Investment opportunities and leverage: some Australian evidence on the role of board monitoring and director equity ownership

This paper tests the hypothesis that the negative relationship between investment opportunity set (IOS) and debt is moderated by board monitoring and director equity ownership. According to contracting theory, firms with high growth opportunities (high IOS) are associated with lower levels of debt as a result of the asset substitution and the under-investment problem. However, our hypotheses test the conjecture that the negative debt / IOS relationship will be moderated by the proportion of non-executive directors (NEDs) on the board and director equity ownership. NEDs provide higher monitoring which reduces management discretion while director equity ownership provides incentives for managers to maximize the value of the firm. More specifically, we expect that high growth firms with a higher proportion of non-executive directors and director equity ownership are less likely to be associated with asset substitution and under investment. Thus, the negative investment opportunity set / debt relationship will be weaker for firms with higher levels of non-executive directors and high director equity ownership. Data collected from Australian companies support both these two hypotheses. Results have significant implications for corporate finance theory.

Excessive force used in making an arrest: does it make the arrest ipso facto unlawful?

The purpose of this article is to consider whether or not the use of excessive force in effecting an arrest makes the arrest ipso facto unlawful at common law. With a dearth of appellate court authority on point in either Australia or the United Kingdom, the question is presently open. It is my argument that as force is not a minimum condition of an arrest, its excessive use will not, therefore, make unlawful an otherwise lawful arrest. This conclusion is a matter of some import. It exposes an arrester to civil and possibly even criminal liability for assault but not to an action for false imprisonment. It may also have practical repercussions for the possible discretionary exclusion of evidence on public policy grounds. In theory, it should not matter whether excessive force made an arrest unlawful or not, for the public policy discretion permits a judge to exclude evidence illegally or improperly obtained. But common sense suggests that a judge may not be so likely to exclude evidence when the relevant conduct amounts only to police impropriety not illegality.

New community governance in small rural towns: the Australian experience

State and federal governments in Australia have developed a range of policy instruments for rural areas in Australia that are infused with a new sense of ‘community’, employing leading concepts like social capital, social enterprise, community development, partnerships and community building. This has encouraged local people and organisations to play a greater role in the provision of their local services and has led to the development of a variety of ‘community’ organisations aimed at stemming social and economic decline. In Victoria, local decision-making, before municipal amalgamations, gave small towns some sense of autonomy and some discretion over their affairs. However, following municipal amalgamations these small towns lost many of the resources—legal, financial, political, informational and organisational—associated with their former municipal status. This left a vacuum in these communities and the outcome was the emergence of local development groups. Some of these groups are new but many of them are organisations that have been reconstituted as groups with a broader community focus. The outcomes have varied from place to place but overall there has been a significant shift in governance processes at community level. This paper looks at the processes of ‘community governance’ and how it applies in a number of case studies in Victoria.

The sentencing advisory commission and the hope of smarter sentencing

Sentencing law practice - confused and incoherent Sentencing has been described as the 'high point in anti-jurisprudence' (Smith 1997:174). This comment reflects the fact that sentencing law is devoid of an overarching rationale. It is marked by a high degree of discretion and is shaped more by political expedience and intuition than informed inquiry and principle. The fact that sentencing is 'the most controversial and politically sensitive aspect of the criminal law' (Freckleton 1996:ix) has militated heavily against it being developed in a coherent and principled manner.

Introduction: Lambert and lampposts: the end of equality in Anglo-Australian matrimonial property law

This contribution introduces the volume by classifying the collection into 3 categories: (i) examinations of the area of property law which focus on the relationship between the decisions in White, Figgins and Lambert; (ii) reactions to the implications of McFarlane, Parlour for the evolution of spousal maintenance; (iii) more general theoretical considerations of ‘fairness’. It is argued that the judicial response to the breadth of the discretion provided by the respective legislatures has been to create ‘rules of thumb’; and that the absence of any serious examination of underlying principles has been to permit opportunistic cross-referencing between the jurisdictions. In this context it is argued that (analogously with the introduction of no-fault divorce) the recent attraction of ‘equality’ as a governing principle owes more to the incapacity and/or unwillingness of the forensic process to evaluate contribution in a coherent manner than to any genuine commitment to substantive equality.

Double jeopardy in Australia: the illusion of an absolute protection and the prosecution process as punishment

Outline of the nature and scope of the double jeopardy principle as it operates in the pleas in the bar and the court's discretion to prevent an abuse of the process - rationales advanced in favour of doctrine - some anomalies and implications from the claim that the double jeopardy principle is absolute - some suggestions for reform.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Technology and marginalization: a case study of the limited adoption of the intranet at a state-owned organisation in rural Australia

Taking a critical theory approach and the pluralist view of technology, this paper examines the problems in organizational communication that arose due to the implementation of a limited intranet electronic mail system as the main channel of communication between a rural stateowned organization and its city-based Head Office, installed at the sole discretion of the latter.
The intranet was provided only to the administration division and managers of some units due to financial constraints. This required others to receive information carried via the intranet through a gatekeeper who due to information and work overload, failed to disseminate the information effectively and efficiently. Using a combination of qualitative data collection methods, this study found that the intranet had marginalized those without access to it and reinforced the privileged position of those already with higher status within the organization, contrary to the utopian predictions
of new technologies as leading to social equality.

Reflexivity: a concept and its meanings for practitioners working with children and families

Reflexivity is a concept that is increasingly gaining currency in professional practice literature, particularly in relation to working with uncertainty and as an important feature of professional discretion and ethical practice. This article discusses how practitioners working in child and family welfare/protection organisations understood and interpreted the concept of reflexivity for their practice, as one of the outcomes of larger, collaborative research project. This project was conducted through a series of workshops with practitioners. The overall research that aimed to expand practitioners’ practice repertoires from narrowly-defined risk assessment, to an approach that could account for the uncertainties of practice, included the concept of reflexivity as an alternative or a complement to instrumental accountability that is increasingly a feature in child welfare/protection organisations. This article discusses how the concept of reflexivity was explored in the research and how practitioners interpreted the concept for their practice. We conclude that while concepts like reflexivity are central to formal theories for professional practice, we also recognise that individual practitioners interpret concepts (in ways that are both practically and contextually relevant), thus creating practical meanings appropriate to their practice contexts.

Roman concept of mental capacity to make end-of-life decisions

When assessing decisional competence of patients, psychiatrists have to balance the patients' right to personal autonomy, their condition and wishes against principles of medical ethics and professional discretion. This article explores the age-old legal and ethical dilemmas posed by refusal of vital medical treatment by patients and their mental capacity to make end-of-life decisions against the background of philosophical, legal and medical approaches to these issues in the time of the Younger Pliny (c62–c113 CE). Classical Roman discourse regarding mental competency and "voluntary death" formed an important theme of the vast corpus of Greco-Roman writings, which was moulded not only by legal permissibility of suicide but also by philosophical (in modern terms, moral or ethical) considerations. Indeed, the legal and ethical issues of evaluating the acceptability of end of life decisions discussed in the Letters are as pertinent today as they were 2000 years ago. We may gain valuable insights about our own methodologies and frames of reference in this area of the law and psychiatry by examining Classical Roman approaches to evaluating acceptability of death-choices as described in Pliny's Letters and the writings of some of his peers.

What explains dissent on the High Court of Australia? An empirical assessment using a cointegration and error correction approach

This article examines the factors influencing the annual dissent rate on the High Court of Australia from its first full year of operation in 1904 up to 2001 within a cointegration and error correction framework. We hypothesize that institutional factors, socioeconomic complexity, and leadership style explain variations in the dissent rate on the High Court of Australia over time. The institutional factors that we consider are the Court's caseload, whether it had discretion to select the cases it hears, and whether it was a final court of appeal. To measure socioeconomic complexity we use the divorce rate, urbanization rate, and real GDP per capita. Our main finding is that in the long run and short run, caseload and real income are the main factors influencing dissent. We find that a 1 percent increase in caseload and real income reduce the dissent rate on the High Court of Australia by 0.3 percent and 0.6 percent, respectively, holding other factors constant.

You Shall Have No Other Gods Before Me: Covenant in Faith and History

In this paper I have attempted to explore "covenant" in faith and history, as it extends throughout the entire framework of the Bible and the entire history of the people who produced it. With such a monstrous topic, a comprehensive analysis of the material could take a lifetime to do it justice. Therefore, I have taken a very specific approach to the material in order to investigate the evolution of covenant from the Hebrew Bible (Old Testament) to the Christian Scriptures (New Testament). I have made every effort to approach this thesis as a text-based, non-doctrinal discussion. However, having my own religious convictions, it has, at times, been difficult to recognize and escape my biases. Nevertheless, I am confident that this final product is, for the most part, objective and free from dogmatism. Of course, I have brought my own perspective and understanding to the material, which may be different from the reader's, so there may be matters of interpretation on which we differ, but c 'est fa vie in the world of religious dialogue. The structure of this paper is symmetrical: Part I examines the traditions of the Torah and the Prophets; Part II, the Gospels and Paul's letters. I have balanced the Old Testament against the New Testament (the Torah against the Gospels; the Prophets against Paul) in order to give approximately equal weight to the two traditions, and establish a sense of parallelism in the structure of my overall work. A word should also be said about three matters of style. First, instead of the customary Christian designation of time as B.C. or A.D., I have opted to use the more modem B.C.E. (Before the Common Era) and C.E. (Common Era) notations. This more recent system is less traditional; however, more acceptable in academic and, certainly, more appropriate for a non-doctrinal discussion. Second, in the body of this paper I have chosen to highlight several texts using a variety of colors. This highlighting serves (1) to call the reader's attention to specific passages, and (2) to compare the language and imagery of similar texts. All highlighting has been added to the texts at my own discretion. Finally, the divine name, traditionally vocalized as "Yahweh," is a verbal form of the Hebrew "to be," and means, approximately, "I am who I am." This name was considered too holy to pronounce by the ancient Israelites, and, the word adonai ("My LORD") was used in its stead. In respect of this tradition, I have left the divine name in its original Hebrew form. Accordingly, should be read as "the LORD" throughout this paper. All Hebrew and Greek translations, where they occur, are my own. The Greek translations are based on the New Revised Standard Version (NRSV) of the Bible.

Working and learning in vocational education and training in the knowledge era : final report of the professional development for the future project

This Report summarises the outcomes of the phases of the Professional
Development for the Future Project and presents the implications of this research for professional development of staff in Vocational Education and Training (VET), as they become knowledge workers.

These shifts are occurring within the knowledge era. Distinguishing features of this era are summarised into four broad areas:
- the importance and value placed on knowledge in organisations
- the time span of discretion
- the complexity of relationships, and
- the ubiquitous nature of information and communication technology.

It is within this context that work is currently performed, and understanding this context provides the foundation for considering new capabilities required in the knowledge era.
Key capabilities required of knowledge workers to work effectively in the
knowledge era were drawn together from an analysis of the theoretical literature and the results of interviews with knowledge workers. The core capabilities identified include:
- adaptive problem solving – becoming designers as well as problem -
solvers
- rapid knowledge gathering and sharing with others
- discriminating between relevant and irrelevant information, and
- understanding and working effectively with the organisation’s culture.

Knowledge era characteristics and knowledge worker capabilities have been mapped to each other illustrating conceptual linkages between these two areas.

Professional development themes drawn from interviews with knowledge
workers are presented. While global trends in knowledge work have been well documented, the impact of these trends on the capabilities of workers, and the ways in which knowledge workers develop these capabilities is less well understood. Their learning methods challenge our current thinking in relation to the ways in which workers acquire skills and knowledge. Some of the professional development methods include seeking exposure to new ideas from a wide variety of sources, embracing intense learning opportunities, and using relationships to increase knowledge.

‘Thought pieces’ (see p17 ff) commissioned for this Project, as well as
subsequent interviews with the authors, provided further insights into the
professional development of knowledge workers. The implications of these insights are an extension of earlier themes and emphasise:
- the emergent nature of knowledge work
- the importance of relationships that facilitate knowledge sharing
- coherent conversations and dialogue
- collaborative work and generosity.

A key insight is the shift from thinking about knowledge work in terms of
borrowed knowledge to an emphasis on generated knowledge within a context.

Data from focus groups of the Project provide further insights for knowledge worker professional development. These augment the perspectives of the earlier data analysis but also add greater emphasis to:
- the clear and direct relationship between professional development and
work and career aspirations of knowledge workers,
- the relationship of professional development to the organisational
mission, and
- the issues of managing and leading knowledge workers and their
development.

As part of this analysis the defining features of organisational life in VET were reviewed in relation to effective professional development of knowledge workers.

The final section of the Report revisits the core dimensions of the Project.
Concise commentaries on working and learning in the knowledge era,
professional development in the knowledge era, and leadership and
management in the knowledge era are presented.

The Report concludes with a discussion of the enablers of professional
development for knowledge workers in VET. This discussion is introduced by a re-statement of the VET sector’s positioning in the knowledge era and the consequences of this for VET managers an d staff in terms of complexity, uncertainty and diminished prospects for accurate predictiveness. The enablers comprised:
- integration of information technology into socio -technical systems
- greater understanding of the organisation from within
- connecting staff to the organisation’s fundamental identity
- connecting to the work and career trajectories of workers
- establishing work structures which integrate the use of professional
development resources with knowledge work
- providing workers with the autonomy to design their own professional
development activities
- building professional development into the iterative nature of knowledge
work, and
- creating organisational contexts that value intuitive thinking and working.

Professional development needs to be thou ght of in a much broader context in the knowledge era. What each VET staff member knows and shares will become increasingly central to their work, and in that sense all VET workers require capabilities for knowledge work. This report accurately describes t he VET context, the capabilities required, and the organisational enablers that will promote ‘knowing’ and thus embed a new style of professional development within VET.

New dog, old tricks : solving a conflict of laws problem in CISG arbitrations

Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration . Where their choice is incomplete, as is the case where the contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural late. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.

Housing service officers : agents of the state or customer service officers?

Staff employed in the Victorian Office of Housing are invariably required to exercise discretion in their day-to-day work managing housing assets and providing services to public housing tenants. Policies specify processes but they never cover all situations and do not provide guidance on competing objectives. For example, preparing a property for reletting is a process with protocols and budget constraints. However, staff can make procedural variations that compy with policy. These variations, generally learnt from peers on the job, often result in budget over runs, but do result in improved properties for new tenants. Discretion is being exercised in balancing housing asset, budget control and tenant service objectives. A housing officer sums up the enduring tension in balancing objectives in the question and statement:’ Am I an agent of the state or a customer service officer? Because I can’t be both’. Organisationally these tensions are spoken about as ‘management issues’, ‘policy reengineering’ and ‘unrealistic understandings’. Using data from an ethnographic study in the Victorian Office of Housing, the paper addresses the question: ‘What do we know about the way in which front line housing officers manage competing objectives in their daily work and how might this knowledge be usefully used in the development of operational policy?’ The paper will explore the way in which complex administrative rules are used as a device to align staff to the Office of Housing objectives and limit the exercise of discretion by frontline staff. Against the background of this analysis the paper will consider the limitations of rule making and the extent to which other organisational strategies might be important for improvements in service provision in a context of constrained resources and limited resources.