Some critical legal issues affecting insurance transaction globally

Increasingly, major insurers and reinsurers are operating on a global basis. For example, General Re Corporation and Cologne Re operate in almost 150 countries : see "General Re Corporation 1999 Annual Report". This is also true for the world's major brokers, and the emergence of large broking conglomerates such as Aon and Marsh are good examples of global service providers. Against the background of this increasingly global insurance market with global participants, there are a range of common legal issues in this article but a selection of certain critical matters are canvassed in the secitons below. First there are a range of regulatory issues that must be addressed. Secondly globalisation of the industry does create added incentive for a common legal regime to cover the formation of insurance transactions and the resolution of disputes about claims, coverage and termination. In this contect codifcation of insurance laws is a critical issue. Thirdly, major advances in genetic research and biotechnology over recent years have resulted in a dramatic increase in the availability of genetic testing. These developments have given rise to concerns worldwide about the potential for misuse of genetic information by third parties such as insurers and employers. Fourthly, the essence of an insurance transaction is the transference of risk from one person to anther. It is generally accepted that this transference should occur in informed circumstances and without undue advantage being bestowed upon either party. Finally this article will consider some legal matter in relation to transacting insurance on the internet

Google book search settlement : implications for Australia

In 2005, the Association of American Publishers (AAP) and the Authors Guild (AG) sued Google for ‘massive copyright infringement’ for the mass digitization of books for the Google Book Search Project. In 2008, the parties reached a settlement, pending court approval. If approved, the settlement could have far-reaching consequences for authors, libraries, educational institutions and the reading public. In this article, I provide an overview of the Google Book Search Settlement. Firstly, I explain the Google Book Search Project, the legal questions raised by the Project and the lawsuit brought against Google. Secondly, I examine the terms of the Settlement Agreement, including what rights were granted between the parties and what rights were granted to the general public. Finally, I consider the implications of the settlement for Australia. The Settlement Agreement, and consequently the broader scope of the Google Book Search Project, is currently limited to the United States. In this article I consider whether the Project could be extended to Australia at a later date, how Google might go about doing this, and the implications of such an extension under the Copyright Act 1968 (Cth). I argue that without prior agreements with rightholders, our limited exceptions to copyright infringement mean that Google is unlikely to be able to extend the full scope of the Project to Australia without infringing copyright.

A critical analysis of sperm donation practices : the personal and social effects of disrupting the unity of biological and social relatedness for the offspring

This thesis critically analyses sperm donation practices from a child-centred perspective. It examines the effects, both personal and social, of disrupting the unity of biological and social relatedness in families affected by donor conception. It examines how disruption is facilitated by a process of mediation which is detailed using a model provided by Sunderland (2002). This model identifies mediating movements - alienation, translation, re-contextualisation and absorption - which help to explain the powerful and dominating material, and social and political processes which occur in biotechnology, or in reproductive technology in this case. The understanding of such movements and mediation of meanings is inspired by the complementary work of Silverstone (1999) and Sunderland. This model allows for a more critical appreciation of the movement of meaning from previously inalienable aspects of life to alienable products through biotechnology (Sunderland, 2002). Once this mediation in donor conception is subjected to critical examination here, it is then approached from different angles of investigation. The thesis posits that two conflicting notions of the self are being applied to fertility-frustrated adults and the offspring of reproductive interventions. Adults using reproductive interventions receive support to maximise their genetic continuity, but in so doing they create and dismiss the corresponding genetic discontinuity produced for the offspring. The offspring’s kinship and identity are then framed through an experimental postmodernist notion, presenting them as social rather than innate constructs. The adults using the reproductive intervention, on the other hand, have their identity and kinship continuity framed and supported as normative, innate, and based on genetic connection. This use of shifting frameworks is presented as unjust and harmful, creating double standards and a corrosion of kinship values, connection and intelligibility between generations; indeed, it is put forward as adult-centric. The analysis of other forms of human kinship dislocation provided by this thesis explores an under-utilised resource which is used to counter the commonly held opinion that any disruption of social and genetic relatedness for donor offspring is insignificant. The experiences of adoption and the stolen generations are used to inform understanding of the personal and social effects of such kinship disruption and potential reunion for donor offspring. These examples, along with laws governing international human rights, further strengthen the appeal here for normative principles and protections based on collective knowledge and standards to be applied to children of reproductive technology. The thesis presents the argument that the framing and regulation of reproductive technology is excessively influenced by industry providers and users. The interests of these parties collide with and corrode any accurate assessments and protections afforded to the children of reproductive technology. The thesis seeks to counter such encroachments and concludes by presenting these protections, frameworks, and human experiences as resources which can help to address the problems created for the offspring of such reproductive interventions, thereby illustrating why these reproductive interventions should be discontinued.

What’em with the apology? : the National Apology to the Stolen Generations two years on

Prime Minister Kevin Rudd’s Apology to Australia’s Stolen Generations, delivered on 13 February 2008, is both personal and political to me just as the people who talk about it make it political and personal through their actions. This paper represents my attempt to turn the gaze through articulating some of my thoughts on the Apology, policy statements (Close the Gap) and the inconsistencies within the leadership of the present governments. I have endeavoured to do this through exploring the articulations of others and by sharing examples and personal experiences. In bringing forth some analysis to the literature, examples and experiences, I reveal the relationships between oppression, white race privilege and institutional privilege and the epistemology that maintains them. In moving from the position of being silent on the Apology, and my political experiences, to speaking about them, I am able to move from the position of object to subject and to gain a form of liberated voice (hooks 1989:9). Furthermore, I am hopeful that it will encourage others to examine their own practices within political parties and governments and to challenge the domination that continues to subjugate Indigenous peoples. It is only through people enacting their responsibilities and making changes in their daily lives and through the institutions and organisations to which they belong (the personal and political), can the Apology move beyond symbolic to action.

Election campaigns, and television news coverage : the case of the 2001 Australian election

This paper examines the patterns of television news coverage of the political parties, their leaders and the issues they raised during the 2001 Australian federal election campaign. By focusing on some issues, parties and leaders, television has long been argued to constrain voters' evaluations. We find that television news coverage in the 2001 Australian election campaign focused primarily on international issues, especially terrorism and asylum seekers, and on the two major parties - virtually to the exclusion of coverage of the minor parties and their leaders. Within the major party 'two-horse race', television gave substantially more coverage to the leaders than to the parties themselves, thereby sustaining what some have called a 'presidential'-style political contest. John Howard emerged as the winner in the leaders' stakes, garnering more coverage than Labor's Kim Beazley.

Narratives of mitigation : sentencing Indigenous criminal defendants in South Australia’s Higher Courts

In their statistical analyses of higher court sentencing in South Australia, Jeffries and Bond (2009) found evidence that Indigenous offenders were treated more leniently than non-Indigenous offenders, when they appeared before the court under similar numerical circumstances. Using a sample of narratives for criminal defendants convicted in South Australia’s higher courts, the current article extends Jeffries and Bond’s (2009) prior statistical work by drawing on the ‘focal concerns’ approach to establish whether, and in what ways, Indigeneity comes to exert a mitigating influence over sentencing. Results show that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that may have reduced assessments of blameworthiness and risk for Indigenous defendants. In addition, judges highlighted a number of Indigenous-specific constraints that potentially could result in imprisonment being construed as an overly harsh and costly sentence for Indigenous offenders.

15 year old volens to BMX riding risks

The Queensland Court of Appeal recently heard a case that raised the defence of volenti on fit injuria. By a majority of 2:1 the court held in Leyden v Caboolture Shire Council [2007] QCA 134 (20 April 2007) that the defence of volenti was established and defeated the action in negligence for damages for personal injury. The facts of the case were quite simple. The plaintiff was 15 years old when he was injured at the Bluebell Park which was controlled and managed by the Caboolture Shire Council (the defendant). The park had a BMX track – built and maintained by the defendant. At trial it was held that although the defendant owed a duty of care to entrants, a duty was not owed to the plaintiff. The judge found that the plaintiff was different to other entrants who used facilities provided by a council in a public park. The plaintiff was not relying upon the defendant to provide a BMX track with jumps that were reasonably safe as the evidence was that the track was regularly altered by third parties and the plaintiff knew that. Therefore it was reasoned that the plaintiff was relying upon the ability of the third parties who modified the jump and his own ability to use it, not the ability of the defendant to provide a reasonably safe track (at [10]). The trial judge also held that if a duty was owed, the defence of volenti applied so as to defeat the claim for damages. This was based upon the evidence that the plaintiff knew of the modification of the jump by third parties and knew of the risk. It was held that the plaintiff ‘had the appropriate subjective appreciation of the risk’ (at [11]).

Developing a conceptual model for measuring the satisfaction levels of Malaysian contractors

The evaluation of satisfaction levels related to performance is an important aspect in increasing market share, improving profitability and enlarging opportunities for repeat business and can lead to the determination of areas to be improved, improving harmonious working relationships and conflict avoidance. In the construction industry, this can also result in improved project quality, enhanced reputation and increased competitiveness. Many conceptual models have been developed to measure satisfaction levels - typically to gauge client satisfaction, customer satisfaction and home buyer satisfaction - but limited empirical research has been carried out, especially in investigating the satisfaction of construction contractors. In addressing this, this paper provides a unique conceptual model or framework for contractor satisfaction based on attributes identified by interviews with practitioners in Malaysia. In addition to progressing research in this topic and being of potential benefit to Malaysian contractors, it is anticipated that the framework will also be useful for other parties - clients, designers, subcontractors and suppliers - in enhancing the quality of products and/or services generally.

Housing supply in Australia : the impact of the availability of development finance

Before the Global Financial Crisis many providers of finance had growth mandates and actively pursued development finance deals as a way of gaining higher returns on funds with regular capital turnover and re-investment possible. This was able to be achieved through high gearing and low presales in a strong market. As asset prices fell, loan covenants breached and memories of the 1990’s returned, banks rapidly adjusted their risk appetite via retraction of gearing and expansion of presale requirements. Early signs of loosening in bank credit policy are emerging, however parties seeking development finance are faced with a severely reduced number of institutions from which to source funding. The few institutions that are lending are filtering out only the best credit risks by way of constrictive credit conditions including: low loan to value ratios, the corresponding requirement to contribute high levels of equity, lack of support in non-prime locations and the requirement for only borrowers with well established track records. In this risk averse and capital constrained environment, the ability of developers to proceed with real estate developments is still being constrained by their inability to obtain project finance. This paper will examine the pre and post GFC development finance environment. It will identify the key lending criteria relevant to real estate development finance and will detail the related changes to credit policies over this period. The associated impact to real estate development projects will be presented, highlighting the significant constraint to supply that the inability to obtain finance poses.

Intergroup relations and Muslims’ mental health in Western societies

This review article proposes that theories and research of intergroup contact, prejudice, and acculturation, enhance understanding of the current intercultural relations between Muslims and non-Muslims in Western societies, such as in Australia. The actual and perceived prejudice that many Muslims studying, working, and living in the West have been experiencing following the 2001 terrorist attacks, adds an additional layer of stress to the psychosocial adjustment of Muslim immigrants and sojourners, affecting their cross-cultural adaptation and mental health. Stephan and colleagues’ Integrated Threat Theory argues that the perceived threat experienced by all parties, explains the acts of prejudice. Berry’s acculturation framework highlights that adaptive acculturation is determined by congruent host nation policies and practices and immigrant acculturation strategies. Implications for multicultural policy, intercultural training, and mental health practice, and suggestions for future research, are discussed.

Coordinated research support services at Queensland University of Technology, Australia

Queensland University of Technology (QUT) is a large multidisciplinary university located in Brisbane, Queensland, Australia. QUT is increasing its research focus and is developing its research support services. It has adopted a model of collaboration between the Library, High Performance Computing and Research Support (HPC) and more broadly with Information Technology Services (ITS). Research support services provided by the Library include the provision of information resources and discovery services, bibliographic management software, assistance with publishing (publishing strategies, identifying high impact journals, dealing with publishers and the peer review process), citation analysis and calculating authors’ H Index. Research data management services are being developed by the Library and HPC working in collaboration. The HPC group within ITS supports research computing infrastructure, research development and engagement activities, researcher consultation, high speed computation and data storage systems , 2D/ 3D (immersive) visualisation tools, parallelisation and optimization of research codes, statistics/ data modeling training and support (both qualitative and quantitative) and support for the university’s central Access Grid collaboration facility. Development and engagement activities include participation in research grants and papers, student supervision and internships and the sponsorship, incubation and adoption of new computing technologies for research. ITS also provides other services that support research including ICT training, research infrastructure (networking, data storage, federated access and authorization, virtualization) and corporate systems for research administration. Seminars and workshops are offered to increase awareness and uptake of new and existing services. A series of online surveys on eResearch practices and skills and a number of focus groups was conducted to better inform the development of research support services. Progress towards the provision of research support is described within the context organizational frameworks; resourcing; infrastructure; integration; collaboration; change management; engagement; awareness and skills; new services; and leadership. Challenges to be addressed include the need to redeploy existing operational resources toward new research support services, supporting a rapidly growing research profile across the university, the growing need for the use and support of IT in research programs, finding capacity to address the diverse research support needs across the disciplines, operationalising new research support services following their implementation in project mode, embedding new specialist staff roles, cross-skilling Liaison Librarians, and ensuring continued collaboration between stakeholders.

Survey of eResearch practices and skills at QUT, Australia

Queensland University of Technology (QUT) is a multidisciplinary university in Brisbane, Queensland, Australia, and has 40,000 students and 1,700 researchers. Notable eResearch infrastructure includes the QUT ePrints repository, Microsoft QUT Research Centre, the OAK (Open Access to Knowledge) Law Project, Cambia and leading research institutes. ---------- The Australian Government, via the Australian National Data Service (ANDS), is funding institutions to identify and describe their research datasets, to develop and populate data repositories and collaborative infrastructure, and to seed the Australian Research Data Commons. QUT is currently broadening its range of research support services, including those to support the management of research data, in recognition of the value of these datasets as products of the research process, and in order to maximize the potential for reuse. QUT is integrating Library and High Performance Computing (HPC) services to achieve its research support goals. ---------- The Library and HPC released an online survey using Key Survey to 1,700 researchers in September 2009. A comprehensive range of eResearch practices and skills was presented for response, and grouped into areas of scholarly communication and open access publishing, using collaborative technologies, data management, data collection and management, computation and visualization tools. Researchers were asked to rate their skill level on each practice. 254 responses were received over two weeks. Eight focus groups were also held with 35 higher degree research (HDR) students and staff to provide additional qualitative feedback. A similar survey was released to 100 support staff and 73 responses were received.---------- Preliminary results from the researcher survey and focus groups indicate a gap between current eResearch practices, and the potential for researchers to engage in eResearch practices. Researchers are more likely to seek advice from their peers, than from support staff. HDR students are more positive about eResearch practices and are more willing to learn new ways of conducting research. An account of the survey methodology, the results obtained, and proposed strategies to embed eResearch practices and skills across and within the research disciplines will be provided.

Outrage management in cases of sexual harassment as revealed in judicial decisions

Sexual harassment can be conceptualized as a series of interactions between harassers and targets that either inhibit or increase outrage by third parties. The outrage management model predicts the kinds of actions likely to be used by perpetrators to minimize outrage, predicts the consequences of failing to use these tactics—namely backfire, and recommends countertactics to increase outrage. Using this framework, our archival study examined outrage-management tactics reported as evidence in 23 judicial decisions of sexual harassment cases in Australia. The decisions contained precise, detailed information about the circumstances leading to the claim; the events which transpired in the courtroom, including direct quotations; and the judges' interpretations and findings. We found evidence that harassers minimize outrage by covering up the actions, devaluing the target, reinterpreting the events, using official channels to give an appearance of justice, and intimidating or bribing people involved. Targets can respond using countertactics of exposure, validation, reframing, mobilization of support, and resistance. Although there are limitations to using judicial decisions as a source of information, our study points to the value of studying tactics and the importance to harassers of minimizing outrage from their actions. The findings also highlight that, given the limitations of statutory and organizational protections in reducing the incidence and severity of sexual harassment in the community, individual responses may be effective as part of a multilevel response in reducing the incidence and impact of workplace sexual harassment as a gendered harm.

On collective unintelligence

The idea of collective unintelligence is examined in this paper to highlight some of the conceptual and practical problems faced in modeling groups. Examples drawn from international crises and economics provide illustrative problems of collective failures to act in intelligent ways, despite the inputs and efforts of many skilled and intelligent parties. Choices made of “appropriate” perceptions, analysis and evaluations are examined along with how these might be combined. A simple vector representation illustrates some of the issues and creative possibilities in multi-party actions. Revealed as manifest (un-)intelligence are the resolutions of various problems and potentials that arise in dealing with the “each and all” of a group (wherein items are necessarily non-parallel and of unequal valency). Such issues challenge those seeking to model collective intelligence, but much may be learned.

Mechanical properties of thin sol-gel films

This thesis presents a study of the mechanical properties of thin films. The main aim was to determine the properties of sol-gel derived coatings. These films are used in a range of different applications and are known to be quite porous. Very little work has been carried out in this area and in order to study the mechanical properties of sol-gel films, some of the work was carried out on magnetron sputtered metal coatings in order to validate the techniques developed in this work. The main part of the work has concentrated on the development of various bending techniques to study the elastic modulus of the thin films, including both a small scale three-point bending, as well as a novel bi-axial bending technique based on a disk resting on three supporting balls. The bending techniques involve a load being applied to the sample being tested and the bending response to this force being recorded. These experiments were carried out using an ultra micro indentation system with very sensitive force and depth recording capabilities. By analysing the result of these forces and deflections using existing theories of elasticity, the elastic modulus may be determined. In addition to the bi-axial bending study, a finite element analysis of the stress distribution in a disk during bending was carried out. The results from the bi-axial bending tests of the magnetron sputtered films was confirmed by ultra micro indentation tests, giving information of the hardness and elastic modulus of the films. It was found that while the three point bending method gave acceptable results for uncoated steel substrates, it was very susceptible to slight deformations of the substrate. Improvements were made by more careful preparation of the substrates in order to avoid deformation. However the technique still failed to give reasonable results for coated specimens. In contrast, biaxial bending gave very reliable results even for very thin films and this technique was also found to be useful for determination of the properties of sol-gel coatings. In addition, an ultra micro indentation study of the hardness and elastic modulus of sol-gel films was conducted. This study included conventionally fired films as well as films ion implanted in a range of doses. The indentation tests showed that for implantation of H⁺ ions at doses exceeding 3x10¹⁶ ions/cm², the mechanical properties closely resembled those of films that were conventionally fired to 450°C.