Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

Employment Relations in Australia, 2nd Edition

The relationship between employers and employees has been one of the most hotly debated issues in Australia in recent times. Recent legislation such as the Workplace Relations Amendment (Work Choices) Act 2005 and the subsequent Fair Work Act 2009 provides stark evidence of this. The impact of these significant developments is explored and analysed in detail in the new edition of this popular text, complete with a balanced coverage of the often contrasting viewpoints of all stakeholders - from governments, unions and employer associations, through to individual employers and employees. The text outlines different approaches to understanding the nature of the employment relationship, with a contextual background as to how this relationship has changed and developed throughout our nation's history.

Towards a new employment relationship model

Purpose – The purpose of this study is to examine and extend Noer’s theoretical model of the new employment relationship. Design/methodology/approach – Case study methodology is used to scrutinise the model. The results of a literature-based survey on the elements underpinning the five values in the model are analysed from dual perspectives of individual and organization using a multi-source assessment instrument. A schema is developed to guide and inform a series of focus group discussions from an analysis of the survey data. Using content analysis, the transcripts from the focus group discussions are evaluated using the model’s values and their elements. The transcripts are also reviewed for implicit themes. The case studied is Flight Centre Limited, an Australian-based international retail travel company. Findings – Using this approach, some elements of the five values in Noer’s model are identified as characteristic of the company’s psychological contract. Specifically, to some extent, the model’s values of flexible deployment, customer focus, performance focus, project-based work, and human spirit and work can be applied in this case. A further analysis of the transcripts validates three additional values in the psychological contract literature: commitment; learning and development; and open information. As a result of the findings, Noer’s model is extended to eight values. Research limitations/implications – The study offers a research-based model of the new employment relationship. Since generalisations from the case study findings cannot be applied directly to other settings, the opportunity to test this model in a variety of contexts is open to other researchers. Originality/value – In practice, the methodology used is a unique process for benchmarking the psychological contract. The process may be applied in other business settings. By doing so, organization development professionals have a consulting framework for comparing an organization’s dominant psychological contract with the extended model presented here.

The Equality of Sub-Surface Minerals

Sub-surface minerals are in most cases considered to be the proprietary right of a country should those minerals be found within its borders. PRO169 (Indigenous Peoples’ Rights, International Labour Organization) has recorded instances where the private land of indigenous peoples has been pilfered by a government – often through the sale of a contract to a private company, and without the consent of the people living on that land. Other times, indigenous peoples, the government they find themselves living in, and the company that bought mining rights engage in consultation. But these practices are far from transparent, equitable, or fair as indigenous peoples are often unskilled in contractual law and do not have the same legal resources as the company or government does. This paper argues that the sub-surface minerals found within the territory of indigenous tribes should be legally allocated as theirs.

Beyond charity : outlines of a jurisprudence for civil society

There is not a single, coherent, jurisprudence for civil society organisations. Pressure for a clearly enuciated body of law applying to the whole of this sector of society continues to increase. The rise of third sector scholarship, the retreat of the welfare state, the rediscovery of the concept of civil society and pressures to strengthen social capital have all contributed to an ongoing stream of inquiry into the laws that regulate and favour civil society organisations. There have been almost thirty inquiries over the last sixty years into the doctrine of charitable purpose in common law countries. Those inquiries have established that problems with the law applying to civil society organisations are rooted in the common law adopting a ‘technical’ definition of charitable purpose and the failure of this body of law to develop in response to societal changes. Even though it is now well recognised that problems with law reform stem from problems inherent in the doctrine of charitable purpose, statutory reforms have merely ‘bolted on’ additions to the flawed ‘technical’ definition. In this way the scope of operation of the law has been incrementally expanded to include a larger number of civil society organisations. This piecemeal approach continues the exclusion of most civil society organisations from the law of charities discourse, and fails to address the underlying jurisprudential problems. Comprehensive reform requires revisiting the foundational problems embedded in the doctrine of charitable purpose, being informed by recent scholarship, and a paradigm shift that extends the doctrine to include all civil society organisations. Scholarly inquiry into civil society organisations, particularly from within the discipline of neoclassical economics, has elucidated insights that can inform legal theory development. This theory development requires decoupling the two distinct functions performed by the doctrine of charitable purpose which are: setting the scope of regulation, and determining entitlement to favours, such as tax exemption. If the two different functions of the doctrine are considered separately in the light of theoretical insights from other disciplines, the architecture for a jurisprudence emerges that facilitates regulation, but does not necessarily favour all civil society organisations. Informed by that broader discourse it is argued that when determining the scope of regulation, civil society organisations are identified by reference to charitable purposes that are not technically defined. These charitable purposes are in essence purposes which are: Altruistic, for public Benefit, pursued without Coercion. These charitable puposes differentiate civil society organisations from organisations in the three other sectors namely; Business, which is manifest in lack of altruism; Government, which is characterised by coercion; and Family, which is characterised by benefits being private not public. When determining entitlement to favour, it is theorised that it is the extent or nature of the public benefit evident in the pursuit of a charitable purpose that justifies entitlement to favour. Entitlement to favour based on the extent of public benefit is the theoretically simpler – the greater the public benefit the greater the justification for favour. To be entitled to favour based on the nature of a purpose being charitable the purpose must fall within one of three categories developed from the first three heads of Pemsel’s case (the landmark categorisation case on taxation favour). The three categories proposed are: Dealing with Disadvantage, Encouraging Edification; and Facilitating Freedom. In this alternative paradigm a recast doctrine of charitable purpose underpins a jurisprudence for civil society in a way similar to the way contract underpins the jurisprudence for the business sector, the way that freedom from arbitrary coercion underpins the jurisprudence of the government sector and the way that equity within families underpins succession and family law jurisprudence for the family sector. This alternative architecture for the common law, developed from the doctrine of charitable purpose but inclusive of all civil society purposes, is argued to cover the field of the law applying to civil society organisations and warrants its own third space as a body of law between public law and private law in jurisprudence.

Fraudulent insurance claims : recent legal developments

Insurance fraud continues to be a major problem worldwide. This article will canvass recent legal developments in relation to selected issues and matters of particular concern to the insurance industry. This article is confined to fraudulent claims. Fraud may arise at various points in the insurance relationship, including initial fraud on placement and fraudulent breach of contract by the assured. Fraud at the outset by the assured is treated differently from innocent or negligent conduct. "Fraud" in the context of this paper embraces all claims where an insured intednds to deceive an insurer by getting out i money to which the insured knew he had no right. This article will examine fraudulent insurance claims.

A comparative overview of "know-how" protection in Japan and Australia

"Know How" protection varies enormously from country to country and is a complex equation of legal, political, cultural and economic factors. A contrast between Japan and Australia serves to highlight some of these factors. For the purposes of this article, a working definition of "know how" is required. In Australia and other common law systems, no statutory definition of "know how" exists, "confidential information" proving the closest comparative term in Australia ('trade secret law' in the United States).

Disclosure in insurance law : contemporary and historical economic considerations

This article examines the importance of accurate classification and identification of risk with particular reference to the problem of adverse selection. It is argued that, historically, this concern was the paramount consideration influencing standard form contract formation and disclosure laws. The scope of its relevance today however is less apparent in that contemporary insurance contracting is conducted in a vastly different environment from that which prevailed at the time Lloyd's was better known as a coffee house. Accordingly, the second part of this article looks at the contemporary framework of information disclosure and those dynamics within it designed to elicit information weighing on risk forecasting : specifically, (a) direct inquiry and testing requirements; (b) signaling - or incentive based structuring of insurance contractual and (c) bargaining in the shadow of the utmost good faith doctrine. Finally, certain conclusions arising out of contemporary and historical economic considerations underpinning disclosure in insurance law are outlined.

Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

Disclosure under the prescribed insurance contracts regime : Section 35 of the Insurance Contracts Act 1984 and consumer protection revisited

Section 35 of the Insurance Contracts Act 1984 requires insurers offering insurance policies in six prescribed areas "to clearly inform" prospective insureds of any departure their policies may constitute from the standard covers established by the Act and its accompanying Regulations. This prescribed insurance contracts regime was designed to remedy comprehension problems generated by the length and complexity of insurance documents and to alleviate misunderstanding over the terms and conditions of individual policies. This article examines the rationale underpinning s 35 and the prescribed insurance contracts regime and looks at the operation of the legislation with particular reference to home contents insurance in Australia. It is argued that the means whereby disclosure of derogation from standard cover may be effected largely negates the thrust of the prescribed insurance contract reform. Recommendations to address these operational deficiencies are made.

The insured's non-disclosure in the formation of insurance contracts : a comparative perspective

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law. The nature and extent of these obligations varies from one jurisdiction to the next. Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. It is the purpose of this article therefore to examine, on a comparative basis, the approaches adopted in the Anglo-Commonwealth context of England, Australia New Zealand and Singapore to the resolution of disclose issues in the formation of insurance contracts. Particular attention is focused on the Insurance Contracts Act 1984 (Australia) as this statue effects the most significant overhaul of the common law and the National Consumer Council in the United Kingdom has advocated that similar reforms be adopted.

Metaheuristic approaches to the hybrid flow shop scheduling problem with a cost-related criterion

In the paper, the flow-shop scheduling problem with parallel machines at each stage (machine center) is studied. For each job its release and due date as well as a processing time for its each operation are given. The scheduling criterion consists of three parts: the total weighted earliness, the total weighted tardiness and the total weighted waiting time. The criterion takes into account the costs of storing semi-manufactured products in the course of production and ready-made products as well as penalties for not meeting the deadlines stated in the conditions of the contract with customer. To solve the problem, three constructive algorithms and three metaheuristics (based one Tabu Search and Simulated Annealing techniques) are developed and experimentally analyzed. All the proposed algorithms operate on the notion of so-called operation processing order, i.e. the order of operations on each machine. We show that the problem of schedule construction on the base of a given operation processing order can be reduced to the linear programming task. We also propose some approximation algorithm for schedule construction and show the conditions of its optimality.