Regulation: Enforcement and Compliance

The papers in this collection have been selected by peer review from the presentations made at a conference in September 2002 entitled Current issues in regulation: enforcement and compliance, convened by the Australian Institute of Criminology in conjunction with the Regulatory Institutions Network (RegNet) at the Australian National University, and the Division of Business and Enterprise at the University of South Australia.

Rethinking OHS Enforcement

The authors confront the challenges facing OHS regulators and stakeholders in a new and different world dominated by service industries and globalisation rather than manufacturing industries and protection. They explore new models of OHS regulation that take account of gaps and deficiencies in the current arrangements.

Questions and Answers : Contract Law [5th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

An agreement to negotiate a contract in good faith: No legal content and too uncertain for enforcement

The decision of Baldwin v Icon Energy Ltd [2015] QSC 12 is generally instructive upon the issue of the minimum required to enforce an agreement to negotiate .The language of these agreements is always couched in terms which include the expressions “good faith” and “reasonable endeavours” as descriptive of the yardstick of behaviour of each party in the intended negotiation to follow such an agreement. However, the mere statement of these intended characteristics of negotiation may not be sufficient to ensure that the agreement to negotiate is enforceable.

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

Traffic behaviour and compliance with the law in low and middle income countries: are we observing "pragmatic driving"?

A common theme in many accounts of road safety and road use in low and middle income countries is a widespread lack of compliance with traffic laws and related legislation. A key element of the success of road crash prevention strategies in high income countries has been the achievement of safer road user behaviour through compliance with traffic laws. Deterrence-based approaches such as speed cameras and random breath testing, which rely on drivers making an assessment that they are likely to be caught if they offend, have been very effective in this regard. However, the long term success of (for example) drink driving legislation has been supported by drivers adopting a moral approach to compliance rather than relying solely on the intensity of police operations. For low and middle income countries such morally based compliance is important, since levels of police resourcing are typically much lower than in Western countries. In the absence of morally based compliance, it is arguable that the patterns of behaviours observed in low and middle income countries can be described as "pragmatic driving": compliance only when there is a high chance of being detected and fined, or where a crash might occur. The potential characteristics of pragmatic driving in the macro-, meso- and micro-context of driving and the enforcement approach that could address it are outlined, with reference to the limited existing information available.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.

Engaging Students in the Implementation of Criterion Referenced Assessment in First Year Law

The Queensland University of Technology (QUT) University Academic Board approved a new QUT Assessment Policy in September 2003, which requires a criterion-referenced approach as opposed to a norm-referenced approach to assessment across the university(QUT,MOPP,2003). In 2004, the QUT Law School embarked upon a process of awareness raising about criterion-referenced assessment amongst staff and from 2004 – 2005 staggered the implementation of criterion-referenced assessment in all first year core undergraduate law units. This paper will briefly discuss the benefits and potential pitfalls of criterion referenced assessment and the context for implementing it in the first year law program, report on student’s feedback on the introduction of criterion referenced assessment and the strategies adopted in 2005 to engage students more fully in criterion referenced assessment processes to enhance their learning outcomes.