Demanding a change : time to act on statutory demands

The statutory demand procedure has been a part of our corporate law from its earliest modern formulations and it has been suggested, albeit anecdotally, that under the current regime, it gives rise to more litigation than any other part of the Corporations Act. Despite this there has been a lack of consideration of the underlying policy behind the procedure in both the case law and literature; both of which are largely centred on the technical aspects of the process. The purpose of this article is to examine briefly the process of the statutory demand in the context of the current insolvency law in Australia. This paper argues that robust analysis of the statutory demand regime is overdue. The paper first sets out to discover if there is a policy justification for the process and to articulate what that may be. Second, it will briefly examine the current legislation and argue that the structure actually encourages litigation which is arguably undesirable in the context of insolvency. In particular we will ask if the current rigid legal regime is appropriate for dealing efficiently with the highly charged atmosphere of contested insolvency. Third, it will examine suggested reforms in this area as to whether they might be a way forward.

Social norms and corruption

We explore theoretically and empirically whether corruption is contagious and whether conditional cooperation matters. We argue that the decision to bribe bureaucrats depends on the frequency of corruption within a society. We provide a behavioral model to explain this conduct: engaging in corruption results in a disutility of guilt. This disutility depends negatively on the number of people engaging in corruption. The empirical section presents evidence using two international panel data data sets, one at the micro and one at the macro level. Results indicate that corruption is influenced by the perceived activities of peers. Moreover, macro level data indicates that past levels of corruption impact current corruption levels.

A comparison of the psychological, social, and legal factors contributing to speeding and drink driving behaviour

Within Australia, motor vehicle injury is the leading cause of hospital admissions and fatalities. Road crash data reveals that among the factors contributing to crashes in Queensland, speed and alcohol continue to be overrepresented. While alcohol is the number one contributing factor to fatal crashes, speeding also contributes to a high proportion of crashes. Research indicates that risky driving is an important contributor to road crashes. However, it has been debated whether all risky driving behaviours are similar enough to be explained by the same combination of factors. Further, road safety authorities have traditionally relied upon deterrence based countermeasures to reduce the incidence of illegal driving behaviours such as speeding and drink driving. However, more recent research has focussed on social factors to explain illegal driving behaviours. The purpose of this research was to examine and compare the psychological, legal, and social factors contributing to two illegal driving behaviours: exceeding the posted speed limit and driving when over the legal blood alcohol concentration (BAC) for the drivers licence type. Complementary theoretical perspectives were chosen to comprehensively examine these two behaviours including Akers’ social learning theory, Stafford and Warr’s expanded deterrence theory, and personality perspectives encompassing alcohol misuse, sensation seeking, and Type-A behaviour pattern. The program of research consisted of two phases: a preliminary pilot study, and the main quantitative phase. The preliminary pilot study was undertaken to inform the development of the quantitative study and to ensure the clarity of the theoretical constructs operationalised in this research. Semi-structured interviews were conducted with 11 Queensland drivers recruited from Queensland Transport Licensing Centres and Queensland University of Technology (QUT). These interviews demonstrated that the majority of participants had engaged in at least one of the behaviours, or knew of someone who had. It was also found among these drivers that the social environment in which both behaviours operated, including family and friends, and the social rewards and punishments associated with the behaviours, are important in their decision making. The main quantitative phase of the research involved a cross-sectional survey of 547 Queensland licensed drivers. The aim of this study was to determine the relationship between speeding and drink driving and whether there were any similarities or differences in the factors that contribute to a driver’s decision to engage in one or the other. A comparison of the participants self-reported speeding and self-reported drink driving behaviour demonstrated that there was a weak positive association between these two behaviours. Further, participants reported engaging in more frequent speeding at both low (i.e., up to 10 kilometres per hour) and high (i.e., 10 kilometres per hour or more) levels, than engaging in drink driving behaviour. It was noted that those who indicated they drove when they may be over the legal limit for their licence type, more frequently exceeded the posted speed limit by 10 kilometres per hour or more than those who complied with the regulatory limits for drink driving. A series of regression analyses were conducted to investigate the factors that predict self-reported speeding, self-reported drink driving, and the preparedness to engage in both behaviours. In relation to self-reported speeding (n = 465), it was found that among the sociodemographic and person-related factors, younger drivers and those who score high on measures of sensation seeking were more likely to report exceeding the posted speed limit. In addition, among the legal and psychosocial factors it was observed that direct exposure to punishment (i.e., being detected by police), direct punishment avoidance (i.e., engaging in an illegal driving behaviour and not being detected by police), personal definitions (i.e., personal orientation or attitudes toward the behaviour), both the normative and behavioural dimensions of differential association (i.e., refers to both the orientation or attitude of their friends and family, as well as the behaviour of these individuals), and anticipated punishments were significant predictors of self-reported speeding. It was interesting to note that associating with significant others who held unfavourable definitions towards speeding (the normative dimension of differential association) and anticipating punishments from others were both significant predictors of a reduction in self-reported speeding. In relation to self-reported drink driving (n = 462), a logistic regression analysis indicated that there were a number of significant predictors which increased the likelihood of whether participants had driven in the last six months when they thought they may have been over the legal alcohol limit. These included: experiences of direct punishment avoidance; having a family member convicted of drink driving; higher levels of Type-A behaviour pattern; greater alcohol misuse (as measured by the AUDIT); and the normative dimension of differential association (i.e., associating with others who held favourable attitudes to drink driving). A final logistic regression analysis examined the predictors of whether the participants reported engaging in both drink driving and speeding versus those who reported engaging in only speeding (the more common of the two behaviours) (n = 465). It was found that experiences of punishment avoidance for speeding decreased the likelihood of engaging in both speeding and drink driving; whereas in the case of drink driving, direct punishment avoidance increased the likelihood of engaging in both behaviours. It was also noted that holding favourable personal definitions toward speeding and drink driving, as well as higher levels of on Type-A behaviour pattern, and greater alcohol misuse significantly increased the likelihood of engaging in both speeding and drink driving. This research has demonstrated that the compliance with the regulatory limits was much higher for drink driving than it was for speeding. It is acknowledged that while speed limits are a fundamental component of speed management practices in Australia, the countermeasures applied to both speeding and drink driving do not appear to elicit the same level of compliance across the driving population. Further, the findings suggest that while the principles underpinning the current regime of deterrence based countermeasures are sound, current enforcement practices are insufficient to force compliance among the driving population, particularly in the case of speeding. Future research should further examine the degree of overlap between speeding and drink driving behaviour and whether punishment avoidance experiences for a specific illegal driving behaviour serve to undermine the deterrent effect of countermeasures aimed at reducing the incidence of another illegal driving behaviour. Furthermore, future work should seek to understand the factors which predict engaging in speeding and drink driving behaviours at the same time. Speeding has shown itself to be a pervasive and persistent behaviour, hence it would be useful to examine why road safety authorities have been successful in convincing the majority of drivers of the dangers of drink driving, but not those associated with speeding. In conclusion, the challenge for road safety practitioners will be to convince drivers that speeding and drink driving are equally risky behaviours, with the ultimate goal to reduce the prevalence of both behaviours.

The Australian nonprofit sector legal and accounting almanac 2011

Summaries of legal cases, legislation and developments in law and accounting relevant to nonprofit organisations and charity law during 2011; including articles on special issues such as accounting standards and the chart of accounts; law reform (e.g. the new national regulator, the Australian Charities and Not-for-profits Commission); and taxation.

UK pre-pack reforms : pause for thought in Australia?

On 31 March 2011 the UK Government announced new measures to regulate the use of pre-packaged sales in administration. The legislation is not expected until later in 2011, but the announcement heralds a shift in regulatory attitudes towards pre-packs in the UK which should give all local pre-pack advocates pause for thought when considering the merits of embracing the procedure in Australia. In the Jan-March 2011 edition of the Australian Insolvency Journal, an interesting article by Nicholas Crouch and Shabnam Amirbeaggi extolled the virtues of pre-packs and called for “legislative reform to embrace pre-packs” in Australia. By way of reply (and in a spirit of constructive debate) this article respectfully contends that while pre-packs certainly have their place in preserving business value in certain circumstances, Australia should be careful not to sleepwalk into adopting a procedure which legitimises phoenixing at the expense of creditor confidence and participation in our insolvency regime.

Does section 420A impose ‘strict liability’ upon controllers for acts or omissions of agents and experts?

This article addresses in depth the question of whether section 420A of the Corporations Act 2001 (Cth) imposes ‘strict liability’ upon a controller for the failure of an agent or expert to take reasonable care. The weight of existing authority appears to suggest that controllers are liable under s 420A for the carelessness of their agents or expert advisers. However, a closer analysis of the text of the provision and relevant Australian and UK case law demonstrates that this aspect of the statutory construction of s 420A remains very much an open question. This article ultimately contends for a construction of s 420A which requires a controller to adequately supervise and scrutinise, but which does not render a blameless controller strictly liable for all careless acts and omissions of agents and expert advisers.

An examination of recent taxation amendments, corporate law reforms and Queensland legislative reforms affecting nonprofit organisations

There is a tax amendment bill which will be debated. The Government has promised to outline its plan for the reform of the taxation system sometime this year. The plans appear to go beyond the mere introduction of some sort of goods and services tax to reform of the whole taxation system including fiscal relations with the States. Not for profit organisations will find their taxation environment will change. Governments are reluctant to permit exemptions to a GST style arrangements. GST trade offs such as reduced income tax rates and abolishing indirect taxes are useless to nonprofit organisations, as many are already exempt from such imposts. Administrative changes to tax collections may also have an impact. If the government decides to make an individual PAYE taxpayer return optional in exchange for no or standard deductions, this may have an effect on fundraising. The FBT and salary packaging schemes that not for profit organisations use will be under intense scrutiny. A regionalisation of the ATO along the successful model of the ASC would see discrete areas such as not for profit exemptions being centralised in one regional office for the whole of Australia. For example the Tasmanian ASC Office has the responsibility for much work in respect of corporate charities and not for profit companies.

Submission on Financial Planning Association Consultation Paper

This report was submitted to the Financial Planning Association and is confined to the proposals in relation to compliance with the Best Interests duty (Part B) and the provision of Scaled Advice (Part C) in the FPA Consultation Paper, Modifications to the FPA Code of Professional Practice to incorporate FoFA, released in October 2012.

The emerging framework of cross-border insolvency in and around Australia : Saad Investments, Japan Airlines and Lehman Brothers – part one

Recent decades have witnessed a global acceleration of legislative and private sector initiatives to deal with Cross-Border insolvency. Legislative institutions include the various national implementations of the Model Law on Cross-Border Insolvency (Model Law) published by the United Nations Commission on International Trade (UNCITRAL).3 Private mechanisms include Cross-Border protocols developed and utilised by insolvency professionals and their advisers (often with the imprimatur of the judiciary), on both general and ad hoc bases. The Asia Pacific region has not escaped the effect of those developments, and the economic turmoil of the past few years has provided an early test for some of the emerging initiatives in that region. This two-part article explores the operation of those institutions through the medium of three recent cases.

The emerging framework of cross-border insolvency in and around Australia : Saad Investments, Japan Airlines and Lehman Brothers – Part Two

Recent decades have witnessed a global acceleration of legislative and private sector initiatives to deal with Cross-Border insolvency. Legislative institutions include the various national implementations of the Model Law on Cross-Border Insolvency (Model Law) published by the United Nations Commission on International Trade (UNCITRAL).3 Private mechanisms include Cross-Border protocols developed and utilised by insolvency professionals and their advisers (often with the imprimatur of the judiciary), on both general and ad hoc bases. The Asia Pacific region has not escaped the effect of those developments, and the economic turmoil of the past few years has provided an early test for some of the emerging initiatives in that region. This two-part article explores the operation of those institutions through the medium of three recent cases.

Of repetition and of song

Allyson Reynolds, for many years now, has been a keen student of nature. Nature’s forms have always been important to her work, but it would be wrong to see Reynolds as simply transcribing directly from the natural world. For this artist, nature and the natural world represents an elusive invitation and so Reynolds doesn’t so much paint from nature, although resemblance and imitation are clearly evident, as work to render visually and emotionally tangible this invitation. And for a viewer this is no small thing as the invitation is to become attuned and connect with nature as it exists in ourselves, that is to see as nature. Reynolds’ is inviting us as viewers to connect and participate with the nature of nature that is evident in ourselves through the act of perceiving. Reynolds’ work can do this because it is a work born of deep evocation. The sensibility from which it emerges or is transacted is poetic, intensely so, but more than that it works to make of viewing an act of poetry, through a celebration of seeing. Reynolds evocation is born of a deep feeling towards and contemplation of the natural world - it is as though the world lives in her and is now a seamless part of her creative vocabulary. In such personal work there is a profoundly felt and revealed sense of the intimate and like true intimacy it revels in both its dark and quiet, as well as its playful and light, aspects. What is special about Reynolds’ visual poetry is that it able to render this intimacy so accessible. It is an accessibility that is available for the viewer who is able to not only look but also surrender to that looking, accepting and working with the flow of thoughts and associations it occasions...

Synthesis and characterisation of organo-beidellite

Today, there are growing concerns about the presence of environmental pollutants in many parts of the world. In particular, a lot of attention has been drawn to the levels of water and soil contaminants (de Paiva et al., 2008). The majority of these contaminants consist of NOCs (non-ionic organic compounds) and can enter our waterways through industrial activities, mining operations, crop and animal production, waste disposal and accidental leakage (de Paiva et al., 2008; Park et al., 2011). Therefore, there is an increased interest in the synthesis of new materials that can be used to remove potentially carcinogenic and toxic water contaminants. Smectite type organoclays are widely used in numerous applications, such as sorbent agents for environmental remediation, due to their unique properties (Jiunn-Fwu et al., 1990; Sheng et al., 1996; Zhou et al., 2007; Bektas et al., 2011; Park et al., 2011). This investigation focuses on beidellite (SBId-1), which belongs to the smectite clay family. Their properties include high cation exchange capacity (CEC), swelling properties, porous, high surface area and consequential strong adsorption/absorption capacity (Xi et al., 2007). However, swelling clays in general are not an effective sorbent agent in nature due to their hydrophilic properties. The hydrophilic properties of the clay can be changed to organophilic by intercalating a cationic surfactant. Many applications of organoclays are strongly dependent on their structural properties and hence, a better understanding of the configuration and structural change of organoclay is crucial. Organoclays were synthesised through ion exchange of 21CODTMA (MW: 392.5 g mol-1) and characterised using XRD and FTIR spectroscopy. This study investigates the structural and conformational changes of beidellite intercalated with octadecyltrimethylammonium bromide.

Thermal analysis and application of organoclays for water purification

In recent years, organoclays have become widely used in many industrial applications, and particularly they have been applied as adsorbents for water purification (de Paiva et al., 2008; Zhou et al., 2008; Park et al., 2011). When the organoclays are enhanced by intercalation of cationic surfactant molecules, the surface properties are altered from hydrophilic to highly hydrophobic. These changes facilitate their industrial applications which are strongly dependent on the structural properties of organoclays (Koh and Dixon, 2001; Zeng et al., 2004; Cui et al., 2007). Thus a better understanding of the configuration and structural change in the organoclays by thermogravimetric analysis (TG) is essential. It has been proven that the TG is very useful for the study of complex minerals, modified minerals, and nanomaterials (Laachachi et al., 2005; Palmer et al., 2011; Park et al., in press, 2011). Therefore, the current investigation involves the thermal stability of a montmorillonite intercalated with two types of cationic surfactants: dodecyltrimethylammonium bromide (DDTMA) and didodecyldimethylammonium bromide (DDDMA) using TG. The modification of montmorillonite results in an increase in the interlayer or basal spacing and enhances the environmental and industrial application of the obtained organoclay.

Nurse staffing levels and the incidence of mortality and morbidity in the adult intensive care unit : a literature review

BACKGROUND: Studies have shown that nurse staffing levels, among many other factors in the hospital setting, contribute to adverse patient outcomes. Concerns about patient safety and quality of care have resulted in numerous studies being conducted to examine the relationship between nurse staffing levels and the incidence of adverse patient events in both general wards and intensive care units. AIM: The aim of this paper is to review literature published in the previous 10 years which examines the relationship between nurse staffing levels and the incidence of mortality and morbidity in adult intensive care unit patients. METHODS: A literature search from 2002 to 2011 using the MEDLINE, Cumulative Index to Nursing and Allied Health Literature (CINAHL), PsycINFO, and Australian digital thesis databases was undertaken. The keywords used were: intensive care; critical care; staffing; nurse staffing; understaffing; nurse-patient ratios; adverse outcomes; mortality; ventilator-associated pneumonia; ventilator-acquired pneumonia; infection; length of stay; pressure ulcer/injury; unplanned extubation; medication error; readmission; myocardial infarction; and renal failure. A total of 19 articles were included in the review. Outcomes of interest are patient mortality and morbidity, particularly infection and pressure ulcers. RESULTS: Most of the studies were observational in nature with variables obtained retrospectively from large hospital databases. Nurse staffing measures and patient outcomes varied widely across the studies. While an overall statistical association between increased nurse staffing levels and decreased adverse patient outcomes was not found in this review, most studies concluded that a trend exists between increased nurse staffing levels and decreased adverse events. CONCLUSION: While an overall statistical association between increased nurse staffing levels and decreased adverse patient outcomes was not found in this review, most studies demonstrated a trend between increased nurse staffing levels and decreased adverse patient outcomes in the intensive care unit which is consistent with previous literature. While further more robust research methodologies need to be tested in order to more confidently demonstrate this association and decrease the influence of the many other confounders to patient outcomes; this would be difficult to achieve in this field of research.