Corporate liability for workplace deaths and injuries-reflecting on Victoria's laws in the light of the Esso Longford explosion

The purpose of this article is to consider some different legal models for the liability of corporations for the deaths and serious injuries of their employees, with particular emphasis on the law in Victoria.

Two recent developments in Victoria prompt this consideration. First, on 30 July 2001, the Victorian Supreme Court handed down its sentencing decision in the case arising from the explosion on 25 September 1998 at the Longford gas plant operated by Esso Australia Pty Ltd. The decision marked the end of the formal public consideration of a devastating event in Victorian industrial history, which began with the Royal Commission set up on 20 October 1998 to investigate the causes of an explosion in which two workers died and eight others were injured. Second, in early 2002, the Victorian Government failed in its attempt to introduce new criminal offences for corporate employers whose employees are killed or seriously injured at work. In spite of their failure to be passed by the Legislative Council in Victoria, these proposals warrant consideration. They represent a growing trend by policy makers in attempting to address more effectively the question of the liability for deaths and serious injuries of workers to employers who operate through the corporate form.

Fear and loathing in public policy : ethical issues in laws for sex offenders

Laws intended to increase protection from sex offenders are often prompted by sensational crimes that provoke public outrage. As public policy, questions have been raised about the legality and effectiveness of these legislative initiatives as enacted in North America, Australasia and the UK since the early 1990s. Mental health professionals involved in the implementation of these laws are faced with ethical concerns that distinguish this area of forensic practice from other clinical roles. This article presents a brief description of the impetus for specific laws allowing for involuntary civil commitment, extended supervision and community notification of sex offenders in different jurisdictions. A model of human rights is then used to consider the ways in which these laws threaten the rights of offenders, and provides a framework for identifying ethical concerns inherent in professional practice in this area.

The money laundering risk posed by low-risk financial products in South Africa : findings and guidelines

Purpose – The purpose of this paper is to investigate the level and nature of criminal abuse of financial products that are classified as posing a low anti-money laundering/combating of financing of terrorists (AML/CFT) risk in South Africa to determine the effectiveness of the simplified due diligence measures that apply to these products.

Design/methodology/approach – The paper presents empirical research on the views of bank officials and law enforcement officials regarding the criminal abuse of South African financial products that are subject to simplified customer due diligence controls.

Findings – South Africa's AML/CFT laws allow certain deposit-taking institutions and money remitters to implement simplified customer due diligence measures in relation to specific low-risk products that are mainly designed to allow previously unbanked persons to access financial services. The paper finds that the products have been abused by criminals but that the incidence of such abuse and the amounts involved are low. The paper investigates possible weaknesses in the current system that allow limited criminal abuse to occur. It concludes with a number of guidelines that emerge from the study and are of value to regulators that wish to implement a similar system.

Originality/value – The South African AML/CFT scheme in relation to low-risk products is of interest to many international regulators that are grappling with the interplay between effective AML/CFT controls and the impact of strict controls on the ability of socially and economically excluded persons to access appropriate financial services. This paper provides evidence that appropriately designed controls can facilitate financial inclusion while limiting the risk of criminal abuse.

Australian property investment advice : an unregulated industry and the need for better consumer protection laws

Currently, consumers have no means of protecting themselves when they are looking for property investment advice in Australia. There is no uniform national or State regulation in the property investment advice and marketeering industry. The only protection and remedies currently available are those under the general consumer protection laws scattered in various Acts, and even so, these have numerous problems. This paper highlights what those problems are under the general consumer protection laws and suggests some changes to the current system. The paper also argues that a national co-operative approach is the only way to move forward in this area and suggests that the constitutional difficulty can be overcome by using the legislative conferral of state powers provision, which has often been overlooked. The paper also argues that a new regulator be set up to administer and enforce the new proposed laws on property investment advice.

The evidentiary strategies of Two Laws

This article examines the ways in which the documentary film Two Laws deploys a variety of strategies to represent the historical claim to land made in the early 1980s by the Borroloola people of Australia's Northern Territory. Cross-cultural collaboration between the indigenous people of Borroloola and two non-indigenous film-makers produced a film that combines a vigorous reflexivity with dramatic re-enactment and oral testimony. Importantly, the presentation of evidence in support of the land claim is achieved via a form communally devised by the Borroloola people based on their cultural needs and contingent on Borroloola social structure. In this way the so-called documentary truth claim and indigenous land claim intersect in Two Laws: for the Borroloola people, the filmic evidentiary truth claim functions in a direct way in support of their legal claim to their lands.

Risk assessment with female sex offenders : can women meet the criteria of community protection laws?

Although females represent a small proportion of the sex offender population, they occasionally appear before the courts under the current generation of laws intended to protect the public from high-risk sex offenders. In this context, practitioners are called upon to provide assessment of the risk these women pose for sexual re-offending. The primary issues addressed in this paper are related to the validity of conducting such risk assessments and providing professional opinions as to the risk of further sexual offences that may be committed by female offenders. The approach taken is to summarize briefly the available professional literature regarding female sex offenders, and then to present the findings of the relatively few empirical studies that address sexual recidivism in females. The final section examines the positions taken in the published works of various international experts regarding risk assessment with females, followed by conclusions and recommendations in light of the standards typically prescribed by community protection laws.

The establishment of large private nature reserves by conservation NGOs : key factors for successful implementation

Private nature reserves created by nongovernmental organizations (NGOs) are increasing, and their growing number and extent means that they can potentially contribute to biodiversity goals at a global scale. However, the success of these reserves depends on the legal, economic and institutional conditions framing their creation and management. We explored these conditions, and the opportunities and challenges facing conservation organizations in managing private nature reserves, across several countries, with an emphasis on Australia. Results from 17 semi-structured interviews with representatives of private conservation organizations indicated that while private reserves may enhance the conservation estate, challenges remain. Legal frameworks, especially tenure and economic laws, vary across and within countries, presenting conservation organizations with significant opportunities or constraints to owning and/or managing private nature reserves. Many acquired land without strategic acquisition procedures and secured funding for property acquisition but not management, affecting the long-term maintenance of properties. Other typical problems were tied to the institutional capacity of the organizations. Greater planning within organizations, especially financial planning, is required and NGOs must understand opportunities and constraints present in legislative frameworks at the outset. Organizations must establish their expertise gaps and address them. To this end, partnerships between organizations and/or with government can prove critical.

Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients’ consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.

Tough, tougher, toughest? A new government’s approach to sentencing laws in Victoria

When in opposition, Victoria¹s Liberal/National coalition made a number of commitments to be 'tough on crime'. After winning the 2010 state election, the Government arguably reformed sentencing laws more quickly and more substantially in its first year of office than any other area of policy, with several key initiatives delivered or in train.

The Victorian experience exemplifies fast and forceful responses to perceived risks to community safety by new Australian Governments. While some political leaders have decried the 'law and order auction' approach by political parties, it remains a real tool in political discourse.

Some of these initiatives appear inconsistent with fundamental sentencing principles, and are designed more to address public perceptions which are disconnected from the realities of criminality and incidence of offending. A more appropriate basis for criminal justice policy may require Government to prioritise addressing the causes of offending behavior, rather than penalising consequences.

Russia’s anti-gay laws: the politics and consequences of a moral panic

The issue of LGBT rights in Russia first properly came to mainstream international attention in March 2012, when the St Petersburg Duma passed a law prohibiting “public acts aimed at the propaganda of sodomy, lesbianism, bisexualism and transgenderism amongst minors“. The law provoked an international outcry, including calls for tourists to boycott St Petersburg, sister-cities to consider cut off ties with Russia’s “window on Europe”, and condemnation from the EU, with the European Parliament passing a resolution noting that it was “gravely concerned by developments which restrict freedom of expression and assembly on the basis of misconceptions about homosexuality and transgenderism” and calling on Russia and other countries considering the adoption of similar legislation to “demonstrate, and ensure respect for, the principle of non-discrimination”.

The impact of a brief lifestyle intervention delivered by generalist community nurses (CN SNap trial)

Background
The risk factors for chronic disease, smoking, poor nutrition, hazardous alcohol consumption, physical inactivity and weight (SNAPW) are common in primary health care (PHC) affording opportunity for preventive interventions. Community nurses are an important component of PHC in Australia. However there has been little research evaluating the effectiveness of lifestyle interventions in routine community nursing practice. This study aimed to address this gap in our knowledge.

Methods
The study was a quasi-experimental trial involving four generalist community nursing (CN) services in New South Wales, Australia. Two services were randomly allocated to an ‘early intervention’ and two to a ‘late intervention’ group. Nurses in the early intervention group received training and support in identifying risk factors and offering brief lifestyle intervention for clients. Those in the late intervention group provided usual care for the first 6 months and then received training. Clients aged 30–80 years who were referred to the services between September 2009 and September 2010 were recruited prior to being seen by the nurse and baseline self-reported data collected. Data on their SNAPW risk factors, readiness to change these behaviours and advice and referral received about their risk factors in the previous 3 months were collected at baseline, 3 and 6 months. Analysis compared changes using univariate and multilevel regression techniques.

Results
804 participants were recruited from 2361 (34.1%) eligible clients. The proportion of clients who recalled receiving dietary or physical activity advice increased between baseline and 3 months in the early intervention group (from 12.9 to 23.3% and 12.3 to 19.1% respectively) as did the proportion who recalled being referred for dietary or physical activity interventions (from 9.5 to 15.6% and 5.8 to 21.0% respectively). There was no change in the late intervention group. There a shift towards greater readiness to change in those who were physically inactive in the early but not the comparison group. Clients in both groups reported being more physically active and eating more fruit and vegetables but there were no significant differences between groups at 6 months.

Conclusion
The study demonstrated that although the intervention was associated with increases in advice and referral for diet or physical activity and readiness for change in physical activity, this did not translate into significant changes in lifestyle behaviours or weight. This suggests a need to facilitate referral to more intensive long-term interventions for clients with risk factors identified by primary health care nurses.

International sex offender registration laws : research and evaluation issues based on a review of current scientific literature

In many jurisdictions, anyone convicted of a sexual offense is required to register with police, often for life. Nine different countries have now implemented sex offender registries in an attempt to protect the public from the perceived threat posed by sexual offenders. Yet such laws have been criticized as being overly inclusive, tying up limited law enforcement resources to track many offenders who pose little risk of sexual reoffending. This paper considers the available research evidence relevant to the effectiveness of such laws for the deterrence of sexual offending and the investigation of sex crimes. It is concluded that significant gaps persist in our knowledge of whether existing laws effectively reduce sexual offending or reoffending and that large-scale, well-designed studies of the impact of sex offender registration on rates of offending, the collateral consequences to offenders and their families, and the costs of such laws are needed.

Putting “traditional values” into practice : the rise and contestation of anti-homopropaganda laws in Russia

This article explores how “traditional values” are being used by the Russian government to refute the claim that “LGBT rights are human rights” and justify the introduction of anti-homopropaganda laws, and how members of the Russian LGBT community have sought to contest it. Centrally, it traces the development of a discourse that refutes the essentialization of sexual identity and, in doing so, seeks to challenge the focus on individual identity-based rights of contemporary human rights norms. This discursive shift has meant that opponents of the legislation have had to develop contestation strategies that collectively seek to present an alternative interpretation of “traditional values.” The article concludes by considering the implications of the Russian case for human rights norms and for the notion of universal human rights more widely, arguing that it represents a serious challenge to the viability of identity-based LGBT rights claims as a basis on which to advance observance of fundamental human rights due to their homonormativity.

Real and substantial connections : Enforcing Canadian privacy laws against American social networking companies

Any organisation that captures personal data in Canada for processing is deemed tohave a ‘real and substantial connection’ to Canada and thus fall within thejurisdiction of the Personal Information Protection and Electronic Documents Act(PIPEDA) and of the Office of the Privacy Commissioner of Canada (OPC). Whathas been the experience of enforcing Canadian privacy protection law on US-basedsocial networking services? We analyse some of the high-profile enforcement actionsby the Privacy Commissioner. We also test compliance through an analysis of theprivacy policies of the top 23 SNSs operating in Canada and through the use of accessto personal information requests. Our analysis suggests that non-compliance iswidespread, and is explained by the countervailing conceptions of jurisdictioninherent in corporate policy and technical system design.

Conservative corporate compliance: Reflections on a study of compliance responses by South African banks

While corporate non-compliance receives much attention, conservative and over-compliant responses are often ignored. These responses go beyond what is required by a particular regulatory requirement. In many cases, regulators may support such responses because they advance regulatory objectives. In the context of risk-based regulation and compliance, especially the model implemented by the Financial Action Task Force to combat money laundering and financing of terrorists, that may, however, not necessarily be the case. With this risk-based approach, regulated institutions are required to respond to higher risks by adopting enhanced risk mitigation measures and are allowed to simplify those measures where the risks are assessed as low. Failure in the latter cases to simplify risk mitigation measures where appropriate, may be inefficient and, in some instances, may even undermine regulatory objectives. This article investigates the drivers of conservative responses by South African banks to statutory anti-money laundering and counter-terrorist financing laws.