspected abusive injury to child safety authorities by ED clinicians varies due to a number of factors including training, access to child safety professionals, departmental culture and a fear of ‘getting it wrong’. This study examined the quality of documentation and coding of child abuse captured by ED based injury surveillance data and ED medical records in the state of Queensland and the concordance of these data with child welfare records. A retrospective medical record review was used to examine the clinical documentation of almost 1000 injured children included in the Queensland Injury Surveillance Unit database (QISU) from 10 hospitals in urban and rural centres. Independent experts re-coded the records based on their review of the notes. A data linkage methodology was then used to link these records with records in the state government’s child welfare database. Cases were sampled from three sub-groups according to the surveillance intent codes: Maltreatment by parent, Undetermined and Unintentional injury. Only 0.1% of cases coded as unintentional injury were recoded to maltreatment by parent, while 1.2% of cases coded as maltreatment by parent were reclassified as unintentional and 5% of cases where the intent was undetermined by the triage nurse were recoded as maltreatment by parent. Quality of documentation varied across type of hospital (tertiary referral centre, children’s, urban, regional and remote). Concordance of health data with child welfare data varied across patient subgroups. Outcomes from this research will guide initiatives to improve the quality of intentional child injury surveillance systems.

Governmentality and the reflection of legal educators : assessment practices as a case study

This paper presents a conceptual framework, informed by Foucault’s work on governmentality, which allows for new kinds of reflection on the practice of legal education. Put simply, this framework suggests that legal education can be understood as a form of government that relies on a specific rationalisation and programming of the activities of legal educators, students, and administrators, and is implemented by harnessing specific techniques and bodies of ‘know-how’. Applying this framework to assessment at three Australian law schools, this paper highlights how assessment practices are rationalised, programmed, and implemented, and points out how this government shapes students’ legal personae. In particular, this analysis focuses on the governmental effects of pedagogical discourses that are dominant within the design and scholarship of legal education. It demonstrates that the development of pedagogically-sound regimes of assessment has contributed to a reformulation of the terrain of government, by providing the conditions under which forms of legal personae may be more effectively shaped, and extending the power relations that achieve this. This analysis provides legal educators with an original way of reflecting on the power effects of teaching the law, and new opportunities for thinking about what is possible in legal education.

Governing depression in law students and the shaping of legal personae

Since a recent Australian study found that university law students experience higher rates of depression than medical students and legal professionals (Kelk et al. 2009), the mental health of law students has increasingly become a target of government. To date, however, there has been no attempt to analyse these practices as an activity of government in advanced liberal societies. This paper addresses this imbalance by providing an initial analytics of the government of depression in law schools. It demonstrates how students are responsibilised to manage the risks and uncertainties of legal education by constructing resilient forms of personal and professional personae. It highlights that, in order to avoid depression, students are encouraged to shape not just their minds and bodies according to psychological and biomedical discourses, but are also to govern their ethical dispositions and become virtuous persons. This paper also argues that these forms of government are tied to advanced liberal forms of rule, as they position the law student as the locus of responsibility for depression, imply that depression is caused by an individual failing, and entrench students within responsibilising and entrepreneurial forms of subjectivity.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

The Australian response to climate change : business as usual or legal innovation?

Through international agreement to the United Nations Framework Convention on Climate Change and the Kyoto Protocol the global community has acknowledged that climate change is a global problem and sought to achieve reductions in global emissions, within a sufficient timeframe, to avoid dangerous anthropogenic interference with the climate system. The sheer magnitude of emissions reductions required within such an urgent timeframe presents a challenge to conventional regulatory approaches both internationally and within Australia. The phenomenon of climate change is temporally and geographically challenging and it is scientifically complex and uncertain. The purpose of this paper is to analyse the current Australian legal response to climate change and to examine the legal measures which have been proposed to promote carbon trading, energy efficiency, renewable energy, and carbon sequestration initiatives across Australia. As this paper illustrates, the current Australian approach is clearly ineffective and the law as it stands overwhelmingly inadequate to address Australia’s emissions and meet the enormity of the challenges posed by climate change. Consequently, the government should look towards a more effective legal framework to achieve rapid and urgent transformations in the selection of energy sources, energy use and sequestration initiatives across the Australian community.

Cyberbullying in social networking sites and blogs : legal issues for young people and schools

This article examines the social networking phenomenon that has been so readily embraced by school-age adolescents, in the context of its potential to contribute further to the mechanisms for and incidence of cyberbullying amongst school students. Cyberbullying in these online for a, as a misuse of technology to harass, intimidate, tease, threaten, abuse or otherwise terrorise peers, teachers and/or the school in general, is discussed from both the psychological perspective and in terms of its legal ramifications (both criminal and civil) in Australia. Some recommendations for proactive and preventative measures, education and policy adoptions are provided, together with general advice to parents, schools and adolescents on awareness of the risks involved and how young people might better protect themselves in light of that knowledge.

Retracing the Roots and Ideals of Confucian Principles of Governance: the Art of Regulating Governance without Legal Rules in Chinese Societies

Confucius was and still is one of the most eminent Chinese philosophers. Such is the importance of Confucius’s teachings; it had influenced all aspects of social life in Chinese societies. In the post-Enron, post-Worldcom, and post-Global Financial Crisis era there are raising doubts in the mantra of the so-called conventional wisdom about law and economic order. Whilst many recent publications offered solutions to those problems like advocating for more laws, rules or reforms in regulatory institutions to enhance the regulation of corporate governance. What Confucius advocated was a non-legal, social mode of regulation based on moral ideals that should be embedded into the minds of every person. Whilst this is an ancient concept from primitive societies, its relevance and merits could be seen in modern Chinese societies like Hong Kong. In essence, Confucian principles of governance build on relational and paternalistic order based on moral ideals.

Cyberbullying : legal implications for schools

Most educators are now aware that cyberbullying is bullying through the use of technology. This new form of bullying makes use of the diverse range of technology now available including email, texting, chat rooms, mobile phones, mobile phone cameras, i-pods and websites. Cyberbullying shares many of the same attributes as face-to-face bullying such as a power imbalance which causes a sense of helplessness on the part of the victim, repetition and the intent to hurt.

The Australian Nonprofit Sector Legal Almanac 2010, ACPNS Working Paper 53

This is the third year that we have summarised annual developments in the law for nonprofit staff, boards and volunteers. We were encouraged by the interest shown in last year’s publication and the use made of the digital copy on our web site, so here is the almanac for the Jan 2010–Dec 2010 period. We are delighted that the Australian Charity Law Association and PilchConnect (Victoria) have again agreed to contribute and promote the publication as well. These two organisations are beginning to fill the void of professional legal development and assistance to small nonprofit organisations that has characterised Australia for too many years. The first conference of the Australian Charity Law Association in Sydney was a significant event and one of the addresses is included in the Almanac. Other materials from the conference can be accessed at the Centre’s website.

Towards low emissions in the electricity generation sector : creating a coherent legal model for Australia

Australia’s efforts to transition to a low-emissions economy have stagnated following the successive defeats of the Carbon Pollution Reduction Scheme. This failure should not, however, be regarded as the end of Australia’s efforts to make this transition. In fact, the opportunity now exists for Australia to refine its existing arrangements to enable this transition to occur more effectively. The starting point for this analysis is the legal arrangements applying to the electricity generation sector, which is the largest sectoral emitter of anthropogenic greenhouse gas emissions in Australia. Without an effective strategy to mitigate this sector’s contribution to anthropogenic climate change, it is unlikely that Australia will be able to transition towards a low-emissions economy. It is on this basis that this article assesses the dominant national legal arrangement – the Renewable Energy Target – underpinning the electricity generation sector's efforts to become a low-emissions sector.

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment : Part 1 (New South Wales)

This is the first article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in New South Wales. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals’ legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals’ knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in New South Wales.