Commonwealth legislative power and "non punitive" detention: a constitutional roadmap

In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under  section 51 off he Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for “legitimate non punitive purposes”.  Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a “judicial process ” is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the “constitutional immunity ”from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.

Risk management, player welfare and privacy : player development managers and dilemmas for employee relations in Australian football league clubs

This paper reports on one aspect of a research project that was funded by the Australian Football League (AFL) to explore the emergence and evolution of a ‘professional identity’ for AFL footballers. The research was informed by Foucault's later work on the care of the Self to focus on the ways in which player identities are governed by coaches, club officials, and the AFL Commission/Executive; and the manner in which players conduct themselves in ways that can be characterised as professional - or not. The paper explores the roles of Player Development Managers (PDMs) in emerging processes of risk and player management. These roles increasingly involve PDMs in risk management practices and processes that can be seen as intrusive in players’ lives. These risk management processes raise a number of concerns about player privacy and the rights of Clubs to know what their employees are up to away from the workplace.

The value of executive director share ownership and discretionary accruals

Purpose – The purpose of this paper is to investigate the relation between the value of executive director share ownership and discretionary accruals.

Design/methodology/approach – This study uses a dataset of 1,173 firm-year observations drawn from 188 Australian listed companies for the period 2000-2006. The analysis is based on multivariate regression analysis and ordinary least square models were used to investigate the relation between the value of managerial ownership and discretionary accruals. The issue of potential endogeneity is addressed by using a simultaneous equation system.

Findings – A negative relation is found between value of managerial share ownership and discretionary accruals at lower levels of value of ownership, which is consistent with the theorised incentive alignment that as the managers commit more resources to their firms, stakeholders impose less contractual constraints specified in terms of accounting numbers and managers make lower accrual adjustments. After a certain level of value of ownership is attained, a positive relations seen, consistent with increased discretionary accrual adjustments associated with stakeholders anticipating managerial entrenchment. Also, it is found that these results are driven by firms with income increasing, as opposed to income decreasing, discretionary accruals.

Practical implications – Shares and options are forming an increasing proportion of executive remuneration that continues to be the subject of much debate amongst regulators and in the media. Showing that the value of share ownership may be an effective internal governance mechanism to help align incentives adds to the debate and has policy implications.

Originality/value – The paper's primary contribution is finding that the value (as opposed to proportion) of share ownership, typically representing a sizeable proportion of managers' undiversified wealth, is a potentially direct driver of theorised incentive alignment and entrenchment effects associated with share ownership.

The evolution of freedom of association in Australia's federal industrial relations law: from trade union security to workplace rights

The early provisions protecting freedom of association in Australian federal industrial relations law supported trade union security. The interests of individuals were seen as adequately protected by collective groups. This principle dominated the industrial relations laws from 1904 to the mid-1970s. However, from the late 1970s, the laws were incrementally altered to promote freedom of choice and the rights of individuals not to be part of trade unions. The reframing of the laws also reflected changes in the wider Australian community, manifested particularly in the decline of union density rates. These changes were also part of an international trend, favouring the ideology of neoliberalism which contributed to an unsympathetic environment for trade unions. The current Fair Work Act 2009 (Cth) has signalled a return to collectivism, although freedom of choice is at the heart of the laws rather than the promotion of collective groups. In the absence of legislative support promoting the viability of collective groups, this freedom to choose is threatened, leaving many workers with little choice but to disassociate.

Miscommunication in Australia-China relations: the Stern Hu Affair

This paper explores communication and miscommunication in international business relations by studying the case of former RIO Tinto executive Stern Hu who was prosecuted for stealing trade secrets and taking bribes in kickbacks from Chinese steel firms. Using newspaper articles about the case that were published in Australia, China and other countries via Internet in either Chinese or English from July 2009 to April 2010, a series of differences in the way the Chinese and Australian protagonists were framed both in terms of relevant facts and value judgments. Apart from various obvious stereotypes, more subtle differences in the perspectives of the two nations emerge in my reading of their presses regarding the nature of trust, the role of corporations, government and how morality and business intermesh in two culturally distinct systems. Using this case, this paper illustrates the nature and types of misunderstandings that emerge over time and across locations within each cultural setting.