Occupational Health and Safety, Courts and Crime: the legal construction of occupational health and safety offences in Victoria

This book reports on an empirically-based study of the manner in which the Magistrates' Courts in Victoria, construct occupational health and safety (OHS) issues when hearing prosecutions for offences under the Victorian OHS legislation. Prosecution has always been a controversial element in the enforcement armoury of OHS regulators, but at the same time it has long been argued that the low level of fines imposed by courts has had an important chilling effect on the OHS inspectorate's enforcement approaches, and on the impact of OHS legislation. Using a range of empirical research methods, including three samples of OHS prosecutions carried out in the Victorian Magistrates' Courts, Professor Johnstone shows how courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court. He argues that OHS offences are constructed by focusing on "events", in most cases incidents resulting in injury or death. This "event-focus" ensures that the attention of the parties is drawn to the details of the incident, and away from the broader context of the event. During the court-based sentencing process defence counsel is able to adopt a range of techniques which isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident.

Safety, courts and crime: occupational safety and health prosecutions in the Magistrates' courts

This paper reports on an empirically based study of occupational safety and health prosecutions in the Magistrates' courts in the State of Victoria, Australia. It examines the way in which the courts construct occupational safety and health issues during prosecutions against alleged offenders, and then theorises the role of the criminal law in health and safety regulation. The paper argues that courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping occupational safety and health issues during the prosecution process, both pre-trial and in court. An analysis of the pattern of investigation of health and safety offences shows that they are constructed by focusing on 'events', in most cases incidents resulting in injury or death. This 'event focus' ensures that the attention of the parties is drawn to the details of the incident and away from the broader context of the event. This broader context includes the way in which work is organised at the workplace and the quality of occupational safety and health management (the micro context), and the pressures within capitalist production systems for occupational safety and health to be subordinated to production imperatives (the macro context). In particular, during the court-based sentencing process, defence counsel is able to adopt a range of 'isolation' techniques that isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident. The paper concludes that the legal system plays a key role in decontextualising and individualising health and safety issues, and that this process is part of the 'architecture' of the legal system, and a direct consequence of the 'form of law'.

The pragmatic approach : the myriad gene patents before the Australian courts

The Full Court of the Federal Court of Australia in D'Arcy v Myriad Genetics [2014] FCAFC 115 recently upheld the validity of Myriad Genetics' Australian BRCA1 gene patent over isolated DNA sequences.

Environmental Crime and Specialist Courts: The case for a ‘One-Stop (Judicial) Shop’ in Queensland

The increasing international political, public and scientific engagement in matters of environmental sustainability and development has produced a rapidly expanding body of environmental law and policy. The advent of international protocols, directives, and multilateral agreements has occurred concomitantly with the harmonisation of widespread environmental regimes of governance and enforcement within numerous domestic settings. This has created an unprecedented need for environmental legal apparatuses to manage, regulate and adjudicate legislation seeking to protect, sustain and develop global natural habitats. The evolving literature in green criminology continues to explore these developments within discourses of power, harm and justice. Such critiques have emphasised the role of dedicated environmental courts to address environmental crimes and injustices. In this article, we examine the important role of specialist courts in responding to environmental crime, with specific reference to the State of Queensland. We offer a critique of existing processes and practices for the adjudication of environmental crime and propose new jurisdictional and procedural approaches for enhancing justice. We conclude that specialist environmental courts endowed with broad civil and criminal jurisdiction are an integral part of an effective response to environmental crime.

New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.

Variability of Temperature and Salinity in the Middle Atlantic Bight and Gulf of Maine

Monitoring of the waters of the Middle Atlantic Bight and Gulf of Maine has been conducted by the MARMAP Ships of Opportunity Program since the early 1970's. Presented in this atlas are portrayals of the temporal and spatial patterns of surface and bottom temperature and surface salinity for these areas during the period 1978-1990. These patterns are shown in the form of time-space diagrams for single-year and multiyear (base period) time frames. Each base period figure shows thirteen-year (1978-1990) mean conditions, sample variance in the form of standard deviations of the measured values, and data locations. Each single-year figure displays annual conditions, sampling locations, and departures of annual conditions from the thirteen-year means, expressed as algebraic anomalies and standardized anomalies. (PDF file contains 112 pages.)

Effects of temperature on the biology of the northern shrimp, Pandalus borealis, in the Gulf of Maine

Length-frequency data collected from inshore and offshore locations in the Gulf of Maine in 1966-1968 indicated that ovigerous female northern shrimp (Pandalus borealis) first appeared offshore in August and September and migrated inshore in the fall and winter. Once eggs hatched, surviving females returned offshore. Juveniles and males migrated offshore during their first two years of life. Sex transition occurred in both inshore and oll'shore waters, but most males changed sex offshore during their third and fourth years. Most shrimp changed sex and matured as females for the first time in their fourth year. Smaller females and females exposed to colder bottom temperatures spawned first. The incidence of egg parasitism peaked in January and was higher for shrimp exposed to warmer bottom temperatures. Accelerated growth at higher temperatures appeared to result in earlier or more rapid sex transition. Males and non-ovigerous females were observed to make diurnal vertical migrations, but were not found in near- surface waters where the temperature exceeded 6°C. Ovigerous females fed more heavily on benthic molluscs in inshore waters in the winter, presumably because the egg masses they were carrying prevented them from migrating vertically at night. Northern shrimp were more abundant in the southwestern region of the Gulf of Maine where bottom temperatures remain low throughout the year. Bottom trawl catch rates were highest in Jeffreys Basin where bottom temperatures were lower than at any other sampling location. Catch rates throughout the study area were inversely related to bottom temperature and reached a maximum at 3°C. An increase of 40% in fecundity between 1973 and 1979 was associated with a decline of 2-3°C in April-July offshore bottom temperatures. Furthermore, a decrease in mean fecundity per 25 mm female between 1965 and 1970 was linearly related to reduced landings between 1969 and 1974. It is hypothesized that temperature-induced changes in fecundity and, possibly, in the extent of egg mortality due to parasitism, may provide a mechanism which could partially account for changes in the size of the Gulf of Maine northern shrimp population during the last thirty years. (PDF file contains 28 pages.)

Enabling Sensor* Interoperability, Portland, Maine, October 16-18 2006: workshop proceedings

The ACT workshop "Enabling Sensor Interoperability" addressed the need for protocols at the hardware, firmware, and higher levels in order to attain instrument interoperability within and between ocean observing systems. For the purpose of the workshop, participants spoke in tern of "instruments" rather than "sensors," defining an instrument as a device that contains one or more sensors or actuators and can convert signals from analog to digital. An increase in the abundance, variety, and complexity of instruments and observing systems suggests that effective standards would greatly improve "plug-and-work" capabilities. However, there are few standards or standards bodies that currently address instrument interoperability and configuration. Instrument interoperability issues span the length and breadth of these systems, from the measurement to the end user, including middleware services. There are three major components of instrument interoperability including physical, communication, and application/control layers. Participants identified the essential issues, current obstacles, and enabling technologies and standards, then came up with a series of short and long term solutions. The top three recommended actions, deemed achievable within 6 months of the release of this report are: A list of recommendations for enabling instrument interoperability should be put together and distributed to instrument developers. A recommendation for funding sources to achieve instrument interoperability should be drafted. Funding should be provided (for example through NOPP or an IOOS request for proposals) to develop and demonstrate instrument interoperability technologies involving instrument manufacturers, observing system operators, and cyberinfrastructure groups. Program managers should be identified and made to understand that milestones for achieving instrument interoperability include a) selection of a methodology for uniquely identifying an instrument, b) development of a common protocol for automatic instrument discovery, c) agreement on uniform methods for measurements, d) enablement of end user controlled power cycling, and e) implementation of a registry component for IDS and attributes. The top three recommended actions, deemed achievable within S years of the release of this report are: An ocean observing interoperability standards body should be established that addresses standards for a) metadata, b) commands, c) protocols, d) processes, e) exclusivity, and f) naming authorities.[PDF contains 48 pages]

Technologies for Measuring Currents in Coastal Environments, Portland, Maine, October 26-28, 2005:workshop proceedings

The Alliance for Coastal Technologies (ACT) Workshop entitled "Technologies for Measuring Currents in Coastal Environments" was held in Portland, Maine, October 26-28, 2005, with sponsorship by the Gulf of Maine Ocean Observing System (GoMOOS), an ACT partner organization. The primary goals of the event were to summarize recent trends in nearshore research and management applications for current meter technologies, identify how current meters can assist coastal managers to fulfill their regulatory and management objectives, and to recommend actions to overcome barriers to use of the technologies. The workshop was attended by 25 participants representing state and federal environmental management agencies, manufacturers of current meter technologies, and researchers from academic institutions and private industry. Common themes that were discussed during the workshop included 1) advantages and limitations of existing current measuring equipment, 2) reliability and ease of use with each instrument type, 3) data decoding and interpretation procedures, and 4) mechanisms to facilitate better training and guidance to a broad user group. Seven key recommendations, which were ranked in order of importance during the last day of the workshop are listed below. 1. Forums should be developed to facilitate the exchange of information among users and industry: a) On-line forums that not only provide information on specific instruments and technologies, but also provide an avenue for the exchange of user experiences with various instruments (i.e. problems encountered, cautions, tips, advantages, etc). (see References for manufacturer websites with links to application and technical forums at end of report) b) Regional training/meetings for operational managers to exchange ideas on methods for measuring currents and evaluating data. c) Organize mini-meetings or tutorial sessions within larger conference venues. 2. A committee of major stakeholders should be convened to develop common standards (similar to the Institute of Electrical and Electronics Engineers (IEEE) committee) that enable users to switch sensors without losing software or display capabilities. (pdf contains 28 pages)

Applications of in situ Fluorometers in Nearshore waters, Cape Elizabeth, Maine, February 2-4,2005: workshop proceedings

The Alliance for Coastal Technologies (ACT) Workshop "Applications of in situ Fluorometers in Nearshore Waters" was held in Cape Elizabeth, Maine, February 2-4,2005, with sponsorship by the Gulf of Maine Ocean Observing System (GoMOOS), one of the ACT partner organization. The purpose of the workshop was to explore recent trends in fluorometry as it relates to resource management applications in nearshore environments. Participants included representatives from state and federal environmental management agencies as well as research institutions, many of whom are currently using this technology in their research and management applications. Manufacturers and developers of fluorometric measuring systems also attended the meeting. The Workshop attendees discussed the historical and present uses of fluorometry technology and identified the great potential for its use by coastal managers to fulfill their regulatory and management objectives. Participants also identified some of the challenges associated with the correct use of Fluorometers to estimate biomass and the rate of primary productivity. The Workshop concluded that in order to expand the existing use of fluorometers in both academic and resource management disciplines, several issues concerning data collection, instrument calibration, and data interpretation needed to be addressed. Participants identified twelve recommendations, the top five of which are listed below: Recommendations 1) Develop a "Guide" that describes the most important aspects of fluorescence measurements. This guide should be written by an expert party, with both research and industry input, and should be distributed by all manufacturers with their instrumentation. The guide should also be made available on the ACT website as well as those of other relevant organizations. The guide should include discussions on the following topics: The benefits of using fluorometers in research and resource management applications; What fluorometers can and cannot provide in terms of measurements; The necessary assumptions required before applying fluorometry; Characterization and calibration of fluorometers; (pdf contains 32 pages)

Linking public perceptions of socioeconmic change and marine resource management in rural Maine

Rural coastal regions across the United States are coping with dramatic social and environmental changes. Historically, these areas relied heavily on fishing and marine commerce and these economic activities defined the character of coastal communities. However, shifting ocean and climate conditions, together with inadequate management strategies, have led to sharp declines in harvestable marine resources. These trends, along with increasing competition from aquaculture and international sources of fish, have led to the steady decline of fishing as the central economic activity in many rural coastal communities. (PDF contains 3 pages)