Data Retention and the War against Terrorism : A considered and proportionate response?

'Data retention and the war against terrorism - a considered and proportionate response'. Journal of Information Law & Technology 2004 (3) RAE2008

Legacy of unresolved legal issues on mental health

ANALYSIS The time has come for a fundamental review of the Mental Health Act 2001.

Elementary Principals' Perceptions of a Leadership Development Training Program

Research indicates that school leaders are crucial to improving instruction and raising student achievement (Council of Chief State School Officers, 2008). As such, educational reforms such as the No Child Left Behind Act (2001) and Race to the Top (2009) have sparked an accountability movement where principals are being held accountable for students' academic achievement and educational outcomes. The shift towards greater accountability has placed new attention on the ways principals are trained. Researchers have noted that organized professional development programs have not adequately prepared school principals to meet the priority demands of the 21st century (Hale & Moorman, 2003; Murphy, 1994). Murphy (1994) stated, "Traditional preparation programs - usually pre-service programs based in colleges or universities, that awarded certification and advanced degrees - rarely concentrated on the leadership challenges that principals actually face in real schools" (p. 4). As a result, many school districts are seeking ways to develop leadership development training programs that will prepare principals for their job responsibilities as a school leader. In spite of the additional training principals receive, researchers suggests that there is an obvious gap between the readiness of administrators to be instructional leaders and the demands for accountability that school administrators face (Hale & Moorman, 2003). This quantitative study examined elementary school principals' perceptions of their leadership development training program. Guided by four research questions, the study examined principals' perceptions of their overall training and how well their training prepared them to deal with school and classroom practices that contribute to student achievement; to work with teachers and others to design and implement a system for continuous student achievement; and to provide necessary support to carry out sound school, curriculum, and instructional practices. Data for this study was collected by way of survey responses from a total of 46 elementary school principals. The results from the study revealed that more than half (58.7%) of participants perceived their training as excellent. While principals' perceived that their training adequately prepared them to work collaboratively in teams, set clear visions and goals, and to use data to improve students achievement, many respondents reported a lack of training in being informed and focused on student achievement. Principals also suggested that they were not effectively trained in finding effective ways to obtain support from central office or community members.

Care proceedings: Exploring the relationship between case duration and achieving permanency for the child

The 1989 Children Act in England and Wales and the derivative 1995 Children (NI) Order in Northern Ireland provide the legislative framework within which issues pertaining to the care and supervision of children that come before the Courts are examined. Both pieces of legislation were intended to address a number of problems with the way that such issues were dealt with by the Court, particularly the tendency for proceedings to become protracted and for children to ‘drift’ in care as a consequence. The imposition of the ‘No Delay’ principle in both jurisdictions was designed specifically to address these concerns. However, since the introduction of both the 1989 Children Act (implemented in October 1991) and the 1995 Children (NI) Order (implemented in November 1996), there has been a steady increase in the average duration of proceedings and concerns remain about the impact that this may be having upon the children involved. This paper presents the findings of a research study (McSherry et al., 2004) that explored the complex relationship between the duration of care proceedings and costs to children in terms of the likelihood of achieving permanency.

Decision making by senior social workers at point of first referral

In the United Kingdom there has been difficulty in implementing the family support provisions contained in the 1989 Children Act, largely because of continued emphasis on child protection activity by local authorities. There is an observable international tendency for child-care referrals to receive investigative response, resulting in families being traumatized and children's needs left unmet. There has been a lack of research into how child-care referrals are initially categorized by senior social workers. This paper reports on research undertaken in two Health and Social Services Trusts within Northern Ireland to ascertain if it might be possible to treat more initial referrals as 'child-care problem enquiries' as opposed to 'child protection investigations'. Results demonstrate that, while such potential may exist, a preoccupation with the management of risk could lead to the development of child-care problems receiving quasi-child protection responses. Consequently, changes in initial decision making may not have the full intended effects in terms of the organizational release of resources for family support or a lessening of the traumatic impact upon families.

An introduction to CLERP 9

An Introduction to CLERP 9, as its title suggests, is aimed at providing legal practitioners and students with an overview of Australia’s corporate governance reforms, but more than that, it also analyses the events that led to the reforms and provides practical examples of how the amendments will change corporate practices.

The book begins by defining what is generally meant by good corporate governance. It then outlines the relevant recent events that led to introduction and commencement of the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (CLERP 9) on 1 July this year. The corporate failures of Enron and HIH – and subsequent Royal Commission – in 2001, and the failure of private auditing firms to warn of their client’s problems are well summarised.

As well as the Sarbanes Oxley Act of 2002, the US equivalent to CLERP 9, the establishment of the ASX Corporate Governance Council and the release of its Principles of Good Corporate Governance and Best Practice Recommendations are examined in detail.

The book covers all the chief changes, including the new rules for audit independence, financial disclosure, whistleblowing, remuneration for directors and executives and continuous disclosure.

Throughout, the book provides a comprehensive and easy to understand commentary on how the CLERP 9 Act alters the Corporations Act 2001 and the ASIC Act 2001, as well as highlighting important changes that affect present practice. For example, the author notes that under the auditor independence rules, when an audit firm contravenes an independence requirement, liability is placed on all members and directors of the audit firm, not just the lead auditor responsible for a particular audit. This, he says, is aimed at introducing a “culture of compliance”.

As well as providing a quick reference guide to how the CLERP 9 Act amends the Corporations and ASIC Acts at the beginning of the book, the table at the end of the book comparing the corporate governance reforms in the US, UK and Australia will be very useful for practitioners trying to make sense of how multinational clients might be liable across different jurisdictions.

"Sexually transmitted debts":the scope of defences to directors' liability for insolvent trading

The recent demise of prominent Australian corporations, such as GIO Australia Holdings Ltd, One.Tel Ltd, HIH Insurance Ltd and Ansett Australia Ltd, have highlighted the relevance of, inter alia, the Australian insolvent trading provisions embodied in the Corporations Act 2001 (Cth) (formerly Corporations Law). What may not be appreciated, however, is that insolvent trading is not only concerned with large public companies. Many of the insolvent trading cases that come before the courts involve small proprietary companies. Moreover, in many cases these are small “family” companies where there may only be one active director. This gives rise to a difficult issue as to the appropriateness of imposing liability for insolvent trading on a spouse who is, factually, merely a dormant director. This article explores the issue of spousal liability for insolvent trading, particularly focusing on the scope of the current defences to insolvent
trading under s 588H.

Directors' duties to creditors in Australia after spies v the Queen

In August 2000, the High Court handed down its decision in Spies v The Queen . According to most commentators, the decision ended a "quiet revolution" which had been underway since Walker v Wimborne by rejecting the suggestion that directors owe an independent duty to creditors. In this article, the writer responds to this commentary in two ways. First, by contending that the High Court's comments in Spies concerning directors' duties to creditors were merely obiter, thereby leaving open the possibility that an independent duty to creditors will be confirmed in a subsequent case. Secondly, by suggesting that if the commentary to date is correct, then the Spies decision has minimal impact in terms of creditor protection as directors' duties under the Corporations Act 2001 already provide sufficient protection for creditors.

Removal of company directors in a climate of corporate collapses

The string of high-profile corporate collapses recently has provided a fresh insight into many important topics and issues in Australian corporations law. Notwithstanding this, one topic that continues to receive inadequate attention both in Australia and in foreign jurisdictions is the statutory removal of  directors. In an earlier article published in this journal, one of the present authors contributed towards addressing this lack of commentary on the topic by highlighting a number of peculiarities with the provisions under the then Corporations Law regulating the removal of directors in public and proprietary companies. Since that time, the CLERP amendments to the Corporations Law (now Corporations Act 2001) in 2000 introduced some interesting changes to the provisions dealing with the removal of directors in public and proprietary companies. In this article, the authors provide an explanation and critical analysis of these changes, and consider the recent Western Australian Supreme Court decision of Allied & Mining Process Ltd v Boldbow Pty Ltd [2002] WASC 195, which deals with some of the issues raised by the authors in relation to the CLERP amendments. According to the authors, whilst some of the peculiarities raised in the earlier article no longer exist post-CLERP, the current removal provisions still raise some important questions of interpretation.

Directors' personal liability-is the proposed amendment to Section 197 acceptable when compared with Hanel v O'Neill?

On 2 June 2005, the Australian Government announced a proposal to amend s. 197 of the Corporations Act. This is to overturn the decision in Hanel v. O'Neill ("Hanel") where the South Australian Supreme Court has expanded the circumstances in which directors of trustee companies can be held personally liable for the debts under the current section 197(1) of the Corporations Act 2001 (Cth). The multiple interpretations presented in Hanel highlighted the uncertainty of s. 197 and this uncertainty is heightened in at least two subsequent cases. The article provides a detailed analysis of how the decision in Hanel is affecting the directors' freedom of management and suggests some precautionary measures that the directors could take as protection against creditor's actions under s. 197. The author welcomes the proposed amendment because the new section will create certainty for directors as to. the scope of their potential personal liability, but contends that the substance of the proposed s. 197 is not acceptable as there is potential for abuse by directors of certain trustee companies.

Directors' duties to stakeholders : a reform proposal based on three false assumptions

The Corporations and Markets Advisory Committee has been asked to consider whether the duties of directors under the Corporations Act 2001 (Cth) should be broadened to require directors to take into account the interests of stakeholder groups other than shareholders when making corporate decisions. In this article, the author argues that the existing statutory duties of directors in Australia should remain unchanged. The existing duties of directors, in particular the overriding duty of directors to act in the best interests of the company, already accommodates consideration of stakeholder interests by directors if the decision is justifiable as being in the company's best interests. Furthermore, corporate culture and norms are moving towards embracing stakeholder engagement, again with the implicit recognition that integrating stakeholder considerations within the decision-making processes of companies is integral to achieving long-term sustainable growth.

Recent amendment to section 197- is it acceptable?

The majority decided in Hanel v O’Neill that directors of trustee companies
could be held personally liable to discharge the debts incurred by a
company pursuant to s 197(1) of the Corporations Act 2001 (Cth). On
18 November 2005, legislation was passed to amend s 197(1); this was to
overturn the decision. This article evaluates other relevant cases and
argues that the recent amendment to s 197 is unsatisfactory as it leaves
potential for abuse by directors of certain trustee companies. The article
suggests further reform to the section and to this end, suggests ways for
s 197 to reconcile with other parts of corporate law, such as insolvent
trading and directors’ duties.

The effects of an area-based intervention on the uptake of maternal and child health assessments in Australia : a community trial

Background
Recognition of the importance of the early years in determining health and educational attainment and promotion of the World Health Organization Health for All (HFA) principles has led to an international trend towards community-based initiatives to improve developmental outcomes among socio-economically disadvantaged children. In this study we examine whether, Best Start, an Australian area-based initiative to improve child health was effective in improving access to Maternal and Child Health (MCH) services.

Methods
The study compares access to information, parental confidence and annual 3.5 year Ages and Stages visiting rates before (2001/02) and after (2004/05) the introduction of Best Start. Access to information and parental confidence were measured in surveys of parents with 3 year old children. There were 1666 surveys in the first wave and 1838 surveys in the second wave. The analysis of visiting rates for the 3.5 year Ages and Stages visit included all eligible Victorian children. Best Start sites included 1,739 eligible children in 2001/02 and 1437 eligible children in 2004/05. The comparable figures in the rest of the state were and 45, 497 and 45, 953 respectively.

Results
There was a significant increase in attendance at the 3.5 year Ages and Stages visit in 2004/05 compared to 2001/02 in all areas. However the increase in attendance was significantly greater at Best Start sites than the rest of the state. Access to information and parental confidence improved over the course of the intervention in Best Start sites with MCH projects compared to other Best Start sites.

Conclusion
These results suggest that community-based initiatives in disadvantaged areas may improve parents' access to child health information, improve their confidence and increase MCH service use. These outcomes suggest such programmes could potentially contribute to strategies to reduce child health inequalities.

Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

Sui generis protection for plant varieties and traditional agricultural knowledge : the example of India

Explores the sui generis protection of intellectual property, particularly patents, in biotechnology and traditional agricultural knowledge under Indian law. Focuses on the impact of amendments to the Patents Act 1970 and of the Plant Variety Protection and Farmers' Rights Act 2001 and Biological Diversity Act 2002.