Prosecuting corporations and officers for industrial manslaughter-recent Australian developments

There have been concerns for some time about whether breaches of duty that cause a worker's death are appropriately dealt with under occupational health and safety legislation, or whether criminal prosecution is warranted in those cases involving recklessness or gross negligence. Defaulting employers are rarely prosecuted under existing criminal laws and there are serious doctrinal barriers to finding a corporation guilty of mens rea offences.
The Australian Capital Territory leads the way in Australia with the recent introduction of new criminal offences of industrial manslaughter for corporations and their senior officers. These laws rely on concepts of corporate liability based on organisational responsibility and corporate culture in the model Criminal Code Act 1995 (Cth) , thus avoiding the limitations of the identification doctrine. Other active Australian jurisdictions, whilst initially open to the notion of industrial manslaughter laws, have preferred to make changes to existing OHS laws to deal with the problem of workplace fatalities.
Whilst it has its limitations, and applies only in Australia's smallest jurisdiction, the Australian Capital Territory legislation reflects a commitment to treating workplace deaths with the seriousness they deserve, and making it easier to prosecute corporations whose operations are conducted recklessly or with gross negligence.

Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the child's best interests. His Honour did, however, find that due to the way in which particular provisions of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the 'parent' of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of 'father', and in some jurisdictions 'parent', rather than merely being a 'donor'.

Directors' duties to stakeholders : a reform proposal based on three false assumptions

The Corporations and Markets Advisory Committee has been asked to consider whether the duties of directors under the Corporations Act 2001 (Cth) should be broadened to require directors to take into account the interests of stakeholder groups other than shareholders when making corporate decisions. In this article, the author argues that the existing statutory duties of directors in Australia should remain unchanged. The existing duties of directors, in particular the overriding duty of directors to act in the best interests of the company, already accommodates consideration of stakeholder interests by directors if the decision is justifiable as being in the company's best interests. Furthermore, corporate culture and norms are moving towards embracing stakeholder engagement, again with the implicit recognition that integrating stakeholder considerations within the decision-making processes of companies is integral to achieving long-term sustainable growth.

Devil's in the detail : non-commercial business losses

When the theme for the 2008 Australasian Tax Teachers’ Conference was announced (The Devil’s in the Detail), the author immediately thought of the non-commercial losses provisions. These provisions are contained in Division 35 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA 1997’) and restrict individuals from offsetting losses from non-commercial activities against other income.

Work choices : Increasing productivity, job creation and work-family balance? Not likely!

The introduction of the Workplace Relations (Work Choices) Amendment Act 2005 (Cth) has resulted in one of the most contentious changes to federal labour law in Australia’s history. There is considerable debate as to whether it has fulfilled the government’s expectations of giving ‘flexibility’ and ‘choice’ to both employees and employers or if there has been an overall deterioration in working conditions. In order to identify the impact of this legislation in the workplace, Deakin University surveyed 11,000 AHRI members throughout Australia. Preliminary results are reported in the paper but, even at this early stage, there is sufficient material to critically comment upon the changes to Australia’s industrial relations system. It appears that the vast majority of AHRI members felt that there had been no change in productivity, job creation or work-family balance and that only a few expected an improvement over the next 3 years.

Preventative detention in Australian law : issues of interpretation

This article examines the statutory interpretation of terms in Div 105 of the Criminal Code Act 1995 (Cth) . This division is the regime for preventative detention orders (PDOs), an Executive order permitting a person to be taken into custody and deprived of his/her personal liberty for the purpose of either preventing an imminent terrorist act or preserving evidence of a past terrorist act. The organisation of this article corresponds with three key features of a PDO from this description: "detention"; "Executive"; and "preventative purpose". To consider the interpretation of Div 105 , this article relies on statutory principles of interpretation, and most notably, the recent authority of Thomas v Mowbray (2007) 81 ALJR 1414 [PDF] ; [2007] HCA 33.

A new screen face for public service broadcasting

The contemporary broadcasting industry is characterised by technological and social change, it is increasingly competitive, and the media industry is fragmenting. New services need not necessarily compete with existing free-to-air broadcasting but could act as further incentive for audiences to invest in new equipment. New equipment will be necessary in the future as set out under the Television Broadcasting Services (Digital Conversion) Act 2000 (Cth), before the planned switch-off of analogue broadcasts planned for this year but now likely to be 2013. By then, however, audiences might already have migrated to the online environment for television and radio content as well as other services. Those that produce and deliver programs via free-to-air broadcasting need to consider what audiences do with new media in order to engage them. This will be an ongoing process as technology and audience expectations continue to change. Against such a background, this article examines how Australia’s public broadcasters are responding to the new media environment. It will consider their interactive online programs and services with specific analysis of ABC’s new ‘iView’ and ‘ABC Fora’ which offer content on-demand. It will also examine SBS online initiatives. I wish to argue that the new media offer public broadcasters new prospects to provide forums and spaces for education, entertainment, public discussion and interaction online.

Using simulated patients to develop doctors' skills in facilitating bahaviour change : addressing childhood obesity

Objectives : This study aimed to describe the application, feasibility and outcomes of using simulated patients (SPs) to increase the skills of general practitioners (GPs) delivering a behavioural intervention to reduce childhood overweight and mild obesity.

Methods : Five female actors were trained as SPs. A total of 67 GPs from 46 general practices in Melbourne, Victoria, Australia, conducted two simulated consultation visits regarding healthy lifestyle family behaviour change, during which they practised their skills and received formative feedback. The GPs and SPs rated GP performance immediately after each consultation. Subsequently, 139 parents of overweight or obese 5–9-year-old children rated GP performance during real-life consultations. Other measures included child body mass index (BMI) Z-scores (at baseline and at a 9-month follow-up) and GP-reported levels of comfort and competence and the perceived value of SP visits.

Results : Simulated patient ratings, but not GP self-ratings, of GP performance predicted both parent ratings of real-life consultations (Spearman's rho 0.39 for correlation with SP rating at Visit 1) and subsequent reductions in BMI Z-scores between baseline and follow-up (Visit 1, rho − 0.45; Visit 2, rho − 0.46). GP levels of comfort and competence were maintained during and after the SP visits. A total of 95% of GPs rated simulated consultations as useful, although only 18% said they would pay for them.

Conclusions : Simulated patient assessment may predict real patient feedback and clinical outcomes, helping to identify doctors who require further training in behaviour change techniques. Randomised controlled trials may establish whether SPs actually raise skills or improve outcomes.

Black fella land – white fella tax : changing the CGT implications of aboriginal/native title

The taxation of aboriginal/native title payments gives rise to a number of complex and difficult legal and policy issues. Reform measures announced on 13 February 1998 by the then Federal Treasurer and Attorney-General did not address the possible capital gains tax (‘CGT’) implications and even those relating to ordinary income under s 6-5 Income Tax Assessment Act 1997 (Cth) remain unimplemented. The much anticipated Report of the Native Title Payments Working group (6 February 2009), while primarily focusing on non-taxation issues, also recognises the need for taxation reform and makes some recommendations in regard to such. Most recently, on 18 May the Assistant Treasurer, Senator Nick Sherry, the Minister for Families, Housing, Community Services and Indigenous Affairs, Jenny Macklin, and the Attorney General, Robert McClelland, announced the commencement of a national consultation on the tax treatment of native title, including the interaction of native title, Indigenous economic development and the tax system. The Assistant Treasurer recognised the need for “greater clarity and increased certainty for native title holders on how the tax system and native title interact.” At the same time, they released a paper entitled Native Title, Indigenous Economic Development and Tax to guide the national consultation. The proposed measures considered in the paper, including exempting Native title payments and/or creating a new tax exempt Indigenous Community Fund, provide a welcome step towards reform in this area. This article is part of a broader research project that explores the CGT implications of aboriginal/native title. While these provisions impact on both Indigenous traditional owners and relevant payers, such as mining companies, the focus in the project is particularly on the CGT implications for the traditional owners. This first part of the project examines the status of aboriginal/native title and incidental/ ancillary rights as CGT assets. The broader research project will then build on this analysis in the context of relevant CGT events. As the preliminary findings in this article evidence the CGT implications of aboriginal/native title are far from certain. The application of CGT to aboriginal/native title raises more issues than it answers. The key reason is that the current law is entirely unsuitable to communally held inalienable aboriginal/native title. Nevertheless, it will be seen that it is arguable that aboriginal/native title and/or incidental rights are post-CGT assets and acts in relation to such could trigger a CGT event with tax implications for the traditional owners. It will be suggested that these current tax provisions provide a very pertinent example where the law operates as a blunt tool that does not appropriately promote justice and reconciliation. To tax Indigenous communities as a result of acts that extinguish or impair their traditional ownership is incongruous. A specific provision(s) should be included in the capital gains provisions to ensure any such payments are exempt from taxation. This is not only fair given the history of uncompensated extinguishment of aboriginal title Australia, but also promotes the ability of Indigenous communities to optimise the financial benefits stemming from aboriginal/native title agreements.

Regulatory design strategies and enforcement approaches for research involving human embryos and cloning in Australia and the United Kingdom – time for a change.

This paper examines regulatory design strategies and enforcement approaches in the context of the UK and Australia’s regulation of research involving human embryos and cloning. The aim is to discuss current regulation in view of the impending review of the Research Involving Human Embryos Act 2002 (Cth) and the Prohibition of Human Reproductive Cloning Act 2002 (Cth). It is argued that the type of regulation used in relation to those who are licensed to research in Australia is unsuitable due to an over-emphasis on deterrence and the authoritarian approach taken by regulatory bureaucracies. The cost and efficiency of the current system is also questioned. The central thesis is that a co-regulatory system that combines the existing framework legislation with self-regulation should be adopted for licence holders. Such regulation of licence holders should include responsive regulatory strategies. ‘Command and control’ design strategies and deterrence approaches present in the current regulatory systems for breaches of legislation by non-licence holders and serious breaches by licence holders should be maintained.

Supporting working parents: findings from the AHRC’s national inquiry into the prevalence of pregnancy and return to work discrimination in the workplace

In July 2014 the Australian Human Rights Commission (AHRC) released the findings of its national review into pregnancy and return to work discrimination in the workplace1 which it conducted following a request from the Commonwealth Attorney-General’s Department.2 The review comes 15 years after the commission’s first inquiry into pregnancy discrimination in the workplace.3Federal law has prohibited pregnancy discrimination in the workplace since the Sex Discrimination Act 1984 (Cth) (SDA) came into force.4 It is now unlawful in every state and territory.5 Discrimination on the basis of breastfeeding and family or carer’s responsibilities is also prohibited.6 Since 2009 the Fair Work Act 2009 (Cth) (FW Act) has prohibited workplace discrimination based on pregnancy and family or carer’s responsibilities7 and the Act gives employees additional entitlements relating to their parental and caring responsibilities. Male and female employees who are the primary caregiver for a child are entitled to 12 months unpaid parental leave upon the birth or adoption of the child and can request an additional 12 months leave.8 Upon returning to work, they can request flexible working conditions9 and they are protected from adverse action, such as dismissal, for exercising these rights.10 Yet despite these legal protections, the findings of the national review show that employees continue to experience discrimination during pregnancy, when taking parental leave and upon re-entering the workforce. This note presents the main findings from the surveys and consultations that were held with employers and employees as part of the review and the review’s recommendations for addressing the prevalence of what it terms ‘pregnancy/return to work discrimination’.

The payment of dividends : legal confusion, complexities and the need for comprehensive reform

Submissions have closed on exposure draft legislation intending to amend thetest for payment of dividends under s 254T of the Corporations Act 2001 (Cth).Until 2010, a dividend could only be paid out of profits of a company. Sincethen, the dividends provision has been repealed and replaced with a newprovision, which allows a company to pay dividends if it satisfies an “assetsgreater than liabilities”, “fair and reasonable to shareholders” and “no materialprejudice to creditors” test. This article first examines why the profits test wasomitted from s 254T, before examining the current dividends provision,identifying the shortcomings of the 2010 reforms and critically evaluating theprovisions proposed to replace the current s 254T. The article then considersinternational developments, with a focus on New Zealand and a look at SouthAfrica, as examples of dividends tests in overseas jurisdictions, beforeproposing how to address the current confusion and uncertainty. The articleconcludes that the proposed amendments to s 254T will only partly addressexisting problems. Thus, comprehensive reform in this area of the Australiancorporation’s law is recommended.

The relationship between ethical leadership and unethical pro-organizational behavior: linear or curvilinear effects?

In this study, we examine the nature of the relationship between ethical leadership and unethical pro-organizational behavior (UPB), defined as unethical behavior conducted by employees with the aim of benefiting their organization, and whether the strength of the relationship differs between subordinates experiencing high and low identification with supervisor. Based on three-wave survey data obtained from 239 public sector employees in China, we find that ethical leadership has an inverted u-shaped (curvilinear) relationship with UPB. As the level of ethical leadership increases from low to moderate, UPB increases; as the level of ethical leadership increases from moderate to high, UPB decreases. Further, we find that the strength of this inverted u-curve relationship differs between subordinates with high and low identification with supervisor. That is to say, the inverted u-shaped relationship between ethical leadership and UPB was stronger when subordinates experienced high levels of identification with supervisor. The theoretical and managerial implications of our findings for understanding how to manage UPB in an organizational context are discussed. © 2012 Springer Science+Business Media Dordrecht.

Small amount credit contract reforms in Australia: household survey evidence & analysis

A review of small amount credit contract regulation in Australia began in 2015 as mandated under s 335A of the National Consumer Credit Protection Act 2009 (Cth). The review panel sought comprehensive data on industry and consumer characteristics and trends. To provide such evidence, consumer groups commissioned original empirical research using data collected from a longitudinal survey that monitors the financial position and attitudes of Australian households. This data on household use of small amount credit contract loans was extracted for the last decade, allowing detailed analysis of the historical patterns and developing trends. The data indicates that overall demand for small amount short duration credit is growing in Australia, the consumer base is broadening, and the predominant form of lending today is online. Deeper analysis highlights the varying motivations of borrower households and their different stages and levels of financial difficulty. It also confirms the socio-economic, employment, educational and financial disadvantages of most households using these loans and their vulnerability to adverse changes in personal circumstances and negative external shocks.

The transfer of management accounting practices from London counting houses to the British North American fur trade

During the late eighteenth and early nineteenth centuries management accounting practices were transferred from London counting houses to the British North American fur trade. This transfer involved a set of practices that was more effective for implementing the strategy being pursued at the time than the set used with the previous strategy. London counting houses had developed management accounting practices to facilitate their backward integration strategies with America and the West Indies. Pivotal to this development was the requirement for sub-unit accountability and responsibility.