Structuring and restructuring nonprofit associations

In the mid seventies there was a spate of legal claims involving unincorporated not-for-profit associations. These claims highlighted the liability exposure of management committee members and prompted a dramatic increase in the number of associations seeking shelter behind the corporate veil. Corporate structure decisions during this period were primarily motivated by the incentive of limited liability. Twenty years later, the not-for-profit sector is subject to new challenges. The Industry Commission Report into Charitable Organisations in Australia heralds an increasing intrusion of legislative responsibilities and reform in the sector. The traditional sources of funds for not-for-profit organisations are about to radically change with the advent of “competitive tendering” for government funding and the declining benevolence of society. The legal scuffle between Australian Rugby Football League Limited (the “ARL”) and News Limited has also exposed the vulnerability of not-for-profit groups and the many legal and commercial minefields in structural decision-making. The sector is beginning to respond to these pressures by rationalisation and restructure. Corporate structure decisions are now motivated by the need to promote efficiency and resilience. Survival of the fittest. Restructuring is by no means a task for the faint-hearted. A delicate balance between legality and practicality needs to be maintained. The focus of this paper is on the restructuring choices for not-for-profit organisations and groups in Queensland. It answers “how-to” questions and identifies some important restructuring issues.

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.

Economic theory informing approaches to phoenix activity in small business: A neo-Schumpeterian analysis

The adequacy and efficiency of existing legal and regulatory frameworks dealing with corporate phoenix activity have been repeatedly called into question over the past two decades through various reviews, inquiries, targeted regulatory operations and the implementation of piecemeal legislative reform. Despite these efforts, phoenix activity does not appear to have abated. While there is no law in Australia that declares ‘phoenix activity’ to be illegal, the behaviour that tends to manifest in phoenix activity can be capable of transgressing a vast array of law, including for example, corporate law, tax law, and employment law. This paper explores the notion that the persistence of phoenix activity despite the sheer extent of this law suggests that the law is not acting as powerfully as it might as a deterrent. Economic theories of entrepreneurship and innovation can to some extent explain why this is the case and also offer a sound basis for the evaluation and reconsideration of the existing law. The challenges facing key regulators are significant. Phoenix activity is not limited to particular corporate demographic: it occurs in SMEs, large companies and in corporate groups. The range of behaviour that can amount to phoenix activity is so broad, that not all phoenix activity is illegal. This paper will consider regulatory approaches to these challenges via analysis of approaches to detection and enforcement of the underlying law capturing illegal phoenix activity. 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, at least to some extent. Even then, phoenix activity pushes tolerance of repeated entrepreneurial failure to its absolute limit. The more limited liability is misused and abused, the stronger the argument to place some restrictions on access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Building a successful partnership to increase affordable rental housing supply in Queensland

Accessibility to housing for low to moderate income groups in Australia has been experiencing a severe decline since 2001. On the supply side, the public sector has been reducing its commitment to the direct provision of public housing. Despite high demand for affordable housing, there has been limited supply generated by non-government housing providers. One possible solution to promote an increase in affordable housing supply, like other infrastructure, is through the development of multi-stakeholder partnerships and private financing. This research aims to identify current issues underlying decision-making criteria for building multi-stakeholder partnerships to deliver affordable housing projects. It also investigates strategies for minimising risk and ensuring the financial outcomes of these partnership arrangements. A mix of qualitative in-depth interviews and quantitative surveys has been used as the main method to explore stakeholder experiences regarding their involvement in partnership arrangements in the affordable housing sector in Queensland. Two sets of interviews were conducted following an exploratory pilot study: one set in 2003-2004 and the other in 2007-2008. There were nineteen respondents representing government, private and not-for-profit organisations in the first stage interviews and surveys. The second stage interviews were focussed on twenty-two housing providers in South East Queensland. Initial analyses have been conducted using thematic and statistical analyses. This study extends the use of existing decision making tools and combines the use of a Soft System Framework to analyse the ideal state questionnaires using qualitative thematic analysis. Soft System Methodology (SSM) has been used to analyse this unstructured complex problem by using systematic thinking to develop a conceptual model and carrying it to the real world situations to solve the problem. This research found that the diversity of stakeholder capability and their level of risk acceptance will allow partnerships to develop the best synergies and a degree of collaboration which achieves the required financial return within acceptable risk parameters. However, some of the negativity attached to future commitment to such partnerships has been found to be the anticipation of a worse outcome than that expected from independent action. Many interviewees agree that housing providers' fear of financial risk and community rejection has been central to dampening their enthusiasm for entering such investment projects. The creation of a mixed-use development structure will mitigate both risk and return as the commercial income will subsidise the affordable housing development and will normalise concentration of marginalised low-income people who live in a prime location with an award winning design. In addition, tenant support schemes and rent-to-buy incentive programs will encourage them to secure their tenancies and significantly reduce the risk of rent arrears and property damage. There is also a breakthrough investment vehicle offered by the social developer which sells the non-physical but financial product to individual and institutional investors to mitigate further financial risk. Finally, this study recommends modification of the current value-for-money framework in favour of broader partnership arrangements which are more closely aligned with risk minimisation strategies.

Legislative proposals to codify directors' liability for insolvent trading in Hong Kong : a 10-year journey

Hong Kong is a modern global city with a reputation for well-regulated financial markets, but for years, the government had been trying to enact laws on corporate rescue procedures with relatively little success. It is under the pretext of the Global Financial Crisis, the threat of a future economic meltdown gave the Hong Kong government the impetus to revisit this issue. This third attempt to codify statutory obligations on directors’ liability for insolvent trading has been criticised for either setting the standards too high or low for directors trading whilst insolvent. There is also some reservation given the beliefs and values of directors in Chinese family-owned and controlled companies. These companies would most likely trade out the difficult times. Nevertheless, this does not negate from the fact that the enactment of corporate rescue procedures in Hong Kong in 2010 is a momentous achievement for the Hong Kong government.

Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Nurses driving change to improve access to education and quality in lcinical teaching : A partnership between Australia and Viet Nam

In Viet Nam, standards of nursing care fail to meet international competency standards. This increases risks to patient safety (eg. hospital acquired infection), consequently the Ministry of Health identified the need to strengthen nurse education in Viet Nam. This paper presents experiences of a piloted clinical teaching model developed in Ha Noi, to strengthen nurse led institutional capacity for in-service education and clinical teaching. Historically 90% of nursing education was conducted by physicians and professional development in hospitals for nurses was limited. There was minimal communication between hospitals and nursing schools about expectations of students and assessment and quality of the learning experience. As a result when students came to the clinical sites, no-one understood how to plan their learning objectives and utilise teaching and learning approaches appropriate to their level. Therefore student learning outcomes were variable. They focussed on procedures and techniques and “learning how to do” rather than learning how to plan, implement and evaluate patient care. This project is part of a multi-component capacity building program designed to improve nurse education in Viet Nam. The project was funded jointly by Queensland University of Technology (QUT) and the Australian Agency for International Development. Its aim was to develop a collaborative clinically-based model of teaching to create an environment that encourages evidence-based, student-centred clinical learning. Accordingly, strategies introduced promoted clinical teaching of competency based nursing practice utilising the regionally endorsed nurse core competency standards. Thirty nurse teachers from Viet Duc University Hospital and Hanoi Medical College participated in the program. These nurses and nurse teachers undertook face to face education in three workshops, and completed three assessment items. Assessment was applied, where participants integrated the concepts learned in each workshop and completed assessment tasks related to planning, implementing and evaluating teaching in the clinical area. Twenty of these participants were then selected to undertake a two week study tour in Brisbane, Australia where the clinical teaching model was refined and an action plan developed to integrate into both organisations with possible implementation across Viet Nam. Participants on this study tour also experienced clinical teaching and learning at QUT by attending classes held at the university, and were able to visit selected hospitals to experience clinical teaching in these settings as well. Effectiveness of the project was measured throughout the implementation phase and in follow up visits to the clinical site. To date changes have been noted on an individual and organisational level. There is also significant planning underway to incorporate the clinical teaching model developed across the organisation and how this may be implemented in other regions. Two participants have also been involved in disseminating aspects of this approach to clinical teaching in Ho Chi Minh, with further plans for more in-depth dissemination to occur throughout the country.

Working in partnership to develop engineering capability in energy efficiency

Energy efficiency is a complex topic to integrate into higher education curricula, with limited success internationally or in Australia. This paper discusses one of the successful initiatives within the Energy Efficiency Training Program, which was jointly managed and implemented by the New South Wales Office of Environment and Heritage and Department of Education and Communities. The state government initiative aimed to increase the knowledge and skills of the New South Wales workforce, help business to identify and implement energy efficiency projects, and provide professional development for the training providers. Key sectors targeted included property, construction, manufacturing and services. The Program was externally evaluated over the three years 2011 to 2013 and a range of insights were gained through these facilitated reflective opportunities, confirming and building upon literature on the topic to date. This paper presents lessons learned from the engineering part of the program (‘the project’), spanning government agencies, academic institutions, and academia. The paper begins with a contextual summary, followed by a synthesis of key learnings and implications for future training initiatives. It is intended that sharing these lessons will contribute to literature in the field, and assist other organisations in Australia and overseas planning similar initiatives.

Echology: Making sense of data - reflections on resilient ecologies of partnership [Abstract]

The Echology: Making Sense of Data initiative seeks to break new ground in arts practice by asking artists to innovate with respect to a) the possible forms of data representation in public art and b) the artist's role in engaging publics on environmental sustainability in new urban developments. Initiated by ANAT and Carbon Arts in 2011, Echology has seen three artists selected by National competition in 2012 for Lend Lease sites across Australia. In 2013 commissioning of one of these works, the Mussel Choir by Natalie Jeremijenko, began in Melbourne's Victoria Harbour development. This emerging practice of data - driven and environmentally engaged public artwork presents multiple challenges to established systems of public arts production and management, at the same time as offering up new avenues for artists to forge new modes of collaboration. The experience of Echology and in particular, the Mussel Choir is examined here to reveal opportunities for expansion of this practice through identification of the factors that lead to a resilient 'ecology of part nership' between stakeholders that include science and technology researchers, education providers, city administrators, and urban developers.

The Healthy Living after Cancer Partnership Project [Conference Abstract]

There is considerable evidence for the efficacy of physical activity, diet and weight loss interventions in improving health outcomes for cancer survivors, but limited uptake into practice. Healthy Living after Cancer (HLaC) is an evidence-based, telephone-delivered lifestyle intervention targeting cancer survivors. This paper describes the translation of HLaC into practice in partnership with Australian state-based Cancer Councils.

Public private partnership infrastructure delivery: Benefits and costs for society

This research provides additional knowledge on the benefits and costs to society, in particular of road transport procured through Public-Private Partnership (PPP) arrangements. Currently, the public sector comparator (PSC) and cost-benefit analysis (CBA) used to evaluate and measure the benefits and costs of PPP are limited in their capacity to predict and forecast long-term events. PPP is attractive to governments due to the non-upfront payment, perceived value for money, and risk allocation and transfer to the private investor. However, public sector remains the guarantor, and under-writer of the private investor's loan from financial institutions and other voluntary risks which are unlimited to future compensatory claims. The new knowledge from this research is the introduction of a framework capable of evaluating, and measuring the associated PPP benefits, as well as the costs, effects, and impacts to society which are protracted and sporadic by nature.

Establishing international networks: The internationalisation of Calleija Jewellers and their partnership with the exclusive Aston Martin

Calleija, a small to medium sized (SME) Australian and internationally recognised fine jeweller has secured a significant strategic global partnership with one of the world’s best-known luxury automobile brands, Aston Martin. Forging this international relationship to produce an elegant fine jewellery collection has given rise to a new network between the Australian jewellery industry and the European automobile industry. Calleija’s exclusive association with Aston Martin consolidates a shared passion for the finest quality and craftsmanship which was inspired by Aston Martin’s Supercar, the One-77. This inspiration lead to John Calleija being chosen by Aston Martin to design this latest high-luxury offering in which each design is limited to only 77 pieces utilising 30 unique designs (Calleija, 2012). The story behind Calleija’s internationalisation to the United Kingdom (UK) and their subsequent business-to-business strategic partnership with Aston Martin is no doubt a good sign for the Australian jewellery industry.