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.

From impact assessment to user-friendly risk management decision-making

In earlier cultures and societies, hazards and risks to human health were dealt with by methods derived from myth, metaphor and ritual. In modem society however, notions of hazard and risk have been transformed from the level of a folk discourse to that of an expert centred concept (Plough & Krimsky, 1987). With the professionalization of risk and hazard analysis came a preferred framework for decision making based on a range of 'technical' methodologies (Giere, 1991 ). This is especially true for decision processes relating to risk assessment and management, and impact assessment. Such approaches however, often entail narrow technical-based theoretical assumptions about human behaviour and the natural world, and the· methods used. They therefore carry 'in-built' error factors that contribute considerable uncertainty to the results.

Probing the surface oxidation of chemically synthesised gold nanospheres and nanorods

In this study, the electrochemical behaviour of commercially available gold spheres and rods stabilised by carboxylic acid and cetyl trimethyl ammonium bromide (CTAB) moieties, respectively, are investigated. The cyclic voltammetric behaviour in acidic electrolyte is distinctly different with the nanorods exhibiting unusual oxidative behaviour due to an electrodissolution process. The nanospheres exhibited responses typical of a highly defective surface which significantly impacted on electrocatalytic activity. A repetitive potential cycling cleaning procedure was also investigated which did not improve the activity of the nanorods and resulted in deactivating the gold spheres due to decreasing the level of surface defects.

Right to trial by jury - construction of Uniform Civil Procedure r474

In Smit v Chan [2001] QSC 493 (Supreme Court of Queensland, S1233 of 1995, Mullins J, 21.12.2001) the sixth defendant successfully obtained an order that a complex medical negligence action be tried without a jury. This was the first application to be decided under r474 of UCPR 1999, and the decision is a significant precedent for defendants in similar cases who want to avoid the unpredictability of outcome and the inflated damages awards sometimes associated with jury trials.

Motor Accident Insurance Act 1994 - whether vehicle in question a vehicle "for which registration is required"

In Gideona v Nominal Defendant [2005] QCA 261, the Queensland Court of Appeal reconsidered the question of what is the material time for determining whether registration of a motor vehicle is required. The Court declined to follow the decision in Kelly v Alford [1988] 1 Qd R 404; deciding that the material time was the time when the accident occurred.

Supreme Court Act 1995 s48 - Interest on judgment for damages for personal injuries

The case of Flynn v The Maryborough Sugar Factory Limited [2003] QDC 446 the plaintiff had been awarded damages for personal injuries and there was a charge on those damages under a Commonwealth statute, with a provision in the statute that damages could not be satisfied until the Commonwealth had been paid. The Court considered the point of considerable practical significance of whether interest accrued on the judgment under s48 of the Supreme Court Act 1995 (Qld) before the defendant had obtained clearances under the Commonwealth legislation.

Motor Accident Insurance Act 1994 - reasonable excuse for delay in giving notice under s37

The decisions in Perdis v The Nominal Defendant [2003] QCA 555, Miller v the Nominal Defendant [2003] QCA 558 and Piper v the Nominal Defendant [2003] QCA 557 were handed down contemporaneously by the Queensland Court of Appeal on December 15 2003. They consider important issues as to the construction of key provisions of the Motor Accident Insurance Act 1994 (Qld)

Summary judgment for plaintiff

The decision in Burke v Van Eeuwen (unreported, District Court of Queensland, No 1490/2002) reminds practitioners of the importance of an appearance for a party at any hearing of an application, even when a party's representatives may consider an opposing party is clearly not entitled to the order it seeks.

Limitation of Actions - effect of admission of liability

The decision in Simpson v Lenton [2002] QDC 214 applied the decisions of the Court of Appeal in Lindsay v Smith [2002] 1 Qd R 610 and Morris v FAI General Insurance Co Ltd [1996] 1 QDR 495 in finding the second defendant, having admitted liability, was estopped from relying on the expiration of the limitation period.

Disclosure of documents : by duty, court order, or beyond reach?

The article examines the decision in Erskine v McDowall [2001] QDC 192, where the Court considered an application for an order that the defendant disclose documents to which she had a right of access under the Freedom of Information Act 1982 (Cth).

Solicitors who commence a proceeding without authority act at their peril

In Nominal Defendant v Kisse [2001] QDC 290 a person suffered personal injury caused by a motor vehicle in circumstances where there was a cause of action to which the Motor Accident Insurance Act 1994 applied. The person died before taking the steps required under Pt 4 of the Act and before commencing litigation to enforce that cause of action. The decision also involved a costs order against solicitors on an indemnity basis, providing a timely reminder to practitioners of the importance of ensuring they have proper authority before commencing any court proceedings.

An investigation of goethite-seeded Al(OH)3 precipitation using in situ X-ray diffraction and Rietveld-based quantitative phase analysis

An in situ X-ray diffraction investigation of goethite-seeded Al(OH)3 precipitation from synthetic Bayer liquor at 343 K has been performed. The presence of iron oxides and oxyhydroxides in the Bayer process has implications for alumina reversion, which causes significant process losses through unwanted gibbsite precipitation, and is also relevant for the nucleation and growth of scale on mild steel process equipment. The gibbsite, bayerite and nordstrandite polymorphs of Al(OH)3 precipitated from the liquor; gibbsite appeared to precipitate first, with subsequent formation of bayerite and nordstrandite. A Rietveld-based approach to quantitative phase analysis was implemented for the determination of absolute phase abundances as a function of time, from which kinetic information for the formation of the Al(OH)3 phases was determined.

Beyond the barriers : road construction safety issues from the office and the roadside

Conceptually, the management of safety at roadworks can be seen in a three level framework. At the regulatory level, roadworks operate at the interface between the work environment, governed by workplace health and safety regulations, and the road environment, which is subject to road traffic regulations and practices. At the organizational level, national, state and local governments plan and purchase road construction and maintenance which are then delivered in-house or tendered out to large construction companies who often subcontract multiple smaller companies to supply services and labor. At the operational level, roadworks are difficult to isolate from the general public, hindering effective occupational health and safety controls. This study, from the State of Queensland, Australia, examines how well this tripartite framework functions. It includes reviews of organizational policy and procedures documents; interviews with 24 subject matter experts from various road construction and maintenance organizations, and on-site interviews with 66 road construction personnel. The study identified several factors influencing the translation of safety policies into practice including the cost of safety measures in the context of competitive tendering, lack of firm evidence of the effectiveness of safety measures, and pressures to minimize disruption to the travelling public.

Training needs research applied to the development of a standardised incident investigator training framework

In response to the rail industry lacking a consistently accepted standard of minimal training to perform incident investigations, the Australasian rail industry requested the development of a unified approach to investigator training. This paper details how the findings from a training needs analysis were applied to inform the development of a standardised training package for rail incident investigators. Data from job descriptions, training documents and subject matter experts sourced from 17 Australasian organisations were analysed and refined to yield a draft set of 10 critical competencies. Finally the draft of critical competencies was reviewed by industry experts to verify the accuracy and completeness of the competency list and to consider the most appropriate level of qualification for training development. The competencies identified and the processes described to translate research into an applied training framework in this paper, can be generalised to assist practitioners and researchers in developing industry approved standardised training packages.

Seat Comfort. M4-M6.

Hardness is defined as the resistance and load bearing capability of an item. Seat hardness is an important factor in seat comfort as it impacts on a number of variables including seat postural stability, postural control, pressure comfort as a result of tissue deformation, and occupant vibration. The development of the test rig further on described in this report will enable Futuris Automotive to develop their current comfort testing procedures and thus increase the comfort of their automotive seats. The test rig consists of a buttock indenter, which produces a controlled application of a load to a seat cushion with measured displacement via a linear indenter. In parallel with the physical property presented, an analytic (software) finite element tool was developed to simulate seat pressure in an ANSYS Workbench V13 environment. This report also details the procedure required for Futuris to accurately and precisely measure cushion hardness which will enhance their comfort testing procedures, product development and target settings. The report is divided into three main sections: 1 Test equipment specification (M4) - A detailed description of the process used to build the seat cushion indenter and a description of the indenter mechanical structure and electrical functionality (chapter 2). 2 Analytic tool specification (M5) – A detailed description of the CAE seat and indenter software tool, developed as a finite element model (FEM) under ANSYS Workbench V13 to simulate indentation of a physical seat cushion similar to the hardware tool (chapter 3). 3 Product Development and Comfort Design Procedure (M6) - The cushion hardness testing procedure to be used with the physical indenter. This milestone is partially incomplete, as it covers a description of the test procedure to be applied, however not the operating system (control software) required to operate the physical property (chapter 4). Although outside the scope of this project, this report also details the testing procedures required to measure overall seatback hardness.