Enduring powers of attorney : promoting attorneys' accountability as substitute decision makers

Aim The misuse and abuse of Enduring Powers of Attorney (EPAs) by attorneys, particularly in relation to financial decision-making, is a growing concern. This paper explores the opportunities to enhance accountability of attorneys at the time of the execution of the document in Queensland. Method A four stage multi-method design comprised a critical reference group; semi-structured interviews with 32 principals or potential principals, attorneys and witnesses; two focus groups with service providers and a state wide survey of 76 principals, attorneys and witnesses. Results Across all methods and user groups, understanding the role and obligations of the attorney in an EPA was consistently identified as problematic. Conclusions Promoting accountability and understanding can be addressed by greater attention to the role of the attorney in the forms/ guidelines and in the structure and witnessing of the forms, increased direction about record keeping and access to appropriate advice and support.

Environmental constitutional reform in the developing world : shifting the perspective of international law?

In recent years a growing number of states have chosen to recognise environmental issues in their national constitutions. Some have added declarations about the value of the environment, some have sought to restrict or regulate government’s ability to take action which would potentially harm the environment, while others have proclaimed that citizens possess a right to an environment of a particular quality. A survey of these constitutional provisions reveals that the majority of reform in this area has come from developing states, including a number of states which have been designated as among the least developed countries in the world. The increasing focus on constitutional environmental rights appears to represent a shift in the attitude of developing and emerging economies, which could in turn be influential in setting the tone of the environmental rights debate more broadly, with potential to shape the future development of international law in the area. This chapter examines constitutional environmental rights in an attempt to determine whether consistent state practice can in fact be identified in this area which might form the basis of an emerging norm. It will also analyse some of the potential contributing factors to the proliferation of a constitutional right to a good environment among developing states, and the implications for the development of customary international law.

Dreams and nightmares of alternative powers' futures

This chapter argues the importance of the role and nature of other powers to world order. The author suggests that, if the US are not prepared to take a lead in creating a rules-based legal order, they should and can do so – and it is in their interests to do so. America should be a natural leader in this process, taking part in a global dialogue just as they did in the transatlantic dialogue during the late eighteenth century.

The Law of Real Property Mortgages [2nd. Ed.]

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage, including vitiating factors in formation, mortgagees’ powers and duties and mortgagors’ rights – both statutory and other – as well as assignment, insurance and discharge. It focuses exclusively on real estate mortgages and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. In its detailed consideration of the rights and obligations of mortgagors and mortgagees, it covers topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage, together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor, and the rights and liabilities associated with a receivership regime initiated by

Shifting Powers : Protection of Refugees and Displaced Persons in the Asia Pacific Region

The United Nations High Commissioner for Refugees' (UNHCR) 2011 statistics on refugee populations residing by region are a stark reminder of the challenge facing states and civil society in the Asia Pacific. In 2011, Africa hosted 2,149,000 refugees; the Americas, Europe, and Middle East and North Africa hosted 513 ,500, 1,605,500 and 1,889,900 respectively, while the Asia Pacific hosted a staggering 3,793,900. The fact that 35 per cent of the world's refugees reside in the Asia Pacific, coupled with the fact that 84 per cent of refugees displaced in Asia remain in the region,raises the questions why so few countries in the region are signatories to the Convention relating to the Status of Refugees ('Refugee Convention') or cognate rights instruments and why no formally binding regional agreement exists for the equitable sharing of responsibilities for refugees...

Emergency powers and pandemics : federalism and the management of public health emergencies in Australia

Under the International Health Regulations 2005 Australia is obliged to develop a domestic framework designed to equip it to respond to public health emergencies. The legislative arrangements for the declaration of a public health emergency in Australia are complex, vary across state jurisdictions and intersect with other emergency powers. The task of harmonising laws and other arrangements within a federal system poses both challenges and opportunities for flexibility and choice. This article argues that Australia's current multi-strand and multi-level response provides a coordinated framework which also accommodates desirable levels of flexibility and choice.

The rule of law, the public interest and the management of natural resources in Australia

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

Health and guardianship law : guardianship and administration application in the matter of MDC [2014] QCAT 338

The recent decision of the Queensland Civil and Administrative Tribunal (QCAT) in Guardianship and administration application in the matter of MDC [2014] QCAT 338, provides an important ruling on the limits of who can be appointed as an enduring power of attorney under the Powers of Attorney Act 1998 (Qld). In particular, the tribunal adopted a broad interpretation of the term "health provider" when considering the limits on who can be appointed as an enduring power of attorney under the legislation...

Transparent, balanced and vigorous: The exercise of the Australian Privacy Commissioner's powers in relation to National Privacy Principle 4

This thesis considers whether the Australian Privacy Commissioner's use of its powers supports compliance with the requirement to 'take reasonable steps' to protect personal information in National Privacy Principle 4 of the Privacy Act 1988 (Cth). Two unique lenses were used. First, the Commissioner's use of powers was assessed against the principles of transparency, balance and vigorousness and secondly against alignment with an industry practice approach to securing information. Following a comprehensive review of publicly available materials, interviews and investigation file records, this thesis found that the Commissioner's use of his powers has not been transparent, balanced or vigorous, nor has it been supportive of an industry practice approach to securing data. Accordingly, it concludes that the Privacy Commissioner's use of its regulatory powers is unlikely to result in any significant improvement to the security of personal information held by organisations in Australia.

Futility and the law: Knowledge, practice and attitudes of doctors in end of life care

Despite the potential harm to patients (and others) and the financial cost of providing futile treatment at the end of life, this practice occurs. This article reports on empirical research undertaken in Queensland that explores doctors’ perceptions about the law that governs futile treatment at the end of life, and the role it plays in medical practice. The findings reveal that doctors have poor knowledge of their legal obligations and powers when making decisions about withholding or withdrawing futile treatment at the end of life; their attitudes towards the law were largely negative; and the law affected their clinical practice and had or would cause them to provide futile treatment.

The Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade

This study focuses on British attempts during the nineteenth century to outlaw the Atlantic Slave Trade internationally, for which it was successful, after seventy-five years of effort. It considers the lack of willingness to allow Great Britain, at the Congress of Vienna and during the Concert of Europe, to establish a universal treaty outlawing the slave trade. As a result, this mandated a change in British tactics, which would ultimately prove to be successful – the establishment of a web of bilateral agreements which came to included all maritime powers. The study then moves on to consider the evolution of these bilateral agreements while highlighting the relationship between Great Britain and States (Brazil, France, Portugal and the United States) which were obstinate in their willingness to join this bilateral regime. Finally, consideration is given to the move towards the establishment of the 1890 General Act of Brussels; and thus the conclusion of the decades long British foreign policy objective of a universal instrument meant to suppress the Atlantic Slave Trade.

The Definition of Slavery in International Law

On the basis of archival research, this Article considers the negotiation history of both the 1926 Slavery Convention and 1956 Supplementary Convention and demonstrates that an interpretation of the provisions of the definition of slavery consonant with the travaux préparatoires reveal a definition which provides for the possibility of holding States and individuals responsible for not only slavery de jure but also de facto. That understanding is premised on a reading of the definition that speaks not of the ‘ownership’ of one person by another; but of the powers attached to the right of ownership. It is through an exploration of this phrase that a proper understanding of the definition of slavery in international law emerges.