Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Tomorrow, When the War Began

Synopsis and review of the Australian feature film Tomorrow, When the War Began directed by Stuart Beattie.

Imaginging the good Indigenous citizen : race war and the pathology of partiarchal white sovereignty

In June 2007, the Australian federal government sent military and policy into Indigenous communities in the Northern Territory on the premise that sexual abuse of children was rampant and a national crisis. This article draws on Foucault’s work on sovereignty and rights to argue that patriarchal white sovereignty as a regime of power deploys a discourse of pathology in the exercising of sovereign right to subjugate and discipline Indigenous people as good citizens.

The first 25 years of the Queensland Rugby Football League: Claims to legitimacy in annual reports

Despite the cultural importance of sporting organisations, little academic attention has been paid to the legitimising role of their annual reports. In this paper we examine the role of annual reports in establishing the legitimacy of a new organisation, the Queensland Rugby Football League (QRFL), founded in 1908. Contextualised with media reports from newspapers of the day, twelve annual reports from QRFL’s first 25 years are analysed and interpreted using insights from legitimacy theory. Through the presentation of audited financial statements and persuasive narrative accounts of its operations and success, QRFL made claims to pragmatic, moral and cognitive legitimacy as it sought to establish a niche as a new football code and organisation. This contextualised study situates the annual reports in their historical landscape, providing insights about how they contributed to QRFL’s efforts in overcoming the liability of newness in a competitive sports environment.

Émile Durkheim and Thomas Luckmann: Religion, spirituality and mental health

This chapter examines connections between religion, spirituality and mental health. Religion and spirituality influence the way people conceive themselves, others and the world around them, as well as how they behave – and are strongly associated with numerous mental health outcomes. Religion and spirituality therefore demand the attention of those who seek a comprehensive understanding of the factors that affect mental health. Mental health professionals are increasingly being asked to consider their clients’ religious and/or spiritual beliefs when devising their treatment plans, making the study of religion and spirituality an essential area of learning for those working in the mental health field. Initial discussion in this chapter will focus on the different approaches taken by sociologists in studying mental health. Emile Durkheim, one of the founders of sociology, proposed that religion was fundamental to societal wellbeing and was the first to demonstrate a link between religion and mental health at a population level in the late 19th century. Durkheim’s classic theory of religion, together with the work of Thomas Luckmann and other contemporary social theorists who have sought to explain widespread religious change in Western countries since World War II will be examined. Two key changes during this period are the shift away from mainstream Christian religions and the widespread embracing of ‘spirituality’ as an alternative form of religious expression. In combination, the theories of Durkheim, Luckmann and other sociologists provide a platform from which to consider reasons for variations in rates of mental health problems observed in contemporary Western societies according to people’s religious/spiritual orientation. This analysis demonstrates the relevance of both classic and contemporary sociological theories to issues confronting societies in the present day.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

Applying metaethical and normative claims of moral relativism to (shareholder and stakeholder) models of corporate governance

There has, in recent decades, been considerable scholarship regarding the moral aspects of corporate governance,and differences in corporate governance practices around the world have been widely documented and investigated. In such a context, the claims associated with moral relativism are relevant. The purpose of this paper is to provide a detailed consideration of how the metaethical and normative claims of moral relativism in particular can be applied to corporate governance. This objective is achieved, firstly, by reviewing what is meant by metaethical moral relativism and identifying two ways in which the metaethical claim can be assessed. The possibility of a single, morally superior model of corporate governance is subsequently considered through an analysis of prominent works justifying the shareholder and stakeholder approaches, together with a consideration of academic agreement in this area. The paper then draws on the work of Wong (Moral relativity, University of California Press, Berkeley, CA, 1984, A companion to ethics, Blackwell, Malden, 1993, Natural moralities: A defense of pluralistic relativism,Oxford University Press, Oxford, 2006), firstly in providing an argument supporting metaethical moral relativism and secondly regarding values of tolerance and/or accommodation that can contribute to the normative claim. The paper concludes by proposing an argument that it is morally wrong to impose a model of corporate governance where there are differences in moral judgements relevant to corporate governance, or to interfere with a model in similar circumstances, and closes with consideration of the argument’s implications.

Trade war in the Pacific: ASEAN and the Trans-Pacific Partnership

Australian politicians are keen to project our participation in two major international trade talks - the Regional Comprehensive Economic Partnership (RCEP), and the Trans-Pacific Partnership (TPP) - as unproblematic.

The political decisions and policy leading to the Royal Australian Air Force having no fighters or interceptors for the coming war against Japan

The thesis provides an understanding of the ignored need for a modern air defence system for the Australian air force to meet the growing threat from Japan in the 1930s and early 1940s. The quality of advice provided to, and accepted by, Australian politicians was misleading and eliminated the need for fighters and interceptors despite glaring evidence to the contrary. Based on primary source material, including official documents, Allied and Axis pilot memoirs, popular aviation literature and newspaper and magazine articles and interviews, the thesis highlights the inability of Australian politicians to face the reality of the international situation.

Bees at war: Interspecific battles and nest usurpation in stingless bees

We provide the first evidence for interspecific warfare in bees, a spectacular natural phenomenon that involves a series of aerial battles and leads to thousands of fatalities from both attacking and defending colonies. Molecular analysis of fights at a hive of the Australian stingless bee Tetragonula carbonaria revealed that the attack was launched by a related species, Tetragonula hockingsi, which has only recently extended its habitat into southeastern Queensland. Following a succession of attacks by the same T. hockingsi colony over a 4-month period, the defending T. carbonaria colony was defeated and the hive usurped, with the invading colony installing a new queen. We complemented our direct observations with a 5-year study of more than 260 Tetragonula hives and found interspecific hive changes, which were likely to be usurpation events, occurring in 46 hives over this period. We discuss how fighting swarms and hive usurpation fit with theoretical predictions on the evolution of fatal fighting and highlight the many unexplained features of these battles that warrant further study.

Automated categorisation of patent claims that reference human genome sequences

Debates on gene patents have necessitated the analysis of patents that disclose and reference human sequences. In this study, we built an automated classifier that assigns sequences to one of nine predefined categories according to their functional roles in patent claims by applying natural language processing and supervised learning techniques. To improve its correctness, we experimented with various feature mappings, resulting in the maximal accuracy of 79%.

Submission on NSW Attorney-General's Discussion Paper on Amendment of Limitation of Actions Act 1969 to remove time limit for civil claims for child abuse

The New South Wales Attorney-General and Justice Policy Division released a Discussion Paper about reform of the Limitation of Actions Act 1969. The key question was whether and how to amend the statute to better provide access to justice for civil claimants in child abuse cases. This submission draws on published literature and multidisciplinary research to support the Discussion Paper's Option A, namely, to abolish the time limit for civil claims for injuries in criminal child abuse cases, and for this to be made retrospective.

Get ready for a fruit fight: the fallout from Coles' price war on produce

Amid tough trading conditions and intense competition, Coles has fired the latest salvo in its ongoing supermarket war with Woolworths, announcing it will reduce the price of some fruit and vegetables by 50%. The move is the latest in a battle between the supermarket giants to wrest market share and follows previous cuts to staples such as milk and bread, beer and chicken. However, Australia’s peak industry body of vegetable growers, Ausveg, is concerned about the impact the price decision will have on growers' livelihoods.