Making a case for social impact assessment in urban development : social impacts and legal disputes in Queensland, Australia

Urban land use planning and policy decisions are often contested, with the multiple stakeholders (business, developers, residents, policymakers and the wider community) frequently holding opposing viewpoints about the issues and best solution. In recent years, however, the participatory process of social impact assessment (SIA) has received significant attention as a way to mitigate conflict, facilitating negotiation and conflict resolution. This paper examines how social impacts have informed development appeals in Australia, focussing on ten cases from the Queensland Planning and Environment Court (QPEC). Half are appeals from community members (typically neighbours) wanting to oppose approvals and half from organisations appealing against City Councils’ decisions to deny their development applications. While legal challenges do not necessarily reflect attitudes and practices, they provide a means to begin to assess how social impacts (although not often explicitly defined as such) inform development related disputes. Based on the nature and outcomes of 10 QPEC cases, we argue that many legal cases could have been avoided if SIA had been undertaken appropriately. First, the issues in each case are clearly social, incorporating impacts on amenity, the character of an area, the needs of different social groups, perceptions of risk and a range of other social issues. Second, the outcomes and recommendations from each case, such as negotiating agreements, modifying plans and accommodating community concerns would have been equally served thorough SIA. Our argument is that engagement at an early stage, utilising SIA, could have likely achieved the same result in a less adversarial and much less expensive and time-consuming environment than a legal case.

Camera trapping and invasions of privacy : an Australian legal perspective

Camera trapping is a scientific survey technique that involves the placement of heat-and motion-sensing automatic triggered cameras into the ecosystem to record images of animals for the purpose of studying wildlife. As technology continues to advance in sophistication, the use of camera trapping is becoming more widespread and is a crucial tool in the study of, and attempts to preserve, various species of animals, particularly those that are internationally endangered. However, whatever their value as an ecological device, camera traps also create a new risk of incidentally and accidentally capturing images of humans who venture into the area under surveillance. This article examines the current legal position in Australia in relation to such unintended invasions of privacy. It considers the current patchwork of statute and common laws that may provide a remedy in such circumstances. It also discusses the position that may prevail should the recommendations of either the Australian Law Reform Commission and/or New South Wales Law Reform Commission be adopted and a statutory cause of action protecting personal privacy be enacted.

An analysis of Australia's legal regime for imposing liability on manufacturers of pharmaceutical drugs

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA appealed to the Full Federal Court, where they were successful. Special leave to appeal to the High Court of Australia was rejected in May 2012. This article will examine the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

Review essay : Crime, risk and money : "The Currency of Justice : Fines and Damages in Consumer Societies" and "Crime and Risk", both by Pat O'Malley

Sharing some closely related themes and a common theoretical orientation based on the governmentality analytic, these are nevertheless two very different contributions to criminological knowledge and theory. The first, The Currency of Justice: Fines and Damages in Consumer Societies (COJ), is a sustained and highly original analysis of that most pervasive yet overlooked feature of modern legal orders; their reliance on monetary sanctions. Crime and Risk (CAR), on the other hand, is a short synoptic overview of the many dimensions and trajectories of risk in contemporary debate and practice, both the practices of crime and the governance of crime. It is one of the first in a new series by Sage, 'Compact Criminology', in which authors survey in little more than a hundred pages some current field of debate. With this small gem, Pat O'Malley has set the bar very high for those who follow. For all its brevity, CAR traverses a massive expanse of research, debates and issues, while also opening up new and challenging questions around the politics of risk and the relationship between criminal risk-taking and the governance of risk and crime. The two books draw together various threads of O'Malley's rich body of work on these issues, and once again demonstrate that he is one of the foremost international scholars of risk inside and outside criminology.

Pandemic planning as risk management : how fared the Australian Federation?

The role of law in managing public health challenges such as influenza pandemics poses special challenges. This article reviews Australian plans in the context of the H1N1 09 experience to assess whether risk management was facilitated or inhibited by the "number" of levels or phases of management, the degree of prescriptive detail for particular phases, the number of plans, the clarity of the relationship between them, and the role of the media. Despite differences in the content and form of the plans at the time of the H1N1 09 emerging pandemic, the article argues that in practice, the plans proved to be responsive and robust bases for managing pandemic risks. It is suggested that this was because the plans proved to be frameworks for coordination rather than prescriptive straitjackets, to be only one component of the regulatory response, and to offer the varied tool box of possible responses, as called for by the theory of responsive regulation. Consistent with the principle of subsidiarity, it is argued that the plans did not inhibit localised responses such as selective school closures or rapid responses to selected populations such as cruise ship passengers.

Liability in negligence and the failure to disclose multiple risks in surgery : I would have been willing to run the risk

It has been 21 years since the decision in Rogers v Whitaker and the legal principles concerning informed consent and liability for negligence are still strongly grounded in this landmark High Court decision. This paper considers more recent developments in the law concerning the failure to disclose inherent risks in medical procedures, focusing on the decision in Wallace v Kam [2013] HCA 19. In this case, the appellant underwent a surgical procedure that carried a number of risks. The surgery itself was not performed in a sub-standard way, but the surgeon failed to disclose two risks to the patient, a failure that constituted a breach of the surgeon’s duty of care in negligence. One of the undisclosed risks was considered to be less serious than the other, and this lesser risk eventuated causing injury to the appellant. The more serious risk did not eventuate, but the appellant argued that if the more serious risk had been disclosed, he would have avoided his injuries completely because he would have refused to undergo the procedure. Liability was disputed by the surgeon, with particular reference to causation principles. The High Court of Australia held that the appellant should not be compensated for harm that resulted from a risk he would have been willing to run. We examine the policy reasons underpinning the law of negligence in this specific context and consider some of the issues raised by this unusual case. We question whether some of the judicial reasoning adopted in this case, represents a significant shift in traditional causation principles.

The relationship between 'reasonably practicable'and risk management regulation

This paper examines two concepts which are central to contemporary standard setting in occupational health and safety (OHS) regulation, and explores the differences and similarities between these concepts – the notion of ‘reasonably practicable’ which qualifies the ‘general duties’ and some other provisions in the Australian OHS standards, and the risk management requirements typically found in OHS regulations and approved codes of practice (advisory standards in Queensland).

Medical negligence, causation and liability for non-disclosure of risk : a post-wallace framework and critique

Through an examination of Wallace v Kam, this article considers and evaluates the law of causation in the specific context of a medical practitioner’s duty to provide information to patients concerning material risks of treatment. To supply a contextual background for the analysis which follows, Part II summarises the basic principles of causation law, while Part III provides an overview of the case and the reasoning adopted in the decisions at first instance and on appeal. With particular emphasis upon the reasoning in the courts of appeal, Part IV then examines the implications of the case in the context of other jurisprudence in this field and, in so doing, provides a framework for a structured consideration of causation issues in future non-disclosure cases under the Australian civil liability legislation. As will become clear, Wallace was fundamentally decided on the basis of policy reasoning centred upon the purpose behind the legal duty violated. Although the plurality in Rogers v Whitaker rejected the utility of expressions such as ‘the patient’s right of self-determination’ in this context, some Australian jurisprudence may be thought to frame the practitioner’s duty to warn in terms of promoting a patient’s autonomy, or right to decide whether to submit to treatment proposed. Accordingly, the impact of Wallace upon the protection of this right, and the interrelation between it and the duty to warn’s purpose, is investigated. The analysis in Part IV also evaluates the courts’ reasoning in Wallace by questioning the extent to which Wallace’s approach to liability and causal connection in non-disclosure of risk cases: depends upon the nature and classification of the risk(s) in question; and can be reconciled with the way in which patients make decisions. Finally, Part V adopts a comparative approach by considering whether the same decision might be reached if Wallace was determined according to English law.

The unequal distribution of road trauma in China : understanding risk factors to improve public health

The World Health Organization identifies road trauma as a major public health issue in every country; most notably among low-to-middle income countries. More than 90% of all road fatalities occur in these countries, although they have only 48% of all registered vehicles [1]. Unprecedented focus has been placed on reducing the global road trauma burden through the United Nations Decade of Action for Road Safety (2011-2020). China is rapidly transitioning from a nation of bicycle riders and pedestrians to one where car ownership and use is increasing. This transition presents important public health, mobility, and safety challenges. Rapid motorisation has resulted in an increased road trauma burden, shouldered disproportionately among the population. Vulnerable road users (bicyclists, pedestrians, and motorcyclists) are of particular concern, representing 70% of all road-related fatalities [1]. Furthermore, those at greatest risk of sustaining a crash-related disability are: male, older, less educated, and earning a lower income [2] and residing in urban areas [3], with higher fatality rates in north-western poorer provinces [3]. Speeding is a key factor in road crashes in China [1, 4] and is one of two risk factors targeted in the Bloomberg Philanthropies-funded Global Road Safety Program operating in two Chinese cities over five year [5] to which the first author has provided expert advice. However, little evidence exists to help understand the factors underpinning speeding behaviour. Previous research conducted by the authors in Beijing and Hangzhou explored personal, social, and legal factors relating to speeding to assist in better understanding the motivations for non-compliance with speed limits. Qualitative and quantitative research findings indicated that speeding is relatively common, including self-reported travel speeds of greater than 30 km/hour above posted speed limits [6], and that the road safety laws and enforcement practices may, in some circumstances, contribute to this [7]. Normative factors were also evident; the role of friends, family members and driving instructors were influential. Additionally, using social networks to attempt to avoid detection and penalty was reported, thereby potentially reinforcing community perceptions that speeding is acceptable [8, 9]. The authors established strong collaborative links with the Chinese Academy of Sciences and Zhejiang Police College to conduct this research. The first author has worked in both institutions for extended time periods and recognises that research must include an understanding of culturally-relevant issues if road safety is to improve in China. Future collaborations to assist in enhancing our understanding of such issues are welcomed. References [1] World Health Organization. (2009). Global status report on road safety: Time for action; Geneva. [2] Chen, H., Du, W., & Li, N. (2013). The socioeconomic inequality in traffic-related disability among Chinese adults: the application of concentration index. Accident Analysis & Prevention, 55(101-106). [3] Wang, S. Y., Li, Y. H., Chi, G. B., Xiao, S. Y., Ozanne-Smith, J., Stevenson, M., & Phillips, M. (2008). Injury-related fatalities in China: an under-recognised public-health problem. The Lancet (British edition), 372(9651), 1765-1773. [4] He, J., King, M. J., Watson, B., Rakotonirainy, A., & Fleiter, J. J. (2013). Speed enforcement in China: National, provincial and city initiatives and their success. Accident Analysis & Prevention, 50, 282-288. [5] Bhalla, K., Li, Q., Duan, L., Wang, Y., Bishai, D., & Hyder, A. A. (2013). The prevalence of speeding and drink driving in two cities in China: a mid project evaluation of ongoing road safety interventions. Injury, 44, 49-56. doi:10.1016/S0020-1383(13)70213-4. [6] Fleiter, J. J., Watson, B., & Lennon, A. (2013). Awareness of risky behaviour among Chinese drivers. Peer-reviewed paper presented at 23rd Canadian Multidisciplinary Road Safety Conference, Montréal, Québec. [7] Fleiter, J. J., Watson, B., Lennon, A., King, M. J., & Shi, K. (2009). Speeding in Australia and China: A comparison of the influence of legal sanctions and enforcement practices on car drivers. Peer-reviewd paper presented at Australasian Road Safety Research Policing Education Conference, Sydney. [8] Fleiter, J. J., Watson, B., Lennon, A., King, M. J., & Shi, K. (2011). Social influences on drivers in China. Journal of the Australasian College of Road Safety, 22(2), 29-36. [9] Fleiter, J. J., Watson, B., Guan, M. Q., Ding, J. Y., & Xu, C. (2013). Characteristics of Chinese Drivers Attending a Mandatory Training Course Following Licence Suspension. Peer-reviewed paper presented at Road Safety on Four Continents, Beijing, China.

Don't argue with the ref! - Legal liability for incorrect decisions of sports' officials

This paper continues the conversation from recent articles examining potential remedies available for incorrect decisions by sports officials. In particular, this article focuses on bringing an action against an official in negligence for pure economic loss. Using precedent cases, it determines that such an action would have a low chance of success, as a duty of care would be difficult to establish. Even if that could be overcome, an aggrieved player or team would still face further hurdles at the stages of breach, causation and defences. The article concludes by proposing some options to further reduce the small risk of liability to officials.

Legal duties following the discharge of mental health patients

In the recent decision of Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon, the High Court of Australia held that a hospital and its medical staff owed no common law duty of care to third parties claiming for mental harm, against the background of statutory powers to detain mentally ill patients. This conclusion was based in part on the statutory framework and in part on the inconsistency which would arise if such a duty was imposed. If such a duty was imposed in these circumstances, the consequence may be that doctors would generally detain rather than discharge mentally ill persons to avoid the foreseeable risk of harm to others. Such an approach would be inconsistent with the policy of the mental health legislation , which favours personal liberty and discharge rather than detention unless no other care of a less restrictive kind is appropriate and reasonably available.

Spontaneous and episodic volunteers: The legislative, insurance and risk management framework

Baby Boomers are a generation of life long association joiners, but following generations prefer spontaneous and episodic volunteering. This trend is apparent not only during natural disasters, but in most other spheres of volunteering. Legal liability for such volunteers is a growing concern, which unresolved, may dampen civic participation. We critically examine the current treatment of these liabilities through legislation, insurance and risk management.

Accounting for risk: The advent of capped conveyancing title insurance

Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this article we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.