Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.

The threat of autocracy diffusion in consolidated democracies? The case of China, Singapore and Australia

The majority of today’s authoritarian regimes have little hope of promoting autocracy beyond their own borders, let alone to consolidated democratic countries. However, China and Singapore are two prominent examples of non-democratic countries whose soft power arsenals have given them some global appeal beyond that enjoyed by most authoritarian regimes. But to what extent has China’s and Singapore’s power of example influenced consolidated democracies in terms that the latter wanting to replicate some political practices or even norms in these non-democratic regimes? In this article, we engage recent works to examine this question in relation to how Australians perceive the political example offered by China and Singapore. Focusing our analysis on several prominent polls conducted recently by the Lowy Institute for International Policy, we suggest that at present there is little evidence of a causal impact of the rise of authoritarian powerhouses such as China and Singapore on how Australians view democracy at home. Through these case studies, this article sheds some light on the theoretical as well as practical questions about the inherent impediments of authoritarian diffusion in consolidated democracies.

In good faith: benefits and challenges of a secular NGO working with Melanesian communities of faith

Christian belief across the Pacific region of Melanesia is almost universal. Resulting primarily from missionary activity that in many instances predated colonial interactions, Christian beliefs and institutions are tightly embedded in the political and social domains of these countries (Leach et al. 2013). Melanesian countries, such as the Solomon Islands, Vanuatu and Papua New Guinea, also experience constraints to economic development due to limited comparative advantage, poor terms of trade, small and dispersed populations, and geographical disconnectedness (both internal and external). As such, they are highly dependent upon foreign assistance (Feeny and McDonald 2015).

The experience of China-educated nurses working in Australia : a symbolic interactionist perspective

Transnational nurse migration is a growing phenomenon. However, relatively little is known about the experiences of immigrant nurses and particularly about non-English speaking background nurses who work in more economically developed countries. Informed by a symbolic interactionist framework, this research explored the experience of China-educated nurses working in the Australian health care system. Using a modified constructivist grounded theory method, the main source of data were 46 face to face in-depth interviews with 28 China-educated nurses in two major cities in Australia. The key findings of this research are fourfold. First, the core category developed in this study is reconciling different realities, which inserts a theoretical understanding beyond the concepts of acculturation, assimilation, and integration. Second, in contrast to the dominant discourse which reduces the experience of immigrant nurses to language and culture, this research concludes that it was not just about language and nor was it simply about culture. Third, rather than focus on the negative aspects of difference as in the immigration literature and in the practice of nursing, this research points to the importance of recognising the social value of difference. Finally, the prevailing view that the experience of immigrant nurses is largely negative belies its complexities. This research concludes that it is naïve to define the experience as either good or bad. Rather, ambivalence was the essential feature of the experience and a more appropriate theoretical concept. This research produced a theoretical understanding of the experience of China-educated nurses working in Australia. The findings may not only inform Chinese nurses who wish to immigrate but also contribute to the implementation of more effective support services for immigrant nurses in Australian health care organisations.

Factors contributing to successful public private partnership projects : comparing Hong Kong with Australia and the United Kingdom

Purpose: With the increasing interest in Public Private Partnership (PPP) there is a need to investigate the factors contributing to successful delivery of PPP projects. Design/methodology/approach: An empirical questionnaire survey was conducted in Hong Kong and Australia. The survey respondents were asked to rate eighteen factors which contribute to delivering successful PPP projects. Findings: The findings from this survey were further compared with the results achieved by a previous researcher (Li, 2003) in a similar survey conducted in the United Kingdom. The comparison showed that amongst the top five success factors ranked by Hong Kong respondents, three were also ranked highly by the Australians and British. These success factors included: ‘Commitment and responsibility of public and private sectors’; ‘Strong and good private consortium’; and ‘Appropriate risk allocation and risk sharing’. Originality/value: These success factors were therefore found to be important for contributing to successful PPP projects irrespective of geographical locations.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Misleading conduct arising from public statements : establishing the knowledge base of the target audience

Despite the very substantial body of primary sources and secondary literature on Australia’s much-litigated statutory provisions proscribing misleading or deceptive conduct, the courts have provided little in the way of assistance about how to establish the knowledge base of the target audience at whom the public statement was directed. The purpose of this case note is to compare and contrast two recent decisions of the High Court of Australia that highlight the difficulties faced by applicants in attempting to establish a contravention of the relevant legislation where conduct is directed at a segment of the public or the public as a whole.

O resseguro no Direito Internacional

O estudo descreve o resseguro no âmbito do Direito Internacional, partindo da constatação da pulverização dos riscos através do mercado global para abordar temas relevantes, tais como: a diferenciação entre resseguro internacional e contrato internacional de resseguro, os usos e costumes internacionalmente aceitos e a autonomia da vontade das partes como fundamento aos contratos de resseguro. São perquiridas também as fontes do direito ressecuritário no âmbito internacional. As relações jurídicas entre Estado e resseguradores e as relações contratuais entre seguradores e resseguradores devem ser regidos pela máxima boa-fé. Essa abordagem reporta-se a princípios consagrados no Direito Internacional do Investimento como padrão de referência para a regulação da atividade ressecuritária e como limite à intervenção dos Estados Descreve-se ainda o resseguro no Brasil, traçando um histórico evolutivo do monopólio à abertura do mercado e constatando algumas iniciativas nacionais do uso do seguro e do resseguro como ferramenta de atração e proteção de investimentos.

The emergent sea of nature and religion : a study of faith-based responses to issues of environmental sustainability

The research highlighted that the majority of adherents to faith groups in Australia showed a high level of concern to environmental issues; however, there is a need to provide wide-ranging community engagement programs. Further education is required considering there was uncertainty about some environmental issues, in particular climate change.