The legal framework of the Australian health system

This chapter is about the role of law in the creation and operation of Australian health systems. Accordingly, this chapter discusses how law regulates the way in which health services in Australia are funded, organised, regulated, managed, operated and governed. (The question of how health professionals are regulated is discussed in Chapter 15.) Although the focus of much of health law is on legal mechanisms for the resolution of disputes or disagreements between the state, health providers, professionals, patients and families and friends, and through dispute resolutions processes setting standards for practice, these are only some of the “jobs” that health law performs. In health systems where the state undertakes a significant role in regulating, funding, managing and providing health services, health law also performs an important constitutive function. Health law declares the values upon which the health system is based, shapes social processes to achieve public ends and provides a structure for the complex interactions that occur within a modern health system. Health law regulates decision-makers in health systems by establishing who has the power to participate in decisions and in what circumstances, establishing processes through which decisions are made and creating mechanisms for decision-makers to be held publicly accountable. It is this broader constitutive function of health law that is a primary focus of much of this chapter — how and why governments use their legislative powers to structure and shape the health system.

The monster chronicles : the role of children’s stories featuring monsters in managing childhood fears and promoting empowerment

Children’s fascination with monsters is a normal part of childhood development. Children’s literature reflects this with a wealth of stories featuring monsters, ranging from fairy tales to picture books to books for independent readers. These stories can raise concerns from educators, parents and other sections of the community such as political and religious institutions on the basis that they could be disturbing or harmful to children. In contrast, there is evidence to indicate the potential for managing fears and enhancing feelings of empowerment in children through the reading of stories featuring monsters. A reappraisal of these stories from a predominantly therapeutic perspective reveals that they may act as agents of positive change in six ways – catharsis, naming, taming, integration, transformation and moral empowerment. Two of these functions, transformation and moral empowerment, are examined further in three case studies of stories for the older reader that feature monsters, Wolf Brother by Michelle Paver, Monster Blood Tattoo, Book One: Foundling by D.M. Cornish and my manuscript, ‘The Monster Chronicles’. The insights from this research have been used to inform the writing and editing of ‘The Monster Chronicles’ and inherent to that, my goal of creating a children’s story featuring monsters that is sensitive to children’s fears and their desire for empowerment.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

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.

Writing stories to enhance scientific literacy

In response to international concerns about scientific literacy and students’ waning interest in school science, this study investigated the effects of a science-writing project about the socioscientific issue of biosecurity on the development of students’ scientific literacy. Students generated two BioStories each that merged scientific information with the narrative storylines in the project. The study was conducted in two phases. In the exploratory phase, a qualitative case study of a 6th grade class involving classroom observations and interviews informed the design of the second, confirmatory phase of the study, which was conducted at a different school. This phase involved a mixed methods approach featuring a quasi-experimental design with two classes of Australian middle school students (i.e., 6th grade, 11 years of age, n=55). The results support the argument that writing the sequence of stories helped the students become more familiar with biosecurity issues, develop a deeper understanding of related biological concepts, and improve their interest in science. On the basis of these findings, teachers should be encouraged to engage their students in the practice of writing about socioscientific issues (SSI) in a way that integrates scientific information into narrative storylines. Extending the practice to older students, and exploring additional issues related to writing about SSI are recommended for further research.

Telling tales, shaping stories : the creative practitioner and the artful life story

Norman K. Denzin (1989) claims that the central assumption of the biographical method—that a life can be captured and represented in a text—is open to question. This paper explores Denzin’s statement by documenting the role of creative writers in re-presenting oral histories in two case studies from Queensland, Australia. The first, The Queensland Business Leaders Hall of Fame, was a commercial research project commissioned by the State Library of Queensland (SLQ) in 2009, and involved semi-formal qualitative interviews and digital stories. The second is an on-going practice-led PhD project, The Artful Life: Oral History and Fiction, which investigates the fictionalisation of oral histories. Both projects enter into a dialogue around the re-presentation of oral and life histories, with attention given to the critical scholarship and creative practice in the process. Creative writers represent a life having particular preoccupations with techniques that more closely align with fiction than non-fiction (Hirsch and Dixon 2008). In this context, oral history resources are viewed not so much as repositories of historical facts, but as ambiguous and fluid narrative sources. The comparison of the two case studies also demonstrates that the aims of a particular project dictate the nature of the re-presentation, revealing that writing about another’s life is a complex act of artful ‘shaping’. Alistair Thomson (2007) notes the growing interdisciplinary nature of oral history scholarship since the 1980s; oral histories are used increasingly in art-based contexts to produce diverse cultural artefacts, such as digital stories and works of fiction, which are very different from traditional histories. What are the methodological implications of such projects? This paper will draw on self-reflexive practice to explore this question.

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.

Teaching to the middle in Australia : four teachers tell their stories

This chapter explores the perceptions of middle years specialist teachers in the contemporary Australian schools context. Written narratives were obtained from 4 Australian teachers. Each has followed distinctly different paths to teaching in the middle years. However, each has a high leadership profile in the general schooling sector assumed relatively early in their professional careers. These teachers were asked about their entry into teaching, the pathways they pursued to teaching at the middle level, opportunities and limitations experienced for them in schools, and their conceptions of the future of middle years reforms in Australia.

Young children’s active citizenship : storytelling, stories, and social actions

This thesis inquires into possibilities for young children‘s active citizenship as provoked through a practice of social justice storytelling with one Preparatory1 class of children aged five to six years. The inquiry was practitioner-research, through a living educational theory approach cultivating an interrelational view of existing with others in evolving processes of creation. Ideas of young children‘s active citizenship were provoked and explored through storytelling, by a storytelling teacher-researcher, a Prep class of children and their teacher. The three major foci of the study were practice, narrative and action. A series of storytelling workshops with a Prep class was the practice that was investigated. Each workshop began with a story that made issues of social justice visible, followed by critical discussion of the story, and small group activities to further explore the story. The focus on narrative was based on the idea of story as a way knowing. Stories were used to explore social justice issues with young children. Metanarratives of children and citizenship were seen to influence possibilities for young children‘s active citizenship. Stories were purposefully shared to provoke and promote young children‘s active citizenship through social actions. It was these actions that were the third focus of the study. Through action research, a social justice storytelling practice and the children‘s responses to the stories were reflected on both in action and after. These reflections informed and shaped storytelling practice. Learning in a practice of social justice storytelling is explained through living theories of social justice storytelling as pedagogy. Data of the children‘s participation in the study were analysed to identify influences and possibilities for young children‘s active citizenship creating a living theory of possibilities for young children‘s active citizenship.