Statutory verification of water rights: the 'insuperable' difficulties of propertising water entitlements

The abolition of riparian entitlements in the early stages of colonial Australia and the vesting of these rights in the Crown represented a turning point for the evolution of private water rights. The extinguishment of common law rights connected to vested land interests and the introduction of new, unaligned statutory entitlements provided a new and fundamentally different system for the creation and regulation of private water entitlements. Unlike riparian entitlements, in the absence of express definition, statutory water entitlements may only be verified as property where such a construction is consistent with the nature and scope of the entitlement. In this respect, the statutory framework has disaggregated the propertisation of water rights from land ownership and linked the process to broader statutory interpretation principles. The shift away from institutional property has generated concerns about the interpretive approaches appropriate for the verification of legislative water entitlements. This article examines the existing interpretive approaches and argues that the blurring of the propertisation process with the separate issue of whether any change or modification of such water rights attracts s 51(xxxi) of the Commonwealth Constitution has produced a situation where core property indicia is increasingly overshadowed by legislative defeasibility. In the recent High Court decision of ICM Agriculture Pty Ltd v Commonwealth, the focus of the majority judgements upon the inherent susceptibility of legislative entitlements to variation or extinguishment acted as a catalyst for the non-propertisation of statutory bore water licences in New South Wales. The emphasis the majority judgements gave to legislative defeasibility precluded a full and balanced assessment of other highly relevant property indicia, in particular the expectation interests of the holders. Conflating property and constitutional evaluation in this way is inappropriate in an era where entitlements to natural resource interests are increasingly statute based and the verification process has significant social and economic repercussions. Determining whether a statutory entitlement constitutes property requires a careful balancing of legislative intent, social and environmental context and individual expectation and the vicissitudes of a regulatory context should not eclipse this process.

Leave entitlements, time off work and the household financial impacts of quarantine compliance during an H1N1 outbreak

Background The Australian state of Victoria, with 5.2 million residents, enforced home quarantine during a H1N1 pandemic in 2009. The strategy was targeted at school children. The objective of this study was to investigate the extent to which parents’ access to paid sick leave or paid carer’s leave was associated with (a) time taken off work to care for quarantined children, (b) household finances, and (c) compliance with quarantine recommendations. Methods We conducted an online and telephone survey of households recruited through 33 schools (85% of eligible schools), received 314 responses (27%), and analysed the subsample of 133 households in which all resident parents were employed. Results In 52% of households, parents took time off work to care for quarantined children. Households in which no resident parent had access to leave appeared to be less likely to take time off work (42% vs 58%, p=0.08) although this difference had only borderline significance. Among parents who did take time off work, those in households without access to leave were more likely to lose pay (73% vs 21%, p<0.001). Of the 26 households in which a parent lost pay due to taking time off work, 42% experienced further financial consequences such as being unable to pay a bill. Access to leave did not predict compliance with quarantine recommendations. Conclusions Future pandemic plans should consider the economic costs borne by households and options for compensating quarantined families for income losses.

Strengthening leave entitlements for workers in Australia

The Australian Council of Trade Unions (ACTU) commissioned me to work during October-December 2015 to prepare this preliminary research report on ways to strengthen leave entitlements for workers in Australia. The report considers how portable entitlements might be extended in a highly casualised Australian workforce continually affected by new technological arrangements.

Employer matters in 2003

The year 2003 was characterised by employer proactivism, and a preparedness to pursue new legal manoeuvres to prevent or terminate protected industrial action. A number of employers also resorted to lengthy lockouts (with few positive results) as bargaining tactics in enterprise negotiations. It was the year employers in the manufacturing and metals sector saw off the unions’ ‘Campaign 2003’, giving little ground on the key issues of reduced hours and contributions to trust funds for worker entitlements. The year was a joyous one for employers in the building and construction industry, as their dreams of a shackled and weakened union movement came a step closer to being realised, with the introduction of draconian industry-specific legislation by the Howard Government, arising from the recommendations of the Cole Royal Commission. On a positive note, the year also witnessed all the members of the ‘industrial relations club’ embrace and declare a common concern for work and family balance issues.

Portable sick leave in the Victorian building industry : managing cumulative employee benefits in the absence of employment security

The trend away from full-time permanent employment raises questions about the relevance of traditional approaches to managing and compensating employees. Employment in the Australian building industry is characterised by short-term, project-based employment. Employers and unions in the industry have adopted alternative compensation models to accommodate the short-term nature of employment, most notably through portable benefit schemes. In 1997, the Victorian building industry extended the range of portable benefits to include sick leave. Empirical evidence suggests a relationship between employee absence behaviour and accrual entitlement models. Research reported here supports this link, and suggests that both employers and employees can benefit from an alternative, portable, approach to accrued entitlements. Employers can benefit because employees may be less likely to take an instrumental approach to their entitlements. Employees benefit because they are able to accrue entitlements for the period they remain in the building industry, irrespective of the extent to which they change jobs.

Wages, career progression, training and work family policies : an integrated approach to explaining gender discrimination

While the Equal Employment Opportunities (EEO) literature suggests that considerable progress has been made towards addressing gender-based discrimination (primarily through legal instruments), direct and indirece forms of discrimination persist and tend to be perpetuated through organisational practices (Tomaskovic-Devey 2001). Women are still receive less remuneration than men and are disadvantaged with respect to fundamental entitlements such as promotion and training and education. Furthermore, as more women enter employment the issue of work and family balance has become an organisational priority. There is a large body of research literature in the disciplines of economics, sociology, industrial relations, human resource management, organisational studies and public administration that examines the sources, nature and extent of gender-based discrimination in labour markets. This paper seeks to integrate this literature by taking a multi-disciplinary approach to the problem of women, EEO and discrimination. It is argued that our understanding of discrimination is greatly enhanced by theories and models that incorporate both economic and organisational explanations. Furthermore, it is argued that discrimination in terms of promotion, pay and training are endogenous. That is, the interrelationship between these variables needs to be taken into account simultaneously to accurately estimate the degree of direct and indirect discrimination that women face. The paper provides a review of the literature on the key themes of pay equity, career progression, education and training and work-family policy, and seeks to provide a synthesis of key themes. Emerging from this literature are a number of testable hypotheses. The paper concludes with suggestions for future research.

Artikel 3(1) en (2) van die Mineral and Petroleum Resources Development Act 28 van 2002: 'n herbeskouing

Sections 3(1) and 3(2) of the Mineral and Petroleum Resources Development Act 28 of 2002
This contribution entails a discussion of the impact of section 3 of the Mineral and Petroleum Resources Development Act on various aspects of the new mineral and petroleum law. At the core of the discussion is the question of how this section is interpreted by various commentators, and the implications of the different opinions on the application of the section. The initial discussion highlights problems with the new definition of a "mineral": Soil, including topsoil is at present included in die definition of a "mineral" in the act. The definition should be rectified by the legislature as it has far-reaching consequences in respect of the extent of the state's power in terms of section 3(2) of the act to grant entitlements in respect of minerals, including topsoil. The implications of section 3 for the control and management of minerals are discussed and placed in the context of the question about the constitutionality of the act. It is argued that legislative guidance is urgently needed to clarify continuing uncertainty, caused by sloppy drafting and different opinions about the connection between private law and public law in relation to minerals and the actual position of existing right holders.

Communicating entrepreneurship and ethnicity in New Zealand

In this paper, we compare entrepreneurship practice of the Maori culture with that of the other five ethnic groups or cultures in New Zealand including European New Zealanders, Europeans, Chinese, Indians and Pacific Islanders. One of the most reported findings in previous GEM reports was that Maori are every bit as entrepreneurial as other ethnicities. Some commentators were surprised by this finding, since Maori collect more than their proportionate share of benefit entitlements. But we have shown that Maori have a history of entrepreneurship and enterprise upon which to draw (Frederick and Henry, 2004). The Maori economy, though small, is "robust and poised for continued expansion", says a recent report by the Institute of Economic Research (NZIER, 2003).

How general practitioners determine young people's rights

To explore how Victorian general practitioners understand and apply relevant legal authority when faced with a. young person who requests the oral contraceptive pill, over 300 doctors were asked to make decisions about a hypothetical patient's competence and confidentiality. Respondents presented a range of philosophical perspectives about young people's entitlements, and operationalised legal authority in a variety of ways. The data indicate that the assumptions embedded in relevant law, the vague nature of existing legal criteria and the evident diversity in assessment practices all have the potential to act as obstacles to young people's claim to rights in the medical context.

Not measuring up : low-income women on welfare

The central notion of this chapter is that every person has the right to an elemental standard of social life, as a citizenship entitlement. However, segments of our society, such as women who rely on government payments as their primary source of income, do not enjoy full social citizenship entitlements and are instead socially excluded. Using data from in-depth qualitative interviews, I outline participants’ experiences of stigma, marginalisation and exclusion. I posit that these experiences are the result of policy failure as financial assistance policies fail to fully provide these women with their social citizenship entitlements.

Are employees entitled to more?

George Lopez, chair of CPA Australia's insolvency and reconstruction committee reported in Australian CPA (November 2001) on the replacement of the Commonwealth Government Employee Entitlements Support Scheme (EESS) with a new scheme, the General Employee Entitlements Redundancy Scheme (GEERS). Both schemes provide a safety net by which government pays employees their service entitlements and then takes the employees' place in claims against the insolvent employer organisation. Such schemes are fundamentally inequitable as ultimately they require taxpayers and shareholders to foot the bill for the mistakes, excesses, misdemeanours or incompetence of employers. Similar arrangements have been proposed in the past. For instance, the Australian Law Reform Commission's Harmer Report (1988) contained a recommendation that a wage earner (fidelity-type) protection fund be established. In the state of Victoria, local government legislation already exists to ensure that long service leave entitlements are funded.

Barriers experienced by Asians in accessing injury-related services and compensations

Introduction: The Accident Compensation Corporation (ACC) administers New Zealand’s (NZ) accident compensation scheme. Asians in NZ are apparently under-serviced by ACC and may be experiencing barriers to accessing services. This study identifies barriers that Asians in NZ face in accessing ACC’s injury-related services and compensations.

Methods: By utilising a qualitative research design, 113 Chinese, Korean, Indian, and South East Asian participants residing in Auckland, NZ were recruited through maximum variation and purposive snowball sampling. Data were gathered during 2006 through 22 individual in-depth interviews and 14 focus group discussions based on semi-structured interview schedules. Interviewees included Asian general practitioners, traditional health providers, users and non-users of injury-related services, case managers and Asian community leaders. Data were analysed using a general inductive approach.

Findings: Results show that personal/cultural characteristics such as age, gender, English language competence, injury-related language competence, differing Asian worldviews, and consequent help-seeking behaviours act as barriers to accessing services and entitlements. This is exacerbated by logistical and environmental factors such as cost, transport, time, inadequate interpretation and translation services, as well as institutional barriers such as lack of information about services, culturally inappropriate services, discriminatory attitudes and employment risks.

Conclusion: It is evident that Asians living in NZ are experiencing several cultural, environmental and institutional barriers to accessing ACC services. There is clearly a need for more culturally relevant information and injury-related services if Asian immigrants’ use of such services and entitlements is to be increased.

Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context

The purpose of this article is to critically evaluate the existing capacity of Indigenous people to exercise succession rights against their estate. This article begins with a discussion of the sources of the general succession laws in Australia, noting that they have derived from UK law, where the common law notions of property, property rights and family, including the expectational right to succeed to property, are all important factors. These common law notions do not easily fit within the spectrum of Indigenous customary law. Generally, many Indigenous Australians will die without executing a valid will (ie, they die intestate) and it is here that this article undertakes an examination of the general intestacy laws in all Australian jurisdictions noting the inadequacy of the provisions to recognise Indigenous persons’ spiritual and cultural obligations to property, land or otherwise, together with a failure to distinguish extended Indigenous kinship relationships under Indigenous customary law. It is argued that Indigenous people who die intestate should be supported by a flexible and adaptive intestacy framework, responsive to the full customary and cultural responsibilities of the deceased, thus promoting an organic and developmental approach to succession entitlements.