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.

Revisiting the Australian code of banking practice: Is self-regulation still relevant for improving consumer protection standards?

The Code of Banking Practice is one of the oldest examples of consumer protection provided through self-regulation in the Australian financial services sector. However, since the Banking Code was first released in 1993, the volume of consumer protection legislation applying to banks has increased exponentially and parts of the Banking Code that once provided new consumer rights have now been largely superseded by legislation. In light of the increasingly complex set of laws and regulations that govern the relationship between banks and their consumer and small business customers it could be argued that the Banking Code has a limited future role. However, an analysis of the Banking Code shows that it adds to the consumer protection standards provided by legislation and can continue to facilitate improvements in the standards of subscribing banks and of other institutions in the financial services sector. Self-regulation and industry codes should continue to be part of the regulatory mix. Any regulatory changes that flow from the recent Financial System Inquiry should also facilitate and support the self-regulation role, but the government should also consider further changes to encourage improvements in industry codes and ensure that the implicit regulatory benefits that are provided, in part, because of the existence of industry codes, are made explicit and made available only to code subscribers.

International regulatory framework for food production and diversity

Stakeholders commonly agree that food systems need to be urgently reformed. Yet, how food systems should be reformed is extremely contested. Public international law and regulations are uniquely placed to influence and guide law, policy, programmes and action at regional, national and local levels. Although plenty of international legal instruments intersect with food-related issues, the international regulation of food systems is fragmented, understudied and contested. In order to address these issues, this paper maps and analyses the public international regulatory aspects of food production with a view to providing recommendations for reform. Accordingly, this paper brings together a variety of binding and non-binding international regulatory instruments that to varying degrees and from a range of angles deals with the first activity in the food system: food production. The following paper traces the regulatory tools from natural resources, to the farmers and farm workers that apply skill and experience, and finally to the different dimension of world trade in food. The various regulatory instruments identified, and their collective whole, will be analysed against a rights-based approach to food security.

Lock the gate: Fracking, investor-state dispute settlement, and the Trans-Pacific Partnership

There has been much debate about the relationship between international trade, the environment, biodiversity protection, and climate change.The Obama Administration has pushed such issues into sharp relief, with its advocacy for sweeping international trade agreements, such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership. There has been much public concern about the impact of the mega-trade deals upon the protection of the environment. In particular, there has been a debate about whether the Trans-Pacific Partnership will promote dirty fracking. Will the Trans-Pacific Partnership transform the Pacific Rim into a Gasland?There has been a particular focus upon investor-state dispute settlement being used by unconventional mining companies. Investor-state dispute settlement is a mechanism which enables foreign investors to seek compensation from national governments at international arbitration tribunals. In her prescient 2009 book, The Expropriation of Environmental Governance, Kyla Tienhaara foresaw the rise of investor-state dispute resolution of environmental matters. She observed:'Over the last decade there has been an explosive increase of cases investment arbitration. This is significant in terms of not only the number of disputes that have arisen and the number of states that have been involved, but also the novel types of dispute that have emerged. Rather than solely involving straightforward incidences of nationalization or breach of contract, modern disputes often revolve around public policy measures and implicate sensitive issues such as access to drinking water, development on sacred indigenous sites and the protection of biodiversity.'In her study, Kyla Tienhaara observed that investment agreements, foreign investment contracts and investment arbitration had significant implications for the protection for the protection of the environment. She concluded that arbitrators have made it clear that they can, and will, award compensation to investors that claim to have been harmed by environmental regulation. She also found that some of the cases suggest that the mere threat of arbitration is sufficient to chill environmental policy development. Tienhaara was equally concerned by the possibility that a government may use the threat of arbitration as an excuse or cover for its failure to improve environmental regulation. In her view, it is evident that arbitrators have expropriated certain fundamental aspects of environmental governance from states. Tienhaara held: As a result, environmental regulation has become riskier, more expensive, and less democratic, especially in developing countries. This article provides a comparative analysis of the battles over fracking, investment, trade, and the environment in a number of key jurisdictions including the United States, Canada, Australia, and New Zealand. Part 1 focuses upon the United States. Part 2 examines the dispute between the Lone Pine Resources Inc. and the Government of Canada over a fracking moratorium in Quebec. Part 3 charts the rise of the Lock the Gate Alliance in Australia, and its demands for a moratorium in respect of coal seam gas and unconventional mining. Part 4 focuses upon parallel developments in New Zealand. This article concludes that Pacific Rim countries should withdraw from investor-state dispute settlement procedures, because of the threat posed to environmental regulation in respect of air, land, and water.

Submission to the Productivity Commission draft report business set-up, transfer and closure

The Commission has released a Draft Report on Business Set-Up, Transfer and Closure for public consultation and input. It is pleasing to note that three chapters of the Draft Report address aspects of personal and corporate insolvency. Nevertheless, we continue to make the submission to national policy inquiries and discussions that a comprehensive review should be undertaken of the regulation of insolvency and restructuring in Australia. The last comprehensive review of the insolvency system was by the Australian Law Reform Commission (the Harmer Report) and was handed down in 1988. Whilst there have been aspects of our insolvency laws that have been reviewed since that time, none has been able to provide the clear and comprehensive analysis that is able to come from a more considered review. Such a review ought to be conducted by the Australian Law Reform Commission or similar independent panel set up for the task. We also suggest that there is a lack of data available to assist with addressing questions raised by the Draft Report. There is a need to invest in finding out, in a rigorous and informed way, how the current law operates. Until there is a willingness to make a public investment in such research with less reliance upon the anecdotal (often from well-meaning but ultimately inadequately informed participants and others) the government cannot be sure that the insolvency regime we have provides the most effective regime to underpin Australia’s commercial and financial dealings, nor that any change is justified. We also make the submission that there are benefits in a serious investigation into a merged regulatory architecture of personal and corporate insolvency and a combined personal and corporate insolvency regulator.

Transdisciplinary synthesis for ecosystem science, policy and management: The Australian experience

Mitigating the environmental effects of global population growth, climatic change and increasing socio-ecological complexity is a daunting challenge. To tackle this requires synthesis: the integration of disparate information to generate novel insights from heterogeneous, complex situations where there are diverse perspectives. Since 1995, a structured approach to inter-, multi- and trans-disciplinary1 collaboration around big science questions has been supported through synthesis centres around the world. These centres are finding an expanding role due to ever-accumulating data and the need for more and better opportunities to develop transdisciplinary and holistic approaches to solve real-world problems. The Australian Centre for Ecological Analysis and Synthesis (ACEAS ) has been the pioneering ecosystem science synthesis centre in the Southern Hemisphere. Such centres provide analysis and synthesis opportunities for time-pressed scientists, policy-makers and managers. They provide the scientific and organisational environs for virtual and face-to-face engagement, impetus for integration, data and methodological support, and innovative ways to deliver synthesis products. We detail the contribution, role and value of synthesis using ACEAS to exemplify the capacity for synthesis centres to facilitate trans-organisational, transdisciplinary synthesis. We compare ACEAS to other international synthesis centres, and describe how it facilitated project teams and its objective of linking natural resource science to policy to management. Scientists and managers were brought together to actively collaborate in multi-institutional, cross-sectoral and transdisciplinary research on contemporary ecological problems. The teams analysed, integrated and synthesised existing data to co-develop solution-oriented publications and management recommendations that might otherwise not have been produced. We identify key outcomes of some ACEAS working groups which used synthesis to tackle important ecosystem challenges. We also examine the barriers and enablers to synthesis, so that risks can be minimised and successful outcomes maximised. We argue that synthesis centres have a crucial role in developing, communicating and using synthetic transdisciplinary research.

Reinforcing stigma or delivering a fresh start: Bankruptcy and future engagement in the workforce

In Australia, bankruptcy retains a social stigma, as is often seen as a personal failing, and an indication that the individual cannot be trusted to meet their obligations. Official labelling and informal labelling reinforce this stigmatisation of bankruptcy in employment and business contexts. This occurs through legislation and policy that imposes restrictions on participation in some occupations on the grounds of bankruptcy, and imposes obligations on persons to disclose their bankruptcy to their employer. These restrictions and obligations that are varying in length and extent, both within industries and professions and across industries and professions, and appear to lack a coherent policy justification. Further, informal labelling is facilitated by the law providing for a permanent, publicly accessible record of bankruptcy, and failing to restrict the use of bankruptcy information in employment and business decision-making. This stigmatisation of bankruptcy inhibits the fresh start objective of bankruptcy, and is not supported by a strong correlation between bankruptcy and negative personal or other attributes. This article therefore argues that a review is needed to determine the circumstances in which there is a genuine policy justification for employment restrictions, and the appropriate length and scope of such restrictions. Reform of the Bankruptcy Act should also be considered. Possible areas for law reform including reducing the minimum period of bankruptcy; removing the permanency and/or public accessibility of the bankruptcy record; revising the language used in the Bankruptcy Act; and introducing a prohibition or restriction on the ability of employers to use bankruptcy status in employment decision making. Such changes would promote the fresh start objective of Australia’s bankruptcy system, and increase the likelihood that bankruptcy does not unfairly inhibit an individual’s ability to engage as an economic actor in Australian society and thereby improve their financial well-being.

Nutrition in remote Aboriginal communities: Lessons from Mai Wiru and the Anangu Pitjantjatjara Yankunytjatjara Lands

Objective To examine the impact of efforts to improve nutrition on the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands from 1986, especially in Mai Wiru stores. Methods Literature was searched in a systematic manner. In 2012, the store-turnover method was used to quantify dietary intake of the five APY communities that have a Mai Wiru (good food) store. Results were compared with those available from 1986. Prices of a standard market basket of basic foods, implementation of nutrition policy requirements and healthy food checklists were also assessed in all seven APY community stores from 2008 and compared with available data from 1986. Results Despite concerted efforts and achievements decreasing intake of sugar and increasing the availability and affordability of healthy foods, particularly fruit and vegetables, and consequent improvements in some nutrient indicators, the overall effect has been a decrease in diet quality as indicated primarily by the increased supply and proportion of energy intake from discretionary foods, particularly sugar-sweetened beverages, convenience meals and take-away foods. Conclusions The study findings reinforce the notion that, in the absence of supportive regulation and market intervention, adequate and sustained resources are required to improve nutrition and prevent diet-related chronic disease on the APY Lands. Implications This study also provides insights into food supply/security issues affecting other remote Aboriginal communities and wider Australia.

To ask or not to ask? Investigating workers' flexibility requests and the phenomenon of discontented non-requesters

Flexible working arrangements have attracted growing attention in workplaces across Australia and in many other countries in recent years. This contribution utilises the results of two large Australian employee surveys to analyse who asks for flexibility, why, and with what effects on work-life interference. This analysis is set in the context of Australia’s ‘Right to Request’ (RTR) provisions which, at the time of the study, gave parents of preschool children and those with a disabled child aged up to 18 the RTR flexibility. The analysis also draws on a set of qualitative interviews of those we term ‘discontented non-requesters’ (that is, those who are not content with current arrangements but who do not ask for flexibility) to probe beneath the survey results to consider explanations about why some people do not ask for flexibility despite desiring different working arrangements. We conclude with the implications for policy and regulation.

Osteoporosis medication dispensing for older Australian women from 2002 to 2010: Influences of publications, guidelines, marketing activities and policy

Purpose Developments in anti-osteoporosis medications (AOMs) have led to changes in guidelines and policy, which, along with media and marketing strategies, have had an impact upon the prescribing of AOM. The aim was to examine patterns of AOM dispensing in older women (aged 76–81 years at baseline) from 2002 to 2010. Methods Administrative claims data were used to describe AOM dispensing in 4649 participants (born in 1921–1926 and still alive in 2011) in the Australian Longitudinal Study on Women's Health. The patterns were interpreted in the context of changes in guidelines, indications for subsidy, publications (scholarly and general media), and marketing activities. Results Total use of AOM increased from 134 DDD/1000/day in 2002 to 216 DDD/1000/day in 2007 but then decreased to 184 DDD/1000/day in 2010. Alendronate was the most commonly dispensed AOM but decreased from 2007, while use of risedronate (2002 onward), strontium ranelate (2007 onward) and zoledronic acid (2008 onward) increased. Etidronate and hormone replacement therapy (HRT) prescriptions gradually decreased over time. The decline in alendronate dispensing coincided with increases of other bisphosphonates and publicity about potential adverse effects of bisphosphonates, despite relaxing indications for bone density testing and subsidy for AOM. Conclusions Overall dispense of AOM from 2002 reached a peak in 2007 and thereafter declined despite increases in therapeutic options and improved subsidised access. The recent decline in overall AOM dispensing seems to be explained largely by negative publicity rather than specific changes in guidelines and policy.

Playing the policy game: A review of the barriers and enablers of nutrition policy change

- Objective To progress nutrition policy change and develop more effective advocates, it is useful to consider real-world factors and practical experiences of past advocacy efforts to determine the key barriers and enablers to nutrition policy change. This review aimed to identify and synthesize the enablers and barriers to public policy change within the field of nutrition. - Design Electronic databases were searched systematically for studies examining policymaking in public health nutrition. An interpretive synthesis was undertaken. Setting: International, national, state and local government jurisdictions within high-income, democratic countries. - Results Sixty-three studies were selected for inclusion. Numerous themes were identified explaining the barriers and enablers to policy change, all of which fell under the overarching category, ‘political will’, underpinned by a second major category, ‘public will’. Sub-themes, including pressure from industry; neoliberal ideology; use of emotions and values, and being visible were prevalent in describing links between public will, political will and policy change. - Conclusions The frustration around lack of public policy change in nutrition frequently stems from a belief that policymaking is a rational process in which evidence is used to assess the relative costs and benefits of options. The findings from this review confirm that evidence is only one component of influencing policy change. For policy change to occur there needs to be the political will, and often the public will, for the proposed policy problem and solution. This review presents a suite of enablers which can assist health professionals to influence political and public will in future advocacy efforts.

Understanding who cares: Creating the evidence to address the long-standing policy problem of staff shortages in early childhood education and care

Evidence-based policy is a means of ensuring that policy is informed by more than ideology or expedience. However, what constitutes robust evidence is highly contested. In this paper, we argue policy must draw on quantitative and qualitative data. We do this in relation to a long entrenched problem in Australian early childhood education and care (ECEC) workforce policy. A critical shortage of qualified staff threatens the attainment of broader child and family policy objectives linked to the provision of ECEC and has not been successfully addressed by initiatives to date. We establish some of the limitations of existing quantitative data sets and consider the potential of qualitative studies to inform ECEC workforce policy. The adoption of both quantitative and qualitative methods is needed to illuminate the complex nature of the work undertaken by early childhood educators, as well as the environmental factors that sustain job satisfaction in a demanding and poorly understood working environment.

The channels of monetary policy triggered by central bank actions and statements in the Australian equity market

Owing to the discrete disclosure practices of the Reserve Bank of Australia, this paper provides new evidence on the channels of monetary policy triggered by central bank actions (monetary policy announcements) and statements (explanatory minutes releases), in the Australian equity market. Both monetary policy announcements and explanatory minutes releases are shown to have a significant and comparable impact on the returns and volatility of the Australian equity market. Further, distinct from US and European studies that find strong evidence of the interest rate, bank loan and balance sheet channels and no evidence of the exchange rate channel following central bank actions, this paper finds that monetary policy impacts the Australian equity market via the exchange rate, interest rate and bank loan channels of monetary policy, with only weak evidence of the balance sheet channel of monetary policy. These channels are found to be operating irrespective of the trigger (monetary policy announcements or explanatory minutes releases), though results are somewhat weaker when examining the explanatory minutes releases. These results have important implications for central bank officials and financial market participants alike: by confirming a comparable avenue to affect monetary policy; and providing an explication of its impact on the Australian equity market.

Ageing and learning in Australia: Arguing an evidence base for informed and equitable policy

Given Australia’s population ageing and predicted impacts related to health, productivity, equity and enhancing quality of life outcomes for senior Australians, lifelong learning has been identified as a pathway for addressing the risks associated with an ageing population. To date Australian governments have paid little attention to addressing these needs and thus, there is an urgent need for policy development for lifelong learning as a national priority. The purpose of this article is to explore the current lifelong learning context in Australia and to propose a set of factors that are most likely to impact learning in later years.