The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

Citizen’s right to the digital city: Urban interfaces, activism, and placemaking

Edited by thought leaders of the fields of urban informatics and urban interaction design, this book brings together case studies and examples from around the world to discuss the role that urban Interfaces, citizen action, and city making play in the quest to create and maintain not only secure and resilient, but productive, sustainable, and liveable urban environments. The book debates the impact of these trends on theory, policy, and practice. The chapters in this book are sourced from blind peer reviewed contributions by leading researchers working at the intersection of the social / cultural, technical / digital, and physical / spatial domains of urbanism scholarship. The book appeals not only to research colleagues and students, but also to a vast number of practitioners in the private and public sector interested in accessible accounts that clearly and rigorously analyse the affordances and possibilities of urban interfaces, mobile technology, and location-based services to engage people towards open, smart and participatory urban environments.

Shaping safe drinking cultures : evoking positive emotion to promote moderate-drinking behaviour

Social marketing by Western governments that use fear tactics and threatening information to promote anti-drinking messages has polarized ‘binge drinking’ and ‘moderate drinking’ through a continuum that implies benefits and harms for both individuals and society. With the goal of extending insights into social marketing approaches that promote safer drinking cultures in Australia, we discuss findings from a study that examines alcohol consumers' moderate-drinking intentions. By applying the theory of planned behaviour and emotions theory, we discuss survey results from a sample of alcohol consumers, which demonstrate that positively framed value propositions that evoke happiness and love are more influential in the processing of an alcohol moderation message for alcohol consumers. The key limitations of this study are the cross-sectional nature of the data and the focal-dependent variable being behavioural intentions rather than behaviours. Research insight into the stronger influence of positive emotions on processing an alcohol moderation message establishes an important avenue for future social marketing communications that moves beyond negative, avoidance appeals to promote behaviour change in drinkers. These research findings will benefit professionals involved in developing social change campaigns that promote and reinforce consumers' positive intentions, with messages about the benefits of controlled, moderate drinking.

Effective emergency messaging during natural disasters: An application of message compliance theories

Study/Objective This research examines the types of emergency messages used in Australia during the response and early recovery phases of a natural disaster. The aim of the research is to develop theory-driven emergency messages that increase individual behavioural compliance during a disaster. Background There is growing evidence of non-compliant behaviour in Australia, such as refusing to evacuate and travelling through hazardous areas. This can result in personal injury, loss of life, and damage to (or loss of) property. Moreover, non-compliance can place emergency services personnel in life-threatening situations when trying to save non-compliant individuals. Drawing on message compliance research in psychology and sociology, a taxonomy of message types was developed to ascertain how emergency messaging can be improved to produce compliant behaviour. Method A review of message compliance literature was conducted to develop the taxonomy of message types previously found to achieve compliance. Seven categories were identified: direct-rational, manipulation, negative phrasing, positive phrasing, exchange appeals, normative appeals, and appeals to self. A content analysis was then conducted to assess the emergency messages evident in the Australian emergency management context. The existing messages were aligned with the literature to identify opportunities to improve emergency messaging. Results & Conclusion The results suggest there is an opportunity to improve the effectiveness of emergency messaging to increase compliance during the response and early recovery phases of a natural disaster. While some message types cannot legally or ethically be used in emergency communication (e.g. manipulative messaging), there is an opportunity to create more persuasive messages (e.g. appeals to self) that personalise the individual’s perception of risk, triggering them to comply with the message.

Taking the right road to somewhere

What do you with a teenager that no high school in Queensland wants sitting in its classrooms? A child that's disruptive, violent, who won't turn up? Who, it seems, the system has given up on? Any police officer, or child welfare worker will tell you what's likely to happen... a story with an unhappy ending, usually involving brushes with the law and then jail. But a unique project being run in Brisbane is trying to break that cycle.

Breakfast at Tiffany's': eBay Inc., trade mark law, and counterfeiting

In an exploration of intellectual property and fashion, this article examines the question of the intermediary liability of online auction-houses for counterfeiting. In the United States, the illustrious jewellery store, Tiffany & Co, brought a legal action against eBay Inc, alleging direct trademark infringement, contributory trademark infringement, false advertising, unfair competition and trademark dilution. The luxury store depicted the online auction-house as a pirate bazaar, a flea-market and a haven for counterfeiting. During epic litigation, eBay Inc successfully defended itself against these allegations in a United States District Court and the United States Court of Appeals for the Second Circuit. Tiffany & Co made a desperate, unsuccessful effort to appeal the matter to the Supreme Court of the United States. The matter featured a number of interventions from amicus curiae — Tiffany was supported by Coty, the Fashion Designer's Guild, and the International Anticounterfeiting Coalition, while eBay was defended by publicly-spirited civil society groups such as Electronic Frontier Foundation, Public Citizen, and Public Knowledge as well as Yahoo!, Google Inc, Amazon.com, and associations representing telecommunications carriers and internet service providers. The litigation in the United States can be counterpointed with the fusillade of legal action against eBay in the European Union. In contrast to Tiffany & Co, Louis Vuitton triumphed over eBay in the French courts — claiming its victory as vindication of the need to protect the commercial interests and cultural heritage of France. However, eBay has fared somewhat better in a dispute with L’Oréal in Great Britain and the European Court of Justice. It is argued that, in a time of flux and uncertainty, Australia should follow the position of the United States courts in Tiffany & Co v eBay Inc. The final part examines the ramifications of this litigation over online auction-houses for trade mark law reform and consumer rights; parallel disputes over intermediary liability and safe harbours in the field of copyright law and the Anti-Counterfeiting Trade Agreement 2010. The conclusion calls for a revision of trade mark law, animated by a respect for consumers’ rights and interests in the electronic marketplace.

The grapes of wrath: The Coonawarra dispute, geographical indications and international trade

The famous wine region of Coonawarra in South Australia has been promoted as ’Australia's other Red Centre', emphasizing its terra rossa soil and its cabernet sauvignon. In his atlas of the wine regions of Australia, John Beeston comments upon the rich and contested history of the region: ’Coonawarra is certainly the most famous cabernet sauvignon region in Australia, and some would argue, the most renowned wine region in Australia per se'. A reporter, Penelope Debelle, captures a sense of the legal conflict over the parameters of the boundaries of Coonawarra: ’Behind the name Coonawarra, an inglorious contest is being waged that pits the romance of South Australia's terra rossa cool-climate wine region against the cold commercial reality of the label.'This Chapter tells the story behind the Coonawarra litigation, addressing the parties to the dispute; the legal and historical context of the case; and the immediate impact case, as well as its lingering significance. It considers the ’Coonawarra' case as, very literally, a landmark in Australian jurisprudence in respect of intellectual property. This chapter engages in the methodology of ’legal storytelling'. In the field of new historicism, the use of anecdotes - petite histoire - has been seen as a useful way of challenging grand historical narratives. Joel Fineman has observed that the anecdote is ’the literary form or genre that uniquely refers to the real.' This chapter has three parts. Part 1 outlines the European Community - Australia Wine Agreement 1994, and the operation of the Australian Wine and Brandy Corporation Act 1980 (Cth). Part 2 considers the various stages of the dispute over the Coonawarra region - moving from the decision of the Geographical Indications Committee, to the ruling of the Administrative Appeals Tribunal; and the conclusive decision of the Full Court of the Federal Court of Australia. Part 3 examines the implications of the Coonawarra litigation for other wine regions of Australia - most notably, the King Valley in Victoria; but also the Hunter Valley in the New South Wales; and the Margaret River in Western Australia. The conclusion considers the ramifications of the European Community-Australia Wine Agreement 2007, which has been initialed by both sides.

The valley of the dolls: Brand protection and artistic parody

In the case of Mattel Inc v Walking Mountain Productions, the toy doll manufacturer Mattel sought to prohibit a Utah photographer called Thomas Forsythe from producing and selling a series of 78 photographs entitled "Food Chain Barbie". The work had strong social and political overtones. The artist said that he chose to parody Barbie in his photographs because he wanted to challenge the beauty myth and the objectification of women. He observed: "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." The company Mattel argued that the photographs infringed its copyrights, trade marks, and trade dress. It was concerned that the artistic works would erode the brand of Barbie by wrongfully sexualising its blonde paragon of womanhood. However, Lew J of the Central District Court of California granted summary judgment for the photographer. The Court of Appeals upheld this verdict. Pregerson J held that the use of the manufacturer's copyrighted doll in parodic photographs constituted a fair use of copyright works. His Honour held that the use of manufacturer's "Barbie" mark and trade dress did not amount to trade mark infringement or dilution. This article provides a case commentary upon the Court of Appeals decision in Mattel Inc v Walking Mountain Productions, and its wider ramifications for the treatment of artistic parody under copyright law and trade mark law. It contends that the decision highlights the need for reform in Australian jurisprudence and legislation in respect of artistic parody.

The new conquistadors: Patent law and expressed sequence tags

It's akin to the old Spanish, English and Portuguese explorers. They would take their boats until they found some edge of land, then they would go up and plant the flag of their king or queen. They didn't know what they'd discovered; how big it is, where it goes to - but they would claim it anyway. David Korn of the Association of American Medical Colleges This article analyses recent litigation over patent law and expressed sequence tags (ESTs). In the case of In re Fisher, the United States Court of Appeals for the Federal Circuit engaged in judicial consideration of the revised utility guidelines of the United States Patent and Trademark Office (USPTO). In this matter, the agricultural biotechnology company Monsanto sought to patent ESTs in maize plants. A patent examiner and the Board of Patent Appeals and Interferences had doubted whether the patent application was useful. Monsanto appealed against the rulings of the USPTO. A number of amicus curiae intervened in the matter in support of the USPTO - including Genentech, Affymetrix, Dow AgroSciences, Eli Lilly, the National Academy of Sciences, and the Association of American Medical Colleges. The majority of the Court of Appeals for the Federal Circuit supported the position of the USPTO, and rejected the patent application on the grounds of utility. The split decision highlighted institutional tensions over the appropriate thresholds for patent criteria - such as novelty, non-obviousness, and utility. The litigation raised larger questions about the definition of research tools, the incremental nature of scientific progress, and the role of patent law in innovation policy. The decision of In re Fisher will have significant ramifications for gene patents, in the wake of the human genome project. Arguably, the USPTO utility guidelines need to be reinforced by a tougher application of the standards of novelty and non-obviousness in respect of gene patents.

Knowledge and behaviors of drunk-driving offenders in Guangzhou, China

Aims To better understand the knowledge and behaviors of drunk-driving offenders relating to alcohol use and driving in the context of recently amended Chinese legislation, and to investigate the involvement of alcohol-use disorders. Design The study was a cross-sectional survey conducted in 2012. Setting and participants: Data were collected at a local jail and 101 participants were recruited while in detention. Measures Questionnaire items examined demographic characteristics as well as practices and knowledge relating to alcohol use and driving. The Alcohol Use Disorders Identification Test (AUDIT) was used to assess hazardous drinking levels. Findings Knowledge about the two legal limits for “drink driving” and for “drunk driving” was low, at 28.3% and 41.4%, respectively. AUDIT scores indicated that a substantial proportion of the offenders had high levels of alcohol-use disorders. Higher AUDIT scores were found among the least experienced drivers, those who lacked knowledge about the legal limits, and recidivist drunk drivers. Conclusions Limited awareness of legal alcohol limits might contribute to offending; high AUDIT scores suggest that hazardous drinking levels may also contribute. This study provides important information to assist in refining community education and prevention efforts.

Young drivers’ responses to anti-speeding advertisements: Comparison of self-report and objective measures of persuasive processing and outcomes

Objective Self-report measures are typically used to assess the effectiveness of road safety advertisements. However, psychophysiological measures of persuasive processing (i.e., skin conductance response [SCR]) and objective driving measures of persuasive outcomes (i.e., in-vehicle GPS devices) may provide further insights into the effectiveness of these advertisements. This study aimed to explore the persuasive processing and outcomes of two anti-speeding advertisements by incorporating both self-report and objective measures of speeding behaviour. In addition, this study aimed to compare the findings derived from these different measurement approaches. Methods Young drivers (N = 20, Mage = 21.01 years) viewed either a positive or negative emotion-based anti-speeding television advertisement. Whilst viewing the advertisement, SCR activity was measured to assess ad-evoked arousal responses. The RoadScout® GPS device was then installed into participants’ vehicles for one week to measure on-road speed-related driving behaviour. Self-report measures assessed persuasive processing (emotional and arousal responses) and actual driving behaviour. Results There was general correspondence between the self-report measures of arousal and the SCR and between the self-report measure of actual driving behaviour and the objective driving data (as assessed via the GPS devices). Conclusions This study provides insights into how psychophysiological and GPS devices could be used as objective measures in conjunction with self-report measures to further understand the persuasive processes and outcomes of emotion-based anti-speeding advertisements.

Exploring boredom proneness as a predictor of mobile phone use in the car

Driver distraction through mobile phone use in the car is a growing road safety concern. This paper presents findings of a survey (N = 528), which seeks to better understand the predictors of mobile phone use while driving in young (18-25) adult drivers. The survey investigated factors and motivations such as young adults' boredom proneness and their social connectedness, as well as their general mobile phone use and phone use in the car. We found, e.g., that boredom proneness plays a larger role (compared to social connectedness) in determining how much a young male uses their phone in the car (compared to young females). Despite the study’s limitations, this initial understanding allows us to better design and develop innovative HCI interventions that prevent young adults, particularly males, from phone use while driving in a way that appeals to their needs.

Disabling methodologies

In efforts to generate inclusive schooling, educational policy makers and teachers presumably need to know what the terms of exclusion have been and how inclusion would operate. If disability's definition and, hence, identification is constitutionally unstable however, inclusive schooling becomes a more ambiguous affair. This article examines the methodologies deployed to analyse disability in cultural perspective. It maps critical/feminist and critical post-structural methodologies for treating definitional difficulties. It problematises the notion of cross-culture by analysing the play of a Westernness in different accounts. It suggests that definitional ‘dilemmas’ noted in studies of disability and culture are not resolved by critical/feminist or critical post-structural approaches. The difficulty of definition is grounded more broadly in a moment that seeks to notice itself, particularly through the play of language and appeals to historical relativity. The ‘resolution’ that the article suggests is the article itself: to map the insideness of outsideness in regard to ‘culture’ and ‘persons’, and to locate the activity of mapping as another colonising effect of scientific thought.

Civil Procedure — Commentary and Materials, 6th Edition

This book provides a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Each chapter features in-depth questions and notes together with lists of further reading to aid understanding of the issue. It also examines and discusses each substantive and procedural step in the trial process. Topics include jurisdiction of a court to consider a matter, alternative dispute resolution, limitations of actions, commencing proceedings, group proceedings, pleading, summary disposition, gathering evidence, affidavits, interlocutory procedures, settlement, trial and appeal, costs Each of the state, territory and federal procedures is covered.

Gustaf III inför sina undersåtar : Konsten att härska och politikens kulturhistoria

The dissertation analyses the political culture of Sweden during the reign of King Gustav III (1771-1792). This period commonly referred to as the Gustavian era followed the so-called Age of Liberty ending half a century of strong parliamentary rule in Sweden. The question at the heart of this study engages with the practice of monarchical rule under Gustav III, its ideological origins and power-political objectives as well as its symbolic expression. The study thereby addresses the very nature of kingship. In concrete terms, why did Gustav III, his court, and his civil service vigorously pursue projects that contemporaneous political opponents and, in particular, subsequent historiography have variously pictured as irrelevant, superficial, or as products of pure vanity? The answer, the study argues, is to be found in patterns of political practice as developed and exercised by Gustav III and his administration, which formed a significant part of the political culture of Gustavian Sweden. The dissertation is divided into three parts. The first traces the use and development of royal graces chivalric orders, medals, titles, privileges, and other gifts issued by the king. The practice of royal reward is illustrated through two case studies: the 1772 coup d état that established Gustav III s rule, and the birth and baptism of the crown prince, Gustav Adolf, in 1778. The second part deals with the establishment of the Court of Appeal in Vasa in 1776. The formation of the Appeals Court was accompanied by a host of ceremonial, rhetorical, emblematic, and architectural features solidifying its importance as one of Gustav III s most symbolic administrative reform projects and hence portraying the king as an enlightened monarch par excellence. The third and final part of the thesis engages with war as a cultural phenomenon and focuses on the Russo-Swedish War of 1788-1790. In this study, the war against Russia is primarily seen as an arena for the king and other players to stage, create and re-create as well as articulate themselves through scenes and roles adhering to a particular cultural idiom. Its codes and symbolic forms, then, were communicated by means of theatre, literature, art, history, and classical mythology. The dissertation makes use of a host of sources: protocols, speeches, letters, diaries, newspapers, poetry, art, medals, architecture, inscriptions and registers. Traditional political source material and literary and art sources are studied as totalities, not as separate entities. Also it is argued that political and non-fictional sources cannot be understood properly without acknowledging the context of genre, literary conventions, and artistic modes. The study critically views the futile, but nonetheless almost habitual juxtaposition of the reality of images, ideas, and metaphors, and the reality of supposedly factual historical events. Significantly, the thesis presumes the symbolic dimension to be a constitutive element of reality, not its cooked up misrepresentation. This presumption is reflected in a discussion of the concept of role , which should not be anachronistically understood as roles in which the king cast himself at different times and in different situations. Neither Gustav III nor other European sovereigns of this period played the roles as rulers or majesties. Rather, they were monarchs both in their own eyes and in the eyes of their contemporaries as well as in all relations and contexts. Key words: Eighteenth-Century, Gustav III, Cultural History, Monarchs, Royal Graces, the Vasa Court of Appeal, the Russo-Swedish War 1788–1790.