Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Collaboration to improve evacuation centre operations in Queensland

Purpose The purpose of this paper is to provide a case study of two organisations working in evacuation centres which overcame challenges to develop a constructive relationship, resulting in improved outcomes for disaster-affected people. A wide range of services for disaster-affected communities are provided as part of emergency sheltering. Collaboration between agencies providing services is essential, but sometimes challenging. Design/methodology/approach A wide range of services for disaster-affected communities are provided as part of emergency sheltering. Collaboration between agencies providing services is essential, but sometimes challenging. The purpose of this paper is to provide a case study of two organisations working in evacuation centres which overcame challenges to develop a constructive relationship, resulting in improved outcomes for disaster-affected people. Findings The Preferred Sheltering Practices provides an ongoing anchor for Australian Red Cross and Environmental Health Australia (EHA) (Queensland) Inc.’s relationship and has led to other tangible benefits such as involvement in each other’s events and trainings. The relationship has become embedded in each organisation’s day-to-day business ensuring the relationship’s sustainability beyond individual staff movements. Originality/value This case study provides an example of how collaboration can be achieved between two organisations with seemingly different mandates to improve the response for disaster-affected communities.

The limits to public service : rural communities, professional families, and work mobility

Australia faces an ongoing challenge recruiting professionals to staff essential human services in rural and remote communities. This paper identifies the private limits to the implicit service contract between professions and such client populations. These become evident in how private solutions to competing priorities within professional families inform their selective mobility and thus create the public problem for such communities. The paper reports on a survey of doctors, nurses, teachers and police with responsibility for school-aged children in Queensland that plumbed the strength of neoliberal values in their educational strategy and their commitment to the public good in career decisions. The quantitative analysis suggested that neoliberal values are not necessarily opposed to a commitment to the public good. However, the qualitative analysis of responses to hypothetical career opportunities in rural and remote communities drew out the multiple intertwined spatial and temporal limits to such public service, highlighting the priority given to educational strategy in these families’ deliberations. This private/public nexus poses a policy problem on multiple institutional fronts.

Surveillance snapshot of Clostridium difficile infection in hospitals across Queensland detects binary toxin producing ribotype UK 244

In North America and Europe, the binary toxin positive Clostridium difficile strains of the ribotypes 027 and 078 have been associated with death, toxic megacolon and other adverse outcomes. Following an increase in C. difficile infections (CDIs) in Queensland, a prevalence study involving 175 hospitals was undertaken in early 2012, identifying 168 cases of CDI over a 2 month period. Patient demographics and clinical characteristics were recorded, and C. difficile isolates were ribotyped and tested for the presence of binary toxin genes. Most patients (106/168, 63.1%) were aged over 60 years. Overall, 98 (58.3%) developed symptoms after hospitalisation; 89 cases (53.0%) developed symptoms more than 48 hours after admission. Furthermore, 27 of the 62 (67.7%) patients who developed symptoms in the community ad been hospitalised within the last 3 months. Thirteen of the 168 (7.7%) cases identified had severe disease, resulting in admission to the Intensive Care Unit or death within 30 days of the onset of symptoms. The 3 most common ribotypes isolated were UK 002 (22.9%), UK 014 (13.3%) and the binary toxin-positive ribotype UK 244 (8.4%). The only other binary toxin positive ribotype isolated was UK 078 (n = 1). Of concern was the detection of the binary toxin positive ribotype UK 244, which has recently been described in other parts of Australia and New Zealand. No isolates were of the international epidemic clone of ribotype UK 027, although ribotype UK 244 is genetically related to this clone. Further studies are required to track the epidemiology of ribotype UK 244 in Australia and New Zealand. Commun Dis Intell 2014;38(4):E279–E284.

Effective public speaking for the Australian curriculum

Public speaking has been with us since the great orators of the cultural heritage tradition and is by no means a dying art. There is no substitute for the human voice in real time, and technology-delivered speeches cannot really move an audience in precisely ways that effective, live speaking can. Many teachers go to history to access models such as the great Martin Luther King’s “I have a dream” speech, or Winston Churchill’s call to battle. Most of us can recall Kevin Rudd’s historical apology to Indigenous Australia’s stolen generation, and more recently Noel Pearson’s moving eulogy delivered to a mourners at Gough Whitlam’s funeral. We are fortunate now to be able to access speeches from more recent history, closer to home and in our own accents through online repositories. This paper is, in part, written as a guide for pre-service teachers who did not learn this at school, and experienced teachers may also find it useful.

Beyond the hospital door : a retrospective, cohort study of associations between birthing in the public or private sector and women’s postpartum care

Background In Australia, maternity care is available through universal coverage and a parallel, competitive private health insurance system. Differences between sectors in antenatal and intrapartum care and associated outcomes are well documented but few studies have investigated differences in postpartum care following hospital discharge and their impact on maternal satisfaction and confidence. Methods Women who birthed in Queensland, Australia from February to May 2010 were mailed a self-report survey 4 months postpartum. Regression analysis was used to determine associations between sector of birth and postpartum care, and whether postpartum care experiences explained sector differences in postpartum well-being (satisfaction, parenting confidence and feeling depressed). Results Women who birthed in the public sector had higher odds of health professional contact in the first 10 days post-discharge and satisfaction with the amount of postpartum care. After adjusting for demographic and postpartum contact variables, sector of birth no longer had an impact on satisfaction (AOR 0.95, 99% CI 0.78-1.31), but any form of health professional contact did. Women who had a care provider’s 24 hour contact details had higher odds of being satisfied (AOR 3.64, 95% CI 3.00-4.42) and confident (AOR 1.34, 95% CI 1.08- 1.65). Conclusion Women who birthed in the public sector appeared more satisfied because they had higher odds of receiving contact from a health professional within 10 days post-discharge. All women should have an opportunity to speak to and/or see a doctor, midwife or nurse in the first 10 days at home, and the details of a person they can contact 24 hours a day.

Making the fun stop : youth justice reform in Queensland

In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.

Leading or managing? Assistant Regional Directors, School Performance, in Queensland

Purpose Education reform aimed at achieving improved student learning is a demanding challenge for leaders and managers at all levels of education across the globe. In 2010, the position of Assistant Regional Directors, School Performance (ARD-SP), was established to positively impact upon student learning across public schools in Queensland, Australia. This study explores the perceptions of the role and leadership understandings of ARDs in Queensland in order to understand more fully the tensions and opportunities they face within this reasonably newly created position. Design/methodology/approach This qualitative study is based on interviews with 18 Assistant Regional Directors and two of their supervisors to gauge a better understanding of the nature of the role as it relates to leadership and management in the Queensland context. Findings Interview data revealed three key themes pertaining to the nature of the role and these were performance, supervision, and professional challenges. A key finding was that the notion of supervision was experienced as problematic for ARDs-SP. Research limitations/implications This study has limitations and these include a sample that focused on Assistant Regional Directors within one State of Australia and one schooling system (i.e. public education); and interviews were the primary data collection source. Originality/value Although there have been studies of supervisors of principals (referred to as superintendents, directors) in other countries and other systems, this study is a first to explore the tensions and opportunities faced by executive leaders in Queensland.

Ultrafine Particles from Traffic Emissions and Children’s Health (UPTECH) in Brisbane, Queensland (Australia): Study design and implementation

Ultrafine particles are particles that are less than 0.1 micrometres (µm) in diameter. Due to their very small size they can penetrate deep into the lungs, and potentially cause more damage than larger particles. The Ultrafine Particles from Traffic Emissions and Children’s Health (UPTECH) study is the first Australian epidemiological study to assess the health effects of ultrafine particles on children’s health in general and peripheral airways in particular. The study is being conducted in Brisbane, Australia. Continuous indoor and outdoor air pollution monitoring was conducted within each of the twenty five participating school campuses to measure particulate matter, including in the ultrafine size range, and gases. Respiratory health effects were evaluated by conducting the following tests on participating children at each school: spirometry, forced oscillation technique (FOT) and multiple breath nitrogen washout test (MBNW) (to assess airway function), fraction of exhaled nitric oxide (FeNO, to assess airway inflammation), blood cotinine levels (to assess exposure to second-hand tobacco smoke), and serum C-reactive protein (CRP) levels (to measure systemic inflammation). A pilot study was conducted prior to commencing the main study to assess the feasibility and reliably of measurement of some of the clinical tests that have been proposed for the main study. Air pollutant exposure measurements were not included in the pilot study.

The private problem with public service: Rural teachers in educational markets

Staffing rural and remote schools is an important policy issue for the public good. This paper examines the private issues it also poses for teachers with families working in these communities, as they seek to reconcile careers with educational choices for children. The paper first considers historical responses to staffing rural and remote schools in Australia, and the emergence of neoliberal policy encouraging marketisation of the education sector. We report on interviews about considerations motivating household mobility with 11 teachers across regional, rural and remote communities in Queensland. Like other middle-class parents, these teachers prioritised their children’s educational opportunities over career opportunities. The analysis demonstrates how teachers in rural and remote communities constitute a special group of educational consumers with insider knowledge and unique dilemmas around school choice. Their heightened anxieties around school choice under neoliberal policy are shown to contribute to the public issue of staffing rural and remote schools.

Art and the anxious city: Public art, public interest and the public good

While public art is often considered a key hallmark of a creative city, artworks in the public realm also have the capacity to act as lightening rods for social anxiety at times of perceived crisis. This paper considers recent debates about government-sponsored public art projects in Queensland in light of three international case studies: Rodin’s Thinker in Paris, Tilted Arc in New York and Vault in Melbourne. It considers whether consensus positions on public art are possible or desirable in light of issues of spatial control, and proposes that well-negotiated anxieties about public art may be an indicator of creative vibrancy and dynamism that will assist in the future understanding of Queensland’s experiment with government-mandated public art.