The implication of a term of good faith in commercial leases — A brief response

By way of response to Professor Duncan's article,1 this article examines the theoretical basis for the implication of contractual terms, particularly the implication of a term at law. In this regard the recent decision of Barrett J in Overlook v Foxtel [2002] NSWSC 17 is considered, to the extent that it provides guidance concerning the implication of an obligation of good faith in the context of a commercial contract. A number of observations are made which may be considered likely to have application to the relationship of commercial landlord and tenant. The conclusion reached is that although the commercial landlord and tenant contractual relationship is highly regulated, this may not deny a remedy to a tenant who is the victim of a landlord's 'bad faith'. Finally, the article concludes by considering the extent to which it may be possible to contractually exclude the implied obligation of good faith.

Learning to reflect in the first year of legal education : the key to surviving legal education and legal practice

Lawyers and law students suffer significant rates of depression and substance abuse. This paper suggests that Law Schools have an obligation to assist students to develop the emotional intelligence necessary in order to cope with the stressful nature of legal practice. We draw on Schön’s discussion of the indeterminate zone of professional practice to suggest that reflective practice is the means by which students can become sufficiently emotionally intelligent to become balanced and happy lawyers. We suggest that incorporating reflective practice in intentional curriculum design in the first year of law is an effective first step in assisting students to develop the emotional intelligence necessary to survive the study and practice of law.

Comparative study : health research on traffic noise pollution vs. Technical research on traffic noise mitigation

Community awareness and the perception on the traffic noise related health impacts have increased significantly over the last decade resulting in a large volume of public inquiries flowing to Road Authorities for planning advice. Traffic noise management in the urban environment is therefore becoming a “social obligation”, essentially due to noise related health concerns. Although various aspects of urban noise pollution and mitigation have been researched independently, an integrated approach by stakeholders has not been attempted. Although the current treatment and mitigation strategies are predominantly handled by the Road Agencies, a concerted effort by all stakeholders is becoming mandatory for effective and tangible outcomes in the future. A research project is underway a RMIT University, Australia, led by the second author to consider the use of “hedonic pricing” for alternative noise amelioration treatments within the road reserve and outside the road reserve. The project aims to foster a full range noise abatement strategy encompassing source, path and noise receiver. The benefit of such a study would be to mitigate the problem where it is most effective and would defuse traditional “authority” boundaries to produce the optimum outcome. The project is conducted in collaboration with the Department of Main Roads Queensland, Australia and funded by the CRC for Construction Innovation. As part of this study, a comprehensive literature search is currently underway to investigate the advancements in community health research, related to environmental noise pollution, and the advancements in technical and engineering research in mitigating the issue. This paper presents the outcomes of this work outlining state of the art, national and international good practices and gap analysis to identify major anomalies and developments.

A study of entrepreneurship : Taiwanese digital content companies in China

China’s accession to the World Trade Organisation (WTO) has greatly enhanced global interest in investment in the Chinese media market, where demand for digital content is growing rapidly. The East Asian region is positioned as a growth area in many forms of digital content and digital service industries. China is attempting to catch up and take its place as a production centre to offset challenges from neighbouring countries. Meanwhile, Taiwan is seeking to use China both as an export market and as a production site for its digital content. This research investigates entry strategies of Taiwanese digital content firms into the Chinese market. By examining the strategies of a sample of Taiwan-based companies, this study also explores the evolution of their market strategies. However, the focus is on how distinctive business practices such as guanxi are important to Taiwanese business and to relations with Mainland China. This research examines how entrepreneurs manage the characteristics of digital content products and in turn how digital content entrepreneurs adapt to changing market circumstances. This project selected five Taiwan-based digital content companies that have business operations in China: Wang Film, Artkey, CnYES, Somode and iPartment. The study involved a field trip, undertaken between November 2006 and March 2007 to Shanghai and Taiwan to conduct interviews and to gather documentation and archival reports. Six senior managers and nine experts were interviewed. Data were analysed according to Miller’s firm-level entrepreneurship theory, foreign direct investment theory, Life Cycle Model and guanxi philosophy. Most studies of SMEs have focused on free market (capitalist) environments. In contrast, this thesis examines how Taiwanese digital content firms’ strategies apply in the Chinese market. I identified three main types of business strategy: cost-reduction, innovation and quality-enhancement; and four categories of functional strategies: product, marketing, resource acquisition and organizational restructuring. In this study, I introduce the concept of ‘entrepreneurial guanxi’, special relationships that imply mutual obligation, assurance and understanding to secure and exchange favors in entrepreneurial activities. While guanxi is a feature of many studies of business in Pan-Chinese society, it plays an important mediating role in digital content industries. In this thesis, I integrate the ‘Life Cycle Model’ with the dynamic concept of strategy. I outline the significant differences in the evolution of strategy between two types of digital content companies: off-line firms (Wang Film and Artkey) and web-based firms (CnYES, Somode and iPartment). Off-line digital content firms tended to adopt ‘resource acquisition strategies’ in their initial stages and ‘marketing strategies’ in second and subsequent stages. In contrast, web-based digital content companies mainly adopted product and marketing strategies in the early stages, and would adopt innovative approaches towards product and marketing strategies in the whole process of their business development. Some web-based digital content companies also adopted organizational restructuring strategies in the final stage. Finally, I propose the ‘Taxonomy Matrix of Entrepreneurial Strategies’ to emphasise the two dimensions of this matrix: innovation, and the firm’s resource acquisition for entrepreneurial strategy. This matrix is divided into four cells: Effective, Bounded, Conservative, and Impoverished.

Scheduling trains as a blocking parallel-machine job shop scheduling problem

In this paper, the train scheduling problem is modelled as a blocking parallel-machine job shop scheduling (BPMJSS) problem. In the model, trains, single-track sections and multiple-track sections, respectively, are synonymous with jobs, single machines and parallel machines, and an operation is regarded as the movement/traversal of a train across a section. Due to the lack of buffer space, the real-life case should consider blocking or hold-while-wait constraints, which means that a track section cannot release and must hold the train until next section on the routing becomes available. Based on literature review and our analysis, it is very hard to find a feasible complete schedule directly for BPMJSS problems. Firstly, a parallel-machine job-shop-scheduling (PMJSS) problem is solved by an improved shifting bottleneck procedure (SBP) algorithm without considering blocking conditions. Inspired by the proposed SBP algorithm, feasibility satisfaction procedure (FSP) algorithm is developed to solve and analyse the BPMJSS problem, by an alternative graph model that is an extension of the classical disjunctive graph models. The proposed algorithms have been implemented and validated using real-world data from Queensland Rail. Sensitivity analysis has been applied by considering train length, upgrading track sections, increasing train speed and changing bottleneck sections. The outcomes show that the proposed methodology would be a very useful tool for the real-life train scheduling problems

Techniques for inserting additional trains into existing timetables

In this paper techniques for scheduling additional train services (SATS) are considered as is train scheduling involving general time window constraints, fixed operations, maintenance activities and periods of section unavailability. The SATS problem is important because additional services must often be given access to the railway and subsequently integrated into current timetables. The SATS problem therefore considers the competition for railway infrastructure between new services and existing services belonging to the same or different operators. The SATS problem is characterised as a hybrid job shop scheduling problem with time window constraints. To solve this problem constructive algorithm and metaheuristic scheduling techniques that operate upon a disjunctive graph model of train operations are utilised. From numerical investigations the proposed framework and associated techniques are tested and shown to be effective.

A sequencing approach for creating new train timetables

Train scheduling is a complex and time consuming task of vital importance. To schedule trains more accurately and efficiently than permitted by current techniques a novel hybrid job shop approach has been proposed and implemented. Unique characteristics of train scheduling are first incorporated into a disjunctive graph model of train operations. A constructive algorithm that utilises this model is then developed. The constructive algorithm is a general procedure that constructs a schedule using insertion, backtracking and dynamic route selection mechanisms. It provides a significant search capability and is valid for any objective criteria. Simulated Annealing and Local Search meta-heuristic improvement algorithms are also adapted and extended. An important feature of these approaches is a new compound perturbation operator that consists of many unitary moves that allows trains to be shifted feasibly and more easily within the solution. A numerical investigation and case study is provided and demonstrates that high quality solutions are obtainable on real sized applications.

Open content creation : the issues of voice and the challenges of listening

This paper examines the proposition that increased ability to have a voice and be listened to, through ‘open ICT4D’ and ‘open content creation’ can be an effective mechanism for development. The paper discusses empirical work that strongly indicates that this only happens when voice is appropriately valued in the development process. Having a voice in development processes are less effective when participation is limited. Open ICT allows for more and more voices to be heard, but it is open ICT4D that has the obligation to ensure voices are listened to. In the paper I first explore participatory development and the idea of open ICT4D before elaborating on issues of voice and thinking about voice as process, and voice as value. Research findings are presented from research that experimented with participatory (or open) content creation, discussed in relation to notions of openness and voice. I then consider the challenges of listening, before drawing some conclusions about opening up ICT4D research.

The core role of the nurse practitioner: practice, professionalism and clinical leadership.

AIM: To draw on empirical evidence to illustrate the core role of nurse practitioners in Australia and New Zealand. BACKGROUND: Enacted legislation provides for mutual recognition of qualifications, including nursing, between New Zealand and Australia. As the nurse practitioner role is relatively new in both countries, there is no consistency in role expectation and hence mutual recognition has not yet been applied to nurse practitioners. A study jointly commissioned by both countries' Regulatory Boards developed information on the core role of the nurse practitioner, to develop shared competency and educational standards. Reporting on this study's process and outcomes provides insights that are relevant both locally and internationally. METHOD: This interpretive study used multiple data sources, including published and grey literature, policy documents, nurse practitioner program curricula and interviews with 15 nurse practitioners from the two countries. Data were analysed according to the appropriate standard for each data type and included both deductive and inductive methods. The data were aggregated thematically according to patterns within and across the interview and material data. FINDINGS: The core role of the nurse practitioner was identified as having three components: dynamic practice, professional efficacy and clinical leadership. Nurse practitioner practice is dynamic and involves the application of high level clinical knowledge and skills in a wide range of contexts. The nurse practitioner demonstrates professional efficacy, enhanced by an extended range of autonomy that includes legislated privileges. The nurse practitioner is a clinical leader with a readiness and an obligation to advocate for their client base and their profession at the systems level of health care. CONCLUSION: A clearly articulated and research informed description of the core role of the nurse practitioner provides the basis for development of educational and practice competency standards. These research findings provide new perspectives to inform the international debate about this extended level of nursing practice. RELEVANCE TO CLINICAL PRACTICE: The findings from this research have the potential to achieve a standardised approach and internationally consistent nomenclature for the nurse practitioner role.

Labour rights as human rights : workers' safety at work in Australian-based supply chains

The increase of buyer-driven supply chains, outsourcing and other forms of non-traditional employment has resulted in challenges for labour market regulation. One business model which has created substantial regulatory challenges is supply chains. The supply chain model involves retailers purchasing products from brand corporations who then outsource the manufacturing of the work to traders who contract with factories or outworkers who actually manufacture the clothing and textiles. This business model results in time and cost pressures being pushed down the supply chain which has resulted in sweatshops where workers systematically have their labour rights violated. Literally millions of workers work in dangerous workplaces where thousands are killed or permanently disabled every year. This thesis has analysed possible regulatory responses to provide workers a right to safety and health in supply chains which provide products for Australian retailers. This thesis will use a human rights standard to determine whether Australia is discharging its human rights obligations in its approach to combating domestic and foreign labour abuses. It is beyond this thesis to analyse Occupational Health and Safety (OHS) laws in every jurisdiction. Accordingly, this thesis will focus upon Australian domestic laws and laws in one of Australia’s major trading partners, the Peoples’ Republic of China (China). It is hypothesised that Australia is currently breaching its human rights obligations through failing to adequately regulate employees’ safety at work in Australian-based supply chains. To prove this hypothesis, this thesis will adopt a three- phase approach to analysing Australia’s regulatory responses. Phase 1 will identify the standard by which Australia’s regulatory approach to employees’ health and safety in supply chains can be judged. This phase will focus on analysing how workers’ rights to safety as a human right imposes a moral obligation on Australia to take reasonablely practicable steps regulate Australian-based supply chains. This will form a human rights standard against which Australia’s conduct can be judged. Phase 2 focuses upon the current regulatory environment. If existing regulatory vehicles adequately protect the health and safety of employees, then Australia will have discharged its obligations through simply maintaining the status quo. Australia currently regulates OHS through a combination of ‘hard law’ and ‘soft law’ regulatory vehicles. The first part of phase 2 analyses the effectiveness of traditional OHS laws in Australia and in China. The final part of phase 2 then analyses the effectiveness of the major soft law vehicle ‘Corporate Social Responsibility’ (CSR). The fact that employees are working in unsafe working conditions does not mean Australia is breaching its human rights obligations. Australia is only required to take reasonably practicable steps to ensure human rights are realized. Phase 3 identifies four regulatory vehicles to determine whether they would assist Australia in discharging its human rights obligations. Phase 3 then analyses whether Australia could unilaterally introduce supply chain regulation to regulate domestic and extraterritorial supply chains. Phase 3 also analyses three public international law regulatory vehicles. This chapter considers the ability of the United Nations Global Compact, the ILO’s Better Factory Project and a bilateral agreement to improve the detection and enforcement of workers’ right to safety and health.

Legislative and security requirements of audit material for evidentiary purpose

This research used the Queensland Police Service, Australia, as a major case study. Information on principles, techniques and processes used, and the reason for the recording, storing and release of audit information for evidentiary purposes is reported. It is shown that Law Enforcement Agencies have a two-fold interest in, and legal obligation pertaining to, audit trails. The first interest relates to the situation where audit trails are actually used by criminals in the commission of crime and the second to where audit trails are generated by the information systems used by the police themselves in support of the recording and investigation of crime. Eleven court cases involving Queensland Police Service audit trails used in evidence in Queensland courts were selected for further analysis. It is shown that, of the cases studied, none of the evidence presented was rejected or seriously challenged from a technical perspective. These results were further analysed and related to normal requirements for trusted maintenance of audit trail information in sensitive environments with discussion on the ability and/or willingness of courts to fully challenge, assess or value audit evidence presented. Managerial and technical frameworks for firstly what is considered as an environment where a computer system may be considered to be operating “properly” and, secondly, what aspects of education, training, qualifications, expertise and the like may be considered as appropriate for persons responsible within that environment, are both proposed. Analysis was undertaken to determine if audit and control of information in a high security environment, such as law enforcement, could be judged as having improved, or not, in the transition from manual to electronic processes. Information collection, control of processing and audit in manual processes used by the Queensland Police Service, Australia, in the period 1940 to 1980 was assessed against current electronic systems essentially introduced to policing in the decades of the 1980s and 1990s. Results show that electronic systems do provide for faster communications with centrally controlled and updated information readily available for use by large numbers of users who are connected across significant geographical locations. However, it is clearly evident that the price paid for this is a lack of ability and/or reluctance to provide improved audit and control processes. To compare the information systems audit and control arrangements of the Queensland Police Service with other government departments or agencies, an Australia wide survey was conducted. Results of the survey were contrasted with the particular results of a survey, conducted by the Australian Commonwealth Privacy Commission four years previous, to this survey which showed that security in relation to the recording of activity against access to information held on Australian government computer systems has been poor and a cause for concern. However, within this four year period there is evidence to suggest that government organisations are increasingly more inclined to generate audit trails. An attack on the overall security of audit trails in computer operating systems was initiated to further investigate findings reported in relation to the government systems survey. The survey showed that information systems audit trails in Microsoft Corporation's “Windows” operating system environments are relied on quite heavily. An audit of the security for audit trails generated, stored and managed in the Microsoft “Windows 2000” operating system environment was undertaken and compared and contrasted with similar such audit trail schemes in the “UNIX” and “Linux” operating systems. Strength of passwords and exploitation of any security problems in access control were targeted using software tools that are freely available in the public domain. Results showed that such security for the “Windows 2000” system is seriously flawed and the integrity of audit trails stored within these environments cannot be relied upon. An attempt to produce a framework and set of guidelines for use by expert witnesses in the information technology (IT) profession is proposed. This is achieved by examining the current rules and guidelines related to the provision of expert evidence in a court environment, by analysing the rationale for the separation of distinct disciplines and corresponding bodies of knowledge used by the Medical Profession and Forensic Science and then by analysing the bodies of knowledge within the discipline of IT itself. It is demonstrated that the accepted processes and procedures relevant to expert witnessing in a court environment are transferable to the IT sector. However, unlike some discipline areas, this analysis has clearly identified two distinct aspects of the matter which appear particularly relevant to IT. These two areas are; expertise gained through the application of IT to information needs in a particular public or private enterprise; and expertise gained through accepted and verifiable education, training and experience in fundamental IT products and system.

Modelling and solving train scheduling problems under capacity constraints

Many large coal mining operations in Australia rely heavily on the rail network to transport coal from mines to coal terminals at ports for shipment. Over the last few years, due to the fast growing demand, the coal rail network is becoming one of the worst industrial bottlenecks in Australia. As a result, this provides great incentives for pursuing better optimisation and control strategies for the operation of the whole rail transportation system under network and terminal capacity constraints. This PhD research aims to achieve a significant efficiency improvement in a coal rail network on the basis of the development of standard modelling approaches and generic solution techniques. Generally, the train scheduling problem can be modelled as a Blocking Parallel- Machine Job-Shop Scheduling (BPMJSS) problem. In a BPMJSS model for train scheduling, trains and sections respectively are synonymous with jobs and machines and an operation is regarded as the movement/traversal of a train across a section. To begin, an improved shifting bottleneck procedure algorithm combined with metaheuristics has been developed to efficiently solve the Parallel-Machine Job- Shop Scheduling (PMJSS) problems without the blocking conditions. Due to the lack of buffer space, the real-life train scheduling should consider blocking or hold-while-wait constraints, which means that a track section cannot release and must hold a train until the next section on the routing becomes available. As a consequence, the problem has been considered as BPMJSS with the blocking conditions. To develop efficient solution techniques for BPMJSS, extensive studies on the nonclassical scheduling problems regarding the various buffer conditions (i.e. blocking, no-wait, limited-buffer, unlimited-buffer and combined-buffer) have been done. In this procedure, an alternative graph as an extension of the classical disjunctive graph is developed and specially designed for the non-classical scheduling problems such as the blocking flow-shop scheduling (BFSS), no-wait flow-shop scheduling (NWFSS), and blocking job-shop scheduling (BJSS) problems. By exploring the blocking characteristics based on the alternative graph, a new algorithm called the topological-sequence algorithm is developed for solving the non-classical scheduling problems. To indicate the preeminence of the proposed algorithm, we compare it with two known algorithms (i.e. Recursive Procedure and Directed Graph) in the literature. Moreover, we define a new type of non-classical scheduling problem, called combined-buffer flow-shop scheduling (CBFSS), which covers four extreme cases: the classical FSS (FSS) with infinite buffer, the blocking FSS (BFSS) with no buffer, the no-wait FSS (NWFSS) and the limited-buffer FSS (LBFSS). After exploring the structural properties of CBFSS, we propose an innovative constructive algorithm named the LK algorithm to construct the feasible CBFSS schedule. Detailed numerical illustrations for the various cases are presented and analysed. By adjusting only the attributes in the data input, the proposed LK algorithm is generic and enables the construction of the feasible schedules for many types of non-classical scheduling problems with different buffer constraints. Inspired by the shifting bottleneck procedure algorithm for PMJSS and characteristic analysis based on the alternative graph for non-classical scheduling problems, a new constructive algorithm called the Feasibility Satisfaction Procedure (FSP) is proposed to obtain the feasible BPMJSS solution. A real-world train scheduling case is used for illustrating and comparing the PMJSS and BPMJSS models. Some real-life applications including considering the train length, upgrading the track sections, accelerating a tardy train and changing the bottleneck sections are discussed. Furthermore, the BPMJSS model is generalised to be a No-Wait Blocking Parallel- Machine Job-Shop Scheduling (NWBPMJSS) problem for scheduling the trains with priorities, in which prioritised trains such as express passenger trains are considered simultaneously with non-prioritised trains such as freight trains. In this case, no-wait conditions, which are more restrictive constraints than blocking constraints, arise when considering the prioritised trains that should traverse continuously without any interruption or any unplanned pauses because of the high cost of waiting during travel. In comparison, non-prioritised trains are allowed to enter the next section immediately if possible or to remain in a section until the next section on the routing becomes available. Based on the FSP algorithm, a more generic algorithm called the SE algorithm is developed to solve a class of train scheduling problems in terms of different conditions in train scheduling environments. To construct the feasible train schedule, the proposed SE algorithm consists of many individual modules including the feasibility-satisfaction procedure, time-determination procedure, tune-up procedure and conflict-resolve procedure algorithms. To find a good train schedule, a two-stage hybrid heuristic algorithm called the SE-BIH algorithm is developed by combining the constructive heuristic (i.e. the SE algorithm) and the local-search heuristic (i.e. the Best-Insertion- Heuristic algorithm). To optimise the train schedule, a three-stage algorithm called the SE-BIH-TS algorithm is developed by combining the tabu search (TS) metaheuristic with the SE-BIH algorithm. Finally, a case study is performed for a complex real-world coal rail network under network and terminal capacity constraints. The computational results validate that the proposed methodology would be very promising because it can be applied as a fundamental tool for modelling and solving many real-world scheduling problems.

Encryption safe harbours and data breach notification laws

Data breach notification laws require organisations to notify affected persons or regulatory authorities when an unauthorised acquisition of personal data occurs. Most laws provide a safe harbour to this obligation if acquired data has been encrypted. There are three types of safe harbour: an exemption; a rebuttable presumption and factor-based analysis. We demonstrate, using three condition-based scenarios, that the broad formulation of most encryption safe harbours is based on the flawed assumption that encryption is the silver bullet for personal information protection. We then contend that reliance upon an encryption safe harbour should be dependent upon a rigorous and competent risk-based review that is required on a case-by-case basis. Finally, we recommend the use of both an encryption safe harbour and a notification trigger as our preferred choice for a data breach notification regulatory framework.