How should Australia regulate voluntary euthanasia and assisted suicide?

The purpose of this paper is to provide a basis from which to start an informed and rational dialogue in Australia about voluntary euthanasia (VE) and assisted suicide (AS). It does this by seeking to chart the broad landscape of issues that can be raised as relevant to how this conduct should be regulated by the law. It is not our purpose to persuade. Rather, we have attempted to address the issues as neutrally as possible and to canvass both sides of the argument in an even-handed manner. We hope that this exercise places the reader in a position to consider the question posed by this paper: How should Australia regulate voluntary euthanasia and assisted suicide? In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation. We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful. There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered. The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus. We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues. If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice. We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?

Regulation of land access for resource development: A coal seam gas case study from Queensland

A number of regulatory statutes provide for agreements with landowners which are given extended effect, that is, are binding upon the landowner’s successors (‘statutory agreements’). Several Queensland statutes require a project proponent to enter into a statutory agreement with a landowner before a resource development activity can be carried out on private land or by accessing private land. Provisions of Queensland’s Petroleum and Gas (Production and Safety) Act 2004 make certain types of statutory agreements binding upon successors and assigns of the landowner, but do not clearly prescribe the nature and contents of an agreement, nor require that the agreement be recorded on the land title or petroleum register. If statutory agreements are to be used for such purposes, their purpose and content should be more clearly defined by statute and they should be recorded on a searchable register.

The Growing Pains of Data Breach Notification Law

Mandatory data breach notification laws are a novel statutory solution in relation to organizational protections of personal information. They require organizations which have suffered a breach of security involving personal information to notif'y those persons whose information may have been affected. These laws originated in the state based legislatures of the United States during the last decade and have subsequently garnered worldwide legislative interest. Despite their perceived utility, mandatory data breach notification laws have several conceptual and practical concems that limit the scope of their applicability, particularly in relation to existing information privacy law regimes. We outline these concerns, and in doing so, we contend that while mandatory data breach notification laws have many useful facets, their utility as an 'add-on' to enhance the failings of current information privacy law frameworks should not necessarily be taken for granted.

Revisiting the debate about public service media exceptionalism

The development of public service broadcasters (PSBs) in the 20th century was framed around debates about its difference compared to commercial broadcasting. These debates navigated between two poles. One concerned the relationship between non‐commercial sources of funding and the role played by statutory Charters as guarantors of the independence of PSBs. The other concerned the relationship between PSBs being both a complementary and a comprehensive service, although there are tensions inherent in this duality. In the 21st century, as reconfigured public service media organisations (PSMs) operate across multiple platforms in a convergent media environment, how are these debates changing, if at all? Is the case for PSM “exceptionalism” changed with Web‐based services, catch‐up TV, podcasting, ancillary product sales, and commissioning of programs from external sources in order to operate in highly diversified cross‐media environments? Do the traditional assumptions about non‐commercialism still hold as the basis for different forms of PSM governance and accountability? This paper will consider the question of PSM exceptionalism in the context of three reviews into Australian media that took place over 2011‐2012: the Convergence Review undertaken through the Department of Broadband, Communications and the Digital Economy; the National Classification Scheme Review undertaken by the Australian Law Reform Commission; and the Independent Media Inquiry that considered the future of news and journalism.

"Fair" government contracts for community service provision : time to curb unfettered executive freedom?

All Australian governments are significantly increasing the use of contracted community service provision through not for profit (NFP) organisations. These transactions occur through grant arrangements which take the form of standard contracts or deeds rather than drawing on statutory authority. Government inquiries bodies have consistently reported and raised concerns about the fairness of such standard grant contract terms, but failed to provide any mechanism whereby fairness can be assured. The Productivity Commission has suggested that the resulting poor relationship results in inappropriate risk transfer, micro-management, disincentives to innovate and poor service provision. This paper develops and tests a fairness measure based on the principles of the Australian Consumer Law which legislates fairness protections for standard consumer contracts.  

Suspected child abuse and neglect reporting behaviour

Executuve Summary Background and Aims Child abuse and neglect is a tragedy within our community, with over 10,000 substantiated reports of abuse and neglect in Queensland in the past year. The considerable consequences of child abuse and neglect are far-reaching, substantial and can be fatal. The reporting of suspicions of child abuse or neglect is often the first step in preventing further abuse or neglect. In the State of Queensland, medical practitioners are mandated by law to report their suspicions of child abuse and neglect. However, despite this mandate many still do not report their suspicions. A 1998 study indicated that 43% of medical practitioners had, at some time, made a conscious decision to not report suspected abuse or neglect (Van Haeringen, Dadds & Armstrong, 1998). The aim of this study was to gain a better understanding of beliefs about reporting suspected child abuse and neglect and the barriers to reporting suspected abuse and neglect by medical practitioners and parents and students. The findings have the potential to inform the training and education of members of the community who have a shared responsibility to protect the wellbeing of its most vulnerable members. Method In one of the largest studies of reporting behaviour in relation to suspected child abuse and neglect in Australia, we examined and compared medical practitioners’ responses with members of the community, namely parents and students. We surveyed 91 medical practitioners and 214 members of the community (102 parents and 112 students) regarding their beliefs and reporting behaviour related to suspected child abuse and neglect. We also examined reasons for not reporting suspected abuse or neglect, as well as awareness of responsibilities and the appropriate reporting procedures. To obtain such information, participants anonymously completed a comprehensive questionnaire using items from previous studies of reporting attitudes and behaviour. Executive Summary Abused Child Trust Report August 2003 5 Findings Key findings include: • The majority of medical practitioners (97%) were aware of their duty to report suspected abuse and neglect and believed they had a professional and ethical duty to do so. • A majority of parents (82%) and students (68%) also believed that they had a professional and ethical duty to report suspected abuse and neglect. • In accord with their statutory duty to report suspected abuse and neglect, 69% of medical practitioners had made a report at some point. • Sixteen percent of parents and 9% of students surveyed indicated that they had reported their suspicions of neglect and abuse. • The most endorsed belief associated with not reporting suspected child abuse and neglect was that, ‘unpleasant events would follow reporting’. • Over a quarter of medical practitioners (26%) admitted to making a decision not to report their suspicions of child abuse or neglect on at least one occasion. • Compared with previous research, there has been a decline in the number of medical practitioners who decided not to report suspected abuse or neglect from 43% (Van Haeringen et al., 1998) to 26% in the current study. • Fourteen percent of parents and 15% of students surveyed had also chosen not to report a case of suspected abuse or neglect. • Attitudes that most strongly influenced the decision to report or not report suspected abuse or neglect differed between groups (medical practitioners, parents, or students). A belief that, ‘the abuse was a single incident’ was the best predictor of non-reporting by medical practitioners, while having ‘no time to follow-up the report’ or failing to be ‘convinced of evidence of abuse’ best predicted failure to report abuse by students. A range of beliefs predicted non-reporting by parents, including the beliefs that reporting suspected abuse was ‘not their responsibility’ and ‘knowing the child had retracted their statement’. Conclusions Of major concern is that approximately 25% of medical practitioners with a mandated responsibility to report, as well as some members of the general public, revealed that they have suspected child neglect or abuse but have made the decision not to report their suspicions. Parents and students perceived the general community as having responsibility for reporting suspicions of abuse or neglect. Despite this perception, they felt that lodging a report may be overly demanding in terms of time and they had the confidence in their ability to identify child abuse and neglect. An explanation for medical practitioners deciding not to report may be based upon their optimistic belief that suspected abuse or neglect was a single incident. Our findings may best be understood from the ‘inflation of optimism’ hypothesis put forward by the Nobel Laureate, Daniel Kahneman. He suggests that in spite of rational evidence, human beings tend to make judgements based on an optimistic view rather than engaging in a rational decision-making process. In this case, despite past behaviour of abuse or neglect being the best predictor of future behaviour, medical practitioners have taken an optimistic view, choosing to believe that their suspicion of child abuse or neglect represents a single incident. The clear implication of findings in the current research is the need for the members of the general community and medical practitioners to be better appraised of the consequences of their decision-making in relation to suspicionsof child abuse and neglect. Finally findings from parents and students relating to their reporting behaviour suggest that members of the larger community represent an untapped resourcewho might, with appropriate awareness, play a more significant role in theidentification and reporting of suspected child abuse and neglect.

Wrong way go back! Rediscovering the path for charity law reform

Problems with charity law jurisprudence persist. The difficulties arose in the 20th century and are fundamental to the way the doctrine is presently theorised. They grew out of the approach taken in Pemsel’s Case to the categorisation of the ‘spirit and intendment’ of the Preamble to the Statute of Charitable Uses. Recent statutory reforms, such as the Charities Act 2006 (Eng&W), have compounded the underlying problems rather than resolving them. This paper aims to stimulate thinking about a new foundation for charity jurisprudence – while the approach may seem radical, the paper argues that these new foundations can be discerned underlying the current jurisprudence. The difficulties can be overcome by rediscovering the underlying jurisprudence which is disregarded in the current approach to categorisation. Giving voice, in contemporary language, to that foundational jurisprudence, this paper provides a way out of the current problems. It also provides an alternative way of conceptualising the doctrine of charitable purpose to guide reform.

Sale of Businesses in Australia (2nd ed.)

The greater volume of businesses sold in Australia each year are small to medium enterprises. The administration of business contracts presents far different challenges than, for example, contracts for the sale of goods alone or contracts for the sale of land. The subject matter comprises both real and personal, and tangible and intangible property. Other considerations that do not affect those other commonplace contracts include dealing with employees who are both remaining and departing, taking account of restraints of trade, and the phenomena of the passing of property being different in respect of different forms of property being transferred in the same contract. In keeping with the format of the previous edition, the book is written with the busy practitioner in mind. It deals with the formation of business contracts, all aspects of disclosure both contractual and statutory, the role of agents, and detailed consideration of the different types of subject matter of small business contracts including, the lease of the premises, intellectual property, goodwill, licences, book debts and plant and equipment. It has up to date treatment of income tax implications of the sale and the impact of the latest Commonwealth legislation on dealing with employees of a business on sale. Consistent with the last edition, the book has chapters on time of the essence and completion, personal securities, restraint of trade clauses, special conditions and remedies for breach by both parties and misleading or deceptive conduct by the seller. In relation to personal securities, whilst the current State and Territory based law on Bills of Sale and other Chattel Securities has been the subject of commentary, the proposed national reform agenda has also been commented upon although that legislation is not due until May 2010 at the earliest

What makes an LMS effective : a synthesis of current literature

There is a growing number of organizations and universities now utilising e-learning practices in their teaching and learning programs. These systems have allowed for knowledge sharing and provide opportunities for users to have access to learning materials regardless of time and place. However, while the uptake of these systems is quite high, there is little research into the effectiveness of such systems, particularly in higher education. This paper investigates the methods that are used to study the effectiveness of e-learning systems and the factors that are critical for the success of a learning management system (LMS). Five major success categories are identified in this study and explained in depth. These are the teacher, student, LMS design, learning materials and external support.

Life writing

Two hundred years ago life writing was already highly popular in the form of autobiography, memoir, biography, journals, essays and diaries. It now commands a huge share of the publishing market, as there is an enormous demand from readers for narratives based directly on 'real lives'. There is a lot of common ground between the two main forms - autobiography/memoir and biography: both require skilled storytelling [rather than listing facts and events], research and imagination. The quality of the writing itself is crucial to the impact on the reader. A person can have an existing, worthy life but unfortunately write about it (or be written about) in a dull way. And how a person is remembered and valued can be a factor of life writing about or by them. This chapter will define and contextualise life writing, look at specific detailed examples, and offer guidance on how to write effectively.

Court overrides costs assessment limits

This article considers the implications for Queensland practitioners of the decision of the New South Wales Court of Appeal in Branson v Tucker [2012] NSWCA 310. That decision involved the question whether the court retained a jurisdiction to examine the reasonableness of costs charged by a barrister, who had entered a costs agreement with solicitors, in circumstances where where had been no application under the Legal Profession Act 2004 (NSW) for an assessment of the costs the subject of the bill and it was no longer possible for such an application to be made.

Practice and Procedure : Workers Compensation and Rehabilitation Act 2003 (Qld) ss 131 and 237(1)

In Jacobs v Woolworths Limited [2010] QSC 24 Jones J was required to determine whether a worker who had lodged an application for compensation for an injury outside the time prescribed under the Workers Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) was precluded from seeking common law damages for that injury. This determination depended upon the proper construction of s 131 of the Act, and what was to be understood by the words “worker who has not lodged an application for compensation for the injury” for the purpose of s 237(1)(d).

Juveniles in detention in Australia, 1981-2008

The Australian Institute of Criminology’s (AIC’s) national Juveniles in Detention Monitoring Program was established to contribute to the evidence base on juvenile detention in Australia, with a particular focus on Indigenous juveniles. Findings date back to 1981 and have been reported annually. This report provides an overview of the numbers and rates of juveniles in detention in Australia since 1981 and juveniles in detention for the financial year 2007–08. As with the AIC’s previous report on juveniles in detention (Taylor 2009), it also provides contextual information on young people sentenced in the children’s courts. The collation of data for these reports is supported by statutory juvenile justice agencies in each of Australia’s jurisdictions, as well as the NSW Department of Corrective Services. As described in more detail in this report, the Australian Institute of Health and Welfare (AIHW) administers the Juvenile Justice National Minimum Data Set and also reports annually on juveniles in detention. Given this development, the AIC is conducting a review of the Juveniles in Detention Monitoring Report in 2010–11, to ensure that AIC’s research and monitoring does not duplicate the AIHW’s work and that it makes a useful contribution to the field and enables more in-depth analysis of key issues.

Normative requirements for business process compliance

Norms regulate the behaviour of their subjects and define what is legal and what is illegal. Norms typically describe the conditions under which they are applicable and the normative effects as a results of their applications. On the other hand, process models specify how a business operation or service is to be carried out to achieve a desired outcome. Norms can have significant impact on how business operations are conducted and they can apply to the whole or part of a business process. For example, they may impose conditions on the different aspects of a process (e.g., perform tasks in a specific sequence (control-flow), at a specific time or within a certain time frame (temporal aspect), by specific people (resources)). We propose a framework that provides the formal semantics of the normative requirements for determining whether a business process complies with a normative document (where a normative document can be understood in a very broad sense, ranging from internal policies to best practice policies, to statutory acts). We also present a classification of normal requirements based on the notion of different types of obligations and the effects of violating these obligations.

Volunteers 'piggy-backing' on their private insurance : an uncertain protection against liability

Volunteering is a very important part of life in Australia with an estimated 36% of the adult population volunteering in 2010. Voluntary work generates economic benefits, addresses community needs and develops the social networks that form the backbone of civil society. Without volunteers, many essential services would either cease to exist or become too expensive for many people to afford. These volunteers, who by definition are not in receipt of any remuneration for their work and services, are exposed to personal injury and to legal liability in the discharge of their functions. It is therefore appropriate that statutory protection is extended to volunteers and that volunteer organisations procure public liability and personal accident cover where possible. However, given the patchwork quilt of circumstances where statutory or institutional cover is available to volunteers and the existence of many and diverse exclusions, it is important to have regard also to what scope a volunteer may have to avail themselves of protection against liability for volunteering activity by relying upon their own personal insurance cover. This article considers the extent of private insurance cover and its availability to volunteers under home and contents insurance and under comprehensive motor vehicle insurance. The most common policies in the Australian market are examined and the uncertain nature of protection against liability afforded by these policies is discussed. This uncertainty could be reduced should the Federal Government through amendments to the Insurance Contracts Regulations standardise the circumstances and extent to which liability protection was afforded to an insured holding home and contents insurance and comprehensive motor vehicle insurance cover.