The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

A sub‒domain smoothed Galerkin method for solid mechanics problems

A sub‒domain smoothed Galerkin method is proposed to integrate the advantages of mesh‒free Galerkin method and FEM. Arbitrarily shaped sub‒domains are predefined in problems domain with mesh‒free nodes. In each sub‒domain, based on mesh‒free Galerkin weak formulation, the local discrete equation can be obtained by using the moving Kriging interpolation, which is similar to the discretization of the high‒order finite elements. Strain smoothing technique is subsequently applied to the nodal integration of sub‒domain by dividing the sub‒domain into several smoothing cells. Moreover, condensation of DOF can also be introduced into the local discrete equations to improve the computational efficiency. The global governing equations of present method are obtained on the basis of the scheme of FEM by assembling all local discrete equations of the sub‒domains. The mesh‒free properties of Galerkin method are retained in each sub‒domain. Several 2D elastic problems have been solved on the basis of this newly proposed method to validate its computational performance. These numerical examples proved that the newly proposed sub‒domain smoothed Galerkin method is a robust technique to solve solid mechanics problems based on its characteristics of high computational efficiency, good accuracy, and convergence.

When should private property rights give way to the public interest?

Since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 it has been recognised that corporations with substantial market power are subject to special responsibilities and restraints that corporations without market power are not. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 McHugh A-CJ, Gummow, Callinan and Heydon JJ in their joint reasons stated (at [76]), that s 46 of the Competition and Consumer Act 2010 (Cth) (CCA) can operate not only to prevent firms with substantial market power from doing prohibited things, but also compel them positively to do things they do not want to do. Their Honours also stated (at [126]) that the proposition that a private property owner who declines to permit competitors to use the property is immune from s 46 is “intrinsically unsound”. However, the circumstances in which a firm with substantial power must accommodate competitors, and private property rights give way to the public interest are uncertain. The purpose of this Note is to consider recent developments in two areas of the CCA where the law requires private property rights to give way to the public interest. The first part of the Note considers two recent cases which clarify the circumstances in which s 46 of the CCA can be used to compel a firm with substantial market power to accommodate a competitor and allow the competitor to make use of private property rights in the public interest. Secondly, on 12 February 2014 the Minister for Small Business, the Hon Bruce Billson,released the Productivity Commission’s Final Report, on the National Access Regime in Pt IIIA of the CCA (National Access Regime, Inquiry Report No 66, Canberra). Pt IIIA provides for the processes by which third parties may obtain access to infrastructure owned by others in the public interest. The Report recommends that Pt IIIA be retained but makes a number of suggestions for its reform, some of which will be briefly considered.

Stability of endoglucanases from mesophilic fungus and thermophilic bacterium in acidified polyols

Recent developments in chemical pretreatments of lignocellulosic biomass using polyols as co-solvents (e.g., glycerol and ethylene glycol) at temperatures less than 100 °C may allow the effective use of thermostable and non-thermostable cellulases in situ during the saccharification process. The potential of biomass saccharifying enzymes, endoglucanases (EG) from a thermophilic bacterium (Thermotoga maritima) and a mesophilic fungus (Trichoderma longibrachiatum), to retain their activity in aqueous buffer, acidified glycerol, and acidified ethylene glycol used as co-solvents at pretreatment temperatures at or below 100 °C were examined. The results show that despite its origin, T. longibrachiatum EG (Tl-EG) retained 75% of its activity after exposure to 100 °C for 5 min in aqueous buffer while T. maritima EG (Tm-EG) retained only 5% activity. However, at 90 °C both enzymes retained over 87% of their activity. In acidified (0.1% (w/w) H2SO4) glycerol, Tl-EG retained similar activity (80%) to that obtained in glycerol alone, while Tm-EG retained only 35%. With acidified ethylene glycol under these conditions, both Tl-EG and Tm-EG retained 36% of their activity. The results therefore show that Tl-EG is more stable in both acidified glycerol and ethylene glycol than Tm-EG. A preliminary kinetic study showed that pure glycerol improved the thermal stability of Tl-EG but destabilized Tm-EG, relative to the buffer solution. The half-lives of both Tl-EG and Tm-EG are 4.5 min in acidified glycerol, indicating that the effectiveness of these enzymes under typical pretreatment times of greater than 15 min will be considerably diminished. Attempts have been made to explain the differences in the results obtained between the two enzymes.

Learning and development opportunities as a tool for the retention of volunteers : a motivation perspective

The growing reliance on volunteers in Australia has heightened the need for non-profit organisations to retain these valuable resources. However, the current literature on volunteer retention is limited. One potential way volunteers can be retained is by providing learning and development opportunities (LDOs). This study investigates the relationship between volunteer perceptions of LDOs, their motivations for volunteering, and retention. Analyses revealed significant main effects for LDOs and volunteer motivations on retention and several interactive effects demonstrating that LDOs can have differential effects on retention depending on the reasons for volunteering.

MCF7/LCC2: A 4-hydroxytamoxifen resistant human breast cancer variant that retains sensitivity to the steroidal antiestrogen ICI 182,780

The development of resistance to the antiestrogen tamoxifen occurs in a high percentage of initially responsive patients. We have developed a new model in which to investigate acquired resistance to triphenylethylenes. A stepwise in vitro selection of the hormone-independent human breast cancer variant MCF-7/LCC1 against 4-hydroxytamoxifen produced a stable resistant population designated MCF7/LCC2. MCF7/LCC2 cells retain levels of estrogen receptor expression comparable to the parental MCF7/LCC1 and MCF-7 cells. Progesterone receptor expression remains estrogen inducible in MCF7/LCC2 cells, although to levels significantly lower than observed in MCF-7 and MCF7/LCC1 cells. MCF7/ LCC2 cells form tumors in ovariectomized nude mice without estrogen supplementation, and these tumors are tamoxifen resistant but can be tstrogen stimulated. Significantly, MCF7/LCC2 cells have retained sensitivity to the steroidal antiestrogen ICI 182,780. These data suggest that some breast cancer patients who acquire resistance to tamoxifen may not develop cross-resistance to treatment with steroidal antiestrogens.

The LCC15-MB human breast cancer cell line expresses osteopontin and exhibits an invasive and metastatic phenotype

We have characterized the LCC15-MB cell line which was recently derived from a breast carcinoma metastasis resected from the femur of a 29-year-old woman. LCC15-MB cells are vimentin (VIM) positive, exhibit a stellate morphology in routine cell culture, and form penetrating colonies when embedded in three-dimensional gels of Matrigel or fibrillar collagen. They show high levels of activity in the Boyden chamber chemomigration and chemoinvasion assays, and like other invasive human breast cancer (HBC) cell lines, LCC15-MB cells activate matrix-metalloproteinase-2 in response to treatment with concanavalin A. In addition, these cells are tumorigenic when implanted subcutaneously in nude mice and recolonize bone after arterial injection. Interestingly, both the primary lesion and the bone metastasis from which LCC15-MB were derived, as well as the resultant cell line, abundantly express the bone matrix protein osteopontin (OPN). OPN is also expressed by the highly metastatic MDA-MB-435 cells, but not other invasive or noninvasive HBC cell lines. Expression of OPN is retained in the subcutaneous xenograft and intraosseous metastases of LCC15-MB as detected by immunohistochemistry. Both VIM and OPN expression have been associated with breast cancer invasion and metastasis, and their expression by the LCC15-MB cell line is consistent with its derivation from a highly aggressive breast cancer. These cells provide a useful model for studying molecular mechanisms important for breast cancer metastasis to bone and, in particular, the implication(s) of OPN and VIM expression in this process.

Bone sialoprotein supports breast cancer cell adhesion proliferation and migration through differential usage of the αvβ3 and αvβ5 integrins

Bone sialoprotein (BSP), a secreted glycoprotein found in bone matrix, has been implicated in the formation of mammary microcalcifications and osteotropic metastasis of human breast cancer (HBC). BSP possesses an integrin-binding RGD (Arg-Gly-Asp) domain, which may promote interactions between HBC cells and bone extracellular matrix. Purified BSP, recombinant human BSP fragments and BSP-derived RGD peptides are shown to elicit migratory, adhesive, and proliferative responses in the MDA-MB-231 HBC cell line. Recombinant BSP fragment analysis localized a significant component of these activities to the RGD domain of the protein, and synthetic RGD peptides with BSP flanking sequences (BSPRGD) also conferred these responses. The fibronectin-derived RGD counterpart, GRGDSP (Gly-Arg-Gly-Asp-Ser-Pro), could not support these cellular responses, emphasizing specificity of the BSP configuration. Although most of the proliferative and adhesive responses could be attributed to RGD interactions, these interactions were only partly responsible for the migrational responses. Experiments with integrin-blocking antibodies demonstrated that BSP-RGD-induced migration utilizes the αvβ3 vitronectin receptor, whereas adhesion and proliferation responses were αvβ5-mediated. Using fluorescence activated cell sorting, we selected two separate subpopulations of MDA-MB-231 cells enriched for αvβ3 or αvβ5 respectively. Although some expression of the alternate αv integrin was still retained, the αvβ5-enriched MDA-MB-231 cells showed enhanced proliferative and adhesive responses, whereas the αvβ3-enriched subpopulation was suppressed for proliferation and adhesion, but showed enhanced migratory responses to BSP-RGD. In addition, similar analysis of two other HBC cell lines showed less marked, but similar RGD-dependent trends in adhesion and proliferation to the BSP fragments. Collectively, these data demonstrate BSP effects on proliferative, migratory, and adhesive functions in HBC cells and that the RGD-mediated component differentially employs αvβ3 and αvβ5 integrin receptors.

lacZ transduced human breast cancer xenografts as an in vivo model for the study of invasion and metastasis

A number of human cancer cell lines have been described as being invasive and metastatic in immune incompetent animals. However, it is difficult to assess metastatic spread of a subcutaneously injected or inoculated cell line, since an exact detection of all microfoci of human tumour cells in the animals by usual histological procedures would require extensive sectioning of the whole animal. To overcome this problem, we transduced human breast cancer cells with a replication-defective Moloney murine leukaemia retroviral vector (M-MuLV) containing both neo(R) (neomycin resistance) and lacZ genes. The resulting cell lines were selected for antibiotic (G418) resistance, and cell-sorted for lacZ expression. lacZ continued to be expressed in cultured cells for at least 20 passages without further G418 selection. The lacE gene codes for β-D-galactosidase, and cells expressing this gene stain blue with the chromogenic substrate X-gal. The lacZ-expressing cells retained the pre-transduction ability to traverse Matrigel in vitro, to form subcutaneous tumours in nude mice, and to grow invasively with the formation of metastases. X-gal staining showed high specificity, staining the tumour cells but not the surrounding mouse tissue on either whole tissue blocks or histological sections. The staining procedure was highly sensitive, allowing detection of microfoci of human cancer cells, and quantitative estimation of the metastatic capacity of the cells. These results indicate that lacZ transduction of human tumour cells is a powerful means of studying human cancer cell invasion and metastases in vivo.

Using social media to create a participatory library service : an Australian study

Public libraries are increasingly using social media in an attempt to meet users in their own spaces. Social media can be useful when used to create a participatory library service – to engage with users. However, there has been little empirical investigation into the success of social media use by public libraries. This article reports on the findings of a research project that explored the use of social media by Australian public libraries. Two organisations participated in case studies that involved interviews, document analysis, and social media observation. To contextualise the use of social media in the case study organisations, a sub study was undertaking involving observation of an additional 24 public libraries across Australia. This article focuses on the findings from the observation sub study. It presents and applies a methodology for classifying social media content to determine whether the sample libraries’ social media use is indicative of a participatory approach to service delivery. This article explores how a range of social media platforms are used by the sample libraries and considers what ‘best practice’ in participatory library service looks like. The two case study organisations’ use of social media is highlighted as exemplary practice.

Costs - solicitor's retainer on 'no win, no fee' basis - meaning of 'win' - solicitor not entitled to recover excess of costs over amount paid on settlement - no consideration for variation of oral retainer.

In Baker Johnson Lawyers v Jorgensen [2002] QDC 205 McGill DCJ considered the meaning of a 'no win, no fee' retainer and concluded that, in the absence of qualification by agreement, solicitors retained on that basis were not entitled to recover costs exceeding the amount of any judgment or settlement.

Impact of a change in tillage and crop residue management practice on soil chemical and microbiological properties in a cereal-producing red duplex soil in NSW, Australia

The effect of a change of tillage and crop residue management practice on the chemical and micro-biological properties of a cereal-producing red duplex soil was investigated by superimposing each of three management practices (CC: conventional cultivation, stubble burnt, crop conventionally sown; DD: direct-drilling, stubble retained, no cultivation, crop direct-drilled; SI: stubble incorporated with a single cultivation, crop conventionally sown), for a 3-year period on plots previously managed with each of the same three practices for 14 years. A change from DD to CC or SI practice resulted in a significant decline, in the top 0-5 cm of soil, in organic C, total N, electrical conductivity, NH4-N, NO3-N, soil moisture holding capacity, microbial biomass and CO2 respiration as well as a decline in the microbial quotient (the ratio of microbial biomass C to organic C; P <0.05). In contrast, a change from SI to DD or CC practice or a change from CC to DD or SI practice had only negligible impact on soil chemical properties (P >0.05). However, there was a significant increase in microbial biomass and the microbial quotient in the top 0-5 cm of soil following the change from CC to DD or SI practice and with the change from SI to DD practice (P <0.05). Analysis of ester-linked fatty acid methyl esters (EL-FAMEs) extracted from the 0- to 5-cm and 5- to 10-cm layers of the soils of the various treatments detected changes in the FAME profiles following a change in tillage practice. A change from DD practice to SI or CC practice was associated with a significant decline in the ratio of fungal to bacterial fatty acids in the 0- to 5-cm soil (P <0.05). The results show that a change in tillage practice, particularly the cultivation of a previously minimum-tilled (direct-drilled) soil, will result in significant changes in soil chemical and microbiological properties within a 3-year period. They also show that soil microbiological properties are sensitive indicators of a change in tillage practice.

Exploring the factor structure of a new self- and other-oriented alcohol expectancy scale relating to sexual coercion and vulnerability

Introduction and Aim: Sexual assaults commonly involve alcohol use by the perpetrator, victim, or both. Beliefs about alcohol’s effects may impact on people’s perceptions of and responses to men and women who have had such experiences while intoxicated from alcohol. This study aimed to develop an alcohol expectancy scale that captures young adults’ beliefs about alcohol’s role in sexual aggression and victimisation. Design and Methods: Based on pilot focus groups, an initial pool of 135 alcohol expectancy items was developed, checked for readability and face validity, and administered via a cross-sectional survey to 201 male and female university students (18-25 years). Items were specified in terms of three target drinkers: self, men, and women. In addition, a social desirability measure was included. Results: Principal Axis Factoring revealed a 4-factor solution for the targets men and women and a 5-factor solution for the target self with 72 items retained. Factors related to sexual coercion, sexual vulnerability, confidence, self-centredness, and negative cognitive and behavioural effects. Social desirability issues were evident for the target self, but not for the targets men and women. Discussion and Conclusions: Young adults link alcohol’s effects with sexual vulnerabilities via perceived risky cognitions and behaviours. Due to social desirability, these expectancies may be difficult to explicate for the self but may be accessible instead via other-oriented assessment. The Sexual Coercion and Vulnerability Alcohol Expectancy Scale has potential as a tool to elucidate the established tendency for observers to excuse intoxicated sexual perpetrators while blaming intoxicated victims.

Root caries patterns and risk factors of middle-aged and elderly people in China

The objectives of this study were to describe root caries patterns of Chinese adults and to analyze the effect of selected demographic and socioeconomic factors on these patterns. A total sample of 1080 residents aged 35-44-years-old and 1080 residents aged 65-74-years-old from three urban and three rural survey sites in Hubei Province participated in both an oral health interview and a clinical oral health examination. Root surface caries prevalence rates were 13.1% in the middle-aged group and 43.9% in the elderly group. The mean number of teeth affected by caries in the middle-aged group was reported at 0.21 and 1.0 in the elderly group. Mean Root Caries Index (RCI) scores of the middle-aged were reported at 6.29 and elderly subjects were reported at 11.95. Elderly people living in rural areas reported a higher RCI score (13.24) than those living in urban areas (10.70). A significantly higher frequency of root surface caries was observed in elderly participants (P < 0.001, OR = 3.80) and ethnic minorities (P < 0.001, OR = 1.93). In addition, smokers, nontea drinkers, and those with an annual household income of 10,000 yuan or less tended to have higher caries prevalence. RCI figures for the different tooth types ranged from 1% to 16%, indicating a wide variation in attack rates. In conclusion, our study suggests that root surface caries occurrence is high among the Chinese adult population, especially older adults. With an increasing number of retained teeth in both middle-aged and elderly people, root caries is a growing disease in the People's Republic of China which deserves more attention in future research.

Effect of hydrophilicity of carbon nanotube arrays on the release rate and activity of recombinant human bone morphogenetic protein-2

Novel nanostructures such as vertically aligned carbon nanotube (CNT) arrays have received increasing interest as drug delivery carriers. In the present study, two CNT arrays with extreme surface wettabilities are fabricated and their effects on the release of recombinant human bone morphogenetic protein-2 (rhBMP-2) are investigated. It is found that the superhydrophilic arrays retained a larger amount of rhBMP-2 than the superhydrophobic ones. Further use of a poloxamer diffusion layer delayed the initial burst and resulted in a greater total amount of rhBMP-2 released from both surfaces. In addition, rhBMP-2 bound to the superhydrophilic CNT arrays remained bioactive while they denatured on the superhydrophobic surfaces. These results are related to the combined effects of rhBMP-2 molecules interacting with poloxamer and the surface, which could be essential in the development of advanced carriers with tailored surface functionalities.